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If you have any legally incriminating information sitting in your PSN account, don't count on the Fourth Amendment to protect it from "unreasonable search and seizure" by Sony without a warrant. A district court judge in Kansas has ruledin a recent case that information Sony finds has been downloaded to a PlayStation 3 or a PSN account is not subject to the "reasonable expectation of privacy" that usually protects evidence obtained without a warrant.

The case involves Michael Stratton, who went by the handle Susan_14 on PSN. According to Sony, Stratton was reported to PSN multiple times for sending spam messages asking about interest in child pornography. After reviewing the Susan_14 account in response to these complaints, Sony found that several images containing child porn had been downloaded by and uploaded to the account.

Sony shared information about the Susan_14 account and the images with the National Center for Missing and Exploited Children. The NCMEC then coordinated with the FBI to get additional information about Susan_14's e-mail address and IP address from Google and CenturyLink via subpoena. This action led to a warrant on Stratton's Kansas home, the discovery of child pornography stored on his PS3, and his arrest.

At trial, the defense tried to argue that Stratton had a "reasonable expectation of privacy" for the images on his PSN account and that Sony therefore couldn't share those with authorities absent a subpoena or warrant. In this case, the court ruled that Sony's PSN terms of service "explicitly nullified its users reasonable expectation of privacy." Those terms state explicitly that Sony reserves the right to monitor PSN activity and that Sony may turn over evidence of illegal activity to the authorities.

(The defense also made the related argument that Sony's terms of service were an adhesion contract that put an "unconscionable" and "patently unfairly... take-it-or-leave-it" burden on Stratton. The defense didn't provide enough evidence to demonstrate that claim, according to the court.)

Separately, the defense argued that Sony was acting as a "government agent" when it searched Stratton's PSN account, and, therefore, any evidence obtained needed to be subject to a warrant. This argument hinges in part on the federal "Failure to Report Child Abuse" statute, which requires those that learn of child abuse to "make a timely report" or suffer jail time or fines. Through this law, the defense argued, Sony was essentially being recruited to search for child pornography at the government's request and without any warrant.

The case is not all that different from other cases in which online service providers have worked with law enforcement to report child pornography when found on their services or devices. The main difference here is that the circuit court has found that these same legal arguments apply to the tightly controlled world of the PlayStation 3 and the attached PlayStation Network and not just the more "open" world of personal computers.

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US court says PSN data doesnt get Fourth Amendment ...

Legal Topics > Government > Constitutional Law > Constitutional Laws

The Fourth Amendment of the U.S. Constitution protects individual privacy interests by preventing unreasonable searches and seizures. An individual's privacy interests are referred to as a person's reasonable expectation of privacy. The Fourth Amendment protects this interest by limiting when and how police can conduct a search of a citizen's house, papers, effects, or physical person.

However, the Fourth Amendment only protects people against "unreasonable" searches. "Reasonable" searches can override a person's Fourth Amendment privacy concerns. Generally, the police need two things before they can invade a persons reasonable expectation of privacy:

Under certain circumstances however, the police can conduct searches without a warrant.

The Fourth Amendment only applies to searches that violate a person's reasonable expectation of privacy. If no reasonable expectation of privacy exists, then the Fourth Amendment cannot protect that search. Courts ask two questions when determining whether a person had a reasonable expectation of privacy:

A search warrant is an order authorizing police officers to search for specific objects or materials at a specific time and location. Police obtain these warrants by showing a judge that they have probable cause to believe that criminal activity is taking place and that illegal contraband will be found at the place to be searched.

The Fourth Amendment does not define probable cause; it is a term developed by judges and lawyers to assist in determining the reasonableness of a search. Probable cause occurs where the facts and circumstances of a situation combined with a police officer's knowledge and experience lead him to believe that criminal activity is occurring. Thus, probable cause is somewhere above a mere suspicion but less than beyond a reasonable doubt.

Generally, in cases where a police officer seeks a search warrant, and his probable cause is mistaken but made in good faith, the search can still be considered valid and reasonable.

A lawyer can help you navigate through the complex legal system and restore your privacy rights. If a search is unreasonable, the police cannot use any evidence obtained in the search. Therefore, it is important to discuss the search with a criminal defenselawyer who can evaluate the search procedure.

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Privacy Protection - 4th Amendment Legal Issues ...

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.

History.Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the utilization of the "writs of assistance." But while the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the Colonies late and as a result of experience,1 there was also a rich English experience to draw on. "Every man's house is his castle" was a maxim much celebrated in England, as was demonstrated in Semayne's Case, decided in 1603.2 A civil case of execution of process, Semayne's Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King's agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King's process. Most famous of the English cases was Entick v. Carrington,3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes' polemical pamphlets attacking not only governmental policies but the King himself.4

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive "of all the comforts of society," and the issuance of a warrant for the seizure of all of a person's papers rather than only those alleged to be criminal in nature "contrary to the genius of the law of England."5 Besides its general character, said the court, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a "great judgment," "one of the landmarks of English liberty," "one of the permanent monuments of the British Constitution," and a guide to an understanding of what the Framers meant in writing the Fourth Amendment.6

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize "prohibited and uncustomed" goods, and commanding all subjects to assist in these endeavors. The writs once issued remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism.7 Otis lost and the writs were issued and utilized, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

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History :: Fourth Amendment--Search and Seizure :: US ...

