Privacy march, Washington D.C, 2013. Credit: James Bovard

U.S. intelligence agencies are telling us not to worry about the FISA Amendments Act, a 2008 law that allows the NSA to tap into the communications of non-U.S. persons who are outside the U.S., even though this lawsidestepsthe Fourth Amendment as it allows the NSA to record the emails and phone calls of U.S. citizens who happen to be communicating with people overseas.

How many American citizens is the government listening in on? We dont know, as the intelligence agencies told Congress they cant say just how many American citizens theyve eavesdropped on (without warrants).

Despite this, they say Congress should just renew the controversial section 702 of the Act before it expires in December; in fact, they want it to be made permanent law.

Congress would probably do this too if it wasnt for the fact that theyve recently learned their privacy is also at stake. Recent unmaskings show that even a congressmans conversations with a foreign official might go public with their names un-redacted. Then, even if the member of Congress didnt do anything wrong, what they said and whom they spoke with could quickly be taken out of context by the media outlets that root for the opposing team.

We cannot live in fear of our own intelligence community, said Sen. Rand Paul (R-KY). They have such power to suck up every bit of every transmission, every communication we ever made. We cant just have them willy-nilly releasing that to the public.

In this case Paul is not a lone gadfly. Politicians from Rep. Devin Nunes (R-CA), chairman of the House Intelligence Committee, to Sen. Dianne Feinstein (D-Calif.), arent so keen about what this law can do to them. Theyve learned that this is a new age when elected officials, not just privacy advocates, fear not just leaked facts, but innuendo and out-of-context spin from off-camera conversations or email exchanges.

Some Republicans even used a debate at a recent congressional hearing to suggest Obama administration officials had purposely unmasked elected officials and then leaked the info to harm Trump administration officials. Specifically, former National Security Advisor Susan Rice and former U.S. ambassador to the United Nations Samantha Power have been accused of unmasking Trump administration officials and expanding who could see the documents in an effort to get them to leak.

All of this is very new and confusing to our politicians. But, as fiction can gaze just beyond the headlines to show us where we are going and how we might keep our freedom in this changing world, my novel Kill Big Brother takes this plot to its dramatic end. What I found while researching and writing the book is there are ways to keep our intelligence agencies strong enough to protect us while keeping our freedom.

This begins with enforcing a change in mindset. Too often our intelligence agencies, as law enforcement will, have their eyes so fixed on the problemsterrorism, ransomware wielded by criminal syndicatesthey lose sight of the freedom they are supposed to be protecting.

So what should Congress do with Section 702 of the FISA Amendments Act?

First, they shouldnt make it permanent law, as Congress needs to revisit this issue periodically as events and technology change.

Next, Congress should require the intelligence agencies to report by specified dates how many U.S. citizens have been listened to or have had their emails viewed as a result of this provision in the lawand not just general numbers, but real data. The law sunsets in December, so Congress should use this deadline to pressure the intelligence community to get these answers now.

Congress should then update the law by setting up a legal apparatus that will help to quickly, in this modern world, give the NSA and more the ability to get approval or to, in some cases, get approval within a certain time period after the fact for listening in on communications that might include U.S. citizens. Yes, this means stripping away the NSAs ability to listen away with no checks or balances from Congress or the courts. The Fourth Amendment protections need to be respected. If technology makes it possible for the NSA to listen in on conversations,then the NSA, with all of its vast resources, can propose ways for technology to help create a fast approval and oversight process.

Civil libertarians shouldnt forget that U.S. intelligence agencies have an almost impossible task. They have to find terrorists and others who are plotting to do us harm in an age when encryption and other technologies allow even unsophisticated criminals to hide their communications. But then, history is also a teacher heresimply empowering secretive government organizations can lead to some undesirable places.

Also, encryption and other technologies have become an important part of modern commerce. There is no turning back the clock. What it comes down to is that good police work is called for, not broad new powers for a Big Brother state.

Few Americans now know that under Section 702 the FISA Amendments Act the government now collects millions of communications annually from American citizens, according to research done by The Washington Post. Part of the way the NSA does this is by temporarily copying internet traffic going in and out of the U.S. As a result, they are copying and potentially searching emails between journalists and their sources, communications protected by attorney-client privilege, and lawful conversations elected officials are having with foreigners.

Just imagine if a new Edward Snowden leaked this data, information that currently can be used in domestic criminal and civil proceedings, without a warrant. Our right to communicate privately, via Fourth Amendment protections, is paramount to our freedom; also, the First Amendment right to free speech is dampened by this lack of privacy. The U.S. intelligence agencies should be reminded that telling us to give up what they are supposed to be protecting also kills our liberty.

Frank Miniter is the author ofKill Big Brother, a novel that shows how we can keep our freedom in this digital age.

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We Can't Live in Fear of Our Own Intelligence Community | The ... - The American Conservative

Congress should sunset any extension of the intelligence communitys dubious electronic surveillance authority to intercept, store, and search the contents of international communications under section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008.

Enacted in 2008, section 702 initially sunset in 2012. Congress later extended the sunset date until December 31, 2017.

Generally speaking, a statute should sunset whenever predictable changes in technology threaten statutory obsolescence; its encroachment on liberty is unknown or uncertain; the statutes effectiveness is doubtful; the governments compliance with the statute is spotty; or, the constitutionality of the statute remains in doubt.

All five of these time-honored considerations militate in favor of a sunset date for any extension of section 702 beyond December 31, 2017.

Digital technologies are changing a warp speed. What is science fiction today is reality tomorrow.

The changes affect the ways in which international communications are conducted; and, government capabilities for intercepting, storing, and searching the contents of international communications. Indeed, section 702 responded in part to the migration of international telecommunications from satellite to fiber. The development of cloud technologies has has confounded the Stored Communications Act of 1986 as illustrated by the United States Court of Appeals decision in Microsoft Corp. v. United States.

The governments technical capabilities for intercepting, storing, and searching the contents of international communications are rapidly expanding. These pioneering technologies might easily evade limits imposed by section 702 written by Congress with an eye on 2017. Any section 702 extension should thus sunset in four years to insure against a horse-and-buggy statute governing in an age of interstate highways.

Another sunset for 702 is also prudent because of the governments professed ignorance of its to intercept or search the international communications of American citizens protected by the Fourth Amendment. At present, the government insists it is unable to distinguish between electronic communications between foreign persons located outside the United States and communications between a foreigner and a U.S. person in the United States. Thus, Congress is clueless as to the magnitude of section 702 invasions of the constitutionally protected privacy of United States citizens. This information should be known and disclosed by the intelligence community before Congress should even consider making section 702 permanent.

The effectiveness of section 702 in thwarting international terrorism or espionage is questionable. After nine years, the intelligence community has yet to document a single case in which section 702 enabled the preemption of an international terrorist act in the United States. Former National Security Agency official and renowned expert Bill Binney has opined that the NSA cannot identify future terrorism because 99.9999% of what it collects and analyzes is foreseeably irrelevant. NSA analysts are theoretically tasked with reviewing 40,000 to 50,000 questionable records each day. If section 702 is largely irrelevant to frustrating international terrorism, it amounts to a massive invasion of privacy for its own sakean illicit government objective.

The government has commonly violated section 702 surveillance limitations. Illustrative but far from exhaustive was the April 26, 2017 FISC decision authored by Judge Rosemary Collyer sharply rebuking the intelligence community for illegal surveillance of American citizens over a five-year period which raised very serious constitutional questions. These chronic violations also argue against any permanent extension of section 702.

