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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

Fourth Amendment | Constitution | US Law | LII / Legal …

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 | Constitution | US Law | LII / Legal …

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, 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.

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

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

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

Amendment IV – The United States Constitution

The Fourth Amendment

Imagine youre driving a car, and a police officer spots you and pulls you over for speeding. He orders you out of the car. Maybe he wants to place you under arrest. Or maybe he wants to search your car for evidence of a crime. Can the officer do that?

The Fourth Amendment is the part of the Constitution that gives the answer. According to the Fourth Amendment, the people have a right to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. This right limits the power of the police to seize and search people, their property, and their homes.

The Fourth Amendment has been debated frequently during the last several years, as police and intelligence agencies in the United States have engaged in a number of controversial activities. The federal government has conducted bulk collection of Americans telephone and Internet connections as part of the War on Terror. Many municipal police forces have engaged in aggressive use of stop and frisk. There have been a number of highly-publicized police-citizen encounters in which the police ended up shooting a civilian. There is also concern about the use of aerial surveillance, whether by piloted aircraft or drones.

The application of the Fourth Amendment to all these activities would have surprised those who drafted it, and not only because they could not imagine the modern technologies like the Internet and drones. They also were not familiar with organized police forces like we have today. Policing in the eighteenth and early nineteenth centuries was a responsibility of the citizenry, which participated in night watches. Other than that, there was only a loose collection of sheriffs and constables, who lacked the tools to maintain order as the police do today.

The primary concerns of the generation that ratified the Fourth Amendment were general warrants and writs of assistance. Famous incidents on both sides of the Atlantic gave rise to placing the Fourth Amendment in the Constitution. In Britain, the Crown employed general warrants to go after political enemies, leading to the famous decisions in Wilkes v. Wood (1763) and Entick v. Carrington (1765). General warrants allowed the Crowns messengers to search without any cause to believe someone had committed an offense. In those cases the judges decided that such warrants violated English common law. In the colonies the Crown used the writs of assistancelike general warrants, but often unbounded by time restraintsto search for goods on which taxes had not been paid. James Otis challenged the writs in a Boston court; though he lost, some such as John Adams attribute this legal battle as the spark that led to the Revolution. Both controversies led to the famous notion that a persons home is their castle, not easily invaded by the government.

Today the Fourth Amendment is understood as placing restraints on the government any time it detains (seizes) or searches a person or property. The Fourth Amendment also provides that 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 idea is that to avoid the evils of general warrants, each search or seizure should be cleared in advance by a judge, and that to get a warrant the government must show probable causea certain level of suspicion of criminal activityto justify the search or seizure.

To the extent that a warrant is required in theory before police can search, there are so many exceptions that in practice warrants rarely are obtained. Police can search automobiles without warrants, they can detain people on the street without them, and they can always search or seize in an emergency without going to a judge.

The way that the Fourth Amendment most commonly is put into practice is in criminal proceedings. The Supreme Court decided in the mid-twentieth century that if the police seize evidence as part of an illegal search, the evidence cannot be admitted into court. This is called the exclusionary rule. It is controversial because in most cases evidence is being tossed out even though it shows the person is guilty and, as a result of the police conduct, they might avoid conviction. The criminal is to go free because the constable has blundered, declared Benjamin Cardozo (a famous judge and ultimately Supreme Court justice). But, responded another Supreme Court justice, Louis Brandeis, If the government becomes the lawbreaker, it breeds contempt for the law.

One of the difficult questions today is what constitutes a search? If the police standing in Times Square in New York watched a person planting a bomb in plain daylight, we would not think they needed a warrant or any cause. But what about installing closed circuit TV cameras on poles, or flying drones over backyards, or gathering evidence that you have given to a third party such as an Internet provider or a banker?

Another hard question is when a search is acceptable when the government has no suspicion that a person has done something wrong. Lest the answer seem to be never, think of airport security. Surely it is okay for the government to screen people getting on airplanes, yet the idea is as much to deter people from bringing weapons as it is to catch themthere is no cause, probable or otherwise, to think anyone has done anything wrong. This is the same sort of issue with bulk data collection, and possibly with gathering biometric information.

What should be clear by now is that advancing technology and the many threats that face society add up to a brew in which the Fourth Amendment will continue to play a central role.

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

What the Fourth Amendment Fundamentally Requires by Barry Friedman

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

For example, sometimes the Justices say that there is a strong preference for government agents to obtain warrants, and that searches without warrants are presumptively invalid. At other times they say warrants are unnecessary, and the only requirement is that searches be reasonable. At times the Justices say probable cause is required to support a search; at others they say probable cause is not an irreducible minimum.

This is your Fourth Amendment. It describes [t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. It is important for each American to focus on some basics and decideseparate and apart from what the Justices saywhat this vital amendment means.

People say that the Fourth Amendment protects privacy, but that trivializes it. In this world you give up a lot of privacy, whether you wish to or not. Internet cookies, or data stored in web browsers, are just one example. But the Internet companies are not going to come take you away. The government might. What the Fourth Amendment protects is the right of the people to be secure. The Fourth Amendment is the means of keeping the government out of our lives and our property unless it has good justification.

In evaluating how the Fourth Amendment should be interpreted, it is essential to bear in mind the vast changes in policing since the time it was ratified. Whereas policing once was reactive, tasked with identifying and catching criminals, today it has become proactive and is based in deterrence. Before, policing was mostly based on suspicion, it was aimed at people for whom there was cause to believe they had violated or were about to violate the law. Today, policing is aimed at all of usfrom red light cameras to bulk data collection by intelligence agencies to airport security.

There are some basic principles that should govern searches and seizures.

First, no member of the Executive branch should be permitted to intervene in our lives without the say-so of at least one other branch. This is fundamental, and all the more important when that Executive actor engages in surveillance of the citizenry and can use force and coercion against them.

Second, a central purpose of the Fourth Amendment is preventing arbitrary or unjustified intrusions into the lives and property of citizens.

In light of these basic principles, certain interpretations of the Fourth Amendment follow:

No search or seizure is reasonable if it is not based on either legislative authorization or pursuant to rules that have some form of democratic say in their making. The police can write rulesall other agencies of executive government dobut absent a critical need for secrecy those rules should be public and responsive to public wishes.

