Man Confronts NJ Officer Searching Van Apparently Without Permission – HuffPost

Prosecutors office in New Jersey are reviewing a video filmed by a man who caught a plainclothes law enforcement officer searching through his parked minivan, apparently without permission.

The Passaic County Prosecutors Office in Paterson confirmed to the PatersonPress that the officer in the video is a member of the Passaic County Sheriffs Office. The prosecutors office said they were reviewing the footage, apparently filmed by the vehicles owner.

The undated video, whichwent viral on Friday, shows a plainclothes officer in a red shirt looking through the trunk of the van. When the man who is filming asks the officer why hes in his car, the officer shuts the trunk door and walks away.

As heard in the video, the man accuses the officer of searching his car illegally and tells the officer that he knows his rights.

William Maer, a spokesman for the sheriffs office, told the Paterson Times the matter has beenreferred to the prosecutors officein an effort to assure an independent investigation of the circumstances around the video. The sheriffs office would not identify the officer in the video.

Maer did not reveal whether anyone was arrested in the incident. The date the video was filmed also is unclear

The Facebook page Mediatakeout shared the video, which has been viewed more than 1.7 million times.

When the man filming asks the officer, What the fuck is you doing, yo ... What is you in my van for, the officer shuts the vans rear door and walks away.

The officer, still walking away, tells the man filming to follow him, but the man refuses. The man asks the officer again, What is you in my car for when Im sitting down eating with my family?

The officer tells the man that were getting a lot of complaints about guns, to which the man replies, Listen, I dont care about none of that. What are you in my van for?

When the man asks the officer how he accessed his trunk, the officer replies,Its open. Its wide open.

Still. Still, the man filming says in return. Youre not supposed to be in my van sir.

After the plainclothes cop is joined by a uniformed officer, the man asks the officers for their names and badge numbers.

Yall doing shit that yall aint supposed to be fucking doing, the man says while filming the license plates of police cars.I know my rights.

Ed Barocas, legal director for the American Civil Liberties Union of New Jersey, called the footagetroubling and disturbing,in an interview with the Paterson Times.

You have an individual who appears to be a law enforcement officer entering someones vehicle without permission and seemingly without any lawful authority, Barocastold the online news site. Not only is it improper, its a crime.

Although the Fourth Amendment of the U.S. Constitution protects Americans against unreasonable searches and seizures, New Jersey police officers may search vehicles without a warrant or the owners permission if they believe probable causeexists that a crime has been or is being committed.

In 2015, the New Jersey Supreme Court overturned one of its previous rulings andrelaxed the standards for warrantless searchesby police officers.

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Man Confronts NJ Officer Searching Van Apparently Without Permission - HuffPost

Divided COA: Pat-down search did not violate rights – Indiana Lawyer

A divided panel of the Indiana Court of Appeals has affirmed a mans felony and misdemeanor drug and firearm charges after finding the officer who arrested the man did not violate his constitutional rights by stopping him or conducting a pat-down search.

In Louis Bell v. State of Indiana, 49A05-1606-CR-1390, Indianapolis Metropolitan Police Department Officer Justin Gough observed a man, later identified as Louis Bell, riding a bicycle at 1 a.m. and trailing another bike by holding its handlebars. Gough said Bell appeared to be scanning the area to see if someone was watching him.

State law requires bikes operated at night to have a red rear light and white front light, but Bells bike did not have the appropriate lighting. Thus, when Bell came near the parked police vehicle, Gough asked if he could talk to him, and Bell rode his bike over to the officer.

Though Bell claimed he was not in possession of anything illegal and a search of his name did not yield any warrants, Gough said Bells heart was beating extremely fast and he continued to scan the area as he talked to Gough. Gough observed a bulge in Bells front pocket, and when Bell refused to answer questions about the bulge, the officer conducted a pat-down search and discovered it was a gun.

Bell admitted he did not have a permit to carry the gun, so Gough arrested him and conducted a search incident to arrest. That search led to the discovery of baggies containing substances that Gough believed were cocaine and heroin, a glass pipe and two burnt marijuana cigars.

Bell was charged with various felony and misdemeanor drug and firearm charges, but he filed a motion to suppress the fruits of Goughs search, arguing the pat-down violated his constitutional rights because his encounter with Gough was non-consensual. The Marion Superior Court denied the motion, and Bell was found guilty as charged.

A majority of a panel of the Indiana Court of Appeals affirmed Bells convictions, with Judge Melissa May writing that because Bell was riding a bike in the middle of the night that did not have the required lights, Gough had reasonable suspicion to detain him for a traffic violation.

Further, May wrote for the majority joined by Judge James Kirsch that the pat-down search was permissible under the Fourth Amendment because Bell was behaving nervously and refused to answer questions about the bulge in his pocket, causing Gough to be concerned for his own and the publics safety. Similarly, Bells Article 1 Section 11 rights were not violated because, under Litchfield v. State, 824 N.E.2d 356, 359, the degree of suspicion and law enforcement needs were high, while the intrusion into Bells privacy was low, the majority held.

However, dissenting Judge Margret Robb wrote she would hold the pat-down search did violate Bells Fourth Amendment rights.

Specifically, Robb wrote she did not believe Goughs description of Bells behavior and his refusal to answer Goughs question could support reasonable suspicion that he posed a danger. Further, Gough never actually described the bulge in Bells pocket, so he did not establish a reasonable belief that Bell was hiding a weapon, she said. Thus, after he learned Bell had no outstanding warrants, Gough should have written a traffic citation and let Bell go on his way, she said.

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Divided COA: Pat-down search did not violate rights - Indiana Lawyer

Law Review: Never lend your car to your brother-in-law – Sierra Sun

If you are driving without a valid driver's license can the police, in this case the Los Angeles Police Department, impound your vehicle?

That question is too easy for you smart readers, even for you average readers. How's this: If you can prove you have a valid driver's license, can you get your impounded car back? That's our case of the day, case du jour.

Never lend your car to your brother-in-law

Lamya Brewster loaned her car to Yonnie Percy, her brother-in-law. Brewster later learned she should have asked Percy if he had a valid driver's license. He didn't. Percy was stopped by LAPD officers, who quickly determined his driver's license was suspended. The officers seized the vehicle under California Vehicle Code 14602.6(a)(1).

Brewster filed a class action lawsuit on behalf of all vehicle owners whose vehicles were subjected to the 30-day impoundment, claiming the impound is a warrantless seizure that violates the Fourth Amendment. The federal trial court ruled for the LAPD. Brewster appealed.

Vehicle Code 14602.6

Vehicle Code 14602.6(a)(1) authorizes impounding a vehicle when the driver has a suspended license. Vehicles seized must be held in impound for 30 days, which is to deter unlicensed drivers or drivers with suspended licenses from driving. No problem with that.

Give Me My Car Back

Three days after the impoundment, Brewster documented she was the registered owner of the vehicle and had a valid California driver's license. She offered to pay all towing and storage fees, but the LAPD refused to release the vehicle before the mandatory 30-day holding period had lapsed. That was the legal issue.

Brewster filed a class action lawsuit on behalf of all vehicle owners whose vehicles were subjected to the 30-day impoundment, claiming the impound is a "warrantless seizure that violates the Fourth Amendment." The federal trial court ruled for the LAPD. Brewster appealed.

Fourth Amendment Seizure

The federal Court of Appeals, with an opinion written by the brilliant Judge Alex Kozinski, ruled that because a 30-day impound is a "meaningful interference with an individual's possessory interests in [his] property," the Fourth Amendment is implicated.

The impoundment/seizure is justified under the Fourth Amendment only to the extent that the government's justification holds force. But after Brewster proved she had a valid driver's license, there was no justification to hold her vehicle.

Once Brewster proved she had a valid driver's license, she was entitled to her car. Mandatory 30-day hold unconstitutional. Makes sense to me.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno, Nevada. His practice areas include: development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached atporter@portersimon.comorhttp://www.portersimon.com.

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Law Review: Never lend your car to your brother-in-law - Sierra Sun

The Dorothy Jackson-Southern Law School Performance Review Fiasco – The Hayride

Southern University is refusing to release any information on the investigation into one of its law school professors because those at the university feel as though it would violate the professors privacy. The woman under investigation is Dorothy Jackson, a board member and former attorney for the infamous East Baton Rouge Council on Aging. She teaches law at Southern, concentrating on elder and succession law, and she additionally runs the Elder Law Clinic there. But lets back up a bit.

