Category Archives: Fourth Amendment

Broken Lights And The Fourth Amendment National Constitution Center
Is it a violation of the Constitution for a police officer to act on a misunderstanding of the law? That #39;s what the Supreme Court asked in its first case of the new term. The story of begins...

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Broken Lights And The Fourth Amendment National Constitution Center - Video

Search Seizure / Car Stops: A #39;New #39; Fourth Amendment for a New Generation?
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By: The American Law Journal

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Search & Seizure / Car Stops: A 'New' Fourth Amendment for a New Generation? - Video

ROCKVILLE Due to actions by the county executive this week, Montgomery County is just one of three jurisdictions in Maryland that requires probable cause per the Fourth Amendment before honoring a U.S. Immigration and Customs Enforcement (ICE) detainer request for undocumented immigrants being held in local detention centers.

"I have decided that, effective immediately, Montgomery County will no longer comply with ICE detainer requests except for those requests that have adequate support for a finding of probable cause under the Fourth Amendment," said Montgomery County Executive Ike Leggett.

Since 2012, 225 undocumented immigrants from Montgomery County were transferred to ICE after their local trials. Recently, Prince Georges County officials announced similar policy changes. According to statistics from ICE, the agency detained 877 undocumented immigrants since 2009. Under the decision, undocumented immigrants would no longer be held beyond their scheduled release date unless ICE can prove the person has committed a crime.

We have been advocating for this issue for more than four years now and the legal landscape has really shifted in that time. There have been court decisions saying holding people on a detainer is a violation of their constitutional rights and were thrilled to see that Maryland localities are catching up, said Kim Propeack, politics and communications senior director at CASA de Maryland.

In August, Governor Martin OMalley announced Baltimore's Central Booking facility, a state-run jail in Baltimore city, would no longer automatically honor ICE detainer requests for immigrants.

Maryland Attorney General Doug Gansler also weighed in on the issue: If a local law enforcement officer does not have probable cause to extend custody over the subject of an ICE detainer, the continued detention likely constitutes a violation of the Fourth Amendment.

In September, Councilwoman Nancy Navarro (D-4) asked Leggett to review the policy because the countys policy was inconsistent with the state policy from the governor and the Office of the Maryland Attorney General.

Governor OMalleys bold action and leadership should be commended, Navarro said. He has been a longtime champion for those without a voice in our community, particularly for our growing and substantial immigrant population. County Executive Leggett has stated that Montgomery County is a welcoming place for all people, and I concur. We must ensure that everyones Fourth Amendment rights are upheld, and that our policies are consistent with Governor OMalleys recent action, the advice of the Office of the Attorney General and the U.S. Constitution.

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Leggett sides with civil liberties supporters

Mass Collection of U.S. Phone Records Violates the Fourth Amendment
Presented in partnership with the National Constitution Center Some say that mass collection of U.S. phone records is a gross invasion of privacy. Others say that it is necessary to keep us...

By: IntelligenceSquared Debates

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Mass Collection of U.S. Phone Records Violates the Fourth Amendment - Video

The first argument of the Term yesterday appears to have been somewhat unsatisfying for the Justices. As previewed here, the question on which the Court granted review in Heien v. North Carolina was a simple one: May a police officers reasonable mistake of law provide the reasonable suspicion required for a traffic stop under the Fourth Amendment? The Justices questions appeared to indicate an almost unanimous affirmative answer, although the Chief Justice did note that an answer with too broad a scope might have troubling implications. The Justices expressed some confusion about the proper disposition of the case, however, with Justice Scalia going so far at one point as to almost suggest a DIG (dismiss as improvidently granted). Still, Ill predict a short unanimous opinion answering the Question Presented with yes, leaving to footnotes and concurrences the larger and more difficult intricacies of the case.

A simple question presented, albeit with troubling implications

You will recall that a deputy sheriff stopped Heiens car because one of his brake lights was not working. (Because the officer was actually interested in criminal interdiction, Justice Sotomayor described the encounter as a lawful pretext, and the officer did indeed find drugs in a subsequent consent search. Although Justice Ginsburg twice inquired why the lawful consent didnt eliminate the issue of the stop, the traditional rule has been that the fruits of an invalid stop must be suppressed.)