Second, warrants are to be preferred. Policing agencies are mission-oriented. We want them to bethey have a vital role protecting public safety. But because they are mission-oriented, warrants should be obtained in advance of searching whenever possible so that a neutral judge can assess the need to intrude on peoples lives.

Third, we should distinguish between searches aimed at suspects and those aimed at society in general. When there is a particular suspect, the protections of a warrant and probable cause apply. But those protections make no sense when we are all the target of policing. In the latter instance the most important protection is that policing not discriminate among us. For example, at airport security all must be screened the same unless and until there is suspicioncause to single someone out.

Finally, often todays policing singles out a particular group. Examples include profiling (based on race, religion, or something else) or subjecting only workers in some agencies to drug tests. When policing is group-based, the proper clause of the Constitution to govern is the Equal Protection Clause. When discriminatory searching or seizing occurs, the government should have to prove two things: that the group it is selecting for unfavorable treatment truly is more likely to contain people worthy of the governments attention, and that the incidence of problematic behavior is sufficiently great in that group to justify burdening everyone. Otherwise, the government should go back to either searching individuals based on suspicion, or search us all.

The Future of the Fourth Amendment by Orin Kerr

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

The Fourth Amendment was written over two hundred years ago. But todays crimes often involve computers and the Internet, requiring the police to collect digital evidence and analyze it to solve crimes.

The major question is, how much power should the police have to collect this data? What is an unreasonable search and seizure on the Internet?

Consider the example of a Facebook account. If you log in to Facebook, your use of the account sends a tremendous amount of information to Facebook. Facebook keeps records of everything. What you post, what messages you send, what pictures you like, even what pages you view. Facebook gets it all, and it keeps records of everything you do. Now imagine that the police come to Facebook and want records of a particular user. The police think the suspect used Facebook to commit the crime or shared evidence of the crime using the site. Maybe the suspect was cyberstalking and harassing a victim on Facebook. Or maybe the suspect is a drug dealer who was exchanging messages with another drug dealer planning a future crime. Or perhaps the suspect committed a burglary, and he posted pictures of the burglary for all of his Facebook friends to see.

Heres the hard question: What limits does the Fourth Amendment impose on the government getting access to the account records? For example, is it a Fourth Amendment search or seizure for the government to get what a person posted on his Facebook wall for all of his friends to see? Is it a search or seizure to get the messages that the suspect sent? How about records of what page the suspect viewed? And if it is a search or seizure, how much can the government seize with a warrant? Can the government get access to all of the account records? Only some of the account records?

The courts have only begun to answer these questions, and it will be up to future courts to figure out what the Fourth Amendment requires. As more people spend much of their lives online, the stakes of answering these questions correctly becomes higher and higher.

In my view, courts should try to answer these questions by translating the traditional protections of the Fourth Amendment from the physical world to the networked world. In the physical world, the Fourth Amendment strikes a balance. The government is free to do many things without constitutional oversight. The police can watch people in the public street or watch a suspect in a public place. They can follow a car as it drives down the street. On the other hand, the police need cause to stop people, and they need a warrant to enter private places like private homes.

The goal for interpreting the Fourth Amendment should be to strike that same balance in the online setting. Just like in the physical world, the police should be able to collect some evidence without restriction to ensure that they can investigate crimes. And just like in the physical world, there should be limits on what the government can do to ensure that the police do not infringe upon important civil liberties.

A second important area is the future of the exclusionary rule, the rule that evidence unconstitutionally obtained cannot be used in court. The history of the exclusionary rule is a history of change. In the 1960s and 1970s, the Supreme Court dramatically expanded the exclusionary rule. Since the 1980s, however, the Supreme Court has cut back on when the exclusionary rule applies.

The major disagreement is over whether and how the exclusionary rule should apply when the police violate the Fourth Amendment, but do so in good faith, such as when the law is unclear or the violation is only technical. In the last decade, a majority of the Justices have expanded the good faith exception to the exclusionary rule. A central question is whether the good faith exception will continue to expand, and if so, how far.

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

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Amendment IV – The United States Constitution

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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4th Amendment – constitution | Laws.com

Violations Of The Fourth Amendment And Other Concerns About … – JD Supra (press release)

In New Jersey, yet another bill amending the animal cruelty statute (S1640) was recently passed into law. The amendments [e]stablish . . . requirements concerning necessary care of dogs, domestic companion animals, and service animals, and for tethering of dogs.

Many of the other provisions requiring necessary care to a companion animal are reasonable if the laws are appropriately enforced by professional law officers, who have sought guidance from individuals with expertise in animal health, care, and handling. Unfortunately this is not the case in New Jersey, where the animal cruelty statute is improperly enforced.

This makes the following provision extremely problematic and of concern to companion animal owners and their attorneys in the State:

any humane law enforcement officer or agent of the New Jersey Society for the Prevention of Cruelty to Animals or county society for the prevention of cruelty to animals, certified animal control officer, or other State or local law enforcement officer may immediately enter onto private property where a dog, domestic companion animal, or service animal is located and take physical custody of the animal, if the officer or agent has reasonable suspicion to believe that the animal is at risk of imminent harm due to a violation of this act.

While an earlier provision requires a showing of probable cause before a court of competent jurisdiction could issue a subpoena permitting law enforcement to enter private property and seize an animal, this latter provision impermissibly violates the Fourth Amendment of the Constitution.

A district court case provides clarity of rights under the Fourth Amendment:

In Badillo v. Amato, Case No. 13-1553, slip op. (D.N.J. Jan. 28, 2014) the Court denied then Monmouth County SPCA Chief Amatos motion to dismiss, in relevant part, Badillos allegation that Amato violated his right to be free from illegal search and seizure under the Fourth Amendment. In this case, Badillo, a priest of the Santeria religion was issued nine municipal court summons for animal animal abuse and neglect after Amato went around to the back of . . . [Badillos house, opened the gate and let himself in the fenced backyard without permission or a warrant and began taking pictures . . . Case No. 13-1553, slip op., at p. 3 (D.N.J. Jan. 28, 2014).

As the Court explained, finding that the Complaint sufficiently pleaded Fourth Amendment violations by Amato to survive a motion to dismiss, the Fourth Amendment provides:

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 persons or things to be seized. Id., at p. 8 (quoting U.S. Const. amend. IV.)