Remember when Tasha Clark-Amar, who heads East Baton Rouges Council on Aging, weaseled her way into Helen Plummers will? Per her arrangement, she would receive $120,000 over the next 20 years to oversee the 95-year-old Plummers estate. Plummers family was outraged and claimed that Clark-Amar took advantage of her, refusing to pay the trustee fee, and the case became public when Amar sued the family (repeatedly). But who was the one that legally worked Clark-Amar into the will?

Dorothy Jackson she notarized Plummers will at Southerns law clinic. And so, Jackson was placed on administrative leave in April so that the law clinic could be properly investigated. She remains on administrative leave, although the investigation is wrapping up.

Winston DeCuir, an attorney representing the Southern University Board of Supervisors, spoke with The Advocate concerning the investigation. When they asked to see documentation from the investigation, however, DeCuir refused to share anything, essentially claiming that doing so would infringe upon Jacksons Fourth Amendment right to privacy.

Heres the problem with his reasoning: the Fourth Amendment protects American citizens against unreasonable invasions of privacy by law enforcement. It grants us security in our person, property, papers and effects: whats ours. The report from this investigation of a public university and a public employee is not hers to claim, is it? Whats more, the Fourth Amendment disallows unreasonable invasions of privacy, but if theres concern that an illegality has occurred, is it to be considered unreasonable?

The Advocates attorney, Scott Keaty, affirms this:

The public has an acute interest in ensuring that public business is subject to public scrutiny, particularly where, as here, a public employee has been investigated for her conduct in carrying out the functions of her public employer. More specifically, the substance and results of such an investigation must be disclosed in order that the public can be confident in the operations of its government both in how governmental employees have acted and how investigations of such employees have been conducted. There is simply no reasonable expectation of privacy in such situations.

Coincidentally, Jackson is not the only Southern employee whos both associated with the Council on Aging and on administrative leave these days. Brandon Dumas, Southerns vice chancellor for student affairs, resigned from his seat as board chairman because ofa violation of the boards bylaws.

So is protecting Dorothy Jacksons right to privacy the real reason this report hasnt been released? Well leave it up to the reader to decide.

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The Dorothy Jackson-Southern Law School Performance Review Fiasco - The Hayride

Digital Privacy to Come Under Supreme Court’s Scrutiny – New York Times

Back in 1986, Congress viewed communications over six months old to be abandoned and therefore subject to reduced protection, a notion that looks quaint today when emails and texts may be held for years.

Another provision of the statute allows investigators to obtain information from the provider about a subscriber to any electronic service, like cellphones, by seeking a court order based on reasonable grounds to believe that the records are relevant to a criminal investigation. This is a lower standard than probable cause, the usual requirement for a search warrant.

It is this lower threshold for getting information that is at issue in Carpenter v. United States, which the Supreme Court will hear in its next term starting in October.

The defendants were convicted of organizing a string of robberies in the Detroit area where they served as lookouts by parking near the stores. The government obtained orders directing wireless carriers to provide cell site location information showing where different numbers linked to the crew conducting the robberies were at the time of the crimes. Armed with data from various cell towers, prosecutors showed at trial that the defendants phones were a half-mile to two miles from the robberies, helping to link them to the actual perpetrators.

The defendants sought to suppress that information, arguing that it constituted a search of their phones so that the reasonable grounds standard in the Stored Communications Act for the order did not meet the probable cause requirement of the Fourth Amendment.

The United States Court of Appeals for the Sixth Circuit in Cincinnati rejected that claim, finding that although the content of personal communications is private, the information necessary to get those communications from point A to point B is not. Therefore, the defendants had no privacy interest in the information held by the carriers about their location and the constitutional probable cause requirement did not apply.

The Carpenter case raises a fundamental question about how far the privacy protection in the Fourth Amendment, which by its terms applies to persons, houses, papers and effects, should reach in protecting data generated by a persons electronic devices. Chief Justice John G. Roberts Jr. wrote in Riley v. California, a 2014 decision, that cellphones are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.

In Riley, the court found that a warrantless search of an arrestees cellphone was unconstitutional, explaining that what distinguishes the device from other items that might be found on a person that the police could look at is their immense storage capacity. But rummaging through the contents of a phone or computer is not necessarily the same as getting site information that is broadcast to the carrier, especially when a person may enable it by using an app like Find My Phone.

In a 2012 case, United States v. Jones, the Supreme Court found that the use of a GPS tracker attached to a car was a search governed by the Fourth Amendment. Justice Sonia Sotomayor explained in a concurring opinion that the privacy interests in a persons specific location required investigators to get a warrant because gathering that information enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.

In the Carpenter case, the justices will have to weigh whether cell site data is different from a GPS tracker because learning where a person is within about a one-mile radius may not be a sufficient invasion of privacy to come within the Fourth Amendment. Nor does obtaining the location of a cellphone reveal the content of any communication, only that a call was made, so the protection afforded by the Riley decision may not apply.

Another case involving the Stored Communications Act that may come before the justices concerns the territorial reach of a warrant authorizing investigators to obtain emails held by Microsoft. The United States Court of Appeals for the Second Circuit in Manhattan, in Microsoft v. United States, found that the warrant did not apply to emails stored on a server in Dublin because there was no indication in the statute that Congress intended to authorize a search outside the United States.

The Justice Department filed a petition with the Supreme Court on June 22 asking for a review of that decision, arguing that it was wrong, inconsistent with this courts framework for analysis of extraterritoriality issues, and highly detrimental to criminal law enforcement. Those requests are often granted because the justices rely on the solicitor generals office to identify cases that have significant law enforcement implications.

Another factor in favor of granting review is that the Second Circuits decision has not been followed by federal district courts in Philadelphia, San Francisco, Washington and Wisconsin, which have enforced warrants to produce email records that may have been stored abroad. A note in the Harvard Law Review criticized the decision because it did not acknowledge the un-territorial nature of data.

Microsoft is fighting the effort to apply the Stored Communications Act to electronic records held outside the United States, pointing out in a company blog post that the European Unions new General Data Protection Regulation scheduled to go into effect next year will make it illegal to transfer customer data from Europe to the United States. That could put global technology organizations like Google and Microsoft in the difficult position of balancing demands for greater privacy with efforts to investigate crime that could result in large fines for failure to comply.

Determining how digital information fits under a constitutional protection adopted when there were only persons, homes, papers and effects that could be searched requires the Supreme Court to figure out the scope of privacy expectations in a very different world from the 18th century. The problem is that legal challenges take a piecemeal approach to a statute adopted over 30 years ago, and the courts cannot rewrite provisions that may be hopelessly out of date.

The House of Representatives adopted the Email Privacy Act in February to modernize the protections afforded electronic communications that would require obtaining a search warrant in almost every case. That proposal met resistance in the Senate last year when Attorney General Jeff Sessions, then a senator from Alabama, sought to add a provision allowing law enforcement to skip the warrant requirement in emergency situations.

Whether the legislation can get through the current Senate is an open question, and it is not clear whether President Trump would sign off if the Justice Department opposes the bill. That may mean the Supreme Court will have to establish the broad parameters of digital privacy while Congress tries to deal with the intricacies of a world of electronic communication that continues to evolve rapidly.

Devices connected to the internet, from cellphones to watches to personal training trackers that facilitate our personal habits and communications, are a fact of daily life, and the Supreme Court will have to start drawing clear lines around what types of electronic information are and are not protected by the Fourth Amendment. Simply asserting that there is a right to privacy does not provide much help in determining how far that protection should extend in a digital world.

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Digital Privacy to Come Under Supreme Court's Scrutiny - New York Times

Homeowners don’t have to let assessors in to challenge tax – The … – hngnews.com

MADISON (AP) Wisconsin homeowners don't have to let assessors inside as a condition for challenging their property taxes, the state Supreme Court ruled Friday.

The court said in a 5-2 decision that such visits amount to unreasonable searches and that assessors need to get warrants if they can't obtain the homeowners' consent.

The ruling involves Vincent Milewski and Morganne MacDonald, who own a home in the Town of Dover in Racine County.

According to court documents, they tried to challenge their 2013 property tax assessment in front of a town review board.

The board refused to hear the challenge because Milewski and MacDonald wouldn't let an assessor inside their home. Under state law, people who refuse an assessor's request to view their property can't contest the assessment to local review boards.

Milewski and MacDonald sued. A judge dismissed the lawsuit and a state appellate court upheld his decision. The state Supreme Court reversed that ruling.

Writing for the majority, Justice Dan Kelly said Milewski and MacDonald were faced with a difficult decision: relinquish their constitutional right to be free of unreasonable searches so they could challenge the assessment or exercise their rights and forfeit their ability to contest the assessment.

