Category Archives: Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment prohibits violations of our privacy and our person from unreasonable infringement by federal agents.

The founding generation had a pretty clear idea of what constituted unreasonable, because they experienced it firsthand under the British rule.

Prior to the Revolution, the British claimed the authority to issue Writs of Assistance allowing officials to enter private homes and businesses to search for evidence of smuggling. These general warrants authorized the holder to search anyplace for smuggled good and did not require any specification as to the place or the suspected goods. Writs of assistance never expired and were considered a valid substitute for specific search warrants. They were also transferable.

Writs of assistance were actually contrary to British legal tradition. In 1604, Attorney General of England Sir Edward Coke held in Semaynes Case that the King did not have unlimited authority to enter a private dwelling.

In all cases when the King is party, the sheriff may break the partys house, either to arrest him, or to do other execution of the K[ing]s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors.

Laying out the case, Coke eloquently upheld the sanctity of a persons home.

The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.

Writs of assistance were a flashpoint in the years leading up to the Revolution. James Otis argued strenuously against their constitutionality in what came to be known as Paxtons case. He did not prevail, but his fiery oration heavily influenced John Adams and other revolutionary leaders. Otis vividly described the indignity of the writs.

Now, one of the most essential branches of English liberty is the freedom of ones house. A mans house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

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Fourth Amendment: The History Behind "Unreasonable ...

Most collection of U.S. domestic communications and data is done underE.O. 12333, signed byRonald Reagan

Historians of the Constitutional Era of the United States (1789-2001, RIP) will recall the Fourth Amendmentto the Constitution, the one that used to protect Americans against unreasonable and unwarranted searches.

The Supreme Court had generally held that searches required a warrant. That warrant could be issued only after law enforcement showed they had probable cause. That in turn had been defined by the Court to require a high standard of proof, a fair probability that contraband or evidence of a crime will be found in a particular place.

The basic idea for more or less over 200 years: unless the government has a good, legal reason to look into your business, it couldnt. As communications changed, the Fourth evolved to assert extend those same rights of privacy to phone calls, emails and texts, the same rules applying there as to physical searches.

That was Then

It was a good run. The Bill of Rights was designed to protect the people from their government. If the First Amendments right to speak out publicly was the peoples wall of security, then the Fourth Amendments right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Folks, as our president now refers to us, should not have to fear the Knock on the Door in either their homes or The Homeland writ large.

In Post-Constitutional America (2001-Present), the government has taken a bloody box cutter to the original copy of the Constitution and thrown the Fourth Amendment in the garbage. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the concept of privacy itself: Our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint.

The government also invades our privacy in multiple other ways, all built around end-runs of the Fourth Amendment, clever wordplay, legal hacks and simple twisting of words. Thus you get illegally obtained information recycled into material usable in court via what is called parallel construction. You have the creation of Constitution Free zones at the U.S. border. The Department of Justice created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants, to grab folks emails by searching one web server instead of millions of individual homes. Under a twist of an old privacy law, doctors disclose your medical records to the NSA without your permission or knowledge. SWAT raids by local police designed to break into African-American businesses on harassment expeditions are also now OK.

The Center of It All: Executive Order 12333

The most egregious example of such word-twisting and sleazy legal manipulations to morph illegal government spying under the Fourth Amendment into topsy-turvy quasi-legal spying is the use of Executive Order 12333, E.O. 12333, what the spooks call twelve triple three. The Order dates from 1981, signed by Ronald Reagan to buff up what his predecessors limited in response to overzealous law enforcement activities. The Gipper would be mighty proud that his perhaps most lasting accomplishment was legalizing surveillance of every American citizen.

See the article here:
E.O. 12333: End-Running the Fourth Amendment | The Dissenter

This article originally appeared on AlterNet.

Checkpoints occupy a unique position in the American justice system. Atthese roadside stations, where police question drivers in search of the inebriated or illegal, anyone can be stopped and questioned, regardless of probable cause, violating theFourth Amendments protection against general warrants that do not specify the who/what/where/why of a search or seizure. Though the Supreme Court agrees that checkpoints skirt the FourthAmendment, the Court has been clear that the special needs checkpoints serve, like traffic safety andimmigration enforcement, trump the slight intrusions on motorists rights.