The Court reaffirmed that not only is the home sacrosanct but that protections afforded by the Fourth Amendment extend not only to a persons home, but also to the curtilage surrounding the property. Id., at p. 8-9 (citing Estate of Smith v. Maraso, 318 F.3d 497, 518-519 (3d Cir. 2003).

It appears that the foregoing provision of the newly amended animal cruelty statute, permitting entry to private property based on merely reasonable suspicion and in the absence of a court order would violate the Fourth Amendment.

Additional concerns about these amendments, previously discussed, remain included in the final adopted law.

For example, a person may not keep a dog (or other domestic companion animal) in an animal crate or carrier for transport, exhibition, show, contest, training or similar event if the top of the head of the dog touches the ceiling of the animal carrier or crate when the dog is in a normal standing position. There are many acceptable, safe dog carriers that permit dogs to stand, turn around and lie down comfortably, but the top of their head would touch the ceiling of the crate.

The public must be adequately informed about this new requirementthat does nothing to provide for the welfare of dogs transported in dog carriersso they are not victims of animal cruelty citations issued by over zealous agents and officers of the NJ or County SPCAs. As noted in the State of New Jersey Commission of Investigation 2000 report on Societies for the Prevention of Cruelty to Animals, at least one County society (Warren) routinely stopped vehicles with horse trailers for proof that a Coggins test certificate was available as required by the NJ Department of Agriculture. As the report concluded:

Not only is the absence of a certificate not cruelty, but SPCA personnel lack the expertise to know whether the horse described in the certificate, such as a Bay or Chestnut [which are specific horse colors and patterns], is in fact the horse being transported.

It would not be unprecedented if humane officers decided to target people traveling with dogs throughout the state, and started pulling over and issuing summons related to the size the their dog carriers.

Dog owners beware!

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Violations Of The Fourth Amendment And Other Concerns About … – JD Supra (press release)

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. California Passengers, 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

United States Constitution

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.

…USA PATRIOT Act charged that several parts of the statute were unconstitutional or invited abuse by federal authorities. Section 215, for example, allegedly violated the privacy protections of the Fourth Amendment because it permitted warrantless searches and did not require notification of the target, even after the search had taken place. Similarly, Section 218 effectively allowed the FBI to…

The Fourth Amendment secures the people against unreasonable searches and seizures and forbids the issuance of warrants except upon probable cause and directed to specific persons and places. The Fifth Amendment requires grand jury indictment in prosecutions for major crimes and prohibits double jeopardy for a single offense. It provides that no person shall be compelled to testify against…

case in which the U.S. Supreme Court on June 19, 1961, ruled (63) that evidence obtained in violation of the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures, is inadmissible in state courts. In so doing, it held that the federal exclusionary rule, which forbade the use of unconstitutionally obtained evidence in federal courts,…

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Fourth Amendment | United States Constitution | Britannica.com

VerizonYes, VerizonJust Stood Up For Your Privacy – WIRED

Roberto Machado Noa/Getty Images

Fourteen of the biggest US tech companies filed a brief with the Supreme Court on Monday supporting more rigorous warrant requirements for law enforcement seeking certain cell phone data, such as location information. In the statement, the signatoriesGoogle, Apple, Facebook, and Microsoft among themargue that the government leans on outdated laws from the 1970s to justify Fourth Amendment overreach. One perhaps surprising voice in the chorus of protesters? Verizon.

Verizon’s support means that the largest wireless service provider in the US, and a powerful force in Silicon Valley, has bucked a longtime trend of telecom acquiescence. While carriers have generally been willing to comply with a broad range of government requestseven building out extensive infrastructure to aid surveillanceVerizon has this time joined with academics, analysts, and the companys more privacy-focused corporate peers.

Carpenter v. United States is one of the most important Fourth Amendment cases in recent memory, Craig Silliman, Verizons executive vice president for public policy and general counsel, wrote on Monday. Although the specific issue presented to the Court is about location information, the case presents a broader issue about a customers reasonable expectation of privacy for other types of sensitive data she shares with any third party. Our hope is that when it decides this case, the Court will help us better apply old Fourth Amendment doctrines to an evolving digital era.

From the early days of landlines, telecoms have complied with law enforcement requests for customer data such as call length, location, and who has called whom. As the variety of data customers generate has exponentially expanded and evolved, so has this information gathering by government officials, often under a general mandate and without a case-specific warrant. For its part, Verizon cooperated with the National Security Agency as part of broad bulk surveillance programs for years. Details of this coordination was revealed in NSA documents leaked by Edward Snowden in 2013, but some aspects of it had been publicly debated for years prior.

Carpenter v. United States, which the Supreme Court will hear this fall, relates to the acquisition, without a warrant, of months of individuals location records by law enforcement officials in 2011. Officials looked back on 12,898 location records, spanning a four-month period, of one of these individuals, Timothy Carpenter, to build their case; Carpenter was eventually convicted. His appeal argues that location-data collection by law enforcement without a warrant violates his Fourth Amendment rightsand Verizon agrees.

Verizon stands out because they actually hold the specific kind of location records that are directly at issue, says Nathan Freed Wessler, a staff attorney at the American Civil Liberties Union, which represents Carpenter. The telecoms have a long history in general of cooperating with law enforcement surveillance demands, but I think Verizons participation reflects a growing understanding of the importance of standing up for customers privacy rights.”

As the general public becomes increasingly aware of the privacy risks associated with entrusting their data to corporate entities, a strong stance on data protection has been a boon to companies like Apple. This economic incentive may be even stronger for the numerous telecoms that now straddle the line between traditional utility and tech company. Verizon, for example, now owns Yahoo and AOL in addition to its role as a top-four wireless provider in the US.

“At the end of the day, a company like Verizon isnt going to stick its neck out if it doesnt think that theres a business rationale in addition to it being the right thing to do,” Wessler says.

Verizon has laid the groundwork for this move for months. Silliman wrote publicly last year about potential Fourth Amendment concerns when telecoms comply with warrantless law enforcement data requests. The company’s stand won’t necessarily prompt peers to followno other telecoms joined this particular briefbut it still represents a turning point in the dialog between privacy advocates and monolithic telecoms. And in Carpenter v. United States, it’s only one of the voices that matters in the larger discussion about data privacy.