Kelly said an assessors' visit without consent is a search as defined in the U.S. Constitution's Fourth Amendment, which protects people from unreasonable searches and seizures. The town failed to show how assessing taxes is such a special need that the Fourth Amendment doesn't apply, which means assessors must obtain search warrants to enter without consent, he wrote.

Assessors can use other means to gather information about the property, he said. Milewski and MacDonald can challenge the assessment without an interior inspection, he concluded.

He said the law isn't unconstitutional on its face. But it can't be read to require a property viewing that violates the Fourth Amendment in order to allow a challenge, he wrote.

The town's attorney, Jason Gehring, didn't immediately respond to a voicemail seeking comment.

The court's conservative-leaning majority handed down the decision.

Shirley Abrahamson and Ann Walsh Bradley, the only two liberal-leaning justices, dissented.

Abrahamson wrote in a joint dissent with Bradley that such choices are common in the law and are seen as constitutionally valid. She also complained the majority opinion is overly complex and intricate even though her dissent goes on for 47 pages compared with Kelly's 53 pages and doesn't say what should happen next.

The Wisconsin Institute for Law and Liberty, a conservative law firm that represents Milewski and MacDonald, issued a statement calling the decision "a victory for private property rights."

The Wisconsin Realtors Association, the state Department of Justice and the Institute of Justice, a law firm specializing in constitutional protections, all filed friend-of-the-court briefs urging the Supreme Court to strike down the law.

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Homeowners don't have to let assessors in to challenge tax - The ... - hngnews.com

Homeowners don’t have to let assessors in to challenge tax – The Edwardsville Intelligencer

Todd Richmond, Associated Press

MADISON, Wis. (AP) A Wisconsin law that requires homeowners to let assessors inside as a condition for challenging their property taxes is unconstitutional as applied to a pair of Racine County property owners, the state Supreme Court ruled Friday.

The court said in a 5-2 decision that such visits amount to unreasonable searches and that assessors need to get warrants if they can't obtain the homeowners' consent.

The ruling involves Vincent Milewski and Morganne MacDonald, who own a home in the Town of Dover in Racine County. According to court documents, they tried to challenge their 2013 property tax assessment in front of a town review board.

The board refused to hear the challenge because Milewski and MacDonald wouldn't let an assessor inside their home. Under state law, people who refuse an assessor's request to view their property can't contest the assessment to local review boards.

Milewski and MacDonald sued. A judge dismissed the lawsuit and a state appellate court upheld his decision. The state Supreme Court reversed that ruling.

Writing for the majority, Justice Dan Kelly said Milewski and MacDonald were faced with a difficult decision: relinquish their constitutional right to be free of unreasonable searches so they could challenge the assessment or exercise their rights and forfeit their ability to contest the assessment.

Kelly said an assessors' visit without consent is a search as defined in the U.S. Constitution's Fourth Amendment, which protects people from unreasonable searches and seizures. The town failed to show how assessing taxes is such a special need that the Fourth Amendment doesn't apply, which means assessors must obtain search warrants to enter without consent, he wrote. Assessors can use other means to gather information about the property, he said. Milewski and MacDonald can challenge the assessment without an interior inspection, he concluded.

He said the law was unconstitutionally applied to Milewski and MacDonald's situation. But he said the law isn't unconstitutional on its face, holding only that it can't be read to require a viewing that violates the Fourth Amendment.

The town's attorney, Jason Gehring, didn't immediately respond to a voicemail seeking comment.

The court's conservative-leaning majority reached the decision. Shirley Abrahamson and Ann Walsh Bradley, the only two liberal-leaning justices, dissented.

Abrahamson wrote in a joint dissent with Bradley that such choices are common in the law and are seen as constitutionally valid. She also complained the majority opinion is overly complex and intricate even though her dissent goes on for 47 pages compared with Kelly's 53 pages and doesn't say what should happen next.

The Wisconsin Institute for Law and Liberty, a conservative law firm that represents Milewski and MacDonald, issued a statement calling the decision "a victory for private property rights."

The Wisconsin Realtors Association, the state Department of Justice and the Institute of Justice, a law firm specializing in constitutional protections, all filed friend-of-the-court briefs urging the Supreme Court to strike down the law.

___

Follow Todd Richmond on Twitter at https://twitter.com/trichmond1

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Homeowners don't have to let assessors in to challenge tax - The Edwardsville Intelligencer

Matthew T. Mangino: The Constitution and students’ rights – Wicked Local Brookline

As students spend the summer out of class, now is the time to reflect on a growing problem across the country.

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As students spend the summer out of class, now is the time to reflect on a growing problem across the country. School districts have relinquished discipline, in large measure, to law enforcement agencies.

There was a time when disruptive students were sent to see the principal. Today, in some school districts the disruptive student is handcuffed and ushered off to court. The school-to-prison pipeline is overflowing with students.

As schools continue to rely on law enforcement for discipline, it is imperative that students constitutional due process rights are protected on school grounds. Even the United States Supreme Court has said that "students do not shed their constitutional rights at the schoolhouse gate."

The courts have not clearly defined when protections, that many adults take for granted on the street, are applicable within the confines of a school building. When a school allows a police officer to arrest a student or refer a student to law enforcement or juvenile court as a form of discipline the school is turning that student over to the juvenile justice system. Parents believe their children are safe and being protected from harm. Yet, with the ever expanding relationship between school and law enforcement a student is much more likely to get a criminal record in school than to get a black eye.

Schools with police resource officers tout the increased safety, but leave out the increased arrest of students. A report by the Justice Policy Institute found that, even controlling for a school district's poverty level, schools with officers had five times as many arrests for "disorderly conduct" as schools without them.

The fundamental rights provided by the Fourth, Fifth and Sixth Amendment although more limited in school are available to students suspected of criminal activity.

It is hornbook law that the Fourth Amendment requires a warrant be obtained based on probable cause before a search or seizure of evidence. There are exceptions that have been carved out by the U.S. Supreme Court. Those exceptions have expanded over time but have not, to this point, relieved law enforcement from getting the courts approval to search or arrest an individual.

In 1985, the U.S. Supreme Court ruled that although the Fourth Amendment prohibition against unreasonable searches and seizures applied to searches of students, neither a warrant nor probable cause was necessary.

The Court reasoned that although students do have rights in school those rights have to be balanced with the schools interest in maintaining discipline.

A valid search of a student requires a school show only that an administrator had reasonable suspicion less than probable cause but more than a hunch. Reasonable suspicion was first introduced by the Supreme Court in 1968.

The Supreme Court has never directly addressed how the Fifth and Sixth Amendment protections against self-incrimination and the right to counsel are applicable to students in school.

In a 2011 case out of North Carolina, the Supreme Court addressed whether rights warnings were necessary due to the age of the suspect.

A seventh grade student was pulled out of class by a police officer to talk about some break-ins in the neighborhood. The officer did not inform the student of his right to remain silent or his right to legal counsel, the rights made famous by the landmark Supreme Court decision in Miranda v. Arizona.

Miranda requires that a suspect in custody, not free to leave, and subject to interrogation, questions that might elicit an incriminating response, be informed of the right to remain silent and the right to counsel.

The Court ruled that age is a factor to be considered for purposes of Miranda. The Court also noted that a students presence at school is compulsory and disobedience at school is a cause for discipline, therefore a student would likely not feel free to leave while being questioned in school.

Parents need to pay attention to this issue. As police presence expands in schools so should the rights of students.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioners Toll, 2010 was released by McFarland Publishing. You can reach him at http://www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Matthew T. Mangino: The Constitution and students' rights - Wicked Local Brookline

Your vanishing location privacy: Why the Supreme Court is giving wireless networks a look – Insider Louisville

Douglas F. Brent

By Douglas F. Brent and Victoria Allen, Stoll Keenon Ogden PLLC

Editors Note: Victoria Allen is a 2017 Summer Associate with SKO.

The digital age has ushered in a multitude of location mechanisms on a communication device. Anyone who has paid roaming fees knows their phone connects to more networks than just those designated by their wireless provider.

Cellphones work by establishing a connection with cell towers. Each tower projects unique directional signals, so a cellphone picking up a signal from the north has distinct CSLI, or cell site location information, from a signal broadcast from the same towers southern sector. As they manage their networks, carriers record these connections.

With thousands of new microsites with smaller coverage areas, CSLI rivals GPS as a way to nearly pinpoint a devices location.

CSLI and law enforcement

In thousands of cases each year, law enforcement agencies obtain the CSLI associated with suspects phones under the Stored Communications Act, instead of securing a search warrant based on probable cause. This tower dump can reconstruct a suspects location and movements over time, and is effective in crime solving.