Finally, the section seemingly authorizes dragnet, warrantless interceptions and searches of the contents of the international communications of American citizens in violation of the Fourth Amendment. The statute does not require any suspicion that citizens whose communications are seized and searched are implicated in international terrorism, espionage, or other crime as a predicate for invading their communications privacy.

The United States Supreme Court has yet to address the constitutionality of section 702. Congress should refrain from giving it permanent life unless and until it receives the Courts gives imprimatur. Caution is the order of the day when skating close to the Constitutions edge.

In sum, every dictate of prudence favors a congressional four-year sunset if it decides to extend section 702 beyond December 31, 2017. That would compel a fresh and more informed congressional examination of the statute after the 2020 presidential election.

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Sunset any Extension of Electronic Surveillance Authority - HuffPost

WisBar

Blood Test Suppressed: Police Misinformed Driver on Consequences of Refusal WisBar All things considered, Blackman's consent to the blood draw was not voluntary and free, and was not an unconstrained choice, it was the product of coercion, express or implied, and therefore was invalid under the Fourth Amendment, Abrahamson wrote.

See the article here:

Blood Test Suppressed: Police Misinformed Driver on Consequences of Refusal - WisBar

ANALYSIS/OPINION:

Section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008 (FAA) authorizes the government to seize and search the international communications of American citizens without probable cause or warrants in violation of the Fourth Amendment. It should not be extended beyond its current expiration date of December 31, 2017 unless Congress cures its constitutional infirmity.

Members of Congress are bound by oath or affirmation to uphold and defend the Constitution period; no commas, semicolons, or question marks. The murderous abominations of the 9/11 terror attacks changed nothing on that score.

The Supreme Court admonished in Ex Parte Milligan:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism

As a cornerstone of our liberty-centered constitutional universe, the Fourth Amendment makes citizen privacy the rule and government encroachments the exception. Warrants issued by neutral magistrates based upon probable cause with particularized evidence that crime is afoot are ordinarily required to justify government invasions of privacy.

In the narrow circumstances that excuse warrants, a government search or seizure must still satisfy a standard of reasonableness.

Justice Louis D. Brandeis elaborated in Olmstead v. United States (dissenting):

The makers of our Constitutionsought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

The American Revolution was ignited by opposition to hated British Writs of Assistance, general search warrants that empowered every petty colonial official to rummage through homes or businesses in search of smuggled goods. An address by William Pitt the Elder to the British Parliament thundered throughout the colonies, and epitomized the spirit of the Amendment:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter, but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.

Speaking through Justice Antonin Scalia, the Supreme Court decreed in Kyllo v. United States that the Fourth Amendment today should be interpreted should be adapted to secure that degree of privacy against government that existed when the Fourth Amendment was adopted notwithstanding staggering advances in technology. At that time, government encroachments on privacy were minimal. Federal criminal laws were few. Investigations were minimal. And no intelligence community existed to snoop on Americans to gather foreign intelligence.

Section 702 authorizes invasions of citizen privacy orders of magnitude beyond the degree of privacy that existed when the Fourth Amendment was ratified in 1791. It empowers the National Security Agency singly or in conjunction with sister intelligence agencies to intercept, store and search the international communications of U.S. persons with a targeted communicant reasonably thought to be located outside the United States and in possession of foreign intelligence information.

The Foreign Intelligence Surveillance Court (FISC) does not review each discrete NSA interception to insure the target is a foreigner outside the United States or that the communications intercepted relate to foreign intelligence, including international terrorism. Instead, the FISC simply approves annually surveillance procedures that the Attorney General and Director of National Intelligence certify are calculated to target only foreigners located abroad for foreign intelligence purposes. The latter is broadly defined to include any information that relates to the foreign affairs of the United States.

The government has employed section 702 to collect more than 250 million internet transactions annually as of 2011, which includes communications between two foreigners as well as those involving a U.S. person. According to an affidavit of Bill Binney, former high-level NSA official and perhaps the foremost expert in the world on electronic surveillance:

When I was at the NSA, each analyst was theoretically required to review 40,000 to 50,000 questionable records each day. The analyst gets overwhelmed, and the actual known targets from the metadata analysis get ignoredThe NSA cannot identify future terrorism because 99.9999% of what it collects and analyzes is foreseeably irrelevant.

The intelligence community is clueless as to how many of the 250 million annual internet warrantless interceptions under section 702 involve the international communications of U.S. persons. But the Fourth Amendment vice does not cease after the seizures. The communications are typically stored for at least five years and searched without warrants or probable cause for either to discover foreign intelligence or evidence of crime a second Fourth Amendment transgression.

Supreme Court decisions establish that the government must obtain a warrant that satisfies the Fourth Amendment to intercept or search the contents of communications of U.S. persons for either criminal justice or domestic security purposes. The high court has not approved an exception when the communications are seized and searched pursuant to section 702 for law enforcement or foreign intelligence purposes.

Title III wiretap orders under the Omnibus Crime Control Act are vastly less intrusive on privacy. They require a warrant that satisfies the Fourth Amendment by specifying the phone line to be tapped, the conversations to be seized, and the crime under investigation. Moreover, reasonable measures must be taken by the government to avoid recording innocent conversations. And the targets of the warrants and their communicants are typically notified of the wiretap within 90 days of its termination to enable them to challenge its legality.

In contrast, surveillance under section 702 does not require a warrant. It does not require probable cause. It does not require suspicion of criminality. It is not confined to communications involving only foreign powers or their agents. There is no mechanism for monitoring the seizure of the communications to exclude those portions irrelevant to foreign intelligence. And the communicants whose conversations are intercepted, stored, and searched are not notified of the invasions of privacy unless they are lead to a criminal prosecution.

In the vast majority of cases, U.S. persons will never learn that the privacy of their international communications had been compromised.

Even if no warrant were required under the Fourth Amendment for the seizure, storage and search of the international communications of U.S. persons under section 702, it would still fail the reasonableness test.

While the government interest in national security is of the highest order, Section 702 sweeps far more broadly to include anything relevant to the foreign policy of the United States, for example, the emission of greenhouse gases or free trade agreements. It also authorizes searches of citizen communications for crimes unrelated to national security and not based on probable cause. And as Bill Binneys affidavit underscored, the stupendous volume of communications capture by section 702 cripples the NSAs ability to separate the wheat from the chaff.

Proponents of extending Section 702 argue that government officials have refrained from using its alarming powers to oppress U.S. persons. But as Thomas Jefferson advised, In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

Moreover, Justice Brandeis correctly taught that, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

In sum, Section 702 should not be extended unless it requires a warrant to seize or search international communications of U.S. persons based upon probable cause to believe they contain evidence of international terrorism and with particularity describe the means of seizing or searching the communications. Further, U.S. persons should be notified within 90 days of any interception or search.

The Fourth Amendment is too important to be left to the intelligence community.

__

[This is the first of a series of articles on extending Section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008 scheduled to expire December 31, 2017]

Continued here:

Section 702 surveillance should not be extended until the Fourth Amendment is honored - Washington Times

Section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008 (FAA) authorizes the government to seize and search the international communications of American citizens without probable cause or warrants in violation of the Fourth Amendment. Section 702 should not be extended beyond its current expiration date of December 31, 2017 unless Congress cures its constitutional infirmity.