“The other tech companies bring the perspective that this case is also about our emails and our smart devices and all the kinds of cloud-stored data that we create in the course of our daily lives now,” Wessler says. “The Justices should not be under the misapprehension that they can just try to narrowly apply these outdated precedents from the 1970s in this case. The implications are really huge, and this is the chance to make sure that our understanding of the Fourth Amendment keeps up with digital technology.

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VerizonYes, VerizonJust Stood Up For Your Privacy – WIRED

LIVE LOCAL, LIVE SMALL: What freedoms and liberties do we stand to lose? – encore Online

Aug 22 FEATURE MAIN, Live Local, NEWS & VIEWS No Comments on LIVE LOCAL, LIVE SMALL: What freedoms and liberties do we stand to lose?

The Guardian reported:

The warrant covers the people who own and operate the site, but also seeks to get the IP addresses of 1.3 million people who visited it, as well as the date and time of their visit, and information about what browser or operating system they used.

There are a variety of concerning aspects to this set of events. First, and most obviously, are those related to the First Amendment (freedom of speech and assembly) and the Fourth Amendment (protection from unreasonable search and seizure). The Department of Justice wants the IP addresses of every visitor to the siteand from that information the physical location of each visitor can be ascertained. It makes identification not all that difficult. Besides freedom of speech, there are questions about the scope of the warrant. The Fourth Amendment makes it clear a warrant must specify locations to be searched and probable cause. Orin Kerr noted in the Washington Post:

Courts have allowed the government to get a suspects entire email account, which the government can then search through for evidence. But is the collective set of records concerning a website itself so extensive that it goes beyond what the Fourth Amendment allows? In the physical world, the government can search only one apartment in an apartment building with a single warrant; it cant search the entire apartment building.

Additionally, one has to be concerned that one branch of government would use their power to collect private information about citizens it feels threatened by. It looks like a personal score to settle. People who disagree with the executive branch are to be identifiedand to what end specifically? Over 200 people have already been charged with felony rioting at the inauguration. Why does the Department of Justice need to identify 1.3 million people who might disagree with the executive branch? It is frightening not only for civil liberties but for what it can mean on the slippery slope of settling political scores with citizens. Ask the Mothers of the Disappeared in Argentina: This is dangerous.

At the end of June, the executive branch asked the states to turn over voter registration information for the voter fraud commission. The information requested voter rolls, dates of birth and the last four digits of social security numbers. North Carolinas bipartisan State Board of Elections and Ethics Enforcement announced it would turn over publicly available information to the commission, but not social security numbers and dates of birth. Some states have refused to comply. I have to admit: The possibility of finding oneself purged from the voter rolls is a scary idea.

About 10 years ago, I found myself dropped from the voter registration rolls. It was a bit of a surprise; I showed up on election day and was informed I was not registered to vote in New Hanover County. The poll worker asked if I had registered to vote?

Yes, I answered. I have voted at this precinct location for the past six years. I usually come in with one of my parents and we would take turns standing with the dog outside, because a family that votes together stays together.

After much hemming and hawing with the poll workers, I was given a provisional ballot. I sorted out my registration and, thankfully (fingers crossed), have not had a problem since.

I come from a family that makes voting a priority. I am comfortable advocating for that right with people in positions of authority.

Recently, my household went through the citizenship process and one of the recurring themes in the process was voting is one of the most important ways to participate in a democracy and preform a civic duty. At the Naturalization Ceremony, the League of Women Voters were standing by with voter registration forms for each of the newly sworn-in citizens.

It doesnt take a giant leap of imagination to see those two lists overlap: Who visited a website the executive branch dislikes and who voted against the candidate in the last election? Where there is a match, how hard would it be to drop a name from the rolls? As far-fetched as this would have sounded 18 months ago, it is just not hard to imagine right now. If they control who can vote, they can control who wins an election. The timing of demanding these two sets of data is startling and frightening.

Dreamhost is challenging in the warrant and a hearing is scheduled on August 18. What is possibly more frightening than the above scenario is the possibility this is just a litmus test. If successful, where does it stop? What speech and assembly freedoms could we lose?

In the wake of the events at Charlottesville and escalating concern regarding North Koreawhich strike a primal and emotional chordit is hard to focus on something as dry as a justice department warrant. But that is exactly why it is important. The events surrounding the warrant and what happens with the information gathered will directly impact the publics ability to talk back to power and speak freely.

Allowing one branch of the government to target citizens who disagree is dangerous The possibilities of the internet are a fascinating double-edged sword. Never before in history have we had the ability to share information, opinions and ideas with such immediacy. Social media and web tools can allow for assemblies with short notice on a scale not previously imaginedand the documentation of the assemblies can be shared and made available around the world as they unfold. But the footprint and trackability of online activity is the other side of the coin. Potentially targeting someones voting rights based upon political opinions is not what the constitution intends.

Its important: protecting citizens rights to vote, speak and participate in democracy. It is essential to our future.

CharlottesvilleDepartment of Justiceencore magazineFourth AmendmentGwenyfar RohlerLeague of Women VotersMothers of the Disappeared in ArgentinaNaturalization Ceremonynew hanover countyNorth KoreaOrin KerrState Board of Elections and Ethics EnforcementUnited States ConstitutionWashington PostWilmington NC

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Violations Of The Fourth Amendment And Other Concerns About … – JD Supra (press release)

In New Jersey, yet another bill amending the animal cruelty statute (S1640) was recently passed into law. The amendments [e]stablish . . . requirements concerning necessary care of dogs, domestic companion animals, and service animals, and for tethering of dogs.

Many of the other provisions requiring necessary care to a companion animal are reasonable if the laws are appropriately enforced by professional law officers, who have sought guidance from individuals with expertise in animal health, care, and handling. Unfortunately this is not the case in New Jersey, where the animal cruelty statute is improperly enforced.

This makes the following provision extremely problematic and of concern to companion animal owners and their attorneys in the State:

any humane law enforcement officer or agent of the New Jersey Society for the Prevention of Cruelty to Animals or county society for the prevention of cruelty to animals, certified animal control officer, or other State or local law enforcement officer may immediately enter onto private property where a dog, domestic companion animal, or service animal is located and take physical custody of the animal, if the officer or agent has reasonable suspicion to believe that the animal is at risk of imminent harm due to a violation of this act.