Nearly all federal courts have agreed that getting a tower dump from cellular providers does not require a warrant. As recently as 2015, the U.S. Supreme Court declined to review any of those decisions.

But on June 5, the Court granted a defendants request to review his conviction upheld last year by the Sixth Circuit Court of Appeals in USA v. Timothy Carpenter.

The Court will consider whether the warrantless seizure and search of cellphone records revealing Carpenters location and movements over 127 days violated his Constitutional rights, specifically Fourth Amendment protection from unreasonable searches and seizures.

Carpenter was nabbed by the FBI in a string of armed robberies at Radio Shacks and T-Mobile stores around southeastern Michigan and northwestern Ohio. After receiving a judges order to obtain records from wireless carriers, the FBI determined that Carpenter had been less than two miles from each store when the robberies took place.

A Michigan jury convicted Carpenter and co-defendants, and a district judge sentenced him to multiple 25-year terms. The sentence was affirmed last year and Carpenter filed for Supreme Court review, even though two terms ago the Court declined to review a nearly identical decision from the Eleventh Circuit.

Why answer an unasked question?

We have written previously about why courts have generally held a warrant is not required to access cell site location information. The privacy protection provided by the Fourth Amendment guards individuals against unreasonable searches and seizures by law enforcement. Reasonableness is grounded in whether the person asserting the protection has an actual expectation of privacy that society will recognize.

But the Supreme Court has held that parties lack an expectation of privacy in business records created by third parties, like a telephone company that records the numbers dialed to initiate a call. Courts dont treat the review of most third-party transactional records as a search at all.

The resulting third-party doctrine, though developed in a different technology era, remains in use today. Regarding cellphone network data for geo-location, the records of wireless service providers have not triggered the same level of privacy protection as more direct methods of surveillance, like a hidden tracking device.

To fill the gap between Fourth Amendment protection and no protection at all, Congress created the Stored Communications Act (SCA), which requires that the government present reasonable grounds but not probable cause to obtain records like CSLI. Whether such information is also protected by the Fourth Amendment has become a more difficult question as transactional records become more numerous and more capable of revealing seemingly private information.

Some judges have been uncomfortable applying the third-party doctrine to pervasive collections, like thousands of locations recorded over months at a time. Judges have also questioned whether the doctrine applies to data not voluntarily conveyed by cellphone users. In the earliest cases involving phone networks, the information voluntarily conveyed was the number dialed by a suspect. In contrast, cellphone users dont so directly influence which cell tower their phone connects to.

The Supreme Courts decision to review Carpenters claims related to CSLI validates concern that the Fourth Amendment is being browbeaten into retreat by the swell of information that is conveyed to third parties. The Courts decision to hear Carpenter is an indication that the Supreme Court is ready to reconsider that decades old third-party doctrine in light of todays technology.

And it may be time.

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Your vanishing location privacy: Why the Supreme Court is giving wireless networks a look - Insider Louisville

The Bootlegger, the Wiretap, and the Beginning of Privacy – The New Yorker

Nearly a century before a U.S. President accused his predecessor of ordering a tapp on his private telephone line, and before he tweeted a warning to the head of the F.B.I. that he had better hope that there are no tapes of our conversations, a professional spy, armed with a pack of cigarettes and an earpiece, hid in the basement of the Henry Building, in downtown Seattle, catching crackling bits of words being spoken miles away. Richard Fryant had worked as a wiretapper for the New York Telephone Company, tasked with eavesdropping on his own colleagues, and now took freelance assignments in the Queen City. On this occasion, he was seeking dirt on Seattles corrupt mayorwho was suspected of having ties to Roy Olmstead, a local bootleggerfor a political rival. At the behest of his client, Fryant rigged micro-wires to a certain exchange, ELliott-6785, and began to listen.

They got that load, one man said, breathing heavily.

The hell they didwho? asked another.

The federals.

The men speaking on ELliott-6785 hung up, but the conversation had only just begun.

Criminals and Prohibition officials alike called Olmstead the good bootlegger, a moniker that reflected his singular business philosophy. He never diluted his whiskey with water or corrupted it with poison; he declined to dabble in the seedier offshoots of his profession, such as drugs or prostitution; and he abhorred violence, forbidding members of his organization from carrying weapons (No amount of money is worth a human life, he cautioned). If apprehended, his men were instructed to rely on bribes instead of violence.

Olmstead had a particular respect for policemen, having been a member of the Seattle force for thirteen years, reaching the rank of lieutenant. In 1920, with the onset of Prohibition, the thirty-three-year-old married father of two ventured to the other side of the law, making midnight runs to retrieve imported Canadian liquor from tugboats in the Puget Sound. This practice earned his dismissal from the force and made him a local celebrity. With his old police colleagues on his payroll, he was free to conduct business brazenly and with impunity, often unloading his booze at high noon from trucks marked Fresh Fish. Seattle citizens were thrilled to glimpse Olmstead on the street, wearing a fine suit and carrying a wallet fat with money, always ready with a joke. As one acquaintance noted, It made a man feel important to casually remark, As Roy Olmstead was telling me today.

Olmsteads organization, comprised of an ever-growing staff of attorneys, dispatchers, clerks, skippers, navigators, bottlers, loaders, drivers, deliverymen, collectors, and salesmen, dominated the bootlegging scene in the Pacific Northwest. They relied heavily upon the telephone for day-to-day operations, using it to take orders, communicate updates on deliveries, and warn of impending raids, their words coursing across a web of wires connecting the citys fifty-two thousand devices (approximately one for every six citizens). Olmstead set up his communication headquarters in the Henry Building, just a block from the Federal Building, and established three exchanges: ELliott 6785, 6786, and 6787. One of his men, a former taxi dispatcher, sat during business hours at a roll-top desk, taking and making calls, keeping meticulous records of each transaction. If a serious matter arose, such as an employees arrest, Olmstead himself called a friend on the Seattle police force to have it quashed. At the end of each day, the dispatcher unplugged the three telephones, to stop their ceaseless ringing, and the routine began anew in the morning.

In early 1924, Olmstead was approached by Richard Fryant, the freelance wiretapper who had been hunkered down in the basement of the Henry Building, listening to Olmsteads lines. As the bootlegger would soon learn, Seattles Prohibition Director, William Whitney, had heard of Fryants surveillance and recruited him as a federal agent.

In Olmsteads version of events, Fryant presented him with a heavy stack of paper, explaining that the pages contained verbatim transcripts of conversations that had been conducted on the bootleggers office phone. For ten thousand dollars, Fryant said, the transcripts could be his. A quick perusal of the pages confirmed their authenticity.

A call from a cop to a worker at Olmsteads headquarters:

Down under the Fourth Avenue Bridge is a car with seven gallons of moonshine in it, and I was wondering if it is yours.

No . . . I dont think it is ours because we dont handle moonshine.

A call from Olmstead to the police station:

Hello, Roy, what is on your mind?

One of your fellows picked up one of my boys. . . . I dont give a damn what they do but I want to know before he is booked.

Ill take care of it for you, Roy.

A joking exchange between Olmstead and a dispatcher:

The federals will get you one of these days.

No, those sons of bitches are too slow to catch cold, Olmstead quipped,

Reading the pages, Olmstead maintained his composure. As a former police officer, he said, when hed finished reading, he knew a thing or two about the rules of evidence. Wiretapping was illegal in the state of Washington, so the pile of paper would be useless in a courtroom. Furthermore, Fryant could go straight to hell.

Olmsteads bravado did not prevent him from hiring a telephone repairman to search the Henry Building first thing in the morning. Together, they found and removed three temporary taps (affixed with coil wire rather than soldered)two in the basement and one in the womens restroom. Still unsettled, Olmstead returned the following day and discovered that all three taps were back.

Fryant and Whitneys wife, Clara, a skilled stenographer, continued to monitor ELliott-6785 from an office one floor below. At each days end, Clara gathered up the handwritten notes and typed them with fastidious precision. The pile of paper continued to grow.

For the first time in his bootlegger career, Olmstead started exercising some discretion about his wordsbut only some, because he still trusted that Fryants wiretapping evidence would never withstand legal scrutiny. When managing the arrival of his whiskey boats in Puget Sound, he used a public pay phone to issue instructions and directions. For less sensitive issues, he continued to use his office line, and even had fun at the wiretappers expense, calling Whitney profane names and giving false orders about the timing and location of deliveries. It amused him to imagine the Prohibition chief sitting alone in the freezing rain, grasping his gun and waiting for boats that would never come.