On appeal, however, a state appellate court ruled that there was in fact no traffic violation as a matter of law (and hence no reasonable suspicion of one), because the North Carolina statute requires only a [singular] stop lamp. Thus, that court ruled, the Fourth Amendment had been violated, and Heiens conviction should be vacated. But on further appeal, while accepting the appellate courts surprising legal interpretation of the law, the North Carolina Supreme Court ruled that Heiens conviction might stand, because the officers mistake of law had been a reasonable one the state statute was antiquated and the one-brake-light legal ruling was surprising to most. Thus, the court ruled, there was no Fourth Amendment violation, and Heiens case was remanded for further proceedings.

On Heiens further interlocutory certiorari petition, the question thus appeared to be simply presented: can such a reasonable legal error create reasonable suspicion, or should officers be held to know the law just as private citizens would be? That is, if two working brake lights were in fact required, it would be no defense for Heien to argue that he reasonably did not know that. Ignorance of the law is no excuse is the common law maxim, and Heien argued that this should apply equally to officers stopping cars. A contrary ruling would, as Heiens experienced Supreme Court advocate Jeff Fisher argued, vastly expand police officer discretion, allowing them to stop cars and people whenever a reasonable ambiguity of legal authority could be argued. This is the broad implication about which Chief Justice Roberts and some other Justices expressed concern yesterday.

Of course, the Court could simply rule that a reasonable mistake of law satisfies the Fourth Amendment, and then just narrowly define what will count as reasonable. Justice Kennedy repeatedly turned to this question what is standard to determine a reasonable legal mistake? and Justice Breyer and others also seemed to focus on it. It was interesting to this reader that no one suggested that when there is legal ambiguity, a reasonable officer might be required to conduct a reasonable investigation to obtain a clear legal ruling about the scope of the law, before relying on it to stop and search. Fisher did suggest, however, that the Court ought to require a definitive ruling from a court or legislature before allowing officers to act. Meanwhile, North Carolina Deputy Attorney General Robert Montgomery suggested a generous standard (although no Justice appeared to endorse it): the officer simply gets to decide which he thought was the better rule. But as Fisher responded, allowing officers to exploit statutory ambiguities in order to conduct intrusive stops and searches would undercut public confidence in law enforcement.

The twist in the case

Aside from defining what is reasonable, one might think, simple question, simple answer, right? Not so fast. About thirty seconds into yesterdays argument, Justice Kennedy asked the first question, raising a point which then preoccupied the Court for much of the hour. Suppose North Carolina did have a good-faith exception to the exclusionary rule. What would you be arguing today? It turns out that, at the time of Heiens arrest, the North Carolina Supreme Court had ruled that as a matter of state constitutional law, suppression of evidence is required when the Fourth Amendment is violated regardless of officers good faith. (North Carolinas legislature has since amended the law.) That ruling is of course opposite to the U.S. Supreme Courts 1984 ruling in United States v. Leon that there is a good faith exception to the exclusionary rule. It was briefly asked yesterday, but not seriously examined, whether a state may declare its own state-law remedy for federal constitutional violations. Federalism should respect that choice, argued Fisher.

Thus Fisher plainly wants to argue on remand that Heiens conviction should remain vacated because reasonable good faith does not apply. However, Fishers immediate response to Justice Kennedy was that the Court [does]nt have to reach that question, since North Carolina has not argued it. When Deputy Attorney General Robert Montgomery stood up to argue in response, he confirmed that point; the state has not argued for a good faith exception to be applied in Heiens case. This position seemed to clearly confuse at least some of the Justices (as it continues to confuse me). The North Carolina Supreme Courts ruling suggests that Heiens narcotics conviction should be reinstated on remand. Heien plainly wants that ruling vacated. But as repeatedly stressed by Justice Scalia, the Court doesnt review opinions, [it] reviews judgments. So unless the remedy is exclusion, Justice Scalia asserted, theres no basis for us to set aside the judgment of the North Carolina Supreme Court. Or, in other words, if the federal rule is that there should not be suppression in any case due to good faith, why should the Court answer a preliminary question (whether there was a Fourth Amendment violation) that doesnt matter? As Justice Kennedy asked with some frustration, Can North Carolina more or less set us up this way?