The Twenty-fourth Amendment (Amendment XXIV) of the United States Constitution prohibits both Congress and the states from conditioning the right to vote in federal elections on payment of a poll tax or other types of tax. The amendment was proposed by Congress to the states on August 27, 1962, and was ratified by the states on January 23, 1964.

Southern states of the former Confederate States of America adopted poll taxes in laws of the late 19th century and new constitutions from 1890 to 1908, after the Democratic Party had generally regained control of state legislatures decades after the end of Reconstruction, as a measure to prevent African Americans and often poor whites from voting. Use of the poll taxes by states was held to be constitutional by the Supreme Court of the United States in the 1937 decision Breedlove v. Suttles.

When the 24th Amendment was ratified in 1964, five states still retained a poll tax: Virginia, Alabama, Texas, Arkansas, and Mississippi. The amendment prohibited requiring a poll tax for voters in federal elections. But it was not until 1966 that the U.S. Supreme Court ruled 63 in Harper v. Virginia Board of Elections that poll taxes for any level of elections were unconstitutional. It said these violated the Equal Protection Clause of the Fourteenth Amendment. Subsequent litigation related to potential discriminatory effects of voter registration requirements has generally been based on application of this clause.

Poll tax

Cumulative poll tax (missed poll taxes from prior years must also be paid to vote)

No poll tax

Southern states adopted the poll tax as a requirement for voting as part of a series of laws intended to marginalize black Americans from politics so far as practicable without violating the Fifteenth Amendment. This required that voting not be limited by "race, color, or previous condition of servitude." All voters were required to pay the poll tax, but in practice it most affected the poor. Notably this impacted both African Americans and poor white voters, some of whom had voted with Populist and Fusionist candidates in the late 19th century, temporarily disturbing Democratic rule. Proponents of the poll tax downplayed this aspect and assured white voters they would not be affected. Passage of poll taxes began in earnest in the 1890s, as Democrats wanted to prevent another Populist-Republican coalition. Despite election violence and fraud, African Americans were still winning numerous local seats. By 1902, all eleven states of the former Confederacy had enacted a poll tax, many within new constitutions that contained other provisions to reduce voter lists, such as literacy or comprehension tests. The poll tax was used together with grandfather clauses and the "white primary", and threats of violence. For example, potential voters had to be "assessed" in Arkansas, and blacks were utterly ignored in the assessment.

From 1900 to 1937, such use of the poll tax was nearly ignored by the federal government. Some state-level initiatives repealed it. The poll tax survived a legal challenge in the 1937 Supreme Court case Breedlove v. Suttles, which ruled that "[The] privilege of voting is not derived from the United States, but is conferred by the state and, save as restrained by the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution, the state may condition suffrage as it deems appropriate."[3]

The issue remained prominent, as most African Americans in the South were disenfranchised. President Franklin D. Roosevelt spoke out against the tax. He publicly called it "a remnant of the Revolutionary period" that the country had moved past. However, Roosevelt's favored liberal Democrats lost in the 1938 primaries to the reigning conservative Southern Democrats, and he backed off the issue. He felt that he needed Southern Democratic votes to pass New Deal programs and did not want to further antagonize them. Still, efforts at the Congressional level to abolish the poll tax continued. A 1939 bill to abolish the poll tax in federal elections was tied up by the Southern Block, lawmakers whose long tenure in office from a one-party region gave them seniority and command of numerous important committee chairmanships. A discharge petition was able to force the bill to be considered, and the House passed the bill 25484. However, the bill was unable to defeat a filibuster in the Senate by Southern senators and a few Northern allies who valued the support of the powerful and senior Southern seats. This bill would be re-proposed in the next several Congresses. It came closest to passage during World War II, when opponents framed abolition as a means to help overseas soldiers vote. However, after learning that the US Supreme Court decision Smith v. Allwright (1944) banned use of the "white primary," the Southern block refused to approve abolition of the poll tax.

In 1946, the Senate came close to passing the bill. 24 Democrats and 15 Republicans approved an end to debate, while 7 non-southern Democrats and 7 Republicans joined with the 19 Southern Democrats in opposition. The result was a 3933 vote in favor of the bill, but the filibuster required a two-thirds supermajority to break at the time; a 4824 vote was required to pass the bill.[clarification needed] Those in favor of abolition of the poll tax considered a constitutional amendment after the 1946 defeat, but that idea did not advance either.

The tenor of the debate changed in the 1940s. Southern politicians tried to shift the debate to Constitutional issue, but private correspondence indicates that black disenfranchisement was still the true concern. For instance, Mississippi Senator Theodore Bilbo declared, "If the poll tax bill passes, the next step will be an effort to remove the registration qualification, the educational qualification of Negroes. If that is done we will have no way of preventing the Negroes from voting." This fear explains why even Southern Senators from states that had abolished the poll tax still opposed the bill; they did not want to set a precedent that the federal government could interfere in state elections.