Whitneys patience paid off in October, 1924, when Canadian officials seized one of Olmsteads boats. Three months later, a federal grand jury returned an indictment against Olmstead and ninety co-defendants for conspiracy to violate the National Prohibition Act. The Whispering Wires case, as it came to be called, concluded with a guilty verdict, a fine of eight thousand dollars, and a sentence of four years hard labor. Convinced that his Fourth and Fifth Amendment rights had been violated (the right against unreasonable searches and seizures and against self-incrimination, respectively), Olmstead put his lawyers to work on Olmstead v. The United States. The Circuit Court of Appeals upheld his conviction, maintaining that, because the federal agents wiretapping pursuits did not require them to trespass on Olmsteads property or confiscate physical possessions, there had been no breach of rights.

The Supreme Court heard Olmstead v. The United States in February, 1928, and, in a 54 decision, upheld Olmsteads conviction. Chief Justice William Howard Taft, speaking for the majority, recognized the murky morality of wiretapping. Nevertheless, he argued that the practice served a greater good. A standard which would forbid the reception of evidence if obtained by other than nice ethical conduct by government officials would make society suffer and give criminals greater immunity than has been known heretofore, he wrote. He rejected the heart of Olmsteads case, insisting that the Amendment does not forbid what was done here. There was no searching. There was no seizure. . . . The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside.

The dissenting opinion was penned by Justice Louis Brandeis, for whom the issue of privacy was both ancient and increasingly, inescapably modern. In 1890, while practicing law in Boston, he had co-authored an article published by the Harvard Law Review titled The Right to Privacya manifesto, as Jill Lepore has written in this magazine, that argues for the existence of a legal right to be let alonea right that had never been defined before. Although the telephone was still decades away from being a familiar and necessary aspect of our lives, nearly every line of The Right to Privacy reveals prophetic insight into current concerns about how best to shield our innermost selves. The intensity and complexity of life have rendered necessary some retreat from the world, Brandeis wrote.

The Right to Privacy became a seminal work, and one that clearly influenced Brandeis himself as he considered Olmsteads case. When the Founding Fathers crafted the Constitution, he wrote in his dissent, the right to be left alone was inherent in the notion of pursuing happiness. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be considered a violation of the Fourth Amendment. . . . If the government becomes a lawbreaker, it breeds contempt for the law.

The media, although invested in a world where sensitive information might be easily and readily obtained, largely favored Brandeiss view. The Times declared that the Olmstead decision allowed universal snooping. The New Haven Journal-Courier predicted that every Tom, Dick and Harry would hereafter practice wiretapping without fear of reprisal. The editors of the weekly magazine Outlook were even more blunt, likening the verdict to a new Dred Scott and predicting dire consequences: We must weather the devastating effects of a decision that outrages a peoples sense of a security which they thought they had.

Forty years later, the Supreme Court finally caught up with Justice Brandeis, refining the Olmstead decision in two separate cases. In June, 1967, Berger v. New York considered the appeal of Ralph Berger, a public-relations consultant who had been convicted of conspiracy to bribe the chairman of the New York State Liquor Authority. Under the authority of a New York statute, police wiretapped Bergers phone for two months, and played excerpts of their recordings during the trial. In a 63 decision, the Supreme Court ruled that the New York law was too broad in its sweepspecifically too long, as the two-month surveillance amounted to a series of intrusions, searches, and seizures that violated the defendants Fourth Amendment rights.

Six months later, the Supreme Court directly addressed the legacy of the Olmstead decision, in the case of Charles Katz, a California man convicted of placing illegal gambling wagers across state lines. Without a warrant, F.B.I. agents wiretapped public pay phones along Sunset Boulevard, hiding the device atop the bank of booths and listening in as Katz placed bets in Miami and Boston. The Court of Appeals upheld Katzs conviction, concluding that, since there had been no physical entrance, his privacy had not been compromised. In a 71 ruling, the Supreme Court reversed this decision, arguing that the Fourth Amendment protects people, not places, and that its reach cannot depend on the presence or absence of a physical intrusion into any given space. Citing Justice Brandeiss manifesto, the Court established the protection of a persons general right to privacy (emphasis the Courts) and his right to be let alone.

Olmstead served his four-year sentence. Yet, in a way, he managed to win his case. Victory came in the form of a Presidential pardon, granted by Franklin D. Roosevelt, on Christmas Eve of 1935, which restored all of his rights as a citizen and cancelled the fine. Roosevelt was influenced, in part, by Olmsteads nascent transformation: hed quit drinking, converted to Christian Science, and started teaching the Bible to prisoners, who frequently asked if he was really *that *Roy Olmstead, the good bootlegger, the rum-running king of Puget Sound. His standard replyNo, not any more. The old Olmstead is deadamounted to fewer than a hundred and forty characters, and were the words he wished the whole world to hear.

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The Bootlegger, the Wiretap, and the Beginning of Privacy - The New Yorker

Supreme Court divided on marijuana case, denies transfer – Indiana Lawyer

A deadlocked decision on whether to hear a case involving Fourth Amendment and similar state rights has led the Indiana Supreme Court to deny transfer to the case, with two justices dissenting on the denial of transfer.

The divided justices denied transfer to the case of Marcus Sanders v. State of Indiana, 49A05-1605-CR-971, last week, with Justices Mark Massa and Geoffrey Slaughter voting to deny transfer. The Indiana Court of Appeals affirmed Marcus Sanders conviction of Class A misdemeanor possession of marijuana in a December memorandum opinion.

Sanders was convicted after Marion County Sheriffs Deputy Brandon Stewart, who was working as a courtesy officer for an Indianapolis apartment complex, observed Sanders strike a curb twice while he moved his vehicle from one parking spot to another. Stewart, believing Sanders may have been intoxicated, approached Sanders, who began to exit the vehicle. However, Stewart told him to remain in the vehicle and then observed a baggie in the seat filled with a substance later identified as marijuana.

The Court of Appeals upheld the conviction under both the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution, finding that at a state constitutional level, the degree of concern was high because Sanders conduct indicated he could be impaired. However, in a dissent to the denial of transfer, Justice Steve David disagreed with that analysis and instead said he believed the degree of intrusion, as proscribed in Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005), was low.

Specifically, David said the conclusion that the degree of intrusion was high was based on the fact that Sanders may have been impaired and could have returned to the road and put others at risk, a conclusion that was speculative and does not seem to be supported by the record. Further, because Stewart ordered Sanders to remain in his car, the interaction transitioned from a consensual encounter to an unlawful seizure, David said.

As counsel for Sanders aptly noted: (i)f striking a curb twice while pulling into a parking space gives rise to concern that someone is driving intoxicated, so too would many other common parking lot driving behaviors such as stopping abruptly or backing up to take a recently vacated parking space and the difficulty drivers encounter in parallel parking, David wrote in a dissenting opinion joined by Chief Justice Loretta Rush. I agree. Bad parking alone is just not enough.

The four-person high court was similarly split on the question of whether to take the case of Ricky Johnson v. State of Indiana, 79S04-1705-CR-332, and reinstated the Court of Appeals decision to reverse Johnsons gun conviction in an order last week. Current Wabash Superior Judge Christopher Goff will join the high court on July 24, bringing the bench to its full capacity of five justices.

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Supreme Court divided on marijuana case, denies transfer - Indiana Lawyer

Suit slams Trump-influenced immigrant detentions in Florida – Miami Herald


Miami Herald
Suit slams Trump-influenced immigrant detentions in Florida
Miami Herald
The complaint says the county is in violation of the Fourth Amendment that protects people from unreasonable arrests. The lawsuit also says Florida law prohibits jail officials from detaining people for civil immigration purposes. Between Jan. 27 and ...
Florida ACLU Files Lawsuit Over Miami-Dade Immigration PolicyPatch.com

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Suit slams Trump-influenced immigrant detentions in Florida - Miami Herald

Federal Court: The Fourth Amendment Does Not Protect Your …

In a dangerously flawed decision unsealed today, a federal district court in Virginia ruled that a criminal defendant has no reasonable expectation of privacy in his personal computer, located inside his home. According to the court, the federal government does not need a warrant to hack into an individual's computer.

This decision is the latest in, and perhaps the culmination of, a series of troubling decisions in prosecutions stemming from the FBIs investigation of Playpena Tor hidden services site hosting child pornography. The FBI seized the server hosting the site in 2014, but continued to operate the site and serve malware to thousands of visitors that logged into the site. The malware located certain identifying information (e.g., MAC address, operating system, the computers Host name; etc) on the attacked computer and sent that information back to the FBI. There are hundreds of prosecutions, pending across the country, stemming from this investigation.