We have checkpoints for bicycle safety, gathering witnesses, drug trafficking, illegal immigration and traffic safety.Many states,like California, require cops to abide by neutral mathematical formulas when choosing which drivers to pull over (like 1 in every 10 cars). In reality, these decisions are left to the discretion of individual police officers, which results in a type of vehicular stop and frisk.

Thats why people in Arizona havesuedthe Department of Homeland Security for its wantondeployment of immigration checkpoints in their state.Among their complaints are racial profiling, harassment, assault and unwarranted interrogation,and detention not related to the express special need of determining peoples immigration status.

A key legal detail about checkpoints is that they cannot be used for crime control, as that would require individualized probable cause. But legal scholarsarguethat non-criminally-minded checkpoints are also illegal. They point out that the FourthAmendment protected the colonists from being searched for non-criminal wrongdoing. Doing nothing wrong at all, they argue,is not grounds to be searched or haveyour property seized.

Regardless, unlike DUI checkpoints, these immigration checkpoints, expanded by the 2006Secure Fence Act, are only allowed within 100 miles of the continental United States border. But thats abig perimeter. Nine of the countrys 10 largest cities, entire states and some two thirds of the US population reside within this constitutionallyexempt zone.

At these checkpointssome of which have becomepermanentfixtures on the highwaypeople are forced to stop when flagged down, againregardless of probable cause. But the extent to which people are legally obliged to answer officers questions isunclearand seemingly arbitrary. Not surprisingly, the militarysimmigration checkpoints havegarneredoutspoken criticism from across the political spectrum.Legalized by the Supreme Court in1976, these checkpointsseem to have taken on a newmomentum in the post-9/11era. (Private militias have eventaken tosetting uptheir own versions.)

DUI checkpoints, on the other hand,deemedconstitutional in 1990, monitor roadwaysin38 states. But they have been outlawed by12 othersthat have invoked states rights to increase federal civil liberty protections.In the Courts 1990opinion, Chief JusticeWilliam Rehnquist wrote that states interest in eradicating drunk driving is indisputable and that this interest outweighed the measure of the intrusion on motorists stopped briefly at sobriety checkpoints, which he described as slight.

In the dissent, William Brennan reminded the Court that, some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action. In pulling people over at random, checkpoints remove this individualized component.

Today, the practice seems to be experiencing a renaissance of sorts. With the help of local police, private government contractors have used the tactic to collect anonymous breath, saliva and blood (DNA) samples of American motorists for the federally fundedNational Roadside Survey of Alcohol and Drugged Driving. Participation in the survey is voluntary, despite the confusion that may come with uniformed police asking for bodily fluids. Motorists are offered $10 for cheek swabs and $50 for blood samples. These practices have sparked considerable publicoutrage; law enforcement officials inSt. Louis, Missouriand Fort Worth, Texashavestatedtheir intent to limit their future participationin the study.

Read more:
The chilling loophole that lets police stop, question and search you for no good reason

From Berry v. Leslie (11th Cir. Sept. 16, 2014):

It was a scene right out of a Hollywood movie. On Aug. 21, 2010, after more than a month of planning, teams from the Orange County Sheriffs Office descended on multiple target locations. They blocked the entrances and exits to the parking lots so no one could leave and no one could enter. With some team members dressed in ballistic vests and masks, and with guns drawn, the deputies rushed into their target destinations, handcuffed the stunned occupants and demanded to see their barbers licenses. The Orange County Sheriffs Office was providing muscle for the Florida Department of Business and Professional Regulations administrative inspection of barbershops to discover licensing violations.

We first held 19 years ago that conducting a run-of-the-mill administrative inspection as though it is a criminal raid, when no indication exists that safety will be threatened by the inspection, violates clearly established Fourth Amendment rights. See Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995). We reaffirmed that principle in 2007 when we held that other deputies of the very same Orange County Sheriffs Office who participated in a similar warrantless criminal raid under the guise of executing an administrative inspection were not entitled to qualified immunity. See Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007). Today, we repeat that same message once again. We hope that the third time will be the charm.

