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Fourth Amendment

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by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact: forhall @ aol.com / The Book http://www.johnwesleyhall.com

2003-18,online since Feb. 24, 2003

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Fourth Amendment cases, citations, and links

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Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy FoundationElectronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I am still learning.Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500’s)).

“Love work; hate mastery over others; and avoid intimacy with the government.” Shemaya, in the Thalmud

“A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one’s attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.” Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev’d Nix v. Williams, 467 US. 431 (1984).

“The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”Mapp v. Ohio, 367 U.S. 643, 659 (1961).

“Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.”Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

“There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.” Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

“The great end, for which men entered into society, was to secure their property.” Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment.” United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

“A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Arizona v. Hicks, 480 U.S. 321, 325 (1987)

“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

“In Germany, they first came for the communists, and I didn’t speak up because I wasn’t a communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics and I didn’t speak up because I wasn’t a Catholic. Then they came for meand by that time there was nobody left to speak up.” Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men!—Pep Le Pew

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Fourth Amendment

Fourth Amendment Activities | United States Courts

Apply landmark Supreme Court cases to contemporary scenarios related to search and seizure issues at your school, in your car, and your home.

“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.”Fourth Amendment, U.S. Constitution

Brendlin v. CaliforniaPassengers, police stops, and protection from unreasonable seizure

New Jersey v. T.L.O.Purse search at school and protection from unreasonable searches

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Fourth Amendment Activities | United States Courts

Fourth Amendment | United States Constitution | Britannica.com

Fourth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that forbids unreasonable searches and seizures of individuals and property. For the text of the Fourth Amendment, see below.

Introduced in 1789, what became the Fourth Amendment struck at the heart of a matter central to the early American experience: the principle that, within reason, Every mans house is his castle, and that any citizen may fall into the category of the criminally accused and ought to be provided protections accordingly. In U.S. constitutional law, the Fourth Amendment is the foundation of criminal law jurisprudence, articulating both the rights of persons and the responsibilities of law-enforcement officials. The balance between these two forces has undergone considerable public, political, and judicial debate. Are the amendments two clauses meant to be applied independently or taken as a whole? Is the expectation of privacy diminished depending on where and what is suspected, sought, and seized? What constitutes an unreasonable search and seizure?

The protections contained in the amendment have been determined less on the basis of what the Constitution says than according to what it has been interpreted to mean, and, as such, its constitutional meaning has inherently been fluid. The protections granted by the U.S. Supreme Court have expanded during periods when the court was dominated by liberals (e.g., during the tenure of Chief Justice Earl Warren [195369]), beginning particularly with Mapp v. Ohio (1961), in which the court extended the exclusionary rule to all criminal proceedings; by contrast, during the tenure of the conservative William Rehnquist (19862005) as chief justice, the court contracted the rights afforded to the criminally accused, allowing law-enforcement officials latitude to search in instances when they reasonably believed that the property in question harboured presumably dangerous persons.

The full text of the amendment is:

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.

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Fourth Amendment | United States Constitution | Britannica.com

What Does the Fourth Amendment Mean? | United States Courts

Whether a particular type of search is considered reasonablein the eyes of the law,is determined by balancing two important interests. On one side of the scale is the intrusion on an individual’s Fourth Amendment rights. On the other side of the scale are legitimate government interests, such as public safety.

The extent to which an individual is protected by the Fourth Amendment depends, in part, on the location of the search or seizure.Minnesota v. Carter, 525 U.S. 83 (1998).

Searches and seizures inside a home without a warrant are presumptively unreasonable.Payton v. New York, 445 U.S. 573 (1980).

However, there are some exceptions. A warrantless search may be lawful:

If an officer is given consent to search;Davis v. United States, 328 U.S. 582 (1946)If the search is incident to a lawful arrest;United States v. Robinson, 414 U.S. 218 (1973)If there is probable cause to search and exigent circumstances;Payton v. New York, 445 U.S. 573 (1980)If the items are in plain view;Maryland v. Macon, 472 U.S. 463 (1985).

When an officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot, the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling the officer’s suspicions.Terry v. Ohio, 392 U.S. 1 (1968)Minnesota v. Dickerson, 508 U.S. 366 (1993)

School officials need not obtain a warrant before searching a student who is under their authority; rather, a search of a student need only be reasonable under all the circumstances.New Jersey v. TLO, 469 U.S. 325 (1985)

Where there is probable cause to believe that a vehicle contains evidence of a criminal activity, an officer may lawfully search any area of the vehicle in which the evidence might be found.Arizona v. Gant, 129 S. Ct. 1710 (2009),

An officer may conduct a traffic stop if he has reasonable suspicion that a traffic violation has occurred or that criminal activity is afoot.Berekmer v. McCarty, 468 U.S. 420 (1984),United States v. Arvizu, 534 U.S. 266 (2002).

An officer may conduct a pat-down of the driver and passengers during a lawful traffic stop; the police need not believe that any occupant of the vehicle is involved in a criminal activity.Arizona v. Johnson, 555 U.S. 323 (2009).