Courts overseeing these cases have struggled to apply traditional rules of criminal procedure and constitutional law to the technology at issue. Recognizing this, we've been participating as amicus to educate judges on the significant legal issues these cases present. In fact, EFF filed an amicus brief in this very case, arguing that the FBIs investigation ran afoul of the Fourth Amendment. The brief, unfortunately, did not have the intended effect.

The implications for the decision, if upheld, are staggering: law enforcement would be free to remotely search and seize information from your computer, without a warrant, without probable cause, or without any suspicion at all. Tosay the least, the decision is bad news for privacy. But it's also incorrect as a matter of law, and we expect there is little chance it would hold up on appeal. (It also was not the central component of the judge's decision, which also diminishes the likelihood that it will become reliable precedent.)

But the decision underscores a broader trend in these cases: courts across the country, faced with unfamiliar technology and unsympathetic defendants, are issuing decisions that threaten everyone's rights. As hundreds of these cases work their way through the federal court system, we'll be keeping a careful eye on these decisions, developing resources to help educate the defense bar, and doing all we can to ensure that the Fourth Amendment's protections for our electronic devices aren't eroded further. We'll be writing more about these cases in the upcoming days, too, so be sure to check back in for an in-depth look at the of the legal issues in these cases, and the problems with the way the FBI handled its investigation.

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Federal Court: The Fourth Amendment Does Not Protect Your ...

Gang membership doesn’t color a crime, court says – The Rushville Republican

INDIANAPOLIS -- While wearing gang colors may be suspicious, it's not enough to justify a stop by police unless criminal activity is involved, the Indiana Supreme Court said this week.

As a result of the decision, Jordan Jacobs, Indianapolis, had his conviction reversed for Class A misdemeanor possession of a handgun. The state court ruled that a police search leading to Jacobs' arrest in 2015 was not allowed under the Fourth Amendment to the Constitution.

On Aug. 31, 2015, there had been numerous reports of gunshots fired on Indianapolis' northeast side by youths wearing red clothing, indicating gang membership. The location near 30th Street and Keystone Avenue was known as a high crime area and police placed more attention on patrols.

Two days later during the afternoon, an Indianapolis police officer saw young men who "looked like they should be in school" at Beckwith Park, according to court records. Some of the teens were wearing red clothing. Jacobs, then 18, had been seen earlier carrying a red T-shirt.

When a park ranger's car was in the area, Jacobs and another man walked away. They returned after the car left and Indianapolis Metropolitan Police Department officer Terry Smith, who is a gang detective, called for assistance. Smith ordered Jacobs to stop but he walked away. Another officer assisted in ordering Jacobs to the ground. Although handcuffed, Jacobs was told he was not under arrest but police saw a gun outlined in Jacobs' pocket.

In Marion County court, Jacobs' attorney objected to admitting the handgun into evidence on the grounds that the officers did not have reasonable suspicion to stop him under the Fourth Amendment. During a bench trial, Jacobs was found guilty and sentenced to one year probation.

In November, the Indiana Court of Appeals was split but found that Jacobs' behavior in evading police in a high crime area provided enough suspicion that a crime was "afoot."

The Indiana Supreme Court said that the officer's belief that Jacobs was truant at 2 p.m. that day was enough for an investigatory stop. But the actual stop occurred after school had let out for the day.

The court also addressed Jacobs' clothing. "Membership in a gang, by itself, does not provide the basis for prosecution for criminal gang activity," Justice Mark S. Massa wrote. "The State must prove that the individual was aware of the gang's criminal purpose."

He continued, "Jacobs' display of a red garment (which he was never wearing, and did not have at the time police approached), while standing among those clad in red, was thus insufficient to justify an investigatory stop under the Fourth Amendment."

The court said there was nothing to link Jacobs to the earlier gunfire.

Fourth Amendment

The Fourth 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."

Read more:

Gang membership doesn't color a crime, court says - The Rushville Republican

Gang membership doesn’t color a crime, court says – Greensburg Daily News

INDIANAPOLIS -- While wearing gang colors may be suspicious, its not enough to justify a stop by police unless criminal activity is involved, the Indiana Supreme Court said this week.

As a result of the decision, Jordan Jacobs, Indianapolis, had his conviction reversed for Class A misdemeanor possession of a handgun. The state court ruled that a police search leading to Jacobs arrest in 2015 was not allowed under the Fourth Amendment to the Constitution.

On Aug. 31, 2015, there had been numerous reports of gunshots fired on Indianapolis northeast side by youths wearing red clothing, indicating gang membership. The location near 30th Street and Keystone Avenue was known as a high crime area and police placed more attention on patrols.

Two days later during the afternoon, an Indianapolis police officer saw young men who looked like they should be in school at Beckwith Park, according to court records. Some of the teens were wearing red clothing. Jacobs, then 18, had been seen earlier carrying a red T-shirt.

When a park rangers car was in the area, Jacobs and another man walked away. They returned after the car left and Indianapolis Metropolitan Police Department officer Terry Smith, who is a gang detective, called for assistance. Smith ordered Jacobs to stop but he walked away. Another officer assisted in ordering Jacobs to the ground. Although handcuffed, Jacobs was told he was not under arrest but police saw a gun outlined in Jacobs pocket.

In Marion County court, Jacobs attorney objected to admitting the handgun into evidence on the grounds that the officers did not have reasonable suspicion to stop him under the Fourth Amendment. During a bench trial, Jacobs was found guilty and sentenced to one year probation.

In November, the Indiana Court of Appeals was split but found that Jacobs behavior in evading police in a high crime area provided enough suspicion that a crime was afoot.

The Indiana Supreme Court said that the officers belief that Jacobs was truant at 2 p.m. that day was enough for an investigatory stop. But the actual stop occurred after school had let out for the day.

The court also addressed Jacobs clothing. Membership in a gang, by itself, does not provide the basis for prosecution for criminal gang activity, Justice Mark S. Massa wrote. The State must prove that the individual was aware of the gangs criminal purpose.

He continued, Jacobs display of a red garment (which he was never wearing, and did not have at the time police approached), while standing among those clad in red, was thus insufficient to justify an investigatory stop under the Fourth Amendment.

The court said there was nothing to link Jacobs to the earlier gunfire.

Fourth Amendment

The Fourth 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.

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Gang membership doesn't color a crime, court says - Greensburg Daily News

Federal judge rules two deputies used excessive force – The Spokesman-Review

UPDATED: Thu., June 29, 2017, 9:05 p.m.

A man pulled from his home and arrested at gunpoint after two Spokane County Sheriffs deputies went to the wrong address achieved a partial victory this week when a federal judge ruled that the deputies violated his Fourth Amendment seizure rights and used excessive force.

Conner Griffith-Guerrero filed a federal civil lawsuit against Deputy Robert Brooke, Deputy Evan Logan and Spokane County in 2015, two years after the incident at his home on North Five Mile Road. Both sides filed summary judgment requests and this week U.S. District Court Judge Thomas O. Rice ruled that a portion of each request would be granted.

On Dec. 13, 2013, a resident on North Five Mile Road called 911 to report that there was a suspicious car parked at his neighbors house and his neighbor was in Arizona for the winter. He provided the address to the house, but deputies couldnt find the house and instead went to another home. They drew their guns and walked around the house, testing doors and shining their flashlights in windows, according to court documents.

Griffith-Guerrero was in the basement watching television when he saw the flashlights shining in. He said he was afraid he was about to be burglarized so he went upstairs and hit the front door to let whoever was outside know that someone was home, the lawsuit said. He went outside to look and saw someone with a gun. He screamed and ran into the house.

Brooke then identified himself and Griffith-Guerrero opened the door and was ordered outside the home and told to kneel in the front yard while he was handcuffed. He said that one of the deputies was pointing a gun at him the whole time, but the deputy testified in a deposition that he was merely holding his gun in the low ready position.

After it was determined that Griffith-Guerrero lived there, Brooke reportedly told him Youre lucky I didnt (expletive) shoot you, the lawsuit said.

According to court documents, Brooke received a shift counseling, described as the lowest level of discipline, for going to the wrong address.

Heather Yakely, the attorney representing Spokane County and the deputies, argued that the deputies had reasonable suspicion to approach the house and detain Griffith-Guerrero. The deputies were checking for signs of a burglary and Yakely argued there was no violation of the Fourth Amendment because deputies never crossed the threshold into the house.