Members of Congress are bound by oath or affirmation to uphold and defend the Constitution period, with no commas, semicolons, or question marks. The 9/11 murderous abominations changed nothing on that score. The Supreme Court admonished in Ex Parte Milligan:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism

As a cornerstone of our liberty-centered constitutional universe, the Fourth Amendment makes citizen privacy the rule and government encroachments the exception. Warrants issued by neutral magistrates based upon probable cause with particularized evidence that crime is afoot are ordinarily required to justify government invasions of privacy. In the narrow circumstances that excuse warrants, a government search or seizure must still satisfy a standard of reasonableness. Justice Louis D. Brandeis elaborated in Olmstead v. United States (dissenting):

The makers of our Constitutionsought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

The American Revolution was ignited by opposition to hated British Writs of Assistance or general search warrants that empowered every petty colonial official to rummage through homes or businesses in search of smuggled goods. An address by William Pitt the Elder to the British Parliament thundered throughout the colonies, and epitomized the spirit of the Amendment:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.

Speaking through Justice Antonin Scalia, the Supreme Court decreed in Kyllo v. United States that the Fourth Amendment today should be interpreted should be adapted to secure that degree of privacy against government that existed when the Fourth Amendment was adopted notwithstanding staggering advances in technology. At that time, government encroachments on privacy were minimal. Federal criminal laws were few. Investigations were minimal. And no intelligence community existed to snoop on Americans to gather foreign intelligence.

Section 702 authorizes invasions of citizen privacy orders of magnitude beyond the degree of privacy that existed when the Fourth Amendment was ratified in 1791. It empowers the National Security Agency singly or in conjunction with sister intelligence agencies to intercept, store, and search the international communications of U.S. persons with a targeted communicant reasonably thought to be located outside the United States and in possession of foreign intelligence information.

The Foreign Intelligence Surveillance Court (FISC) does not review each discrete NSA interception to insure the target is a foreigner outside the United States or that the communications intercepted relate to foreign intelligence, including international terrorism. Instead, the FISC simply approves annually surveillance procedures that the Attorney General and Director of National Intelligence certify are calculated to target only foreigners located abroad for foreign intelligence purposes. The latter is broadly defined to include any information that relates to the foreign affairs of the United States.

The government has employed section 702 to collect more than 250 million Internet transactions annually as of 2011, which includes communications between two foreigners as well as those involving a U.S. person. According to an affidavit of Bill Binney, former high level NSA official and perhaps the foremost expert in the world on electronic surveillance:

When I was at the NSA, each analyst was theoretically required to review 40,000 to 50,000 questionable records each day. The analyst gets overwhelmed, and the actual known targets -- from the metadata analysis -- get ignoredThe NSA cannot identify future terrorism because 99.9999% of what it collects and analyzes is foreseeably irrelevant.

The intelligence community is clueless as to how many of the 250 million annual Internet warrantless interceptions under section 702 involve the international communications of U.S. persons. But the Fourth Amendment vice does not cease after the seizures. The communications are typically stored for at least five years and searched without warrants or probable cause for either to discover foreign intelligence or evidence of crimea second Fourth Amendment transgression.

Supreme Court decisions establish that the government must obtain a warrant that satisfies the Fourth Amendment to intercept or search the contents of communications of U.S. persons for either criminal justice or domestic security purposes. The High Court has not approved an exception when the communications are seized and searched pursuant to section 702 for law enforcement or foreign intelligence purposes.

Title III wiretap orders under the Omnibus Crime Control Act is vastly less intrusive on privacy. They require a warrant that satisfies the Fourth Amendment by specifying the phone line to be tapped, the conversations to be seized, and the crime under investigation. Moreover, reasonable measures must be taken by the government to avoid recording innocent conversations. And the targets of the warrants and their communicants are typically notified of the wiretap within 90 days of its termination to enable them to challenge its legality.

In contrast, surveillance under section 702 does not require a warrant. It does not require probable cause. It does not require suspicion of criminality. It is not confined to communications involving only foreign powers or their agents. There is no mechanism for monitoring the seizure of the communications to exclude those portions irrelevant to foreign intelligence. And the communicants whose conversations are intercepted, stored, and searched are not notified of the invasions of privacy unless they are lead to a criminal prosecution. In the vast majority of cases, U.S. persons will never learn that the privacy of their international communications had been compromised.

Even if no warrant were required under the Fourth Amendment for the seizure, storage, and search of the international communications of U.S. persons under section 702, it would still fail the reasonableness test. While the government interest in national security is of the highest order, section 702 sweeps far more broadly to include anything relevant to the foreign policy of the United States, for example, the emission of greenhouse gases or free trade agreements. It also authorizes searches of citizen communications for crimes unrelated to national security and not based on probable cause. And as Bill Binneys affidavit underscored, the stupendous volume of communications capture by section 702 cripples the NSAs ability to separate the wheat from the chaff.

Proponents of extending section 702 argue that government officials have refrained from using its alarming powers to oppress U.S. persons. But as Thomas Jefferson advised, In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. Moreover, Justice Brandeis correctly taught that, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

In sum, section 702 should not be extended unless it requires a warrant to seize or search international communications of U.S. persons based upon probable cause to believe they contain evidence of international terrorism and with particularity describe the means of seizing or searching the communications. Further, U.S. persons should be notified within 90 days of any interception or search.

The Fourth Amendment is too important to be left to the intelligence community.

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Continue reading here:

Section 702 Surveillance Authority: No Extension Unless Fourth ... - HuffPost

Police militarization and excessive force have become increasingly pressing issues in American society. Fortunately, the Denver-based U.S. Court of Appeals for the Tenth Circuit Justice Neil Gorsuchs old stomping ground held yesterday that innocent victims of improper police procedures during dynamic drug raids have some protections. Even if the court didnt fully address the issues Cato raised in our brief, the ruling in Harte v. Board of Commissioners of Johnson County, Kansas is a step forward.

In 2011, Robert Harte and his two children visited a garden store to buy tomatoes for his 13-year old sons school project. Little did they know that Sergeant James Wingo of the Missouri State Highway Patrol was watching the store and recording the license plate numbers of the visitors, assuming that they were there to buy marijuana despite little evidence for that assumption. The Johnson County Sheriffs Office then examined the Hartes trash on two occasions, finding about an ounce of saturated plant material. Because they evidently couldnt tell the difference between tea and marijuana, they field-tested the substance, which tested positive for marijuana.

In an inspiring display, the police launched a military-style raid the Hartes home. At 7:30 in the morning, they pounded on the Hartes door, forced Mr. Harte to the ground when he answered, and searched their home for three hours. As it became increasingly clear that there was no marijuana in the house, the police started to search for any kind of criminal activity, a far greater sweep than what a warrant to search for marijuana and drug paraphernalia allows. Heaping further indignities on the family, the officers also left canine units in the house longer than necessary to give them extra training. The police apparently wanted to turn lemons into lemonade by retroactively turning an early-morning drug raid that didnt find any drugs, lest we forget into a training exercise.

After the district court granted summary judgment for the police, the Hartes appealed and Cato filed an amicus brief. We arguedthat the police violated an important Fourth Amendment rule that goes back to the roots of English common law by failing to knock and announce their presence in anything but a literal sense. They also exceeded the scope of their warrant to look for any criminal activity instead of just drugs. We urged the Tenth Circuit to reverse the district court, clarify the Fourth Amendment standard for assessing police raids, and remand for further proceedings.