The use of a narcotics detection dog to walk around the exterior of a car subject to a valid traffic stop does not require reasonable, explainable suspicion.Illinois v. Cabales, 543 U.S. 405 (2005).

Special law enforcement concerns will sometimes justify highway stops without any individualized suspicion.Illinois v. Lidster, 540 U.S. 419 (2004).

An officer at an international border may conduct routine stops and searches.United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

A state may use highway sobriety checkpoints for the purpose of combating drunk driving.Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).

A state may set up highway checkpoints where the stops are brief and seek voluntary cooperation in the investigation of a recent crime that has occurred on that highway.Illinois v. Lidster, 540 U.S. 419 (2004).

However, a state may not use a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics.City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

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What Does the Fourth Amendment Mean? | United States Courts

4th Amendment – constitution | Laws.com

Fourth Amendment:Searches and Seizures

What is the 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 Defined:

Like the majority of fields within American law, the Fourth Amendment is heavily rooted in the English legal doctrine. In a general sense, the Fourth Amendment was created to limit the power of the government and their ability to enforce legal actions on individuals. The Fourth Amendment was adopted as a direct response to the abuse of the writ of assistance, which was a type of general search warrant used by the government during the American Revolution. The Amendment was created to limit the powers of the law enforcement agency who is conducting a search of an individuals personal property.

The Fourth Amendment is a part of the Bill of Rights, which are the first 10 Amendments to the United States Constitution and the framework to elucidate upon the freedoms of the individual. The Bill of Rights were proposed and sent to the states by the first session of the First Congress. They were later ratified on December 15, 1791.

The first 10 Amendments to the United States Constitution were introduced by James Madison as a series of legislative articles and came into effect as Constitutional Amendments following the process of ratification by three-fourths of the States on December 15, 1791.

Stipulations of the 4th Amendment

The Fourth Amendment guards against the governments ability to conduct unreasonable search and seizures when the individual party being searched has a reasonable exception of privacy.

The Fourth Amendment specifically requires a law enforcement agency to possess judicially sanctioned search and arrest warrants, which are supported by probable clause, to be administered before a persons property can be inspected.

The Fourth Amendment ties in numerous limitations whereby an individual may be searched without a warrant given the presence of certain circumstances. The individuals property may be searched and seized if: The individual is on parole or in a tax hearing, faces deportation, the evidence is seized from a common carrier, the evidence is collected by U.S. customs agents, the evidence is seized by probation officers, the evidence is seized outside of the United States, or probable cause is evident.

Court Cases tied into the 4th Amendment

In Mapp v. Ohio, the Supreme Court ruled that the Fourth Amendment is enforceable and should be applied to all states in the Union by way of the Due Process Clause of the Fourteenth Amendment. Additionally, the Supreme Court ruled that certain searches and seizures were in direct violation of the Fourth Amendment even when a warrant was properly issued to the coordinating law enforcement agencies.

State Timeline for Ratification of the Bill of Rights

New Jersey:November 20, 1789; rejected article II

Maryland:December 19, 1789; approved all

North Carolina:December 22, 1789; approved all

South Carolina: January 19, 1790; approved all

New Hampshire: January 25, 1790; rejected article II

Delaware: January 28, 1790; rejected article I

New York: February 27, 1790; rejected article II

Pennsylvania: March 10, 1790; rejected article II

Rhode Island: June 7, 1790; rejected article II

Vermont: November 3, 1791; approved all

Virginia: December 15, 1791; approved all

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4 Ways the Fourth Amendment Wont Protect You Anymore …

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This story first appeared on the TomDispatch website.

Heres a bit of history from another America: 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. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now in Post-Constitutional America.

The Fourth Amendment

A response to British King Georges excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches: 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.

In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as unreasonable in our old constitutional world, but no more.

Here, then, are four ways that, in the name of American security and according to our government, the Fourth Amendment no longer really applies to our lives.

The Constitutional Borderline

Begin at Americas borders. Most people believe they are in the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.

Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the border search. The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally reasonable simply by virtue of where they take place. Its a concept with a long history, enumerated by the First Congress in 1789.

Heres the twist in the present era: the definition of border has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.

Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast Constitution-free zone. The border is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the US population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitraswhose work focuses on national security issues in general and Edward Snowden in the particularknows firsthand. Since 2006, almost every time Poitras has returned to the US, her plane has been met by government agents and her laptop and phone examined.

There are multiple similar high-profile cases (including those of a Wikileaks researcher and a Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the US and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them US citizens, were subjected to electronic device searches at the border.

Still, reminding us that its possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent pun at its website: It is not the intent of CBP to subject travelers to unwarranted scrutiny. (emphasis added)

Making It All Constitutional In-House

Heres another example of how definitions have been readjusted to serve the national security states overriding needs: the Department of Justice (DOJ) 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.

Some background: a warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter Thomas Andersons home and look for hacked software. Warrants can only be issued on probable cause. The Supreme Court defined probable cause as requiring a high standard of proof, or to quote its words, a fair probability that contraband or evidence of a crime will be found in a particular place.

A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.