President Harry S. Truman established the President's Committee on Civil Rights, which among other issues investigated the poll tax. Considering that opposition to federal poll tax regulation in 1948 was claimed as based on the Constitution, the Committee noted that a constitutional amendment might be the best way to proceed. Still, little occurred during the 1950s. Members of the anti-poll tax movement laid low during the anti-Communist frenzy of the period; some of the main proponents of poll tax abolition, such as Joseph Gelders and Vito Marcantonio, had been committed Marxists.

President John F. Kennedy returned to this issue. His administration urged Congress to adopt and send such an amendment to the states for ratification. He considered the constitutional amendment the best way to avoid a filibuster, as the claim that federal abolition of the poll tax was unconstitutional would be moot. Still, some liberals opposed Kennedy's action, feeling that an amendment would be too slow compared to legislation.Spessard Holland, a conservative Democrat from Florida, introduced the amendment to the Senate. Holland opposed most civil rights legislation during his career,[11] and Kennedy's gaining of his support helped splinter monolithic Southern opposition to the Amendment. Ratification of the amendment was relatively quick, taking slightly more than a year; it was rapidly ratified by state legislatures across the country from August 1962 to January 1964.

President Lyndon B. Johnson called the amendment a "triumph of liberty over restriction" and "a verification of people's rights."[12] States that maintained the poll tax were more reserved. Mississippi's Attorney General, Joe Patterson, complained about the complexity of two sets of voters those who paid their poll tax and could vote in all elections, and those who had not and could only vote in federal elections.[12] Additionally, non-payers of the poll tax could still be deterred by requirements that they register far in advance of the election and retain records of such registration.[13] States such as Alabama also exercised discrimination in the application of literacy tests.

Ratified amendment, 196264

Ratified amendment post-enactment, 1977, 1989, 2002, 2009

Rejected amendment

Didn't ratify amendment

Congress proposed the Twenty-fourth Amendment on August 27, 1962.[14][15] The amendment was submitted to the states on September 24, 1962, after it passed with the requisite two-thirds majorities in the House and Senate.[12] The following states ratified the amendment:

Ratification was completed on January 23, 1964. The Georgia legislature did make a last-second attempt to be the 38th state to ratify. This was a surprise as "no Southern help could be expected"[13] for the amendment. The Georgia Senate quickly and unanimously passed it, but the House did not act in time.[12] Georgia's ratification was apparently dropped after South Dakota's ratification.

The amendment was subsequently ratified by the following states:

The following states have not ratified the amendment:

Arkansas effectively repealed its poll tax for all elections with Amendment 51 to the Arkansas Constitution at the November 1964 general election, several months after this amendment was ratified. The poll-tax language was not completely stricken from its Constitution until Amendment 85 in 2008.[16] Of the five states originally affected by this amendment, Arkansas was the only one to repeal its poll tax; the other four retained their taxes until they were struck down in 1966 by the US Supreme Court decision in Harper v. Virginia Board of Elections (1966), which ruled poll taxes unconstitutional even for state elections. Federal district courts in Alabama and Texas, respectively, struck down their poll taxes less than two months before the Harper ruling was issued.

The state of Virginia accommodated the amendment by providing an "escape clause" to the poll tax. In lieu of paying the poll tax, a prospective voter could file paperwork to gain a certificate establishing a place of residence in Virginia. The papers would have to be filed six months in advance of voting and the voter had to provide a copy of certificate at the time of voting. This measure was expected to decrease the number of legal voters.[17] In the 1965 Supreme Court decision Harman v. Forssenius, the Court unanimously found such measures unconstitutional. It declared that for federal elections, "the poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed."[18]

While not directly related to the Twenty-fourth Amendment, the Supreme Court case Harper v. Virginia Board of Elections (1966) ruled that the poll tax was unconstitutional at every level, not just for federal elections. The Harper decision relied upon the Equal Protection Clause of the Fourteenth Amendment, rather than the Twenty-Fourth Amendment. As such, issues related to whether burdens on voting are equivalent to poll taxes in discriminatory effect have usually been litigated on Equal Protection grounds since.

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Twenty-fourth Amendment to the United States Constitution ...

Our Constitutions Fourth Amendment reads 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.

As with nigh all the rest of our Constitution, the federal government has long been ignoring the Fourth. Likely the most notorious example is the National Security Administration (NSA)s bulk data collection. Which is the Feds: (S)toring the online metadata of millions of internet users for up to a year, regardless of whether or not they are persons of interest to the agency.

The NSA has been amassing so much data on persons notof interest that it built a $1.2 billion data center thats seven times larger than the Pentagon. (If youre questioning whether the Fourth Amendments papers protection applies to digital data imagine hitting Print.)