The Fourth Amendment guarantees [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Its protections apply to commercial premises, as well as to private homes. In general, the Fourth Amendment requires a warrant supported by probable cause to effectuate a constitutional search. Indeed, this Court has explained, The basic premise of search and seizure doctrine is that searches undertaken without a warrant issued upon probable cause are `per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well-delineated exceptions.

One of those limited exceptions involves administrative inspections of closely regulated industries. Because an owner or operator of commercial property has a reduced expectation of privacy in this context, the standard for what may be reasonable under the Fourth Amendment is correspondingly broader.

To fall within this exception, a warrantless inspection must satisfy three criteria: (1) a `substantial government interest [must] inform[] the regulatory scheme pursuant to which the inspection is made; (2) the inspection must be necessary to further [the] regulatory scheme; and (3) the statutes inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant. The regulatory statute must [also] be sufficiently comprehensive and defined such that it limits the discretion of inspecting officers. Where a statute authorizes the inspection but makes no rules governing the procedures that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.

But even when the criteria set forth above are met, to satisfy the Fourth Amendment, an administrative inspection must be appropriately limited in both scope and execution and may not serve as a backdoor for undertaking a warrantless search unsupported by probable cause. Above all, such inspections may never circumvent the Fourth Amendments requirement for reasonableness. In this regard, an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.

As detailed earlier, the regulatory framework for barbershop inspections in Florida is embodied in Fla. Stat. 476.184 and its implementing rules. In particular, 476.184 requires all barbershops to have a license issued by the DBPR and directs the Florida Barbers Board to adopt rules governing the operation and periodic inspection of barbershops licensed in Florida. Rule 61G3-19.015(1), Fla. Admin. Code, in turn, provides that the DBPR may conduct inspections biennially on a random, unannounced basis. The regulatory framework, which sets forth who may conduct such inspections, notifies barbers that only the DBPR is so authorized. In this case, no one disputes that the DBPR possesses statutory authority to conduct warrantless inspections of barbershops, nor do the parties assert that the statute authorizing such inspections is constitutionally impermissible.

Instead, the plaintiffs contend that the search of Strictly Skillz, which they allege was undertaken with an inordinate display of force, failed to conform to the Fourth Amendments requirement for reasonableness. Because we have twice held, on facts disturbingly similar to those presented here, that a criminal raid executed under the guise of an administrative inspection is constitutionally unreasonable, we agree.

Unlike previous inspections of Strictly Skillz, which were all conducted by a single DBPR inspector without the aid of law enforcement, the August 21 search was executed with a tremendous and disproportionate show of force, and no evidence exists that such force was justified. Despite the fact that neither OCSO nor the DBPR had any reason to believe that the inspection of Strictly Skillz posed a threat to officer safety, the record indicates that several OCSO officers entered the barbershop wearing masks and bulletproof vests, and with guns drawn; surrounded the building and blocked all of the exits; forced all of the children and other customers to leave; announced that the business was closed down indefinitely; and handcuffed and conducted pat-down searches of the employees while the officers searched the premises. Such a search, which bears no resemblance to a routine inspection for barbering licenses, is certainly not reasonable in scope and execution. Rather, [i]t is the conduct of officers conducting a raid.

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Volokh Conspiracy: When administrative inspections of businesses turn into massive armed police raids

The Fourth Amendment By Maison Erdman
description.

By: Monkey5EM

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The Fourth Amendment By Maison Erdman - Video

When you signed up with your ISP, or with a wireless carrier for mobile devices, if you gave it any thought at all when you signed your name on the contract, you likely didn't expect your activities to be a secret, or to be anonymous, but how about at least some degree of private? Is that reasonable? No, as the law currently suggests that as a subscriber, you "volunteer" your personal information to be shared with third-parties. Perhaps not the content of your communications, but the transactional information that tells things like times, places, phone numbers, or addresses; transactional data that paints a very clear picture of your life and for which no warrant is required.

I'd like to direct your attention to an essay titled "Failing Expectations: Fourth Amendment Doctrine in the Era of Total Surveillance" by Olivier Sylvain, Associate Professor of Law at Fordham University School of Law. He said, "Today's reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials."