The Department of Justice now claims that, under the Fourth Amendment, it can simply subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: the DOJ isnt doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We dont know, as sources of data like Facebook and Google are prohibited from disclosing much about the information they hand over to the NSA or other government outfits about you.

Its easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message youve ever sent without a warrant and it wont constitute a search. The DOJ has continued this practice even though in 2010 a federal appeals court ruled that bulk warrantless access to email violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureaus agents dont need warrants to access email in bulk when its pulled directly from Google, Yahoo, Microsoft, or other service providers.

How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a subpoenano court involveddemanding that the Project On Government Oversight (POGO) turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.

Rather than seek to break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.

Technology and the Fourth Amendment

Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoovers low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureaus counterintelligence program (COINTELPRO).

But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the US by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.

To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now onlinefrom banking to travel to social media. Where the NSA was once limited to traditional notions of communicationthe written and spoken wordnew possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to facial recognition technology that can increasingly put a name to a face. Such technology, employed today at casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.

An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own trade association in Washington.) One of the worlds largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.

With ever more data available, the NSA and other agencies are creating ever more robust ways to store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage warehouses.

The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11 sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as license plate readers, wiretaps, and records of library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single file.

Once you have the whole haystack, theres still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBMs Non-Obvious Relationship Awareness software (NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.

Tools like NORA and its more sophisticated classified cousins are NSAs solution to one of the last hurdles to knowing nearly everything: the need for human analysts to connect the dots. Skilled analysts take time to train, are prone to human error, andgiven the quickly expanding supply of datawill always be in demand. Automated analysis also offers the NSA other advantages. Software doesnt have a conscience and it cant blow the whistle.

What does all this mean in terms of the Fourth Amendment? Its simple: the technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these advances, even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.

On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this weeks ;unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a ruling determining that the procedures for challenging ones inclusion on the governments no-fly list are unconstitutional, another hopeful sign.)

Prior to the cell phone decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phonecall lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers.

In its new decision, however, the court acknowledged that cell phones represent far more than a physical object. The information they hold is a portrait of someones life like whats in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.

Does this matter when talking about the NSAs technological dragnet? Maybe. While the Supreme Courts decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.

National Security Disclosures Under HIPPA

While the NSAs electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, heres a violation that sits in broad daylight: since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.

Congress passed the Health Information Portability and Accountability Act (HIPPA) in 1996 to assure that individuals health information is properly protected. You likely signed a HIPPA agreement at your doctors office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this privacy law states: We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities. The text is embedded deep in your health care providers documentation. Look for it.

How does this work? We dont know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.

The Snowden revelations are often dismissed by people who wonder what they have to hide. (Who cares if the NSA sees my cute cat videos?) Thats why health-care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your lifesomething, by the way, that couldnt have less to do with American security or combating terrorism.

Our health-care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. Youre right to be afraid, but for goodness sake, dont discuss your fears with your doctor.

How the Unreasonable Becomes Reasonable

At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole books have been written just about Edward Snowden and more information about government spying regularly becomes available. We dont lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to spin the debate into false discussions about how to balance freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to nothing to hide, nothing to fear line.

In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.

Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You wont hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the kings thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark ends, largely without protest and often while still celebrating a land that no longer exists.

Peter Van Buren blew the whistle on State Department waste and mismanagement during the Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A Tom Dispatch regular, he writes about current events at his blog, We Meant Well. His new book, Ghosts of Tom Joad: A Story of the #99Percent, is available now. This is the second in a three-part series on the shredding of the Bill of Rights. To stay on top of important articles like these, sign up to receive the latest updates from TomDispatch.com here.

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4 Ways the Fourth Amendment Wont Protect You Anymore …

Fourth Amendment

ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact: forhall @ aol.com / The Book http://www.johnwesleyhall.com

2003-18,online since Feb. 24, 2003

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. CircuitFederal CircuitForeign Intell.Surv.Ct.FDsys, many district courts, other federal courts, otherMilitary Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: Law.com S.Ct. Com’t’ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org Federal Law Enforcement Training Center Resources FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf)Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy FoundationElectronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I am still learning.Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500’s)).

“Love work; hate mastery over others; and avoid intimacy with the government.” Shemaya, in the Thalmud

“A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one’s attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.” Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev’d Nix v. Williams, 467 US. 431 (1984).

“The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”Mapp v. Ohio, 367 U.S. 643, 659 (1961).

“Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.”Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

“There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.” Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

“The great end, for which men entered into society, was to secure their property.” Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment.” United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

“A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Arizona v. Hicks, 480 U.S. 321, 325 (1987)

“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

“In Germany, they first came for the communists, and I didn’t speak up because I wasn’t a communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics and I didn’t speak up because I wasn’t a Catholic. Then they came for meand by that time there was nobody left to speak up.” Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men!—Pep Le Pew

Website design by Wally Waller, Little Rock

Read the original post:

Fourth Amendment

Fourth Amendment | United States Constitution | Britannica.com

Fourth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that forbids unreasonable searches and seizures of individuals and property. For the text of the Fourth Amendment, see below.