The Tenth Circuit mostly agreed with Cato on the Fourth Amendment issue. Two judges on the three-judge panel found that the district court had been wrong to grant summary judgment to the police on the search and seizure issue, with Judge Carlos Lucero alluding briefly to the knock-and-announce requirement. It was a convoluted opinion that took a long time to produce because of each judge writing separately and different sets of judges coming together on different parts of the ruling. Most importantly, Judge Gregory Phillips, joined by Judge Lucero, found that what the deputies learned early on in the search dissipated any probable cause to continue searching.

Ultimately, the judges only discussed in passing the police-militarization and general-warrant concerns raised by Cato and sided with the police on the excessive-force claims. Nevertheless, the court held that what the Hartes experienced qualified as unreasonable search and seizure and also let them continue with their state-law claims soHarte v. Board of Commissionersrepresents a positive development in the jurisprudence surrounding dynamic police raids.

Go here to see the original:

When Police Misread Tea Leaves They Violate the Fourth Amendment - Cato Institute (blog)

Dan Levy/Billy Penn

A memo from the beleaguered Attorney General targets a grant thats meant more than $5 million to the city.

Jul 26 2017 11:00 am

Philadelphia officials are reviewing new federal guidelines that could strip the city of some funding because of its sanctuary city policy.

Attorney General Jeff Sessions issued a memo Tuesday detailing new regulations for cities that apply for the Edward Byrne Memorial Justice Assistance Grant Programs, a Department of Justice program that provides funding to law enforcement agencies across the country to support a broad range of needs to prevent and control crime.

Over the last three years, the City of Philadelphia has received $5.1 million as part of the grant program, with $1.67 million of that coming in FY 16. Its unclear how much the city will request for FY17, if it requests funding at all.

Saying so-called sanctuary policies make all of us less safe, Sessions memo details new regulations for FY 17 recipients of the grant:

Those regulations, specifically the latter, appears to be at odds with the citys current sanctuary city policy (administration officials prefer the title Fourth Amendment City). Under current policy, law enforcement in the city of Philadelphia will not detain undocumented immigrants at the request of federal immigration officials unless the person is a convicted violent criminal or federal officials produce a criminal warrant.

City spokeswoman Lauren Hitt said Wednesday morning that the administration just saw the new conditions for the first time last night and is still reviewing with our outside legal counsel exactly what the new conditions entail and what our options are.

In March 2016 under the Obama administration, Department of Justice officials notified recipients of the grant including the city of Philadelphia that in order to keep the grant, jurisdictions would need to comply with an existing federal statutethat prohibits putting restrictions on communication between local agencies and federal immigration officials. City officials contend their policy does comply with federal law.

President Donald Trump campaigned on stripping away federal funding from sanctuary cities, though Mayor Jim Kenneyhas remained resolute when it comes to Philadelphias status.

First of all, weve changed the name from sanctuary city to the Fourth Amendment city,Kenney toldThe Inquirer after Trumps win in November.We respect and live up to the Fourth Amendment, which means you cant be held against your will without a warrant from the court signed by a judge. So, yeah, we will continue to be a Fourth Amendment city abiding by the Constitution.

See original here:

What Jeff Sessions' latest sanctuary cities funding threat could mean for Philly - Billy Penn

Supreme Court: Vehicle Impoundment Did Not Violate Fourth Amendment WisBar The majority concluded that police possessed a bona fide community caretaker justification for impounding the car and thus were not required to obtain a warrant despite the constitutional Fourth Amendment right against unreasonable seizures.

Here is the original post:

Supreme Court: Vehicle Impoundment Did Not Violate Fourth Amendment - WisBar

A volunteer with the Buffalo Field Campaign was viewing a bison-hazing operation in 2012 when he was cited for obstructing the hazing. The Ninth Circuit on Monday ordered his First Amendment case back to federal court to be heard by a jury.

WEST YELLOWSTONE, Mont. (CN) Anthony Patrick Reed may one day get his day in court on behalf of Yellowstone National Parks wild bison, after the Ninth Circuit ruled Monday that a jury should have determined whether the volunteer for the Buffalo Field Campaign had his First and Fourth Amendment rights violated during a 2012 federal government hazing of bison back into Yellowstone National Park.

In July 2012, Reed tried to document the federal governments hazing of wild bison back into Yellowstone National Park. After a Gallatin County sheriffs deputy told Reed to move his car out of the line of bison, Reed complied and moved to a nearby gravel road. Deputy Douglas Lieurance threatened to arrest Reed, and ultimately issued Reed a misdemeanor citation for obstructing the herding operation.

Reed sued in Montana federal court in 2013, naming Lieurance, Gallatin County sheriff Brian Gootkin and Gallatin County as defendants.Reed argued Lieurances actions violated his First and Fourth Amendment rights and related Montana constitutional rights, and that Gallatin County Sheriff Brian Gootkin, the Sheriffs Office, and Gallatin County have a policy or practice of providing constitutionally inadequate training to law enforcement officers.

Rebecca Smith, a civil-rights attorney who represented Reed, said Mondays Ninth Circuit ruling affirms constitutional rights.

It was a case where volunteers with a nonprofit group were trying to document and observe a government operation on public land from the sidelines without actually protesting or interfering with it, she said. That was the key take-away in this case a reaffirmation that peacefully observing and documenting government conduct in a public place is protected conduct under the First Amendment and Montana citizens cannot be arrested for obstruction for exercising this First Amendment right.

Bison can carry the brucellosis virus, a disease that is harmful to cattle, and in Montana bison are hazed back into Yellowstone National Park to protect that states cattle. Toprevent collisions between cars and bison during the hazing operations, county law enforcement had set up a blockade along Montana Highway 191. According to court documents,Reed had initially parked his vehicle just east of Highway 191 in order to get a clear view of the buffalo as they crossed the highway.

While Reed was parked in that spot, a Gallatin County law enforcement officer approached the vehicle and advised Reed he was parked in the planned herding route and needed to move his vehicle. Reed complied but was cited.

A federal judge dismissed some of Reeds claims on summary judgment and granted judgment as a matter of law for defendants on the remaining claims after Reed presentedevidence at trial. Reed appealed those decisions, as well as the exclusion of Reeds expert witness and denial of his motion to amend the complaint. Defendants cross-appealed the judges denial of attorney fees.

In a ruling issued Monday, the Ninth Circuit panel said it could not conclude that as a matter of law that a reasonably prudent officer in defendant Deputy Lieurances situation would have had probable cause to believe that Reed obstructed the bison herding operation. Instead, the circuit judges determined the trial court improperly invaded the province of the jury by resolving factual disputes material to the question of probable cause.

The panel also found defendants were not entitled to summary judgment on Reeds unlawful seizure claim.

Additionally, the panel reversed the trial courts sua sponte dismissal of Reeds failure-to-train claim on the grounds that the judge did not first provide Reed with notice and an opportunity to respond before dismissing the claim. The panel also sided with Reed by finding the trial court abused its discretion by excluding the testimony of Reeds police-practices expert as it related to the failure-to-train claim.

The panel held the lower court committed reversible error in granting judgment as a matter of law on Reeds First Amendment and related state claims without first providing Reed notice of the grounds for the decision. Addressing the merits of the First Amendment claim, the panel held thatin ruling that defendants were entitled to judgment as a matter of law, the lower court improperly resolved numerous factual disputes reserved for the jury.

The panel determined that it lacked jurisdiction to review the trial courts denial without prejudice of defendants motion for attorney fees and therefore dismissed defendants cross-appeal from that order.