Let me guess what youre wondering now: How could the NSA possibly be issued this sort of mass, blanket warrant, under the auspices of the Fourth Amendment if millions of these persons are notof interest? I.e. totally devoid of any probable cause? A very reasonable question.

The NSA laid claim to the authority to do this under the auspices of the Patriot Act. Which is not how things are supposed to work. Congress cant pass laws that eviscerate Constitutional protections they must amend the Constitution to eviscerate said protection. So, of course, the poorly written Patriot Act is trumped (no pun intended) by the Constitution.

The Senate has long been ignoring another Constitutional charge to properly vet federal judges prior to confirmation. So our judiciary is addled throughout by men and women in black gowns who shouldnt be. Because they impose their personal policy preferences rather than rule within the confines of the Constitution.

Even under these conditions, we do occasionally get good legal decisions. In May 2015, the 2nd U.S. Circuit Court of Appeals ruled the NSAs build data collection is unconstitutional. In response, President Barack Obamas Attorney General Loretta Lynch said: she was unaware of privacy violations under its existing program.

Madame Attorney Generals blissful ignorance is emblematic of the Washington, D.C.-wide problem. (As, too, was her being confirmed AG by a yet-again-too-compliant Senate.)

And, of course, the Feds arent just massively overreaching on domestic data they are overreaching overseas as well.

Under the auspices of the now-woefully-outdated 1986 Electronic Communications Privacy Act (ECPA), the Feds obtained a warrant against tech giant Microsoft. With which they tried to collect data stored on servers Microsoft has outside of the United States (in this instance, in Dublin, Ireland).

This would be horrendously bad precedent as tin horn dictators the world over could and would start looking to get at data contained within our borders. To allow the Feds to do this to Microsoft would be to allow one of the worst genies ever out of its bottle.

Thankfully, the very same Second Court of Appeals that dumped the NSAs bulk data collection agreed and unanimously told the Feds they couldnt have access to Microsofts overseas servers. (God bless them.)

The very same Attorney General Lynch still bathing in her blissful ignorance has filed to reopen the case. Which brings us to Congress Fourth Amendment reminder we mentioned at the outset. Which would stop Madame Attorney Generals abuse here and a whole lot of abuses elsewhere.

The (Senate) bill is called the International Communications Privacy Act (ICPA). It is, amongst other things, a DC unicorn it is bipartisan. And bi-cameral as members of the House have joined in its crafting.

And it will rein in an overreaching federal government that is forcing companies to violate the laws of other countries in which they operate to give the U.S. government data to which it really shouldnt have access.

Because the Fourth Amendment (and the rest of the Constitution) is limited to our territorial bounds. Else wed better start invading a whole lot of places in which all sorts of our Constitutional rights are being routinely violated in their jurisdictions.

Obviously, the Feds need a reminder of this fact. ICPA is that reminder. It is pathetic that you need a Congressional backstop to a Constitutional right but were dealing with DC here, so we are oft dealing in things pathetic.

I am on the record as being nigh always against lame duck Congressional action. I dont like officials We the People just said should no longer be voting on legislation voting on legislation. But ICPA is a perfectly reasonable exception that proves this rule.

You can almost certainly pass ICPA just with people who will again be here in the next Congress. And ICPA has been languishing for more than two years all the while (and going back years and years before) the Feds have been vastly exceeding their Constitutional bounds. And in the Microsoft case are looking to do so yet again.

So the overreaches must be ended. ICPA ends them. So lets pass ICPA.

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Unfortunately, Congress Needs to Pass This Fourth Amendment ...

FOURTH AMENDMENT: AN OVERVIEW

I. INTERESTS PROTECTED

The Fourth Amendment of the U.S. Constitution provides, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The ultimate goal of this provision is to protect peoples right toprivacy and freedom from arbitrary governmentalintrusions. Private intrusions not acting in the color of governmental authority areexempted from theFourth Amendment.

To havestanding to claim protection under the Fourth Amendment, one mustfirst demonstrate an expectation of privacy, which is not merely a subjective expectation in mindbut an expectationthat society is prepared to recognized as reasonable under the circumstances. For instance, warrantless searches ofprivate premises are mostly prohibited unless there are justifiable exceptions; on the other hand,a warrantless seizure of abandoned property usually does not violate the Fourth Amendment. Moreover, the Fourth Amendment protection does not expand to governmental intrusion and information collection conducted upon open fields. AnExpectation of privacy in an open field is not considered reasonable. However, there are some exceptions where state authorities granted protection to open fields.

A bivens action can be filed against federal law enforcement officials for damages resulting from an unlawful search and seizure. States can always establish higher standards for searches and seizures than theFourth Amendmentrequires, but states cannot allow conduct that violates the Fourth Amendment.

The protection under the Fourth Amendment can be waived if one voluntarily consents to or does not object to evidence collected during a warrantless search or seizure.

II. SEARCHES AND SEIZURES UNDER FOURTH AMENDMENT

The courts must determine what constitutes asearchorseizureunder theFourth Amendment. If the conduct challenged does not fall within theFourth Amendment, the individualwill not enjoy protection under Fourth Amendment.