Introduced in 1789, what became the Fourth Amendment struck at the heart of a matter central to the early American experience: the principle that, within reason, Every mans house is his castle, and that any citizen may fall into the category of the criminally accused and ought to be provided protections accordingly. In U.S. constitutional law, the Fourth Amendment is the foundation of criminal law jurisprudence, articulating both the rights of persons and the responsibilities of law-enforcement officials. The balance between these two forces has undergone considerable public, political, and judicial debate. Are the amendments two clauses meant to be applied independently or taken as a whole? Is the expectation of privacy diminished depending on where and what is suspected, sought, and seized? What constitutes an unreasonable search and seizure?

The protections contained in the amendment have been determined less on the basis of what the Constitution says than according to what it has been interpreted to mean, and, as such, its constitutional meaning has inherently been fluid. The protections granted by the U.S. Supreme Court have expanded during periods when the court was dominated by liberals (e.g., during the tenure of Chief Justice Earl Warren [195369]), beginning particularly with Mapp v. Ohio (1961), in which the court extended the exclusionary rule to all criminal proceedings; by contrast, during the tenure of the conservative William Rehnquist (19862005) as chief justice, the court contracted the rights afforded to the criminally accused, allowing law-enforcement officials latitude to search in instances when they reasonably believed that the property in question harboured presumably dangerous persons.

The full text of the amendment is:

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.

Read the original post:

Fourth Amendment | United States Constitution | Britannica.com

What Does the Fourth Amendment Mean? | United States Courts

Whether a particular type of search is considered reasonablein the eyes of the law,is determined by balancing two important interests. On one side of the scale is the intrusion on an individual’s Fourth Amendment rights. On the other side of the scale are legitimate government interests, such as public safety.

The extent to which an individual is protected by the Fourth Amendment depends, in part, on the location of the search or seizure.Minnesota v. Carter, 525 U.S. 83 (1998).

Searches and seizures inside a home without a warrant are presumptively unreasonable.Payton v. New York, 445 U.S. 573 (1980).

However, there are some exceptions. A warrantless search may be lawful:

If an officer is given consent to search;Davis v. United States, 328 U.S. 582 (1946)If the search is incident to a lawful arrest;United States v. Robinson, 414 U.S. 218 (1973)If there is probable cause to search and exigent circumstances;Payton v. New York, 445 U.S. 573 (1980)If the items are in plain view;Maryland v. Macon, 472 U.S. 463 (1985).

When an officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot, the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling the officer’s suspicions.Terry v. Ohio, 392 U.S. 1 (1968)Minnesota v. Dickerson, 508 U.S. 366 (1993)

School officials need not obtain a warrant before searching a student who is under their authority; rather, a search of a student need only be reasonable under all the circumstances.New Jersey v. TLO, 469 U.S. 325 (1985)

Where there is probable cause to believe that a vehicle contains evidence of a criminal activity, an officer may lawfully search any area of the vehicle in which the evidence might be found.Arizona v. Gant, 129 S. Ct. 1710 (2009),

An officer may conduct a traffic stop if he has reasonable suspicion that a traffic violation has occurred or that criminal activity is afoot.Berekmer v. McCarty, 468 U.S. 420 (1984),United States v. Arvizu, 534 U.S. 266 (2002).

An officer may conduct a pat-down of the driver and passengers during a lawful traffic stop; the police need not believe that any occupant of the vehicle is involved in a criminal activity.Arizona v. Johnson, 555 U.S. 323 (2009).

The use of a narcotics detection dog to walk around the exterior of a car subject to a valid traffic stop does not require reasonable, explainable suspicion.Illinois v. Cabales, 543 U.S. 405 (2005).

Special law enforcement concerns will sometimes justify highway stops without any individualized suspicion.Illinois v. Lidster, 540 U.S. 419 (2004).

An officer at an international border may conduct routine stops and searches.United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

A state may use highway sobriety checkpoints for the purpose of combating drunk driving.Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).

A state may set up highway checkpoints where the stops are brief and seek voluntary cooperation in the investigation of a recent crime that has occurred on that highway.Illinois v. Lidster, 540 U.S. 419 (2004).

However, a state may not use a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics.City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

Read the original post:

What Does the Fourth Amendment Mean? | United States Courts

Fourth Amendment

ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact: forhall @ aol.com / The Book http://www.johnwesleyhall.com

2003-18,online since Feb. 24, 2003

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. CircuitFederal CircuitForeign Intell.Surv.Ct.FDsys, many district courts, other federal courts, otherMilitary Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: Law.com S.Ct. Com’t’ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org Federal Law Enforcement Training Center Resources FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf)Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy FoundationElectronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I am still learning.Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500’s)).

“Love work; hate mastery over others; and avoid intimacy with the government.” Shemaya, in the Thalmud

“A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one’s attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.” Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev’d Nix v. Williams, 467 US. 431 (1984).

“The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”Mapp v. Ohio, 367 U.S. 643, 659 (1961).

“Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.”Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

“There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.” Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

“The great end, for which men entered into society, was to secure their property.” Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment.” United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

“A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Arizona v. Hicks, 480 U.S. 321, 325 (1987)

“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

“In Germany, they first came for the communists, and I didn’t speak up because I wasn’t a communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics and I didn’t speak up because I wasn’t a Catholic. Then they came for meand by that time there was nobody left to speak up.” Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men!—Pep Le Pew

Website design by Wally Waller, Little Rock

Read the original here:

Fourth Amendment

Fourth Amendment | United States Constitution | Britannica.com

Fourth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that forbids unreasonable searches and seizures of individuals and property. For the text of the Fourth Amendment, see below.

Introduced in 1789, what became the Fourth Amendment struck at the heart of a matter central to the early American experience: the principle that, within reason, Every mans house is his castle, and that any citizen may fall into the category of the criminally accused and ought to be provided protections accordingly. In U.S. constitutional law, the Fourth Amendment is the foundation of criminal law jurisprudence, articulating both the rights of persons and the responsibilities of law-enforcement officials. The balance between these two forces has undergone considerable public, political, and judicial debate. Are the amendments two clauses meant to be applied independently or taken as a whole? Is the expectation of privacy diminished depending on where and what is suspected, sought, and seized? What constitutes an unreasonable search and seizure?

The protections contained in the amendment have been determined less on the basis of what the Constitution says than according to what it has been interpreted to mean, and, as such, its constitutional meaning has inherently been fluid. The protections granted by the U.S. Supreme Court have expanded during periods when the court was dominated by liberals (e.g., during the tenure of Chief Justice Earl Warren [195369]), beginning particularly with Mapp v. Ohio (1961), in which the court extended the exclusionary rule to all criminal proceedings; by contrast, during the tenure of the conservative William Rehnquist (19862005) as chief justice, the court contracted the rights afforded to the criminally accused, allowing law-enforcement officials latitude to search in instances when they reasonably believed that the property in question harboured presumably dangerous persons.

The full text of the amendment is:

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.

Excerpt from:

Fourth Amendment | United States Constitution | Britannica.com

What Does the Fourth Amendment Mean? | United States Courts

Whether a particular type of search is considered reasonablein the eyes of the law,is determined by balancing two important interests. On one side of the scale is the intrusion on an individual’s Fourth Amendment rights. On the other side of the scale are legitimate government interests, such as public safety.

The extent to which an individual is protected by the Fourth Amendment depends, in part, on the location of the search or seizure.Minnesota v. Carter, 525 U.S. 83 (1998).

Searches and seizures inside a home without a warrant are presumptively unreasonable.Payton v. New York, 445 U.S. 573 (1980).

However, there are some exceptions. A warrantless search may be lawful:

If an officer is given consent to search;Davis v. United States, 328 U.S. 582 (1946)If the search is incident to a lawful arrest;United States v. Robinson, 414 U.S. 218 (1973)If there is probable cause to search and exigent circumstances;Payton v. New York, 445 U.S. 573 (1980)If the items are in plain view;Maryland v. Macon, 472 U.S. 463 (1985).

When an officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot, the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling the officer’s suspicions.Terry v. Ohio, 392 U.S. 1 (1968)Minnesota v. Dickerson, 508 U.S. 366 (1993)

School officials need not obtain a warrant before searching a student who is under their authority; rather, a search of a student need only be reasonable under all the circumstances.New Jersey v. TLO, 469 U.S. 325 (1985)

Where there is probable cause to believe that a vehicle contains evidence of a criminal activity, an officer may lawfully search any area of the vehicle in which the evidence might be found.Arizona v. Gant, 129 S. Ct. 1710 (2009),

An officer may conduct a traffic stop if he has reasonable suspicion that a traffic violation has occurred or that criminal activity is afoot.Berekmer v. McCarty, 468 U.S. 420 (1984),United States v. Arvizu, 534 U.S. 266 (2002).

An officer may conduct a pat-down of the driver and passengers during a lawful traffic stop; the police need not believe that any occupant of the vehicle is involved in a criminal activity.Arizona v. Johnson, 555 U.S. 323 (2009).

The use of a narcotics detection dog to walk around the exterior of a car subject to a valid traffic stop does not require reasonable, explainable suspicion.Illinois v. Cabales, 543 U.S. 405 (2005).

Special law enforcement concerns will sometimes justify highway stops without any individualized suspicion.Illinois v. Lidster, 540 U.S. 419 (2004).

An officer at an international border may conduct routine stops and searches.United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

A state may use highway sobriety checkpoints for the purpose of combating drunk driving.Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).

A state may set up highway checkpoints where the stops are brief and seek voluntary cooperation in the investigation of a recent crime that has occurred on that highway.Illinois v. Lidster, 540 U.S. 419 (2004).

However, a state may not use a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics.City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

See the rest here:

What Does the Fourth Amendment Mean? | United States Courts

What Does the Fourth Amendment Mean? | United States Courts

Whether a particular type of search is considered reasonablein the eyes of the law,is determined by balancing two important interests. On one side of the scale is the intrusion on an individual’s Fourth Amendment rights. On the other side of the scale are legitimate government interests, such as public safety.