While an earlier provision requires a showing of probable cause before a court of competent jurisdiction could issue a subpoena permitting law enforcement to enter private property and seize an animal, this latter provision impermissibly violates the Fourth Amendment of the Constitution.

A district court case provides clarity of rights under the Fourth Amendment:

In Badillo v. Amato, Case No. 13-1553, slip op. (D.N.J. Jan. 28, 2014) the Court denied then Monmouth County SPCA Chief Amatos motion to dismiss, in relevant part, Badillos allegation that Amato violated his right to be free from illegal search and seizure under the Fourth Amendment. In this case, Badillo, a priest of the Santeria religion was issued nine municipal court summons for animal animal abuse and neglect after Amato went around to the back of . . . [Badillos house, opened the gate and let himself in the fenced backyard without permission or a warrant and began taking pictures . . . Case No. 13-1553, slip op., at p. 3 (D.N.J. Jan. 28, 2014).

As the Court explained, finding that the Complaint sufficiently pleaded Fourth Amendment violations by Amato to survive a motion to dismiss, the Fourth Amendment provides:

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 persons or things to be seized. Id., at p. 8 (quoting U.S. Const. amend. IV.)

The Court reaffirmed that not only is the home sacrosanct but that protections afforded by the Fourth Amendment extend not only to a persons home, but also to the curtilage surrounding the property. Id., at p. 8-9 (citing Estate of Smith v. Maraso, 318 F.3d 497, 518-519 (3d Cir. 2003).

It appears that the foregoing provision of the newly amended animal cruelty statute, permitting entry to private property based on merely reasonable suspicion and in the absence of a court order would violate the Fourth Amendment.

Additional concerns about these amendments, previously discussed, remain included in the final adopted law.

For example, a person may not keep a dog (or other domestic companion animal) in an animal crate or carrier for transport, exhibition, show, contest, training or similar event if the top of the head of the dog touches the ceiling of the animal carrier or crate when the dog is in a normal standing position. There are many acceptable, safe dog carriers that permit dogs to stand, turn around and lie down comfortably, but the top of their head would touch the ceiling of the crate.

The public must be adequately informed about this new requirementthat does nothing to provide for the welfare of dogs transported in dog carriersso they are not victims of animal cruelty citations issued by over zealous agents and officers of the NJ or County SPCAs. As noted in the State of New Jersey Commission of Investigation 2000 report on Societies for the Prevention of Cruelty to Animals, at least one County society (Warren) routinely stopped vehicles with horse trailers for proof that a Coggins test certificate was available as required by the NJ Department of Agriculture. As the report concluded:

Not only is the absence of a certificate not cruelty, but SPCA personnel lack the expertise to know whether the horse described in the certificate, such as a Bay or Chestnut [which are specific horse colors and patterns], is in fact the horse being transported.

It would not be unprecedented if humane officers decided to target people traveling with dogs throughout the state, and started pulling over and issuing summons related to the size the their dog carriers.

Dog owners beware!

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Violations Of The Fourth Amendment And Other Concerns About … – JD Supra (press release)

Plan would designate sheriffs as ICE contractors in bid to bypass Fourth Amendment court decisions – ABA Journal

Immigration Law

Posted August 21, 2017, 11:44 am CDT

By Debra Cassens Weiss

Several sheriffs told the New York Times about the legal maneuver in which sheriffs would become ICE contractors, and the jails would be paid a daily fee to hold immigrants believed to be in the country illegally until ICE takes custody.

ICE spokeswoman Sarah Rodriguez told the Times that the agency was exploring a number of options to address sheriffs concerns, and no final decision has been made.

The Times explains the Fourth Amendment issue. Sheriffs enforce criminal law, and they cant make immigration arrests because they are civil in nature. Because of that difference, judges have found that holding immigrants who have paid bail or served their sentence is an unlawful seizure under the Fourth Amendment.

Sheriff Bob Gualtieri of Pinellas County, Florida, told the newspaper that he came up with the reasoning supporting the idea and presented it to ICE. Its a seamless transition, said Gualtieri, who is also a lawyer.

Gualtieri said he was told that the plan would be rolled out through a pilot program in Florida before it is expanded nationwide.

Omar Jadwat, the director of the American Civil Liberties Unions immigrants rights project, didnt think the plan would satisfy judges. Its a kind of window dressing on the same practice, he told the Times. It doesnt really change the legal analysis.

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Plan would designate sheriffs as ICE contractors in bid to bypass Fourth Amendment court decisions – ABA Journal

Amendment IV – The United States Constitution

The Fourth Amendment

Imagine youre driving a car, and a police officer spots you and pulls you over for speeding. He orders you out of the car. Maybe he wants to place you under arrest. Or maybe he wants to search your car for evidence of a crime. Can the officer do that?

The Fourth Amendment is the part of the Constitution that gives the answer. According to the Fourth Amendment, the people have a right to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. This right limits the power of the police to seize and search people, their property, and their homes.

The Fourth Amendment has been debated frequently during the last several years, as police and intelligence agencies in the United States have engaged in a number of controversial activities. The federal government has conducted bulk collection of Americans telephone and Internet connections as part of the War on Terror. Many municipal police forces have engaged in aggressive use of stop and frisk. There have been a number of highly-publicized police-citizen encounters in which the police ended up shooting a civilian. There is also concern about the use of aerial surveillance, whether by piloted aircraft or drones.

The application of the Fourth Amendment to all these activities would have surprised those who drafted it, and not only because they could not imagine the modern technologies like the Internet and drones. They also were not familiar with organized police forces like we have today. Policing in the eighteenth and early nineteenth centuries was a responsibility of the citizenry, which participated in night watches. Other than that, there was only a loose collection of sheriffs and constables, who lacked the tools to maintain order as the police do today.