As for the grant of summary judgment for defendants on Reeds claim of unreasonable seizure in violation of the Fourth Amendment and its corollary in the Montana Constitution, the panel said probable cause likely did not exist for the officer to cite Reed.

The panel said probable cause exists when the facts and circumstances within an officers knowledge are sufficient for a reasonably prudent person to believe that the suspect has committed a crime.The analysis involves both facts and law. The facts are those that were known to the officer at the time of the arrest. The law is the criminal statute to which those facts apply.

Montanas right to privacy laws guarantees far greater protection than the U.S. Constitutions Fourth Amendment, the panel said.

Under Montana law, if an officer makes an arrest without probable cause, he or she may be entitled to qualified immunity as long as it is reasonably arguable that there was probable cause for the arrest.

The trial court ruled Lieurance had probable cause to arrest and cite Reed for the obstruction.But in City of Kalispell v. Cameron, the Montana Supreme Court reversed a conviction for obstruction when the defendant had merely failed to follow an officers instructions. Thecourt in that case explained that an individual obstructing a peace officer must engage in conduct under circumstances that make him or heraware that it is highly probable that such conduct will impede the performance of a peace officers lawful duty.

Portions of Reeds case that remain have been remanded to federal court, and the Ninth Circuit panel ordered the assignment of a new judge.

Rebecca Kay Smith of Missoula, Montana, represented plaintiff Reed. Steven Robert Milch of Billings, Montana, argued the case for defendants.

Circuit Judges Alex Kozinski and William Fletcher joined the opinion by Chief District Judge John R. Tunheim, sitting by designation from the District of Minnesota.

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9th Circuit Revives Bison Observer's Civil Rights Claims - Courthouse News Service

The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. The text of the Fourth Amendment provides as follows:

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.

By way of the Fourteenth Amendment due process clause, the Fourth Amendment applies to the fifty states. Its protection ensures that peoples privacy interestespecially in their own homesis not violated.

What is meant by unreasonable searches and seizures? The Fourth Amendment specifically protects against unreasonable searches and seizures. In other words, the Fourth Amendment protects against the exploratory searching of a person as well as the persons house, papers and effects. A valid search warrant must provide a description of the place to be searched and the person or things to be seized.

What constitutes probable cause to support a search warrant? In order for a search warrant to be issued, it must be supported by probable cause. Probable cause is a legal term that is defined on a case-by-case basis. Essentially, a valid warrant must contain a sworn statement that alleges reasonable grounds to believe that a crime has occurred on the premises to be searched.

What is the consequence for a Fourth Amendment violation? Before 1914, if police obtained evidence in violation of the Fourth Amendment, they could still use the evidence at trial. However, in a case called Weeks v. United States, the United State Supreme Court created the exclusionary rule. Pursuant to the exclusionary rule, any evidence obtained in violation of a suspects Fourth Amendment rights (or in violation of any of a suspects Constitutional rights) is excluded from use at trial. In 1961, in a case known as Mapp v. Ohio, the United States Supreme Court made clear that the exclusionary rule applies to the fifty states.

If you believe that your Fourth Amendment rights have been violated, you need to hire an experienced criminal attorney. If the police have seized evidence against you, an experienced attorney will be able to challenge the use of the evidence against you in court.

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4th Amendment

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The Fourth Amendment Implications of Sharing Server Space - JD Supra (press release)

On July 17, 229 years after ratification of the Constitution, Jeff Sessions, the honorable attorney general of the USA, issued his recommendation that asset forfeiture be increased.

Meanwhile in middle town USA, a collective shrug of the shoulders was the response. Who cares if a few drug dealers have their ill-gotten gains taken from them? Yet, it is a shame if innocent Americans happen have their property and cash taken from them without due process of law. There must be a good reason for this gross violation of the Fourth Amendment.

As a matter of fact, thanks to Sessions, we now know the Founding Fathers had it all wrong. We are not innocent until proven guilty, and we owe Sessions our gratitude for correcting a 200-year-old mistake in our justice system.

Since he has determined we are all inherently guilty, it is futile to try to prove our innocence. Therefore, the only patriotic thing to do is to voluntarily forfeit our assets so he won't waste our tax dollars seizing them.

Donald Harris

Whitehall Township

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Attorney General Sessions ignores 4th Amendment - Allentown Morning Call

Refusing Interior Inspection: Right to Challenge Property Assessment Not Lost WisBar Kelly concluded that the Milewskis had a constitutional right to refuse the tax assessor's entry, because government entry to obtain information would be a search under the Fourth Amendment, which guards against unreasonable searches and seizures.

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Refusing Interior Inspection: Right to Challenge Property Assessment Not Lost - WisBar

The Fourth Amendment of the Constitution protects Americans against unreasonable searches and seizures. The same can no longer be said about the Justice Department.

Attorney General Jeff Sessions issued a directive Wednesday reinstating the controversial practice of adoptive forfeiture, expanding the ability of law enforcement to take possession of assets belonging to suspects even if they havent been or wont be charged with a crime under civil law and later profit from the assets so long as the low bar of probable cause is met.

This is why adoptive forfeiture is a bad deal for Americans, and more than two dozen states restricted the process in recent years. In few places will Sessions change be felt more acutely than Nebraska, a leader in forfeiture reform.

Last year, the Legislature passed a laudable measure that banned permanent asset seizures by law enforcement until a suspect was convicted of a crime and limited when the less-restrictive civil forfeiture process could be used.

Now, its all but moot, as local law enforcement can skirt more restrictive state laws in favor of the far more permissive federal standards.

Although Sessions directive includes modest safeguards against abuse most notably, requiring more detail from law enforcement on probable cause and notifying people of their rights his agency took a net step backward. His document doesnt address the major concerns about the practice of forfeiture:

* The Constitution requires the presumption of innocence until a person is found guilty in court. By requiring those whose assets are seized to sue for their return, the courts are essentially holding those people as guilty until being proved innocent.

* Equitable sharing, which was suspended along with adoptive forfeiture at the federal level in 2015, allows law enforcement agencies to keep up to 80 percent of proceeds while sharing at least 20 percent with federal authorities. This federal policy encourages local law enforcement to seize assets and police for profit.

* By allowing law enforcement agencies to circumvent state laws and instead operate under the far less onerous federal guidelines, the Justice Department has overruled the local control Republicans vociferously defend.

This sudden pivot in favor of restoring the adoptive forfeiture runs counter to the platform adopted at last summers Republican National Convention, which accurately notes: When the rights of the innocent can be so easily violated, no ones rights are safe. We call on Congress and state legislatures to enact reforms to protect law-abiding citizens against abusive asset forfeiture tactics.

Seizing the ill-gotten gains of a person tried and convicted in court is wholly defensible for local, state and federal law enforcement agencies. But Sessions directive reopens a dangerous Pandoras box that disregards both the due process rights of Americans and self-rule of state governments.

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Editorial, 7/21: Sessions wrong to reinstate forfeiture practice - Lincoln Journal Star

Reidsville police sergeant fired after material in search warrant appeared to be 'reckless, without basis, misleading'

Sergeant Lynwood Hampshire, of the Reidsville Police Department, was terminated July 14. His termination comes after wrong-doing, while executing a search warrant, was documented in a court memorandum opinion and order. Hampshire was also accused of being part of a Fourth Amendment violation.

RPD Major Ronnie Ellison confirmed the news to WXII 12 News Wednesday. Ellison says Hampshire was employed with the department since December 6, 2004, but had been involved with law enforcement for 17 years.