The extent to which an individual is protected by the Fourth Amendment depends, in part, on the location of the search or seizure.Minnesota v. Carter, 525 U.S. 83 (1998).

Searches and seizures inside a home without a warrant are presumptively unreasonable.Payton v. New York, 445 U.S. 573 (1980).

However, there are some exceptions. A warrantless search may be lawful:

If an officer is given consent to search;Davis v. United States, 328 U.S. 582 (1946)If the search is incident to a lawful arrest;United States v. Robinson, 414 U.S. 218 (1973)If there is probable cause to search and exigent circumstances;Payton v. New York, 445 U.S. 573 (1980)If the items are in plain view;Maryland v. Macon, 472 U.S. 463 (1985).

When an officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot, the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling the officer’s suspicions.Terry v. Ohio, 392 U.S. 1 (1968)Minnesota v. Dickerson, 508 U.S. 366 (1993)

School officials need not obtain a warrant before searching a student who is under their authority; rather, a search of a student need only be reasonable under all the circumstances.New Jersey v. TLO, 469 U.S. 325 (1985)

Where there is probable cause to believe that a vehicle contains evidence of a criminal activity, an officer may lawfully search any area of the vehicle in which the evidence might be found.Arizona v. Gant, 129 S. Ct. 1710 (2009),

An officer may conduct a traffic stop if he has reasonable suspicion that a traffic violation has occurred or that criminal activity is afoot.Berekmer v. McCarty, 468 U.S. 420 (1984),United States v. Arvizu, 534 U.S. 266 (2002).

An officer may conduct a pat-down of the driver and passengers during a lawful traffic stop; the police need not believe that any occupant of the vehicle is involved in a criminal activity.Arizona v. Johnson, 555 U.S. 323 (2009).

The use of a narcotics detection dog to walk around the exterior of a car subject to a valid traffic stop does not require reasonable, explainable suspicion.Illinois v. Cabales, 543 U.S. 405 (2005).

Special law enforcement concerns will sometimes justify highway stops without any individualized suspicion.Illinois v. Lidster, 540 U.S. 419 (2004).

An officer at an international border may conduct routine stops and searches.United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

A state may use highway sobriety checkpoints for the purpose of combating drunk driving.Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).

A state may set up highway checkpoints where the stops are brief and seek voluntary cooperation in the investigation of a recent crime that has occurred on that highway.Illinois v. Lidster, 540 U.S. 419 (2004).

However, a state may not use a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics.City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

Read the rest here:

What Does the Fourth Amendment Mean? | United States Courts

4th Amendment – constitution | Laws.com

Fourth Amendment:Searches and Seizures

What is the 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 Defined:

Like the majority of fields within American law, the Fourth Amendment is heavily rooted in the English legal doctrine. In a general sense, the Fourth Amendment was created to limit the power of the government and their ability to enforce legal actions on individuals. The Fourth Amendment was adopted as a direct response to the abuse of the writ of assistance, which was a type of general search warrant used by the government during the American Revolution. The Amendment was created to limit the powers of the law enforcement agency who is conducting a search of an individuals personal property.

The Fourth Amendment is a part of the Bill of Rights, which are the first 10 Amendments to the United States Constitution and the framework to elucidate upon the freedoms of the individual. The Bill of Rights were proposed and sent to the states by the first session of the First Congress. They were later ratified on December 15, 1791.

The first 10 Amendments to the United States Constitution were introduced by James Madison as a series of legislative articles and came into effect as Constitutional Amendments following the process of ratification by three-fourths of the States on December 15, 1791.

Stipulations of the 4th Amendment

The Fourth Amendment guards against the governments ability to conduct unreasonable search and seizures when the individual party being searched has a reasonable exception of privacy.

The Fourth Amendment specifically requires a law enforcement agency to possess judicially sanctioned search and arrest warrants, which are supported by probable clause, to be administered before a persons property can be inspected.

The Fourth Amendment ties in numerous limitations whereby an individual may be searched without a warrant given the presence of certain circumstances. The individuals property may be searched and seized if: The individual is on parole or in a tax hearing, faces deportation, the evidence is seized from a common carrier, the evidence is collected by U.S. customs agents, the evidence is seized by probation officers, the evidence is seized outside of the United States, or probable cause is evident.

Court Cases tied into the 4th Amendment

In Mapp v. Ohio, the Supreme Court ruled that the Fourth Amendment is enforceable and should be applied to all states in the Union by way of the Due Process Clause of the Fourteenth Amendment. Additionally, the Supreme Court ruled that certain searches and seizures were in direct violation of the Fourth Amendment even when a warrant was properly issued to the coordinating law enforcement agencies.