Reasonableness is all-important when it comes to the law...what a reasonable person would expect, such as a reasonable expectation of privacy. Although you may try to hold onto your privacy, you also know that most of what you do online can be discovered. "Every moment that a user is connected to the network has become an opportunity to be surveilled by law enforcement and national security agencies." Since we are not all criminals and terrorists, how is that reasonable?

Regarding our cell phones, is it reasonable that our "telecommunication carrier, smartphone manufacturer and others are aware of the location of their cell phone at any given time" because we happened to buy a specific model of phone, signed up with a carrier or installed apps? Additionally, "service providers and governments have forged a public-private collaboration through which law enforcement officials obtain location information about user accounts." In fact, the more we come to accept being tracked, to having our data sold, traded and shared, the more it gnaws away at what the public can consider a reasonable expectation of privacy. Sadly, the new normal is that the Fourth Amendment is in tatters.

For some, ignorance may be bliss; for none, however, is ignorance an excuse in the eyes of the law. Take the third-party doctrine, for example. Sylvain wrote, "Courts have presumed that users consent to the public disclosure of transactional data when they volunteer them to their service providers. The third-party doctrine presumes that, when users share it with third-party service providers, they convey an expectation that the information is not private. And 'it is not a defense that defendants do not control or know about the role of the third-party service provider'."

In the courts, judges want guidance from legislatures, but let's face it; the majority of Congress couldn't fill a thimble with their combined technical prowess. Yet these individuals are working on legislation that eventually determines what can and cannot be done...what is or is not the public's reasonable expectation of privacy.

Sylvain argues that "the reasonable expectation standard is particularly flawed if it has the effect of encouraging judges to seek guidance from legislatures on constitutional norms and principles. Judicial review is the vital antimajoritarian check against excessive government intrusions on individual liberty under our constitutional scheme. This is a responsibility that courts cannot pass off to the political branches when, as is the case today, most people expect that the cost of network connection is total surveillance."

He adds that "court-administered privacy law doctrine must change if the protection against 'unreasonable searches and seizures' is to have any positive legal meaning. The current court-created doctrine will not be able to keep up if it compels judges to measure public expectation. It is time for courts to reassert their positive duty to say what privacy law is."

The reasonable expectation standard and the third-party doctrine have outlived their time and usefulness. Reform is especially urgent today, in the era of total surveillance, when data brokers and governments can aggregate and trade transactional subscriber data about electronic communications so easily. Expectations are difficult to define when everyone, it seems, shares their personal information with service providers and application developers in order to be connected.

Courts should "bring a needed dose of reality to Fourth Amendment analysis by excising any broad assumptions about the nature of user consent in the third-party doctrine. This reform would recognize that users do not generally choose to compromise their data about their phone use (or web browsing or e-mailing) just because they disclose information for the limited purpose of obtaining telecommunications service. Participation in the networked information economy is practically a necessity today."

The rest is here:
Great privacy essay: Fourth Amendment Doctrine in the Era of Total Surveillance

EUREKA SPRINGS -- If you're stopped for a moving traffic violation, does the officer have the right to search your vehicle without a warrant? Ask to look at your cell phone? Detain you for longer than 15 minutes?

Judge Kent Crow addressed those and other questions last week at a program on the Fourth Amendment to the Constitution, given to the local chapter of the Daughters of the American Revolution. What he finds fascinating about the amendment, which protects against unreasonable search and seizure:

"It's an absolute mess," he said. "It has created more litigation than any other amendment."

Crow, whose ancestors fought in the American Revolution, said the Fourth Amendment was a response to English writs of assistance, which gave the king's men the right to enter a home and search it any time they wanted.

"We are a nation of thieves," Crow said. "We were smugglers. We didn't want to pay the king's tax."

What the Fourth Amendment prevents: officers from crossing the threshold of your home without a search warrant specifying what (or who) they are looking for, and where it is likely to be found. If they have a warrant to search your computer, for example, they cannot go through your bedroom drawers or open the refrigerator, he said.