His ending salary was $46,574.96.

Ellison says Hampshire was terminated for violation of department policy and general order: operational duties and responsibilities.

"Members shall establish and maintain sufficient competency to effectively perform their duties and carry out their responsibilities of their position. They shall perform their duties in such a manner as to effectively and efficiently carry out the functions and objectives of the department," said Chief of Police Robert Hassell.

Hampshire was initially placed on administrative leave. That action came after issues were listed in a search warrant involving former Greensboro police officer William White. White faces possession of stolen property charges after police say he was one of four people who stole $44,000 in lawn mowers in March.

Court documents state that on March 5, Hampshire applied for a warrant to search White's property at 7102 Destiny Jo Road in Pleasant Garden, North Carolina. The warrant was issued by a state court judge the same day.

"When asked by the court at the hearing why he waited until March to secure the search warrant from which this case arises, Sgt. Hampshire stated: 'Guilford County didn't want to deal with it. My district attorney (Rockingham County) didn't want it, and eventually, Alamance County took it over. I couldn't find a district attorney that was willing to prosecute it," court documents state.

According to the court memo, the state warrant sought evidence of the following crimes:

"The day following the issuance of the warrant, officers went to White's home to conduct the search. Special Agent Cummings, a 15-year veteran of the SBI, testified he was present at the search and his duties that day were to document the crime scene in photographs, sketches and in words to include in a report later. Cummings was directed to the master bedroom, where Detective Ken Mitchell was already searching. When he walked into the bedroom, Cummings observed several firearms and other items that Mitchell had found in different locations and spread onto the bed. Cummings observed two rifles that contained a collapsible stock, with one of the rifles having a longer barrel than the other. Cummings seized the rifles and suppressors after viewing them. The day after the search, law enforcement checked the national firearms registry and learned that White had not registered the rifle and silencers," court documents state.

White would later challenge the validity of the search warrant, contending:

White also contends that "even if the warrants were valid, seizure of the rifle and suppressors were not authorized because the registration status of these items was not something immediately apparent to law enforcement under the plain-view doctrine," court documents state.

THE SEARCH WARRANT

The Fourth Amendment requires that warrants be based upon probable cause supported by oath and contain a particular description of the place to be search and things to be seized. White contested whether those elements have been satisfied.

STALENESS

White says the affidavit in support of the search warrant failed to provide probable cause because it was based on information that was four to six months old.

White argued that paragraphs one through nine of Hampshire's warrant affidavit involved conduct related to White's alleged acquisition of and sale of the lawn mowers in August and September of 2016; five to six months prior to the warrant being sought. He argues further that paragraphs 10 through 15 of the affidavit contain no dates and fail to demonstrate that there would be evidence present at White's home five to six months after the fact.

Paragraph 16 of Hampshire's affidavit states that based on his training and experience, suspects often keep these types of evidence readily accessibly in residences, vehicles, businesses, or on their person. Further, with respect to the omission of certain relevant dates, the affidavit does contain a number of investigatory steps Hampshire undertook to determine White's involvement with the stolen tractor, albeit without the dates.

"Considering all of the facts and circumstances, specifically the nature of the evidence to be seized in this case, and giving the issuing judge's determination great deference as required, (the) court concludes that White's staleness argument must fail," court documents state.

THE PARTICULARITY REQUIREMENT

The warrant affidavit in paragraphs one to 11, under the heading "Property to be Seized," lists specific items of the property that are to be taken away. White had an issue with the language in paragraph nine of Hampshire's affidavit, which stated: "any and all property belonging to the victims and/or suspects of this [sic] crimes." He contends the broad language makes the warrant an unconstitutional general warrant.

"While the language in paragraph nine appears overly broad, the other ten paragraphs under the section entitled "Property to be Seized" outlines with specificity the types of evidence to be seized and connects the language to the alleged crimes under North Carolina law," court documents state.

The court concluded the warrant does not fail because of lack of particularity.

FRANK'S HEARING REQUEST

White argued the warrant affidavit contains an intentionally false and misleading statement, or a statement made in reckless disregard for the truth.

White said paragraph 14 of the warrant affidavit includes false statements. The court agreed.

Paragraph 14 of the warrant affidavit states, in relevant part:

During the interview, William White made the comment "he was here to talk about the mower he stole[.]" He immediately recanted the "stole" to say "sold."

"Upon review of the video recording introduced at the hearing, the Court concludes that this statement in the warrant was so totally taken out of context that it was intentionally misleading and demonstrates a reckless disregard for truth," court documents state.

The relevant portion of the video of White's interview with Hampshire and Agent Denny demonstrates the following:

Denny: Has [Sgt. Hampshire] explained to you why we're here today?

White: He has told [pause] he told me a lawn mower I stole was stolen. First he told me I stole it. It was stolen. But, uh, he told me it was stolen.

Denny: Okay, alright. Do you remember selling [inaudible]

White: I guess I'll have to explain to you guys I flip stuff. So, you'll have to be...

Denny: [interrupts] Okay.

White: [continues] ...very specific with me. Houses, cars, lawn mowers, you name it. I do it all. So, you have to be extremely specific with me.

Denny: Okay.

The court document stated that not only is the statement in paragraph 14 of Hamphsire's warrant affidavit not a direct quote from White, the recording makes it clear that White was responding to the question that was posed to him by Agent Denny about whether he knew the basis for the interview.

"No reasonable person would conclude that White's statement was anything other than a response to Agent Denny's question," the court document reads.

"Specifically, Hampshire testified: 'I originally told [White] that I needed him to come in to speak to me about the lawn mower that he had stolen and then I said sold,'" court documents state. "Clearly, White was responding not only to Agent Denny's question, but was sharing what Hampshire had said to him in the message the day before."

According to the court memo, the statement made by Hampshire was intended to mislead the judge into believing White had admitted to stealing a tractor and, further, had recanted that admission.

"There is no question that the statement in paragraph 14 would compel a judge to find probable cause under the circumstances of this case. Thus, Hampshire's inclusion of the statement outlined in paragraph 14 was reckless in that it was without basis, was misleading, and further it was material to the state court's finding of probable cause," court documents state.

PLAIN-VIEW DOCTRINE

White's final argument is that the lawfulness of the rifle and silencers was not readily apparent to officers seizing them and the plain-view doctrine should not apply.

The government stands by the seizure of the rifle because the "incriminating character of the short-barreled rifle and modified suppressors was immediately apparent to Cummings."

"Cummings testified that when he entered the master bedroom, he observed the short-barreled rifle and two suppressors lying in a gun case on the bed. The third suppressor was lying open in another gun case, likewise on the bed. Cummings testified that he did not observe Mitchell, who was in the room when he entered, move any of the items from their original location; nor could he tell the court why Mitchell needed to move these items from their original location to the bed," court documents state.

According to the court memo, the government presented no evidence regarding the circumstances involving the search and the subsequent removal of the firearm and suppressors from their original location. The court, therefore, could not evaluate the government's assertion that the items were in plain view when discovered, or whether the original seizure was valid.

"The government presented no argument as to how the rifle and silencers present in White's home would be an immediately apparent violation of the statue prohibiting the possession of unregistered firearms," court documents state.

White's motion to suppress the evidence, the rifle and silencers seized from his home, from trial was granted.

The court document ends with: "The Fourth Amendment of the United States Constitution requires that individuals must be protected, particularly in their homes, from unreasonable searches and seizures. When it appears that law enforcement treats this sacred constitutional right as nothing more than an impediment to making their case, we all lose."