Fisher responded that in fact it is not uncommon for the Court to announce a federal constitutional rule, and then remand to the state courts for further proceedings not inconsistent with its ruling. Indeed, that is what the North Carolina Supreme Court did, once it ruled that a reasonable mistake of law did not constitute a Fourth Amendment violation: just remand for further proceedings. Justice Scalia ultimately expressed reluctant acceptance on this point: If it hasnt been argued, I guess we can do that. I guess. . . . Im sorry to waste so much of our time.

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Argument analysis: A simple answer to a deceptively simple Fourth Amendment question?

While alleged Silk Road mastermind Ross Ulbrichts trial wont start for another month, the legal battle is already heating up in court filings, centered around two questions: How did the Feds locate the Silk Road servers, and were Ulbrichts Fourth Amendment rights violated in the process? In its latest response, the government says it doesnt matter if the FBI hacked the Silk Road servers last OctoberUlbrichts rights still wouldnt have been violated.

Back in October 2013 when the Silk Road servers were seized by the feds in Iceland, no one knew exactly how the government had located the websites servers. Soon after, the feds arrested Ulbricht in San Francisco, claiming he was the Dread Pirate Roberts and the mastermind behind the online drug bazaar. Since then, Ulbricht has been charged with seven drug trafficking, narcotics, and ID theft charges.

But the details about how the government found the servers remained a mystery until last month. At the beginning of August, Ulbrichts defense filed a motion claiming that Ulbrichts Fourth Amendment rights had been violated by the government, and that by the fruit of a poisonous tree, all evidence stemming from the seizure of the Silk Road servers should be suppressed.

In order to respond to the motion, the government was forced to reveal for the first time how it discovered the Silk Road. According to a response filed last month with a declaration by FBI agent Chris Tarbell, the Silk Road servers were discovered by the FBI because of leaky code coming from the Silk Road website. When the leaking IP addresses were plugged into a non-Tor browser, part of the Silk Roads login page appeared. The feds then contacted Icelandic authorities, asking for imaging of the servers. The entire process was legal and not in violation of Ulbrichts rights, according to the FBI.

The defense was not convinced by the FBIs facile explanation and filed a response last week with a declaration by defense lawyer Joshua Horowitz, who specializes in technology and computer software. His analysis of six terabytes of discovery data presented to the defense poked holes in Tarbells account and likened the FBIs actions to hacking.

In his declaration, Horowitz claimed that the FBIs description of how the Silk Road servers were discovered was implausible. He notes that the governments account of how the servers were discovered varies from the description the FBI gave to Icelandic authorities, and that many modifications were made to the Silk Road servers before the FBI claims to have reached out to the Icelandic authorities. Horowitz argues that Tarbell failed to follow even the most rudimentary standards of computer forensic analysis. Highlighting a number of inconsistencies he found, Horowitz asked for more information from the government.

In a response filed on Monday, the government steered away from addressing any of Horowitz claims or questions. Instead, the prosecution argued thattrue or notHorowitzs claims are irrelevant because they dont prove that Ulbrichts rights were violated.

The Horowitz Declaration nowhere alleges that the SR Server was either located or searched in a manner that violated the Fourth Amendment. It merely critiques certain aspects of the Tarbell Declaration concerning how the SR Server was location, the governments response reads.

In any event, even if the FBI had somehow hacked into the SR Server in order to identify its IP address, such an investigative measure would not have run afoul of the Fourth Amendment, the response continues.

The government also questioned why Ulbricht did not submit a personal affidavit explaining how his privacy was violated. In response, the judge gave the defense until Tuesday night to submit a personal affidavit from Ulbricht. The defense has asked for an extension until October 9, because of the short notice and because Ulbrichts lawyer Joshua Dratel is in the midst of another trial.

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Feds Say That Even If FBI Hacked The Silk Road, Ulbricht's Rights Weren't Violated

Washington, DC - infoZine - Scripps Howard Foundation Wire - Nicholas Heien was arrested in 2009 after being stopped for a broken brake light. During the traffic stop, he consented to a search of his car that yielded a bag of cocaine. He pleaded guilty and was sentenced to 10 to 12 months in jail.

Why isnt the consent the end of this case? Justice Ruth Bader Ginsburg asked.

The simple answer, according to Jeffrey Fisher, who represented Heien, is the fruit of the poisonous tree doctrine, which says evidence discovered through an illegal search must be excluded in a trial.