A. Search

A search under Fourth Amendment occurs when a governmental employee or agent of the government violates an individual's reasonableexpectation of privacy.

Strip searches and visual body cavity searches, including anal or genital inspections, constitute reasonable searches under theFourth Amendment when supported by probable cause and conducted in a reasonable manner.

Adog-sniff inspectionis invalid under theFourth Amendmentif the the inspection violates areasonable expectation of privacy. Electronic surveillance is also considered a search under theFourth Amendment.

B. Seizure of a Person

A seizure of a person, within the meaning of theFourth Amendment, occurs when the police's conduct would communicate to a reasonable person, taking into account the circumstances surrounding the encounter, that the person is notfree to ignore the police presence and leave at hiswill.

Two elements must be present to constitute a seizure of a person. First, there must be a show of authority by the police officer. Presence of handcuffs or weapons,the use of forceful language, andphysical contact are each strong indicators of authority. Second, the person being seized must submit to the authority. An individualwho ignores the officers request and walks away has not been seized for Fourth Amendment purposes.

An arrest warrant is preferred but not required to make alawful arrest under theFourth Amendment. A warrantless arrest may be justified whereprobable cause and urgent need are presentprior to the arrest. Probable cause is present when the police officer has a reasonable beliefin the guilt of the suspect based on the facts and information prior to the arrest. For instance, a warrantless arrest may be legitimate in situations where a police officer has a probable belief that a suspect has either committed a crime or is a threat to the public security. Also, apolice officer might arrest a suspect to prevent the suspects escape or to preserve evidence. A warrantless arrest may be invalidatedif the police officer failsto demonstrate exigent circumstances.

The ability to makewarrantless arrests are commonly limited by statutes subject to the due process guaranty of theU.S. Constitution. A suspect arrested without a warrant is entitled toprompt judicial determination, usually within 48 hours.

There are investigatory stops that fall shortof arrests, but nonetheless, theyfall within Fourth Amendmentprotection.For instance, police officers can perform aterry stop or a traffic stop. Usually, these stops provide officers with less dominion and controlling power and impose less of an infringement of personal liberty for individual stopped. Investigatory stops must be temporary questioning for limited purposes and conducted in a manner necessary to fulfill the purpose.

Anofficers reasonable suspicion is sufficient to justify brief stops and detentions. To determine if the officer has met the standard to justify the seizure, the court takes into account the totality of the circumstances and examines whether the officer has a particularized and reasonable belief for suspecting the wrongdoing. Probable cause gained during stops or detentions might effectuate a subsequent warrantless arrest.

C. Seizure of Property

A seizure of property, within the meaning of theFourth Amendment, occurs when there is some meaningful interference with anindividuals possessory interests in the property.

In some circumstances, warrantless seizures of objects in plain view do notconstitute seizures within the meaning of Fourth Amendment. When executing a search warrant, an officer might be able to seize an item observed in plain view even if it is not specified in the warrant.

III. WARRANT REQUIREMENT

A search or seizure is generally unreasonable and illegal without a warrant, subject to only a few exceptions.

To obtain a search warrant or arrest warrant, the law enforcement officer must demonstrate probable causethata search or seizure is justified. Anauthority, usually a magistrate, will consider the totality of circumstances and determine whether to issue the warrant.

The warrant requirement may be excused in exigent circumstances if an officer has probable cause and obtaining a warrant is impractical. For instance, in State v. Helmbright 990 N.E.2d 154, Ohiocourt held that awarrantless search of probationer's person or place of residence complies with the Fourth Amendment if the officer who conducts the search possesses reasonable grounds to believe that the probationer has failed to comply with the terms of hisprobation.

Other well-established exceptions to the warrant requirement include consensual searches, certain brief investigatory stops, searches incident to a valid arrest, and seizures of items in plain view.

There is no general exception to theFourth Amendment warrant requirement in national security cases. Warrantless searches are generally not permitted in exclusively domestic security cases. In foreign security cases, court opinions might differ on whether to accept the foreign security exception to warrant requirement generallyand, if accepted, whether the exception should include bothphysical searches and electronic surveillance.

IV. REASONABLENESS REQUIREMENT

All searches and seizures under Fourth Amendment must be reasonable. No excessive force shall be used. Reasonableness is the ultimate measure of the constitutionality of a search or seizure.

Searches and seizures with a warrant satisfy the reasonableness requirement. Warrantless searches and seizures are presumed to be unreasonable unless they fall within a few exceptions.

In cases of warrantless searches and seizures, the court will try to balance the degree of intrusion on the individuals right toprivacy and the need to promote government interests and special needs. The court will examine the totality of the circumstances to determine if the search or seizure was justified. When analyzingthe reasonableness standard, the court uses an objective assessment and considers factors including the degree of intrusion by the search or seizure andthe manner in which the search or seizure is conducted.

V. EXCLUSIONARY RULE

Under the exclusionary rule, any evidence obtained inviolation of theFourth Amendmentwill be excluded from criminal proceedings. There are a few exceptions to this rule.