State Timeline for Ratification of the Bill of Rights

New Jersey:November 20, 1789; rejected article II

Maryland:December 19, 1789; approved all

North Carolina:December 22, 1789; approved all

South Carolina: January 19, 1790; approved all

New Hampshire: January 25, 1790; rejected article II

Delaware: January 28, 1790; rejected article I

New York: February 27, 1790; rejected article II

Pennsylvania: March 10, 1790; rejected article II

Rhode Island: June 7, 1790; rejected article II

Vermont: November 3, 1791; approved all

Virginia: December 15, 1791; approved all

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Read more here:

4th Amendment – constitution | Laws.com

Fourth Amendment to the U.S. Constitution – Index Page

Amendment 4 – Search and Seizure

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

Notes for this amendment:Proposed 9/25/1789Ratified 12/15/1791

>

URL: //www.usconstitution.net/xconst_Am4.html

More here:

Fourth Amendment to the U.S. Constitution – Index Page

Fourth Amendment

ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact: forhall @ aol.com / The Book http://www.johnwesleyhall.com

2003-18,online since Feb. 24, 2003

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. CircuitFederal CircuitForeign Intell.Surv.Ct.FDsys, many district courts, other federal courts, otherMilitary Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: Law.com S.Ct. Com’t’ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org Federal Law Enforcement Training Center Resources FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf)Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy FoundationElectronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I am still learning.Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500’s)).

“Love work; hate mastery over others; and avoid intimacy with the government.” Shemaya, in the Thalmud

“A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one’s attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.” Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev’d Nix v. Williams, 467 US. 431 (1984).

“The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”Mapp v. Ohio, 367 U.S. 643, 659 (1961).

“Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.”Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

“There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.” Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

“The great end, for which men entered into society, was to secure their property.” Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment.” United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

“A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Arizona v. Hicks, 480 U.S. 321, 325 (1987)

“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

“In Germany, they first came for the communists, and I didn’t speak up because I wasn’t a communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics and I didn’t speak up because I wasn’t a Catholic. Then they came for meand by that time there was nobody left to speak up.” Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men!—Pep Le Pew

Website design by Wally Waller, Little Rock

Excerpt from:

Fourth Amendment

Fourth Amendment Activities | United States Courts

Apply landmark Supreme Court cases to contemporary scenarios related to search and seizure issues at your school, in your car, and your home.

“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.”Fourth Amendment, U.S. Constitution

Brendlin v. CaliforniaPassengers, police stops, and protection from unreasonable seizure

New Jersey v. T.L.O.Purse search at school and protection from unreasonable searches

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Fourth Amendment Activities | United States Courts

Fourth Amendment | United States Constitution | Britannica.com

Fourth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that forbids unreasonable searches and seizures of individuals and property. For the text of the Fourth Amendment, see below.

Introduced in 1789, what became the Fourth Amendment struck at the heart of a matter central to the early American experience: the principle that, within reason, Every mans house is his castle, and that any citizen may fall into the category of the criminally accused and ought to be provided protections accordingly. In U.S. constitutional law, the Fourth Amendment is the foundation of criminal law jurisprudence, articulating both the rights of persons and the responsibilities of law-enforcement officials. The balance between these two forces has undergone considerable public, political, and judicial debate. Are the amendments two clauses meant to be applied independently or taken as a whole? Is the expectation of privacy diminished depending on where and what is suspected, sought, and seized? What constitutes an unreasonable search and seizure?

The protections contained in the amendment have been determined less on the basis of what the Constitution says than according to what it has been interpreted to mean, and, as such, its constitutional meaning has inherently been fluid. The protections granted by the U.S. Supreme Court have expanded during periods when the court was dominated by liberals (e.g., during the tenure of Chief Justice Earl Warren [195369]), beginning particularly with Mapp v. Ohio (1961), in which the court extended the exclusionary rule to all criminal proceedings; by contrast, during the tenure of the conservative William Rehnquist (19862005) as chief justice, the court contracted the rights afforded to the criminally accused, allowing law-enforcement officials latitude to search in instances when they reasonably believed that the property in question harboured presumably dangerous persons.

The full text of the amendment is:

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.

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Fourth Amendment | United States Constitution | Britannica.com

4 Ways the Fourth Amendment Wont Protect You Anymore …

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This story first appeared on the TomDispatch website.

Heres a bit of history from another America: 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. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now in Post-Constitutional America.

The Fourth Amendment

A response to British King Georges excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches: 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.

In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as unreasonable in our old constitutional world, but no more.

Here, then, are four ways that, in the name of American security and according to our government, the Fourth Amendment no longer really applies to our lives.

The Constitutional Borderline

Begin at Americas borders. Most people believe they are in the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.

Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the border search. The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally reasonable simply by virtue of where they take place. Its a concept with a long history, enumerated by the First Congress in 1789.

Heres the twist in the present era: the definition of border has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.

Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast Constitution-free zone. The border is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the US population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitraswhose work focuses on national security issues in general and Edward Snowden in the particularknows firsthand. Since 2006, almost every time Poitras has returned to the US, her plane has been met by government agents and her laptop and phone examined.

There are multiple similar high-profile cases (including those of a Wikileaks researcher and a Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the US and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them US citizens, were subjected to electronic device searches at the border.

Still, reminding us that its possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent pun at its website: It is not the intent of CBP to subject travelers to unwarranted scrutiny. (emphasis added)

Making It All Constitutional In-House

Heres another example of how definitions have been readjusted to serve the national security states overriding needs: the Department of Justice (DOJ) 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.