But Robert Montgomery, who argued on behalf of North Carolina, pointed out the states laws can easily be misinterpreted, and officers need to be able to use their discretion when they are out on as call or at a traffic stop.

Because of the conflicting laws, Montgomery argued, offices need to be able to exercise their judgment.

Still, Fisher said the search was illegal under the most relevant law, and therefore Heiens consent was irrelevant.

The constitutional problem is the admission of this evidence, Justice Antonin Scalia said. And it seems to me whether its properly admitted because the Fourth Amendment wasnt violated or whether its properly admitted because the remedy for that violation is not exclusion of the evidence; you lose either way, dont you?

The question came down to a definition what is unreasonable, which Justice Sonia Sotomayor asked.

Well, it would be unreasonable if there was plain language of the statute that no one could reach a different interpretation about at all if it was plain, Montgomery said, or if there was a definite decision by an appellate court, it would be unreasonable for an officer to interpret it in his own way.

Roberts called the definition broad, and he said giving officers such a scope would be troubling.

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Supreme Court Starts Term with Fourth Amendment Case

With only a month until the scheduled trial of Ross Ulbricht, the alleged creator of the Silk Road drug site, Ulbrichts defense lawyers have zeroed in on the argument that the U.S. government illegally hacked the billion-dollar black market site to expose the location of its hidden server. The prosecutions latest rebuttal to that argument takes an unexpected tack: they claim that even if the FBI did hack the Silk Road without a warrantand prosecutors are careful not to admit they didthat intrusion would be a perfectly law-abiding act of criminal investigation.

On Monday evening the prosecutors submitted the latest in a series of combative court filings from the two sides of the Silk Road case that have clashed over Ulbrichts Fourth Amendment right to privacy. The governments new argument responds to an affidavit from an expert witness, tech lawyer Joshua Horowitz, brought in by Ulbrichts defense to poke holes in the FBIs story of how it located the Silk Road server. In a letter filed last week, Horowitz called out inconsistencies in the FBIs account of stumbling across the Silk Roads IP address while innocently entering miscellaneous data into its login page. He testified that the FBIs actions instead sounded more like common hacker intrusion techniques. Ulbrichts defense has called for an evidentiary hearing to cross examine the FBI about the operation.

In the governments rebuttal, however, Ulbrichts prosecutors dont directly contest Horowitz description of the FBIs investigation, though they do criticize his testimony in passing as factually and analytically flawed in a number of respects. Instead, they obliquely argue that the foreign location of the sites server and its reputation as a criminal haven mean that Ulbrichts Fourth Amendment protections against unreasonable searches dont apply, even if the FBI did use hacking techniques to penetrate the Silk Road, and did so without a warrant.

Even if the FBI had somehow hacked into the [Silk Road] Server in order to identify its IP address, such an investigative measure would not have run afoul of the Fourth Amendment, the prosecutors new memo reads. Given that the SR Server was hosting a blatantly criminal website, it would have been reasonable for the FBI to hack into it in order to search it, as any such hack would simply have constituted a search of foreign property known to contain criminal evidence, for which a warrant was not necessary.

The Silk Road server in question, after all, was located not in the United States but in a data center near Reykjavik, Iceland. And though Ulbricht is an American citizen, the prosecutors argue that the servers location abroad made it fair game for remote intrusion. Because the SR Server was located outside the United States, the Fourth Amendment would not have required a warrant to search the server, whether for its IP address or otherwise, the prosecutions filing reads.

In a footnote, the memo adds another strike against Ulbrichts Fourth Amendment protections: The Silk Road was not only hosted in a foreign data center, but also rented from a third-party web hosting service. And because Ulbricht allegedly violated the companys terms of service by using its computers to deal in narcotics and other contraband, that company was exempted from any obligation to protect his privacy.

Finally, prosecutors argue that for the 30-year-old Texan to claim privacy protections for Silk Roads server, he would have to declare that it belonged to hima tricky Catch-22. Ulbricht hasnt claimed personal possession of that computers data, as doing so would almost certainly incriminate him. But because he hasnt he cant claim that his privacy was violated when it was searched, according to the prosecutors reasoning. Because Ulbricht has not submitted any affidavit alleging that he had any possessory interest in the SR Serverlet alone one that would give him a reasonable expectation of privacyhis motion should be denied, reads the prosecutors filing.