VI. ELECTRONIC SURVEILLANCE

In recent years, the Fourth Amendment's applicability inelectronic searches and seizures has received much attention from the courts. With the advent of the internet and increased popularity of computers, there has been anincreasing amount of crime occurring electronically. Consequently, evidence of such crime can often be found on computers, hard drives, or other electronic devices. TheFourth Amendment applies to the search and seizure ofelectronic devices.

Many electronic search cases involvewhether law enforcement can search a company-owned computer that an employee uses to conduct business. Although the case law is split, the majority holds that employees do not have a legitimate expectationof privacy with regard to information stored on a company-owned computer. In the 2010 case ofCity of Ontario v. Quon (08-1332), the Supreme Court extended this lack of an expectation of privacy to text messages sent and received on an employer-owned pager.

Lately, electronic surveillance and wiretapping has also caused a significant amount of Fourth Amendment litigation.

VII.THE USA PATRIOT ACT

Following the September 11, 2001 attacks on the World Trade Center and the Pentagon, Congress and the President enacted legislation to strengthen the intelligence gathering communitys ability to combat domestic terrorism. Entitled the USA Patriot Act, the legislations provisions aimed to increase the ability of law enforcement to search email and telephonic communications in addition to medical, financial, and library records.

One provision permitslaw enforcement to obtain access to stored voicemails by obtaining a basic search warrant rather than a surveillance warrant. Obtaining a basic search warrantrequires a much lower evidentiary showing. A highlycontroversial provision of the Act includespermission for law enforcement to use sneak-and-peak warrants. A sneak-and-peak warrant is a warrant in which law enforcement can delay notifying the property owner about the warrants issuance. In an Oregon federal district court case that drew national attention, Judge Ann Aiken struck down the use of sneak-and-peak warrants as unconstitutional and inviolation of the Fourth Amendment. See 504 F.Supp.2d 1023 (D. Or. 2007).

The Patriot Act also expanded the practice of using National Security Letters (NSL). An NSL is an administrative subpoena that requires certain persons, groups, organizations, or companies to provide documents about certain persons. These documents typically involve telephone, email, and financial records. NSLs also carry a gag order, meaningthe person or persons responsible for complying cannot mention theexistence of the NSL. Under the Patriot Act provisions, law enforcement can use NSLs when investigating U.S. citizens, even when law enforcement does not think the individual under investigation has committed a crime. The Department of Homeland Security has used NSLs frequently since its inception. By using anNSL, an agency has no responsibility to first obtain a warrant or court order before conducting its search of records.

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Fourth Amendment | Wex Legal Dictionary / Encyclopedia | LII ...

The Fourth Amendment

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

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

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

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

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

Today the Fourth Amendment is understood as placing restraints on the government any time it detains (seizes) or searches a person or property. The Fourth Amendment also provides that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. The idea is that to avoid the evils of general warrants, each search or seizure should be cleared in advance by a judge, and that to get a warrant the government must show probable causea certain level of suspicion of criminal activityto justify the search or seizure.

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

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

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

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

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

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

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

What the Fourth Amendment Fundamentally Requires by Barry Friedman

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

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

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

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

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

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

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

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

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

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

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

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

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

The Future of the Fourth Amendment by Orin Kerr

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

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

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

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

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

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

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

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

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

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

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

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

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Fourth Amendment - National Constitution Center

From the Sixth Circuit federal court of appeals decision today in Northrup v. Toledo Police Dept.:

On a midsummer evening, Shawn and Denise Northrup went for a neighborhood walk with their daughter, grandson, and dog. Apparently in a happy-go-lucky mood, Shawn wore a t-shirt reading, This Is The Shirt I Wear When I Dont Care. Shawn carried a cell phone, which he holstered on his hip next to a black semiautomatic handgun.

A passing motorcyclist stopped to complain about Shawns visible firearm. The stranger, Alan Rose, yelled, [Y]ou cant walk around with a gun like that! But [O]pen carry is legal in Ohio! Denise responded. As the Northrups walked away, Denise and Rose exchanged increasingly unprintable words until he was out of view (and earshot).

Rose called 911, reporting that a guy walking down the street with his dog was carrying a gun out in the open.

The police eventually arrived, ordered Northrup to stop, demanded that he turn over the gun, handcuffed him, and kept him handcuffed in a police car for 30 minutes. Eventually, they let him go, and all charges were dropped. Northrup sued, and the Sixth Circuit allowed the case to go forward:

While open-carry laws may put police officers (and some motorcyclists) in awkward situations from time to time, the Ohio legislature has decided its citizens may be entrusted with firearms on public streets. Ohio Rev. Code 9.68, 2923.125. The Toledo Police Department has no authority to disregard this decision not to mention the protections of the Fourth Amendment by detaining every gunman who lawfully possesses a firearm. And it has long been clearly established that an officer needs evidence of criminality or dangerousness before he may detain and disarm a law-abiding citizen. We thus affirm the district courts conclusion that, after reading the factual inferences in the record in Northrups favor, Officer Bright could not reasonably suspect that Northrup needed to be disarmed.