Rice said the deputies did have the right to check the home for signs of a break-in, but ruled the deputies committed a warrantless seizure and used excessive force. Searches and seizures inside a home without a warrant are presumptively unreasonable, he wrote. It does not matter that the officers did not actually enter the house to make the arrest.

Ordering plaintiff out of his home is a categorical violation of his Fourth Amendment rights whether it is called a temporary detention or an arrest, it was a seizure.

Rice wrote that he found the defenses arguments that the deputies did not use excessive force unconvincing.

Pointing guns at plaintiff, ordering him out of his home at night and onto his knees in his own front yard to handcuff him was objectively unreasonable under the circumstances, Rice wrote.

Rice did agree with Yakely on another issue. He ordered Spokane County dismissed from the lawsuit because Griffith-Guerrero didnt show that there was a pattern or practice of officers conducting illegal warrantless searches.

Rice ruled that Griffith-Guerreros claims of assault and battery, false arrest and imprisonment and negligence in the lawsuit can be pursued.

Read more:

Federal judge rules two deputies used excessive force - The Spokesman-Review

A Supreme Court call on the third party doctrine – Washington Times

ANALYSIS/OPINION:

This week, constitutional law experts and the law enforcement community were abuzz after the U.S. Supreme Court added Carpenter v. United States to its docket, a case that could reshape government data collection and the Fourth Amendment in the internet Age. The Fourth Amendment asserts that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. Timothy Carpenter, the petitioner in this case, alleges that his Fourth Amendment rights were violated.

The case comes at a time when domestic surveillance by intelligence agencies is under scrutiny, and smartphone and internet records are playing a greater role in law enforcement investigations. It raises an important legal question about the applicability of old doctrines that give the government immense power in the Information Age.

Carpenter was convicted of taking part in six armed robberies in Michigan and Ohio. The FBIs evidence at trial included information collected from his cellphone carrier without a warrant, including location information that placed him in the vicinity of the robberies. Police almost certainly could have gotten a search warrant for Carpenters phone records. The appeals court upheld his conviction and dismissed his argument because, as most courts hold in these cases, personal information gathered from businesses like phone companies is not a search or seizure and doesnt require a warrant.

Before the creation of the web or smartphones, courts developed whats known as the third party doctrine for Fourth Amendment cases. This doctrine denies that information turned over to a third party like phone call and location information automatically transmitted to a phone company when placing a call is protected by Fourth Amendment. The doctrine derives from Supreme Court decisions from the 1970s about phone and bank records.

Today, technological advancements mean we each turn over tremendous amounts of personal data to third parties simply with routine use of the digital services of our age. New services that transmit data to the internet cloud, like smart homes, voice-activated devices, and Google Docs, offer law enforcement an even bigger treasure trove of personal records that, under the third party doctrine, does not require a warrant to collect.

The mere fact that the Supreme Court agreed to hear the Carpenter case was a small victory for civil liberties groups. The third party doctrine is a blunt instrument that, in our connected world, permits too many low-value fishing expeditions by law enforcement. Cellular phone companies in particular are inundated with law enforcement subpoenas every year for user data, including user location. Verizon, for instance, reported that the government issued more than 120,000 subpoenas to the company in 2016 over 350 per day. Legal teams at Google, Facebook, Amazon and Uber are required to sift through similar government requests for information.

The political right and left have bristled in recent years against intrusive and often secretive government data collection. Conservatives were alarmed when The Wall Street Journal broke news last October that federal agents in Southern California had co-opted state license plate readers and drove around a parking lot to collect information about thousands of gun show attendees. For years, police departments around the country have spent millions acquiring cell site simulators that jam cellular signals and collect data from hundreds of nearby smartphone users. Progressives have alleged that these devices are used to identify people at mass protests.

The third party doctrine denies that such information can ever be unreasonably seized or searched. As the Cato Institute argues in its amicus brief in the Carpenter case, its time for the court to strip away the decades of privacy doctrine that has permitted police data collection to metastasize.

If the court takes up the Fourth Amendment issues, it should scrupulously apply the Fourth Amendments language: Are Carpenters phone records papers or effects? Were they searched or seized? Was the search or seizure unreasonable? Courts ask these questions in other criminal cases, but not when information leaves someones home or device. Justice must be served, but the third party doctrine short-circuits what should be a demanding constitutional analysis that protects us all.

Contracts between individuals and phone and app companies affirm the confidentiality of sensitive information, and courts should allow only reasonable searches of that data. We should not relinquish Fourth Amendment protections the moment a third party is involved especially in an era when devices in our pockets automatically transmit data.

Brent Skorup is a research fellow at the Mercatus Center at George Mason University. Melody Calkins is a Google Policy Fellow with Mercatus.

See more here:

A Supreme Court call on the third party doctrine - Washington Times

Mishandle a Fraud Search, and All That Fine Evidence Could Be for Nothing – New York Times

When an investigation involves potential fraud, almost any document or record could be related to it. Prosecutors often need to show that transactions that appear to be legal were misleading or deceptive, which might not be apparent on the face of the documents. So the description in the warrant of what the government can seize in a white-collar case is usually quite broad, covering general categories of records and computer files created over a substantial period of time, but cannot be so vague that almost anything could be seized.

The government obtained warrants to search Mr. Weys company, New York Global Group, and his New York City apartment for evidence that he used other companies and investors as part of a plan to manipulate the shares of companies used for mergers with China-based businesses. The warrants listed 12 categories of documents that related to transactions with 220 individuals and companies, including the seizure of computers and other electronic devices that might contain records related to them.

The key to any warrant that covers so much material is to properly identify the specific crimes that were committed so that there is some limitation on what types of records can be seized. It was on this point that Judge Nathan found the warrant in Mr. Weys case had failed.

The primary flaw was that while the affidavit submitted by an F.B.I. agent to a magistrate judge gave a reasonable description of the crimes under investigation, that document was not incorporated in the warrant, or even attached to it, to establish the parameters for the search.

Because there were no apparent limits to what could be seized, the agents executing the warrants seemed to take just about everything they could get their hands on. In particular, Judge Nathan was troubled that agents took personal items with no apparent connection to the investigation, like X-rays of family members, childrens sports schedules, divorce papers, passports and family photographs.

In finding that the search violated the Fourth Amendment, the judge pointed out that failure to reference the suspected crimes would alone be enough to render the warrants insufficiently particularized.

The importance of including the crimes under investigation was highlighted in another recent case, involving the appeal of Ross W. Ulbricht, who once operated under the moniker Dread Pirate Roberts. He was sentenced to life in prison for helping set up and operate Silk Road, an anonymous online marketplace used to sell drugs and broker other illegal services. Crucial evidence came from his laptop, which was searched shortly after his arrest in a public library in San Francisco in 2013.

The warrant allowed agents to open every file to view the first few pages of a document, and search terms could be used to scan the laptops entire memory. In upholding the search, the United States Court of Appeals for the Second Circuit in Manhattan pointed out that files and documents can easily be given misleading or coded names, and words that might be expected to occur in pertinent documents can be encrypted; even very simple codes can defeat a preplanned word search.

While the description of what could be searched on Mr. Ulbrichts laptop was broad, it was permissible under the particularity requirement of the Fourth Amendment because the affidavit outlining the crimes under investigation was incorporated into the warrant, providing the necessary limitations on what could be viewed. Although that meant a very intrusive search that could include many personal documents, the appeals court found that such an invasion of a criminal defendants privacy is inevitable, however, in almost any warranted search.

Why did the government fail to meet this seemingly simple requirement of incorporating the description of the crimes under investigation in the warrant to search Mr. Weys office and apartment? There is no good explanation for that mistake, which led Judge Nathan to conclude that the warrants are in function if not in form general warrants, the death knell for any search.

One way the government could have seized virtually everything from Mr. Weys business and home would have been to offer evidence in the warrant application that his operation was completely fraudulent. Courts recognize that if a company is thoroughly permeated by fraud, such as a boiler-room operation or a bogus prescription drug dispensary, then any records connected to it would constitute evidence.

Although prosecutors made this argument to defend the seizure from Mr. Wey, they could not overcome two hurdles. First, this type of warrant is usually limited to a business rather than a home, at least unless there is substantial evidence that the home was really just an extension of the illegal operation. There was nothing in the warrant application involving Mr. Weys apartment that would indicate its primary use for that purpose, even though his wife assisted his advisory business from there.

Second, Judge Nathan found that the government did not set forth any evidence, explicit or implicit, that the scheme either constituted just the tip of iceberg with respect to fraudulent activity at Mr. Weys operation, or that the claimed fraudulent activity infused the entire business.