The primary concerns of the generation that ratified the Fourth Amendment were general warrants and writs of assistance. Famous incidents on both sides of the Atlantic gave rise to placing the Fourth Amendment in the Constitution. In Britain, the Crown employed general warrants to go after political enemies, leading to the famous decisions in Wilkes v. Wood (1763) and Entick v. Carrington (1765). General warrants allowed the Crowns messengers to search without any cause to believe someone had committed an offense. In those cases the judges decided that such warrants violated English common law. In the colonies the Crown used the writs of assistancelike general warrants, but often unbounded by time restraintsto search for goods on which taxes had not been paid. James Otis challenged the writs in a Boston court; though he lost, some such as John Adams attribute this legal battle as the spark that led to the Revolution. Both controversies led to the famous notion that a persons home is their castle, not easily invaded by the government.

Today the Fourth Amendment is understood as placing restraints on the government any time it detains (seizes) or searches a person or property. The Fourth Amendment also provides that 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 idea is that to avoid the evils of general warrants, each search or seizure should be cleared in advance by a judge, and that to get a warrant the government must show probable causea certain level of suspicion of criminal activityto justify the search or seizure.

To the extent that a warrant is required in theory before police can search, there are so many exceptions that in practice warrants rarely are obtained. Police can search automobiles without warrants, they can detain people on the street without them, and they can always search or seize in an emergency without going to a judge.

The way that the Fourth Amendment most commonly is put into practice is in criminal proceedings. The Supreme Court decided in the mid-twentieth century that if the police seize evidence as part of an illegal search, the evidence cannot be admitted into court. This is called the exclusionary rule. It is controversial because in most cases evidence is being tossed out even though it shows the person is guilty and, as a result of the police conduct, they might avoid conviction. The criminal is to go free because the constable has blundered, declared Benjamin Cardozo (a famous judge and ultimately Supreme Court justice). But, responded another Supreme Court justice, Louis Brandeis, If the government becomes the lawbreaker, it breeds contempt for the law.

One of the difficult questions today is what constitutes a search? If the police standing in Times Square in New York watched a person planting a bomb in plain daylight, we would not think they needed a warrant or any cause. But what about installing closed circuit TV cameras on poles, or flying drones over backyards, or gathering evidence that you have given to a third party such as an Internet provider or a banker?

Another hard question is when a search is acceptable when the government has no suspicion that a person has done something wrong. Lest the answer seem to be never, think of airport security. Surely it is okay for the government to screen people getting on airplanes, yet the idea is as much to deter people from bringing weapons as it is to catch themthere is no cause, probable or otherwise, to think anyone has done anything wrong. This is the same sort of issue with bulk data collection, and possibly with gathering biometric information.

What should be clear by now is that advancing technology and the many threats that face society add up to a brew in which the Fourth Amendment will continue to play a central role.

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

What the Fourth Amendment Fundamentally Requires by Barry Friedman

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

For example, sometimes the Justices say that there is a strong preference for government agents to obtain warrants, and that searches without warrants are presumptively invalid. At other times they say warrants are unnecessary, and the only requirement is that searches be reasonable. At times the Justices say probable cause is required to support a search; at others they say probable cause is not an irreducible minimum.

This is your Fourth Amendment. It describes [t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. It is important for each American to focus on some basics and decideseparate and apart from what the Justices saywhat this vital amendment means.

People say that the Fourth Amendment protects privacy, but that trivializes it. In this world you give up a lot of privacy, whether you wish to or not. Internet cookies, or data stored in web browsers, are just one example. But the Internet companies are not going to come take you away. The government might. What the Fourth Amendment protects is the right of the people to be secure. The Fourth Amendment is the means of keeping the government out of our lives and our property unless it has good justification.

In evaluating how the Fourth Amendment should be interpreted, it is essential to bear in mind the vast changes in policing since the time it was ratified. Whereas policing once was reactive, tasked with identifying and catching criminals, today it has become proactive and is based in deterrence. Before, policing was mostly based on suspicion, it was aimed at people for whom there was cause to believe they had violated or were about to violate the law. Today, policing is aimed at all of usfrom red light cameras to bulk data collection by intelligence agencies to airport security.

There are some basic principles that should govern searches and seizures.

First, no member of the Executive branch should be permitted to intervene in our lives without the say-so of at least one other branch. This is fundamental, and all the more important when that Executive actor engages in surveillance of the citizenry and can use force and coercion against them.

Second, a central purpose of the Fourth Amendment is preventing arbitrary or unjustified intrusions into the lives and property of citizens.

In light of these basic principles, certain interpretations of the Fourth Amendment follow:

No search or seizure is reasonable if it is not based on either legislative authorization or pursuant to rules that have some form of democratic say in their making. The police can write rulesall other agencies of executive government dobut absent a critical need for secrecy those rules should be public and responsive to public wishes.

Second, warrants are to be preferred. Policing agencies are mission-oriented. We want them to bethey have a vital role protecting public safety. But because they are mission-oriented, warrants should be obtained in advance of searching whenever possible so that a neutral judge can assess the need to intrude on peoples lives.

Third, we should distinguish between searches aimed at suspects and those aimed at society in general. When there is a particular suspect, the protections of a warrant and probable cause apply. But those protections make no sense when we are all the target of policing. In the latter instance the most important protection is that policing not discriminate among us. For example, at airport security all must be screened the same unless and until there is suspicioncause to single someone out.

Finally, often todays policing singles out a particular group. Examples include profiling (based on race, religion, or something else) or subjecting only workers in some agencies to drug tests. When policing is group-based, the proper clause of the Constitution to govern is the Equal Protection Clause. When discriminatory searching or seizing occurs, the government should have to prove two things: that the group it is selecting for unfavorable treatment truly is more likely to contain people worthy of the governments attention, and that the incidence of problematic behavior is sufficiently great in that group to justify burdening everyone. Otherwise, the government should go back to either searching individuals based on suspicion, or search us all.

The Future of the Fourth Amendment by Orin Kerr

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

The Fourth Amendment was written over two hundred years ago. But todays crimes often involve computers and the Internet, requiring the police to collect digital evidence and analyze it to solve crimes.

The major question is, how much power should the police have to collect this data? What is an unreasonable search and seizure on the Internet?

Consider the example of a Facebook account. If you log in to Facebook, your use of the account sends a tremendous amount of information to Facebook. Facebook keeps records of everything. What you post, what messages you send, what pictures you like, even what pages you view. Facebook gets it all, and it keeps records of everything you do. Now imagine that the police come to Facebook and want records of a particular user. The police think the suspect used Facebook to commit the crime or shared evidence of the crime using the site. Maybe the suspect was cyberstalking and harassing a victim on Facebook. Or maybe the suspect is a drug dealer who was exchanging messages with another drug dealer planning a future crime. Or perhaps the suspect committed a burglary, and he posted pictures of the burglary for all of his Facebook friends to see.