See the original post:

Reidsville police sergeant fired after material in search warrant appeared to be 'reckless, without basis, misleading' - WXII The Triad

Congress must put an end to the Justice Department's flagrant disregard for the Fourth Amendment.

Attorney General Jeff Sessions signed an order this week making it easier for law enforcement officials to seize property from persons who have not even been charged with a crime.

"President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that. We will continue to encourage civil asset forfeiture whenever appropriate in order to hit organized crime in the wallet," Attorney Jeff Sessions said Wednesday.

He added, "With this new policy, the American people can be confident knowing that we are taking action to defund criminals and at the same time protecting the rights of law-abiding people."

CBS News' Paula Reid explains how the newly announced DOJ policy, which marks a reverse of Obama-era restrictions, could help law enforcement officials get around state-level legislation meant to curb civil asset forfeiture:

24 states have passed laws limiting the practice, but local law enforcement can get around those restrictions by giving seized assets to the federal government instead of returning them to their owners. This practice is called "adoption" and it's been used to seize almost $1 billion in assets over the last decade.

It's bad enough that this entire practice is a clear violation of our Fourth Amendment right to be secure in our "persons, houses, papers, and effects, against unreasonable searches and seizures." But reversing previous civil asset forfeiture restrictions so that law enforcement agencies can skirt state laws goes far beyond bad.

If you're a conservative and you believe in personal property rights and the virtue of limited government, there's no defending a policy wherein law enforcement officials can work around local and state ordinances to seize an individual's property based entirely on suspicion.

That's some primo, grade-A garbage alright.

Congress has the power to rein in this Justice Department. Call your representative.

Read this article:

The new Justice Department directive is garbage. Call your representative. - Washington Examiner

The DOJ is in court arguing the use of Stingray devices by the FBI and local cops shouldn't require a warrant. The government's lawyers are fighting a suppression motion by Purvis Ellis, charged with racketeering and the attempted murder of a police officer.

The events of the case happened in 2013, two years before the DOJ instructed federal agents to seek warrants when deploying Stingrays. For this investigation, the Oakland PD used a pen register order, as was the style at the time. (And perhaps still is. Despite the DOJ's internal instructions, warrant requirements are all but nonexistent when it comes to local law enforcement agencies' use of cell tower spoofers.)

As Cyrus Farivar points out, the PD's Stingray couldn't locate Ellis, so it brought in the FBI. All without warrants and all without informing the defense about the additional Stingray deployment.

Ellis was located in an East Oakland apartment several hours after a January 2013 shooting with the help of two stingrays. Prosecutors initially insisted that only one stingray was used, but, as was revealed last summer, that turned out not to be the case. The Oakland Police Department's own stingray was seemingly insufficient, so officers then called in the FBI, both times without a warrant.

The defendant is arguing the multiple warrantless Stingray deployments violated the Fourth Amendment. Considering the devices coax a location signal out of phones by aping cell towers, this differentiates Stingrays from more passive collections -- like the pen register the government didn't actually use.

The government, quite obviously, is arguing otherwise. It points out in its opposition motion [PDF] that it has all the warrant exceptions on its side:

Four gang members ambushed a young man in broad daylight, shooting him through the forehead from close range. The next day, those same men jumped, pistol-whipped and shot a police officer investigating the prior days shooting. The suspects then fled, armed with their own arsenal, as well as with the guns they had just stolen from the officer. Police surrounded the apartment complex where the men were thought to be hiding. Finding them quickly was essential. By shooting two people in a 27-hour period, the suspects including the defendant Purvis Ellis had just demonstrated an ability and willingness to kill others. So, when officers used a cell site simulator (CSS) to find Ellis, they were entirely justified by the exigent circumstances presented, rightly believing him to be armed and dangerous.

The defendants motion to suppress is meritless. The courts have not definitively decided whether use of a CSS constitutes a search triggering Fourth Amendment protections. But it largely does not matter here, since exigent circumstances amply supported a warrantless use of the device.

[...]

Other exceptions to the warrant requirement also cut against suppressing evidence. For instance, the officers acted in good faith reliance on established law the pen register statute, Supreme Court precedent, even the FBI policy at the time. Those laws and policies, combined with the dearth of binding case law on the CSS, all justified using the device without a warrant. In addition, the officers would have inevitably discovered everything they ultimately did, even had they never used the CSS. After all, they had the building surrounded by dozens of officers and SWAT team members hours before the CSS was even deployed.

It's a long list of counterarguments, most of which have some validity in this particular case. (That, of course, doesn't stop the government from using the same arguments in cases where its assertions of good faith, exigency, etc. are far more questionable. But that's how lawyering works on both sides.)

It appears the government would rather the court didn't make a determination as to whether Stingray deployments are Fourth Amendment searches. The government lets the court know what it doesn't need to do to resolve this issue in the DOJ's favor:

Whether use of a cell site simulator constitutes a search for Fourth Amendment purposes is not necessarily a question this Court needs to answer, since even if it were a search, it was amply justified under the circumstances. That said, the law supports concluding that the device in this case did not affect a search.

The following argument, however, is particularly disingenuous. The defendant argued the warrant was invalid because officers didn't let the judge know they'd be deploying a Stingray device when it got its pen register order approved. The DOJ says this shouldn't matter, as it can find very little pre-2013 evidence suggesting these devices were mentioned in previous court documents.

Since the CSS technology was still relatively new in 2013, there were simply no binding cases to direct agents and officers to disregard Smith v. Maryland and get a warrant. According to the governments research, only a few federal pre-2013 cases referenced cell site simulator, digital analyzer, triggerfish, or stingray in a relevant context. (The government found no such cases in California courts.)

Well, of course this search came up empty. For years, the FBI swore law enforcement agencies to secrecy if they acquired Stingrays, telling them to dismiss cases rather than have defendants, judges, or even some prosecutors discuss the tech in open court. The lack of DOJ search results means the NDAs the FBI forced everyone to sign worked.

By no means was CSS technology "relatively new" in 2013. Documentation of Stingray devices can be found dating back to 2006 and use of pre-Stingray "digital analyzers" dates back more than 20 years. There wasn't much courtroom discussion because the FBI actively prevented it from happening. And the DOJ knows this, as its "research" likely turned up things like this 2012 NDA on DOJ letterhead telling a New York sheriff's office to STFU about its new toy.

With no discussion, there are no binding cases. That's how the FBI wanted it. And it pays off years down the road by making it easier for the DOJ to prevail in a suppression argument without setting precedent it may find inhibiting another half-decade down the road.

More here:

DOJ Tells Court There No Need To Establish A Warrant Requirement For Stingray Devices - Techdirt

ACLUA Somali familyimmigrants who are now legally citizens of the United Statesare suing several federal agencies over what appears to have been a particularly rough border detention and search. Their treatment, they say, stems from the government's secretive, unaccountable watchlists.

They family is being represented by the American Civil Liberties Union (ACLU), which has spent years fighting to force a system of due process on the various watchlists that agencies use (and share among each other). Thanks to these lists, hundreds of thousands of people are subjected to increased and intrusive searches when traveling.

The lawsuit attacks two significant and well-established problems with these watchlists. One: Even though these lists supposedly exist to keep an eye on suspected terrorists, they contain hundreds of thousands of names of people with no known ties to terrorist organizations. Two: The system is handled secretly, with almost no oversight or due process. People who end up on the list often cannot find out why or even get the government to acknowledge that they're on a list; their only option is to ask to be taken off the list and hope it happens.