The police had also initially suggested that Northrup was guilty of the Ohio crime of causing panic, but the court pointed out this wasnt so (at least under Northrups version of the facts). Indeed, the Ohio causing panic statute provides,

No person shall cause the evacuation of any public place, or otherwise cause serious public inconvenience or alarm, by doing any of the following:

(1) Initiating or circulating a report or warning of an alleged or impending fire, explosion, crime, or other catastrophe, knowing that such report or warning is false;

(2) Threatening to commit any offense of violence;

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The Fourth Amendment and open carry of guns (where such ...

CORRUPT FLORIDA COPS DONT CARE ABOUT YOURE FOURTH AMENDMENT RIGHTS
CORRUPT FLORIDA COPS DONT CARE ABOUT YOURE FOURTH AMENDMENT RIGHTS THE ILLEGALY AND UNCONSTITUTIONALLY ARE RECORDING YOURE CELL PHONE ...

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Probable Cause And The Fourth Amendment

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A panel of appellate judges disagreed Thursday about whether an Arkansas prison inmate was entitled to a hearing on his complaint that a visual body-cavity inspection by prison guards violated his Fourth Amendment rights.

Two members of the three-judge panel agreed with U.S. District Judge D. Price Marshall Jr.'s decision to dismiss the handwritten, pro-se lawsuit on the grounds that the allegations "failed to rise to a constitutional violation."

But Judge Kermit Bye of Fargo, N.D., disagreed with his fellow panelists at the 8th U.S. Circuit Court of Appeals in St. Louis, writing in a partial dissent that he thinks Marshall should have conducted a "balancing test" to weigh the need for the search against an invasion of inmate Kendrick C. Story's personal rights.

"Despite broad rights of correctional officers to search prisoners, there are limits on when strip searches are appropriate," Bye wrote, citing previous 8th Circuit rulings. In those rulings, the appellate court said district judges may consider less-invasive techniques in deciding whether a strip search was reasonable, found it relevant that a strip search was conducted in a private bathroom, and held that strip searches should be conducted as far from public view as possible without compromising security concerns, in a manner that isn't degrading or humiliating.

In his lawsuit, Story said he was returning to the Williams Correctional Facility from a school at the Pine Bluff unit on April 16, 2013, when officers at the gate told him to remove his clothes, lift his genitals, and bend over and spread his buttocks for a visual body-cavity search. He complained that the search took place in front of other inmates and in view of two security cameras, and that female guards watched through a video feed from cameras in the master control room.

Marshall dismissed the case on July 30, 2013.

U.S. Circuit Judges Steven M. Colloton of Des Moines, Iowa, and Raymond W. Gruender of St. Louis said in their majority ruling affirming the dismissal that the prison guards were entitled to qualified immunity, making it "unnecessary and inefficient" to even consider whether there was a constitutional violation.

"Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law," the majority opinion said, citing a 2013 ruling.

The majority also said that the U.S. Supreme Court "never has resolved whether convicted inmates retain a Fourth Amendment right against unreasonable searches while in custody," although it has said it didn't apply to a search of a prison cell because of "the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order."

The 7th U.S. Circuit Court of Appeals, based in Chicago, has said inmates retain no rights under the Fourth Amendment regarding visual inspections by guards, but the 8th Circuit has said inmates are entitled to Fourth Amendment protections against unreasonable searches of their bodies, the majority opinion noted.

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Decision to throw out suit affirmed

In a per curiam opinion this week, Grady v. North Carolina, the U.S. Supreme Court reinforced recent 4th Amendment decisions in holding that when the government physically occupies private property for the purpose of obtaining information, it engages in a search under the 4th Amendment.

The State of North Carolina subjects certain repeat offenders to a lifetime of satellite-based monitoring (SBM) after they complete their sentences. The plaintiff, Torrey Dale Grady, argued that such a program represents a violation of his 4th Amendment rights under recent U.S. Supreme Court opinions, including a 2012 case called United States v. Jones (installing a GPS tracker on a suspects car represents a search) and a 2013 case called Florida v. Jardines (using a drug-sniffing dog on a suspects porch represents a search).

The Supreme Court agreed with Grady that such monitoring constitutes a search. In light of these decisions, it follows that a state also conducts a search when it attaches a device to a persons body, without consent, for the purpose of tracking that individuals movements.

In concluding otherwise, the North Carolina Court of Appeals apparently placed decisive weight on the fact that the States monitoring program is civil in nature. See Jones, ___ N. C. App., at ___, 750 S. E. 2d, at 886 (the instant case involves a civil SBM proceeding). It is well settled, however, that the Fourth Amendments protection extends beyond the sphere of criminal investigations, Ontario v. Quon, 560 U. S. 746, 755 (2010), and the governments purpose in collecting information does not control whether the method of collection constitutes a search. A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment.