If, however, officers knock on your door and ask to come in and you admit them, then they are free to search the house, he said, something people may not be aware of. There is also a "knock and announce" law, meaning that with a search warrant, they can enter the house after waiting a reasonable time for someone to answer the door. They can also enter your home if there are exigent circumstances, meaning immediate concerns of an emergency nature, for example, for the safety of a person inside.

Once you are served with a search warrant, officers will proceed to the area specified and search while you peruse the warrant, Crow said. If the search is improperly conducted, you can challenge the evidence in court.

Fourth Amendment rulings have had a hard time keeping up with changing technology, Crow said, which have opened up more ways "the king's men" can cross your threshold. The general rule: If you are in a place where you have a reasonable expectation of privacy, for example, in a fenced backyard surrounded by shrubs, the Fourth Amendment protects you from government entry or surveillance.

"The right of privacy keeps expanding," he said.

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Judge expounds on privacy rights

Apple has announced that it has designed its new operating system, iOS8, to thwart lawful search warrants. Under Apples old operating system, if an iPhone is protected by a passcode that the government cant bypass, the government has to send the phone to Apple together with a search warrant. Apple will unlock at least some of the contents of the phone pursuant to the warrant. Under the new operating system, however, Apple has devised a way to defeat lawful search warrants. Unlike our competitors, Apples new privacy policy boasts, Apple cannot bypass your passcode and therefore cannot access this data. Warrants will go nowhere, as its not technically feasible for [Apple] to respond to government warrants for the extraction of this data from devices in their possession running iOS 8. Anyone with any iPhone can download the new warrant-thwarting operating system for free, and it comes automatically with the new iPhone 6.

I find Apples new design very troubling. In this post, Ill explain why Im troubled by Apples new approach coded into iOS8. Ill then turn to some important legal issues raised by Apples announcement, and conclude by thinking ahead to what Congress might do in response.

Lets begin with a really important point: In general, cryptography is an awesome thing. Cryptography protects our data from hackers, trespassers, and all sorts of wrongdoers. Thats hugely important. And under Apples old operating system, cryptography protects iPhones from rogue police officers, too. Thanks to the Supreme Courts recent decision in Riley v. California, the Fourth Amendment requires a warrant to search a cell phone. Apples old operating system effectively enforced the warrant requirement technologically by requiring the government to serve a warrant on Apple to decrypt the phone.

Up to that point, I think its all good. But the design of Apples new operating system does something really different.

If I understand how it works, the only time the new design matters is when the government has a search warrant, signed by a judge, based on a finding of probable cause. Under the old operating system, Apple could execute a lawful warrant and give law enforcement the data on the phone. Under the new operating system, that warrant is a nullity. Its just a nice piece of paper with a judges signature. Because Apple demands a warrant to decrypt a phone when it is capable of doing so, the only time Apples inability to do that makes a difference is when the government has a valid warrant. The policy switch doesnt stop hackers, trespassers, or rogue agents. It only stops lawful investigations with lawful warrants.

Apples design change one it is legally authorized to make, to be clear. Apple cant intentionally obstruct justice in a specific case, but it is generally up to Apple to design its operating system as it pleases. So its lawful on Apples part. But heres the question to consider: How is the public interest served by a policy that only thwarts lawful search warrants?

The civil libertarian tradition of American privacy law, enshrined in the Fourth Amendment, has been to see the warrant protection as the Gold Standard of privacy protections. The government cant invade our private spaces without a showing that the invasion is justified by the expectation that the search will recover evidence. And the government must go to a neutral magistrate and make that case before it conducts the search. When the government cant make the showing to a neutral judge, the thinking runs, the public interest in privacy outweighs the public interest in solving crime. But when the government does make that showing, on the other hand, the public interest in solving crime outweighs the privacy interest. Thats the basic balance of the Fourth Amendment, most recently found in the stirring civil libertarian language in Riley just a few months ago.

Apples new policy seems to thumb its nose at that great tradition. It stops the government from being able to access the phone precisely when it has a lawful warrant signed by a judge. Whats the public interest in that?