Early Tuesday, Judge Katherine Forrest ordered Ulbrichts defense to decide within the day whether it will argue that Ulbricht did have an expectation of privacy for the Silk Road server, as well as all his other seized computers and online accounts. Shes given him until the end of the day Wednesday to make that argument Ulbrichts defense didnt immediately respond to a request for comment.

The pre-trial motion over which Ulbrichts defense lawyers and the prosecution have been sparring for the last two months doesnt directly seek to have the central narcotics conspiracy and money laundering charges against Ulbricht dismissed. Instead, his lawyers have sought to prove that the evidence gathered by law enforcement is tainted. If the initial pinpointing of Silk Roads server was illegal, they argue, practically all the evidence from the resulting investigation could be rendered inadmissible.

Early last month, the government responded to that motion with an affidavit from former FBI agent Christopher Tarbell describing how the Silk Road server was first found. As he described it, a misconfiguration of the anonymity software Tor allowed the sites login page to leak its IP address.

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Feds Hacked Silk Road Without a Warrant? Perfectly Legal, Prosecutors Argue

I attended the oral argument this morning in the Supreme Courts first case of the new Term, Heien v. North Carolina. I had a long preview of Heien here. He are some impressions of the argument.

On the whole, I thought the argument was puzzling. A large chunk of the argument time was spent on Justice Scalias insistence that the Court could not render a decision on the rights question alone without also ruling on whether the exclusionary rule was available. I found this odd for two reasons. First, the state had never argued the exclusionary rule. The states Brief in Opposition had argued that it would be better to review a different case in which the exclusionary rule issue was also part of the case, a position the Justices presumably weighed before granting cert on just the rights question.

Second, the logic of Davis v. United States is that the Court is free to rule on substantive Fourth Amendment issues even when there is no remedy. Its fine to consider rights when there are no remedies, Davis concluded, because the two are conceptually distinct questions. More broadly, the Court often rules on one issue and remands for other issues that need to be resolved before we know which side will win. Given that, it was puzzling that so much argument time was spent in Heien considering whether they could decide the rights issue without also deciding the remedy in the same case.

Perhaps the Court will dismiss Heien as improvidently granted and later take a different case in which the exclusionary rule issue is presented? Its a possibility. But that path would seem pretty puzzling in light of cases like Davis.

In the time not spent considering whether the Court could decide the case, there was a lot of discussion of how a reasonable mistake of law standard would be different from the good faith exception to the exclusionary rule or qualified immunity. Is the proposed standard any different, and if so, how? Both the state and the U.S. suggested that the reasonable mistake of law standard is similar to qualified immunity but doesnt go as far. The state suggested that there could be a difference if a prosecutor tells the agent that the search is legal, presumably when the prosecutor is relatively straightforwardly wrong. There would be no reasonable mistake of law, as the prosecutor was clearly wrong, but prosecutorial approval could trigger qualified immunity. The U.S. suggested that the reasonable mistake of law standard should be for close calls, unlike qualified immunity that applies unless the error was clear.

How might the Court rule? Im not at all sure. Justice Kennedy suggested that he would say that the good faith exception applies to the facts of Heien, and that he wanted to reach that issue. Justice Kagan seemed sympathetic to the defenses argument on the rights issue. Justice Breyer seemed open to allowing a reasonable mistake of law claim if it could be narrow. And a lot of Justices didnt give any sign one way or the other, perhaps in part there was so much focus on the remedies issue. Given the close connection between rights and remedies in the case, it may not matter which side in Heien wins on the only briefed issue, that of rights. The rights issue isnt really where the action is, and its hard to predict if that means the Justices will give the rights issue to the defense and wait for another case on the exclusionary rule, or, alternatively, import exclusionary rule concepts into the rights issue to resolve the ultimate disposition of such cases now even though the remedies issue isnt before them.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

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Volokh Conspiracy: Oral argument in Heien v. North Carolina

Lubbock Liberty Workshop With Arnold Loewy On The Fourth Amendment
The Lubbock Liberty Workshop held on Saturday, September 27, 2014 History, Purpose, and Present State of the Fourth Amendment Lubbock Liberty and the Constit...

By: EmbersOfLiberty

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Lubbock Liberty Workshop With Arnold Loewy On The Fourth Amendment - Video