Heres the hard question: What limits does the Fourth Amendment impose on the government getting access to the account records? For example, is it a Fourth Amendment search or seizure for the government to get what a person posted on his Facebook wall for all of his friends to see? Is it a search or seizure to get the messages that the suspect sent? How about records of what page the suspect viewed? And if it is a search or seizure, how much can the government seize with a warrant? Can the government get access to all of the account records? Only some of the account records?

The courts have only begun to answer these questions, and it will be up to future courts to figure out what the Fourth Amendment requires. As more people spend much of their lives online, the stakes of answering these questions correctly becomes higher and higher.

In my view, courts should try to answer these questions by translating the traditional protections of the Fourth Amendment from the physical world to the networked world. In the physical world, the Fourth Amendment strikes a balance. The government is free to do many things without constitutional oversight. The police can watch people in the public street or watch a suspect in a public place. They can follow a car as it drives down the street. On the other hand, the police need cause to stop people, and they need a warrant to enter private places like private homes.

The goal for interpreting the Fourth Amendment should be to strike that same balance in the online setting. Just like in the physical world, the police should be able to collect some evidence without restriction to ensure that they can investigate crimes. And just like in the physical world, there should be limits on what the government can do to ensure that the police do not infringe upon important civil liberties.

A second important area is the future of the exclusionary rule, the rule that evidence unconstitutionally obtained cannot be used in court. The history of the exclusionary rule is a history of change. In the 1960s and 1970s, the Supreme Court dramatically expanded the exclusionary rule. Since the 1980s, however, the Supreme Court has cut back on when the exclusionary rule applies.

The major disagreement is over whether and how the exclusionary rule should apply when the police violate the Fourth Amendment, but do so in good faith, such as when the law is unclear or the violation is only technical. In the last decade, a majority of the Justices have expanded the good faith exception to the exclusionary rule. A central question is whether the good faith exception will continue to expand, and if so, how far.

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

Originally posted here:

Amendment IV – The United States Constitution

Fourth Amendment | Constitution | US Law | LII / Legal …

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 | Constitution | US Law | LII / Legal …

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, 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.

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

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

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

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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4th Amendment – constitution | Laws.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

VerizonYes, VerizonJust Stood Up For Your Privacy – WIRED

Roberto Machado Noa/Getty Images

Fourteen of the biggest US tech companies filed a brief with the Supreme Court on Monday supporting more rigorous warrant requirements for law enforcement seeking certain cell phone data, such as location information. In the statement, the signatoriesGoogle, Apple, Facebook, and Microsoft among themargue that the government leans on outdated laws from the 1970s to justify Fourth Amendment overreach. One perhaps surprising voice in the chorus of protesters? Verizon.

Verizon’s support means that the largest wireless service provider in the US, and a powerful force in Silicon Valley, has bucked a longtime trend of telecom acquiescence. While carriers have generally been willing to comply with a broad range of government requestseven building out extensive infrastructure to aid surveillanceVerizon has this time joined with academics, analysts, and the companys more privacy-focused corporate peers.

Carpenter v. United States is one of the most important Fourth Amendment cases in recent memory, Craig Silliman, Verizons executive vice president for public policy and general counsel, wrote on Monday. Although the specific issue presented to the Court is about location information, the case presents a broader issue about a customers reasonable expectation of privacy for other types of sensitive data she shares with any third party. Our hope is that when it decides this case, the Court will help us better apply old Fourth Amendment doctrines to an evolving digital era.

From the early days of landlines, telecoms have complied with law enforcement requests for customer data such as call length, location, and who has called whom. As the variety of data customers generate has exponentially expanded and evolved, so has this information gathering by government officials, often under a general mandate and without a case-specific warrant. For its part, Verizon cooperated with the National Security Agency as part of broad bulk surveillance programs for years. Details of this coordination was revealed in NSA documents leaked by Edward Snowden in 2013, but some aspects of it had been publicly debated for years prior.

Carpenter v. United States, which the Supreme Court will hear this fall, relates to the acquisition, without a warrant, of months of individuals location records by law enforcement officials in 2011. Officials looked back on 12,898 location records, spanning a four-month period, of one of these individuals, Timothy Carpenter, to build their case; Carpenter was eventually convicted. His appeal argues that location-data collection by law enforcement without a warrant violates his Fourth Amendment rightsand Verizon agrees.

Verizon stands out because they actually hold the specific kind of location records that are directly at issue, says Nathan Freed Wessler, a staff attorney at the American Civil Liberties Union, which represents Carpenter. The telecoms have a long history in general of cooperating with law enforcement surveillance demands, but I think Verizons participation reflects a growing understanding of the importance of standing up for customers privacy rights.”

As the general public becomes increasingly aware of the privacy risks associated with entrusting their data to corporate entities, a strong stance on data protection has been a boon to companies like Apple. This economic incentive may be even stronger for the numerous telecoms that now straddle the line between traditional utility and tech company. Verizon, for example, now owns Yahoo and AOL in addition to its role as a top-four wireless provider in the US.

“At the end of the day, a company like Verizon isnt going to stick its neck out if it doesnt think that theres a business rationale in addition to it being the right thing to do,” Wessler says.

Verizon has laid the groundwork for this move for months. Silliman wrote publicly last year about potential Fourth Amendment concerns when telecoms comply with warrantless law enforcement data requests. The company’s stand won’t necessarily prompt peers to followno other telecoms joined this particular briefbut it still represents a turning point in the dialog between privacy advocates and monolithic telecoms. And in Carpenter v. United States, it’s only one of the voices that matters in the larger discussion about data privacy.

“The other tech companies bring the perspective that this case is also about our emails and our smart devices and all the kinds of cloud-stored data that we create in the course of our daily lives now,” Wessler says. “The Justices should not be under the misapprehension that they can just try to narrowly apply these outdated precedents from the 1970s in this case. The implications are really huge, and this is the chance to make sure that our understanding of the Fourth Amendment keeps up with digital technology.