One counterargument I have heard is that there are other ways the government can access the data at least some of the time. With the warrant required under Riley, agents could take a stab at guessing the passcode. Perhaps the phones owner used one of the popular passwords; according to one study, the top 10 most often-used passcodes will unlock about 15% of phones. Alternatively, if the phones owner has backed up his files using iCloud, Apple will turn over whatever has been backed up pursuant to a lawful warrant.

These possibilities may somewhat limit the impact of Apples new policy. But I dont see how they answer the key question of whats the public interest in thwarting valid warrants. After all, these options also exist under the old operating system when Apple can comply with a warrant to unlock the phone. And while the alternatives may work in some cases, they wont work in other cases. And that brings us back to how its in the public interest to thwart search warrants in those cases when the alternatives wont work. Id be very interested in the answer to that question from defenders of Apples policy. And Id especially like to hear an answer from Apples General Counsel, Bruce Sewell.

Go here to see the original:
Volokh Conspiracy: Apples dangerous game

NEARLY everyone lives by their smartphone these days, including U.S. Supreme Court justices. In Riley v. California, the nations highest court recently acknowledged this, finding all citizens have a Fourth Amendment right of privacy in their cellphones. The often-divided court was unanimous.

Before the Riley decision, lower courts were split on whether it was necessary to obtain a warrant before searching a suspects cellphone. Justice John Roberts definitively settled the dispute: Get a warrant.

The federal and Washington state constitutions are often tested in the context of criminal activity, but the ramifications of this ruling are weighty and will send ripples well beyond criminal suspects. The Riley decision speaks to the privacy rights of all in the digital age, including public employees.

Washington states Constitution provides citizens broader privacy rights than the Fourth Amendment, and the state Supreme Court has been ahead of the U.S. Supreme Court on this issue.

The Riley ruling will help decrease harassment of public employees by prison inmates and others who attempt to use Washington states Public Records Act to violate the privacy rights of teachers, firefighters, police officers, prosecutors and other public servants.

Pierce County and other government entities have been sued by requesters who wrongly claim the Public Records Act is a license to search the personal phones of public servants to determine if there have been work-related conversations or if personal phones were used during work hours. This far-fetched and shortsighted theory violates the privacy of public servants, their families, friends, and everyone who contacts them.

Such lawsuits against Pierce County have been twice dismissed by Superior Court judges, though the issues are continuing to wind through the courts. The Superior Court agreed that personal phone records and text messages are not public records and are protected by both the Washington and U.S. constitutions.

Public servants and other law-abiding citizens do not have fewer rights than criminals.

Some argue public servants could hide behind the state or federal constitution and somehow create shadow governments, and therefore they should give up their constitutional rights. Imagine, teachers could be forced to turn over their personal phones to be searched for public records because they might have talked or texted with a students parent. This is a good premise for a dystopian movie, but a bad law for a free society, and fortunately this is not the law in the United States or in Washington state.

Our federal Supreme Court has specifically held that public employees do not give up their constitutional rights by working for the public. Public employees make sacrifices to serve our communities, but they do not sacrifice their constitutional rights. Like private-sector employees, public-sector employees have a free-speech right to talk about their work and a constitutional right to privacy as well. Private landlines, which do not create public records, did not result in shadow governments and neither will personal cellphones.

Here is the original post:
Guest: Why the privacy of a public employees cellphone matters

Like my co-blogger Will Baude, I was very interested in the Ninth Circuits recent case, United States v. Dreyer, suppressing evidence as a violation of the Posse Comitatus Act. I think the case is interesting because it demonstrates a view of the exclusionary rule that I havent seen in a while.

First, some history. Back in the the middle of the 20th Century, the federal courts often found ways to impose an exclusionary rule for statutory violations in federal court. For example, in Nardone v. United States, 302 U. S. 379 (1937) (Nardone I) and Nardone v. United States, 308 U.S. 338 (1939) (Nardone II), the Supreme Court adopted an exclusionary rule for violations of the Communications Act. In McNabb v. United States, 318 U.S. 332 (1943), the Court adopted an exclusionary rule for violations of Rule 5 of the Federal Rules of Criminal Procedure. The Court had a rather free-form approach to the exclusionary rule at the time, in part because suppression was seen as the judiciarys domain. The federal courts had an inherent power to control evidence in their own cases, so the Court could be creative in fashioning what evidence could come in to deter bad conduct. If the government did something really bad, the federal courts had the power to keep the evidence out to deter violations and maintain the integrity of the courts.