Perhaps the ultimate fallback in any case involving a flawed search warrant is the claim that the agents acted in good faith. The exclusionary rule is designed to deter governmental misconduct, and the Supreme Court noted in United States v. Peltier that where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.

That exception does not apply when a warrant is so clearly flawed that no reasonable agent would rely on it. Judge Nathan found that the warrants did not have any meaningful linkage to the suspected criminal conduct and limited only, at the outer boundaries, to some relationship to the owner/occupant of the premises being searched. Therefore, a claim of good faith to salvage the fruits of an otherwise unlawful search could not be supported, so the exclusionary rule required suppression of all the evidence seized.

I expect that the Justice Department will challenge the decision because the suppressed evidence is at the heart of the case against Mr. Wey. Although a defendant cannot appeal a denial of a suppression motion until after a conviction, the Criminal Appeals Act authorizes prosecutors to seek review of a decision granting such a motion so long as the United States attorney certifies that the appeal is not for the purpose of delay and the material would be substantial proof of a fact material in the proceeding.

Judge Nathans decision sends a clear message to agents and prosecutors in white-collar-crime investigations to tread carefully when using a search warrant to gather evidence. Although a treasure trove of materials can be obtained this way, failing to pay attention to the details of properly writing and executing a warrant can have devastating consequences for a case.

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Mishandle a Fraud Search, and All That Fine Evidence Could Be for Nothing - New York Times

Opinion analysis: Court sends cross-border shooting lawsuit back to lower court – SCOTUSblog (blog)

Posted Mon, June 26th, 2017 4:23 pm by Amy Howe

It has been a little over seven years since 15-year-old Sergio Hernandez was shot by Jesus Mesa, a U.S. Border Patrol agent, while Hernandez was standing on the Mexican side of the border. Hernandezs family filed a lawsuit against Mesa, arguing that (among other things) the shooting violated Hernandezs right under the Fourth Amendment to be protected against excessive deadly force. Both Mesa and the U.S. government urged the Supreme Court to uphold the lower courts rulings dismissing the familys lawsuit, but their case survived at least for now. Acknowledging that the facts outlined in the familys lawsuit depict a disturbing incident resulting in a heartbreaking loss of life, the justices sent the case back to the lower court for it to take another look.

View of the courtroom on the last day of opinions (Art Lien)

The Hernandez family had asked the justices to weigh in on two questions: whether the Fourth Amendments bar on excessive deadly force applies outside the United States and how courts should make that determination; and whether, even if Hernandez was protected by the Fifth Amendments guarantee that his life would not be taken without proper judicial proceedings, Mesa is immune from suit. But the justices asked the two sides to brief another question: whether the Hernandez family can rely on the Supreme Courts 1971 decision in Bivens v. Six Unknown Named Agents, holding that a plaintiff can bring a private federal case for damages against federal officials who allegedly violated his constitutional rights, at all.

In an unsigned opinion, the Supreme Court emphasized today that the lower court had not given any consideration to the Bivens question. The justices noted that plaintiffs cannot rely on Bivens when there are special factors counselling hesitation in the absence of affirmative action by Congress. And in another decision last week, the court continued, it indicated that the focus of that inquiry should be whether courts are well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Therefore, the court concluded, the case should go back to the lower court for it to consider what effect that ruling might have on the Bivens question in this case. Doing so, the court indicated, might eliminate any need for the court of appeals to decide whether Hernandez was protected by the Fourth Amendment which, the court seemed to suggest, could be preferable to deciding the sensitive and potentially far reaching Fourth Amendment question.

The court disagreed with the lower courts conclusion that Mesa was entitled to qualified immunity from the familys Fifth Amendment claim. That conclusion, the court explained, rested on the fact that Hernandez was not a U.S. citizen and did not have any connection to the United States. But that fact isnt relevant to whether Mesa can be immune from a lawsuit, the court countered, because Mesa only learned after the shooting that Hernandez was not a U.S. citizen. Here too, the court stressed, the lower court had not addressed whether the familys claim could even proceed under Bivens; it will now consider that question, as well as a series of other arguments about qualified immunity, on remand.

Justice Clarence Thomas wrote separately to indicate that, in his view, the Hernandez family could not rely on Bivens at all. This case, he contended, arises in circumstances that are meaningfully different from those at issue in Bivens and its progeny in particular, conduct that occurs across an international border. He would not have sent the case back to the lower court; instead, he would have put a halt to it altogether.

Justice Stephen Breyer dissented, joined by Justice Ruth Bader Ginsburg. In his view, Hernandez was protected by the Fourth Amendment when he was shot. Even if he was on the Mexican side of the border, Breyer reasoned, his location should not, standing alone, be dispositive. This is particularly true, Breyer continued, when you consider several factors. For example, Mesa who shot Hernandez is a federal law-enforcement officer, and the culvert where Hernandez was shot is in fact a special border-related area run by an international commission to which the United States contributes tens of millions of dollars each year. Moreover, a finding that Hernandez was not protected by the Fourth Amendment would create an anomalous result: Mesa could be held liable for shooting Hernandez if Hernandez was on the U.S. side of the imaginary mathematical borderline running through the culverts middle, but not if Hernandez was just a few feet on the other side of that line, even if everything else about the case, including Mesas behavior, remained the same. When all of these things are considered together, Breyer concluded, there is more than enough reason for treating the entire culvert as having sufficient involvement with, and connection to, the United States to subject the culvert to Fourth Amendment protections. He would therefore decide the Fourth Amendment question in favor of Hernandez and send the case back to the lower court for it to decide the Bivens and qualified immunity questions.

Posted in Hernndez v. Mesa, Analysis, Featured, Merits Cases

Recommended Citation: Amy Howe, Opinion analysis: Court sends cross-border shooting lawsuit back to lower court, SCOTUSblog (Jun. 26, 2017, 4:23 PM), http://www.scotusblog.com/2017/06/opinion-analysis-court-sends-cross-border-shooting-lawsuit-back-lower-court/

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Opinion analysis: Court sends cross-border shooting lawsuit back to lower court - SCOTUSblog (blog)

Motion to suppress evidence filed in Krone theft case – Cody Enterprise

Last month, attorneys for former Park County prosecutor Sam Krone filed a motion to suppress bank record evidence they say was obtained on flimsy grounds, violating Krones Fourth Amendment rights.

If the suppression motion succeeds, the States most damaging evidence against Krone may never see the inside of a courtroom. Pinedale District Judge Marvin Tyler, overseeing the case due to Krones previous relationships with much of Park Countys legal community, will rule on the filing at a July 11 hearing.

Since last July, Krone has been fighting three felony and four misdemeanor counts of theft from the Park County Bar Association. The charges stem from 2010 to 2013, when Krone was treasurer of the organization and prosecutors say over $9,600 went missing from the groups bank accounts.

It was another incident in a trying period for Krone. In March 2016, he was fired from his job as Park County deputy prosecutor. In August of that same year, the incumbent lost, by a more than 2-to-1 margin, his primary bid to represent Wyoming House District 24.

In a May 18 filing on the theft case, Krones attorneys argue that Lander District Court Judge Norman Young did not have sufficient evidence to issue the search warrant that revealed many of the Bar Associations financial irregularities.

Young issued the warrant after Park County Bar Association President Andrea Earhart voiced suspicions about Krones management of Bar Association funds. She eventually got a bank ledger showing less than $100 in one of the groups accounts, and she passed that information along to Wyomings Division of Criminal Investigation.

Earhart said Krone had told her the account had $2,000 to $3,000 in it, and that Krone didnt respond to her request for a treasurers report from him.

At the end of April 2016, Judge Young used that information as the basis for a warrant allowing agents for DCI to search multiple accounts managed by the Bar Association. Those records revealed a number of questionable transactions, which Krone has described as reimbursements for Bar Association expenses.

Krones suppression filing argues that Young didnt have enough evidence to justify searching three of the Bar Associations accounts and that evidence should therefore be excluded. The filing also contends Young couldnt prove that Krone held a position of authority with those accounts, and without proving that authority existed, the rationale for searching them couldnt stand up.

The Wyoming Attorney Generals Office, prosecuting the case in place of Park County prosecutors because of Krones previous job, argue otherwise.

Phillip Donoho of the Attorney Generals office contends bank records do not enjoy Fourth Amendment protections. Furthermore, since the accounts belonged to the Bar Association instead of Krone personally, Krone lacks standing to object to their being searched.

Filings also indicate Donoho and his team are seeking to introduce evidence that Krone borrowed money from a number of friends during the period in question. And Krones campaign finance records may also be introduced.

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Motion to suppress evidence filed in Krone theft case - Cody Enterprise