See the rest here:

VerizonYes, VerizonJust Stood Up For Your Privacy – WIRED

Plan would designate sheriffs as ICE contractors in bid to bypass Fourth Amendment court decisions – ABA Journal

Immigration Law

Posted August 21, 2017, 11:44 am CDT

By Debra Cassens Weiss

Several sheriffs told the New York Times about the legal maneuver in which sheriffs would become ICE contractors, and the jails would be paid a daily fee to hold immigrants believed to be in the country illegally until ICE takes custody.

ICE spokeswoman Sarah Rodriguez told the Times that the agency was exploring a number of options to address sheriffs concerns, and no final decision has been made.

The Times explains the Fourth Amendment issue. Sheriffs enforce criminal law, and they cant make immigration arrests because they are civil in nature. Because of that difference, judges have found that holding immigrants who have paid bail or served their sentence is an unlawful seizure under the Fourth Amendment.

Sheriff Bob Gualtieri of Pinellas County, Florida, told the newspaper that he came up with the reasoning supporting the idea and presented it to ICE. Its a seamless transition, said Gualtieri, who is also a lawyer.

Gualtieri said he was told that the plan would be rolled out through a pilot program in Florida before it is expanded nationwide.

Omar Jadwat, the director of the American Civil Liberties Unions immigrants rights project, didnt think the plan would satisfy judges. Its a kind of window dressing on the same practice, he told the Times. It doesnt really change the legal analysis.

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Plan would designate sheriffs as ICE contractors in bid to bypass Fourth Amendment court decisions – ABA Journal

Homeschoolers ramp up 4th Amendment battle – WND.com

The Home School Legal Defense Association, the nations premiere advocate for homeschooling, is representing a family in its suit against a police officers unauthorized entry into a private home, even though the case has nothing to do with homeschooling.

Its because the case brought by LuAnn, Joseph and Timothy Batt against police officer Joseph Buccilli, who forced his way into the familys home without either a warrant or an emergency reason, illustrates the battle for the front door.

The family is appealing to the the 2nd U.S. Circuit Court of Appeals, arguing the Fourth Amendment protects them from unreasonable searches.

The amendment states: 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 case is relevant to homeschoolers, HSDLA explains, because early homeschoolers sometimesfound an investigative social worker at their front door, often accompanied by uniformed police officers.

These authorities were typically investigating anonymous tips that didnt have much to do with homeschooling itself often something like this: The children are always home, they dont go to school, and the family seems really religious.’

Police State USA: How Orwells Nightmare Is Becoming Our Reality chronicles how America has arrived at the point of being a de facto police state and what led to an out-of-control government that increasingly ignores the Constitution. Order today!

HSLDA said homeschoolers soon learned that front-door encounters with an investigative social worker could be traumatic for both parents and children alike.

Protecting our member families from such unwarranted investigations was what drew HSLDA into what we call the battle for the front door defending Fourth Amendment rights, the organizationsaid.

In the New York case, Buccilli, a police officerin Orchard City, barged into the familys home without a warrant after being told he had no permission to enter.

He claimed social services had asked him to do a welfare check at the home.

According to an HSLDA brief to the 2nd Circuit, which asks that the lower courts decision to award Buccilli immunity in the case be overturned, the officeradmitted he knew nothing about any allegations of wrongdoingor any emergencyand didnt know who asked for the welfare check.

I dont know the basis of the allegations or what the welfare concerns are, he told the family. We do have a right to come in here when an allegation is made.

I dont need a search warrant. I dont need to ask permission, he continued.

And, multiple times, he threatened anyone who obstructed him with arrest.

He ended up talking to a senior citizen, LuAnn Batts father, Fred Puntoriero, who was well-dressed and well-groomed and was being cared for by a nurse, and left. Social services closed down its investigation almost immediately.

But the lawsuit against the officer argueshe did exactly what the Constitution, affirmed by the U.S. Supreme Court, forbids.

Entries without a warrant are allowed for several reasons: when an officer is in hot pursuit of a suspect, when evidence is in imminent danger of being destroyed or someone is in need of emergency aid.

The brief points outnone of those circumstances existed for Buccilli.

Pointedly, the brief states, In 2004, the Supreme Court said no reasonable officer could claim to be unaware of the basic rule, well established by our cases, that absent consent or exigency, a warrantless search of the home is presumptively unconstitutional.

It turns out, the brief explains, that Puntorieros daughter-in-law, who had been involved in disputes with the family over Freds care and property, had called authorities with the complaint that two weeks earlier her husband had expressed concern over his fathers welfare.

However, when Fred livedwith her and her husband, he was diagnosed with failure to thrive.

She told adult protective services that her husband had said two weeks earlier that Fred was lethargic when he visited.

APS admitted such reports from an underlying family dispute often are false, but the officer charged into the home anyway.

On April 17, 2012, Lt. Buccilli forcibly entered the Batts home, without consent or a warrant, to conduct a welfare check. On that day, federal law prohibited police from forcibly entering a home without consent or a warrant for any reason whatsoever, unless the circumstances fell within one of the established narrowly-drawn exigency exceptions, the brief explains.

The circumstances Lt. Buccilli confronted presented no exigency whatsoever.

HSLDAs Darren Jones, a litigation attorney, said theFourth Amendment doesnt have an exception based on a welfare check.’

Before police can come into a home, they must have either a warrant or some clearly defined exception, like an emergency or a hot pursuit of a suspect, he explained.

HSLDA Senior Counsel James R. Mason previously notedthe Batts were members of HSLDA since their son was a child.

He grew up reading about his Fourth Amendment rights in The Home School Court Report.

Mason pointed out Buccilli even threatened the family with informing adult protect services about [your] lack of cooperation.

The officerthen said, You should not pretend to know the law.

Mason argued the Fourth Amendment does not permit the police to enter anyones home without a warrant unless there is a real emergency even if its called a welfare check.’

The report said HSLDA has long believed that it is important to dispel the notion among police and other authorities that all Fourth Amendment bets are off when they demand to enter a home to conduct a welfare check.’

Police State USA: How Orwells Nightmare Is Becoming Our Reality chronicles how America has arrived at the point of being a de facto police state and what led to an out-of-control government that increasingly ignores the Constitution. Order today!

Read more here:

Homeschoolers ramp up 4th Amendment battle – WND.com


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