By the 1980s, after Warren Court revolution, the Supreme Court had a different view of the exclusionary rule. The scope of the rule had expanded dramatically when it was incorporated and applied to the states. But as a kind of tradeoff for that expansion, the Court cut back on the free-form approach outside core constitutional violations. The Burger and Rehnquist Courts saw suppression as a doctrine that had to be rooted in deterrence of constitutional violations and not just something that courts didnt like or found offensive.

In his post, Will points out a passage from Sanchez-Llamas v. Oregon to that effect. And I would add the earlier case of United States v. Payner, 447 U.S. 727 (1980), in which investigators had intentionally violated one persons Fourth Amendment rights to get evidence they were holding of the suspects crimes. The Sixth Circuit had suppressed the evidence on the basis of the federal courts supervisory power to punish the blatant abuse even though the suspect did not have Fourth Amendment standing to object to the violation. The Supreme Court reversed, blocking courts from using the supervisory power as an end-run around the limits of Fourth Amendment doctrine.

The new Ninth Circuit case, Dreyer, strikes me as a vestige of the mid-20th century free-form view of the exclusionary rule. The lower courts in the 1960s and 1970s had a few areas where they rejected suppression outside of constitutional law but recognized the hypothetical possibility that they might suppress evidence if the facts were particularly egregious. For example, a bunch of circuits held that the Fourth Amendment does not regulate evidence collection by foreign governments not acting in coordination with the U.S., but that they would suppress evidence if the foreign government conduct shocked the conscience. See, e.g., Birdsell v. United States, 346 F.2d 775, 782 n. 10 (5th Cir. 1965); United States v. Cotroni, 527 F.2d 708, 712 n. 10 (2d Cir. 1975). But see United States v. Mount, 757 F.2d 1315, 1320 (D.C. Cir. 1985) (Bork, J., concurring) (arguing based on Payner that lower courts lack supervisory powers to impose an exclusionary rule for searches by foreign governments). The caselaw was never reviewed in the Supreme Court, however, perhaps because those egregious circumstances were not found and the evidence wasnt actually suppressed.

Violations of the Posse Comitatus Act, the issue in the new decision, provides another example. The history seems to run like this. First, in the 1970s, a few courts applied the free-form approach to the exclusionary rule and left open the possibility that violations of the Posse Comitatus Act could lead to exclusion if it were necessary to deter violations. See, e.g.,United States v. Walden, 490 F.2d 372, 37677 (4th Cir. 1974); State v. Danko, 219 Kan. 490 (1976). When the Ninth Circuit reached the issue in 1986, the panel did not focus on the Supreme Courts then-new more skeptical approach to the exclusionary rule. Instead, the Ninth Circuit expanded on the 1970s lower-court cases, indicating that the exclusionary rule would be necessary for violations of the Act if a need to deter future violations is demonstrated. United States v. Roberts, 779 F.2d 565, 568 (9th Cir. 1986). Again, though, this was just a possibility, and the issue was never reviewed.

Dreyer picks up that 28-year-old invitation and concludes that the need has finally been demonstrated and that the exclusionary rule therefore must be applied. Dreyer cites Roberts, which in turn cited Walden. So on its face, the court is at least drawing on precedent.

But it seems to me that Dreyer is very vulnerable if DOJ thinks it is worth challenging in the Supreme Court. Dreyer appears to rely on a line of thinking about the exclusionary rule that the Supreme Court has long ago rejected. Of course, we can debate the normative question of how the Justices should approach the exclusionary rule, either in the context of constitutional violations or statutory violations. But just as a predictive matter, I suspect that todays Court would have a different view of the question than the circuit court cases from the 1970s on which the Ninth Circuits Dreyer decision ultimately relies.

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.

Originally posted here:
Volokh Conspiracy: The posse comitatus case and changing views of the exclusionary rule