The plaintiffs are the Wilwal-Abdigani family, who in March 2015 traveled from their home near Minneapolis to visit relatives in Canada. According to the lawsuit, they had little trouble passing into Canada but were warned that that the father, Abdisalam Wilwal, had a notation on his records that might result in some additional questions when he attempted to return home.

That proved to be an understatement. According to the lawsuit, when the family tried to return to the United States, border agents confronted them at gunpoint and detained them for hours. The lawsuit says that the border patrol asked Wilwal if the travelers were Muslims and accused him of involvement in terrorism. They handcuffed Wilwal and left him alone in a room for hours without even questioning him. He ended up fainting, and they had to call in paramedics. They eventually questioned him for 45 minutes, though he was detained for more than 10 hours.

The other members of the family were detained separately and were not allowed to leave either. At one point the mother, Sagal Abdegani, realized the agents had neglected to take the cellphone away from one of her children and she managed to call 911 to try to get outside help. An agent snatched the phone away from her. According the lawsuit, border patrol agents also took the couple's 14-year-old son into a separate room and demanded he take off his clothes for a strip search. He refused to comply.

The family was released much later in the day and was allowed to return home. They know now that Wilwal's name is in a federal watchlist database, but they don't know why. They've petitioned the feds to have Wilwal's name removed, but per the federal government's processes, the Department of Homeland Security declined to confirm or deny whether Wilwal is actually watchlisted or whether they removed him from the list. The lawsuit notes, "At no point in the process can an individual appear in person before a neutral decision maker to challenge placement on the watchlist or its consequences."

The family is claiming violations of their Fourth Amendment rights, claiming unconstitutional searches and seizures as well as excessive force. They're also claiming violations of their Fifth Amendment rights to due process, because of the way these federal lists are managed and because of the barriers to clearing Wilwal's name.

For the Fourth Amendment claims, unfortunately, the courts have historically given federal officials very wide latitude to engage in warrantless searches with very little justification at the country's borders. But some important court rulings bolster's Wilwal due process complaint, and the ACLU knows itbecause they're involved with some of those suits as well.

These lawsuits involve the federal no-fly list, a subset of these terror watchlists. People on the no-fly list are denied the right to board aircraft under a secretive, opaque system much like the one described in this lawsuit. In 2014 a federal judge ordered the Department of Justice to develop a system where people can determine whether they are actually on the no-fly list and a mechanism for correcting mistaken inclusion on the list. One woman turned out to have been added to the no-fly list by accident (somebody checked the wrong box); she had to fight the government for years to be removed. She only found out about the mistake as a result of the lawsuit.

Read the family's lawsuit here. Read the mother's own account of the border search here.

Continued here:

Secret Government Watchlist Sweeps Up an American Family, and Now They're Suing - Reason (blog)

An agreement that would have prevented the Marion County Sheriffs Department from detaining immigrants for the U.S. government is on hold after a federal judge gave the U.S. Department of Justice time to consider whether it wants to intervene in the case.

The city of Indianapolis and the American Civil Liberties Union of Indiana were waiting for Senior Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana to approve their stipulated agreement. Instead, she granted a request on July 14 from the Justice Department, giving the federal office 21 days to review the settlement.

The agreement was part of a lawsuit filed by the ACLU of Indiana on behalf of Allen County resident Antonio Lopez-Aguilar. Although the civil liberties organization and the city disagree on how Lopez-Aguilar was taken into custody and how long he was detained, their stipulated agreement declares that seizing a defendant solely on the request from U.S. Immigration and Customs Enforcement or on removal orders from an immigration court violate Fourth Amendment protections.

In its request to the court, the Department of Justice said such a stipulation may raise questions about the constitutionality of Acts of Congress. Specifically, the department noted, Congress allows the U.S. Attorney General to issue a warrant for the arrest and detention of an immigrant and to enlist help from any officer or employee of a state or local municipality in identifying, apprehending, detaining or removing any individuals who do not have legal residency.

The case is Antonio Lopez-Aguilar v. Marion County Sheriffs Department, Sheriff John R. Layton and Sergeant Davis, 1:16-cv-2457.

Excerpt from:

DOJ gets delay in Marion County immigration case - Indiana Lawyer

Congress is getting ready to debate reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, set to expire at the end of the year. Liberty-minded voters and lawmakers should support reform of this provision, to insure that the federal government's power is kept in check.

Both the Republican and Democratic parties have abused warrantless surveillance authorities when in power, to sweep up communications of American citizens in a way that violates the Fourth Amendment to the U.S. Constitution.

Section 702 passed in 2008, when Democrats controlled both the House and the Senate. The original bill was supported strongly by former Speaker Nancy Pelosi. With Republicans in control of Congress and the White House, they now have the power to reform the same surveillance overreach they have previously criticized.

The fight has become an internal struggle between the old establishment guard of the Republican Party and newer, more liberty-minded members who are concerned about privacy and government overreach. The future of the Republican Party includes support for privacy and Fourth Amendment rights. Therefore, the leadership in the House, where this bill is expected to start, should be responsive to the members who are leaders of the privacy movement. Rep. Bob Goodlatte, R-Va., has voiced support for Section 702 reform, and hopefully will lead the charge to bring together divergent elements of the Republican Party, to support a common sense compromise on the bill.

The Bush administration engaged in widespread warrantless wiretapping without any congressional authorization. Likewise, the Obama adminisration used Section 702 to engage in similarly unconstitutional practices.

The provision has been used in a way that violates the Constitution and does not enhance national security. A Washington Post analyzed documents released by Edward Snowden and reported on July 5, 2014 that, "Ordinary Internet users, American and non-American alike, far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency" under Section 702. The Washington Post reviewed 160,000 intercepted email and instant messaging conversations and reported on widespread monitoring of Americans' data that should have required a warrant based on probable cause for the government to collect. This massive data collection is a problem unto itself because the government amasses a giant database of information that they keep.

These abuses are evidence enough that Section 702 needs to be reformed or allowed to expire.

Congress must insist on closing the so-called backdoor search loophole. This loophole allows the government to target Americans under Section 702, under the pretense that they are really targeting foreign nationals. The FBI routinely performs these types of searches, even in cases where they lack the evidence necessary even to open a formal investigation.

There are currently no prohibitions on the use of this information in prosecutions against Americans for alleged offenses unrelated to terrorism. That Section 702 can be used to wiretap Americans without a warrant, and in investigations that have nothing to do with terrorism, demonstrates the amount of mission creep that this anti-terrorism provision has permitted.

Another critical reform that should be imposed on the program would be to limit the scope of Section 702 to only allow targets to be foreign powers or agents, and exclude individuals who are not associated with terrorism and may merely be businessmen or journalists. Furthermore, the upstream surveillance program that has been used to search emails and text messaging on a massive scale should be ended.

Real transparency and oversight of FISA programs needs to be part of any compromise, and any retained data needs to be purged on a regular basis. Finally, private citizens need to have a way to challenge unconstitutional surveillance in court if they believe their rights have been violated.

The law has been implemented in a way that violates the Bill of Rights. This should lead constitutional conservatives in the Senate to filibuster any reauthorization that does not include substantial reform.

Brian Darling is former Senior Communications Director and Counsel for Sen. Rand Paul (R-Ky.). He can be followed on Twitter: @BrianHDarling.

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FISA reform is needed, and conservatives should lead the way - Washington Examiner