Some background: a warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter Thomas Andersons home and look for hacked software. Warrants can only be issued on probable cause. The Supreme Court defined probable cause as requiring a high standard of proof, or to quote its words, a fair probability that contraband or evidence of a crime will be found in a particular place.

A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.

The Department of Justice now claims that, under the Fourth Amendment, it can simply subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: the DOJ isnt doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We dont know, as sources of data like Facebook and Google are prohibited from disclosing much about the information they hand over to the NSA or other government outfits about you.

Its easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message youve ever sent without a warrant and it wont constitute a search. The DOJ has continued this practice even though in 2010 a federal appeals court ruled that bulk warrantless access to email violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureaus agents dont need warrants to access email in bulk when its pulled directly from Google, Yahoo, Microsoft, or other service providers.

How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a subpoenano court involveddemanding that the Project On Government Oversight (POGO) turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.

Rather than seek to break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.

Technology and the Fourth Amendment

Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoovers low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureaus counterintelligence program (COINTELPRO).

But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the US by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.

To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now onlinefrom banking to travel to social media. Where the NSA was once limited to traditional notions of communicationthe written and spoken wordnew possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to facial recognition technology that can increasingly put a name to a face. Such technology, employed today at casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.

An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own trade association in Washington.) One of the worlds largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.

With ever more data available, the NSA and other agencies are creating ever more robust ways to store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage warehouses.

The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11 sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as license plate readers, wiretaps, and records of library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single file.

Once you have the whole haystack, theres still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBMs Non-Obvious Relationship Awareness software (NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.

Tools like NORA and its more sophisticated classified cousins are NSAs solution to one of the last hurdles to knowing nearly everything: the need for human analysts to connect the dots. Skilled analysts take time to train, are prone to human error, andgiven the quickly expanding supply of datawill always be in demand. Automated analysis also offers the NSA other advantages. Software doesnt have a conscience and it cant blow the whistle.

What does all this mean in terms of the Fourth Amendment? Its simple: the technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these advances, even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.

On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this weeks ;unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a ruling determining that the procedures for challenging ones inclusion on the governments no-fly list are unconstitutional, another hopeful sign.)

Prior to the cell phone decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phonecall lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers.

In its new decision, however, the court acknowledged that cell phones represent far more than a physical object. The information they hold is a portrait of someones life like whats in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.

Does this matter when talking about the NSAs technological dragnet? Maybe. While the Supreme Courts decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.

National Security Disclosures Under HIPPA

While the NSAs electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, heres a violation that sits in broad daylight: since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.

Congress passed the Health Information Portability and Accountability Act (HIPPA) in 1996 to assure that individuals health information is properly protected. You likely signed a HIPPA agreement at your doctors office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this privacy law states: We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities. The text is embedded deep in your health care providers documentation. Look for it.

How does this work? We dont know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.

The Snowden revelations are often dismissed by people who wonder what they have to hide. (Who cares if the NSA sees my cute cat videos?) Thats why health-care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your lifesomething, by the way, that couldnt have less to do with American security or combating terrorism.

Our health-care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. Youre right to be afraid, but for goodness sake, dont discuss your fears with your doctor.

How the Unreasonable Becomes Reasonable

At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole books have been written just about Edward Snowden and more information about government spying regularly becomes available. We dont lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to spin the debate into false discussions about how to balance freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to nothing to hide, nothing to fear line.

In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.

Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You wont hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the kings thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark ends, largely without protest and often while still celebrating a land that no longer exists.

Peter Van Buren blew the whistle on State Department waste and mismanagement during the Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A Tom Dispatch regular, he writes about current events at his blog, We Meant Well. His new book, Ghosts of Tom Joad: A Story of the #99Percent, is available now. This is the second in a three-part series on the shredding of the Bill of Rights. To stay on top of important articles like these, sign up to receive the latest updates from TomDispatch.com here.

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4 Ways the Fourth Amendment Wont Protect You Anymore …

Fourth Amendment

ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact: forhall @ aol.com / The Book http://www.johnwesleyhall.com

2003-18,online since Feb. 24, 2003

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. CircuitFederal CircuitForeign Intell.Surv.Ct.FDsys, many district courts, other federal courts, otherMilitary Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: Law.com S.Ct. Com’t’ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org Federal Law Enforcement Training Center Resources FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf)Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy FoundationElectronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I am still learning.Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500’s)).

“Love work; hate mastery over others; and avoid intimacy with the government.” Shemaya, in the Thalmud

“A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one’s attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.” Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev’d Nix v. Williams, 467 US. 431 (1984).

“The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”Mapp v. Ohio, 367 U.S. 643, 659 (1961).

“Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.”Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

“There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.” Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

“The great end, for which men entered into society, was to secure their property.” Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment.” United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

“A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Arizona v. Hicks, 480 U.S. 321, 325 (1987)

“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

“In Germany, they first came for the communists, and I didn’t speak up because I wasn’t a communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics and I didn’t speak up because I wasn’t a Catholic. Then they came for meand by that time there was nobody left to speak up.” Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men!—Pep Le Pew

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Fourth Amendment


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