The court also rejected North Carolinas somewhat strange argument that its monitoring program is not meant to collect information:

The satellite-based monitoring program shall use a system that provides all of the following: (1) Time-correlated and continuous tracking of the geographic location of the subject . (2) Reporting of subjects violations of prescriptive and proscriptive schedule or location requirements. N. C. Gen. Stat. Ann. 14208.40(c).

The States program is plainly designed to obtain information. And since it does so by physically intruding on a subjects body, it effects a Fourth Amendment search.

The Court did not, however, examine whether the program constitutes an unreasonable, and therefore unconstitutional, search. The case was remanded to a lower court to sort through that issue.

Notwithstanding the reasonability issue, this ruling reinforces a heartening trend in 4th Amendment jurisprudence away from the nebulous reasonable expectation of privacy standard and toward a more concrete common-law trespass standard, at least insofar as searches of private property are concerned.

Originally posted here:

Supreme Court Reinforces Jones Conception of 4th Amendment

The Fourth Amendment 1st period

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The Fourth Amendment 1st period - Video

DO TSA #39;s THREAT-SPOTTING TIPS THREATEN THE FOURTH AMENDMENT?: Jake MacAulay
Have you ever thought about who could be a potential threat in an airport? Well, according to the Transportation Security Administration that #39;s pretty much anyone who #39;s breathing. The...

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DO TSA's THREAT-SPOTTING TIPS THREATEN THE FOURTH AMENDMENT?: Jake MacAulay - Video

Shane McGlaun

This week the US Supreme Court clarified a law by ruling the Torrey Dale Grady v. North Carolina case that had to do with clarification of the Fourth Amendment. The case was sent back to the state high court after a unanimous opinion set down by the Justices helped to clarify how the Fourth Amendment works.

The Fourth Amendment protects against unreasonable search and seizure. With the clarification the court set down a precedent that says if the government puts a GPS tracker on your car, you, or your belongings it counts as search and is protected by the Fourth Amendment.

After being twice convicted as a sex offender, Grady was forced to wear a GPS monitor at all times to allow authorities to monitor his location. Grady challenged the court sating that the device qualified as unreasonable search.

The highest court in North Carolina ruled the tracker wasn't considered search. The Supreme Court has decided otherwise and sets a precedent that may prevent other convicted criminals from being forced to wear GPS trackers in the future. This case will likely have implications in the state of Wisconsin as well since that state can force repeat sex offenders to wear tracking bracelets.

SOURCE: The Atlantic

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Supreme Court rules GPS trackers are a form of search and seizure

When the government places a location monitor on you or your stuff, it could be violating the Fourth Amendment.

If the government puts a GPS tracker on you, your car, or any of your personal effects, it counts as a searchand is therefore protected by the Fourth Amendment.

The Supreme Court clarified and affirmed that law on Monday, when it ruled on Torrey Dale Grady v. North Carolina, before sending the case back to that states high court. The Courts short but unanimous opinion helps make sense of how the Fourth Amendment, which protects against unreasonable search and seizure, interacts with the expanding technological powers of the U.S. government.

It doesnt matter what the context is, and it doesnt matter whether its a car or a person. Putting that tracking device on a car or a person is a search, said Jennifer Lynch, a senior staff attorney at the Electronic Freedom Foundation (EFF).

In this case, that context was punishment. Grady was twice convicted as a sex offender. In 2013, North Carolina ordered that, as a recidivist, he had to wear a GPS monitor at all times so that his location could be monitored. He challenged the court, saying that the tracking device qualified as an unreasonable search.

North Carolinas highest court at first ruled that the tracker was no search at all. Its that decision that the Supreme Court took aim at today, quoting the states rationale and snarking:

The only theory we discern [] is that the States system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Courts precedents.

Then it lists a series of Supreme Court precedents.

And there are a few, as the Court has considered the Fourth Amendment quite a bit recently. In 2012, it ruled that placing a GPS tracker on a suspects car, without a warrant, counted as an unreasonable search. The following year, it said that using drug-sniffing dogs around a suspects front porchwithout a warrant and without their consentwas also unreasonable, as it trespassed onto a persons property to gain information about them.

Both of those cases involved suspects, but the ruling Monday made clear that it extends to those convicted of crimes, too.

Excerpt from:

U.S. Supreme Court: GPS Trackers Are a Form of Search and Seizure

The Supreme Court has confirmed in a ruling that if the government places a GPS tracker on someone's person or their belongings, the act counts as a searchsomething that remains protected by the Fourth Amendment.

As part of a case referred to as Grady v. North Carolina, the Supreme Court heard about how Torrey Dale Gradytwice-convicted as a sex offenderwas made to wear a GPS monitor at all times by North Carolina officials. In court, Grady challenged this, claiming it qualified as an unreasonable search. The Supreme Court agreed, explaining:

The only theory we discern [] is that the State's system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Court's precedents.

It also listed some Supreme Court precedents to make its case, including a case where a tracker placed on a car without a warrant counted as unreasonable search. "It doesn't matter what the context is, and it doesn't matter whether it's a car or a person," Jennifer Lynch, a senior staff attorney at the Electronic Freedom Foundation, told The Atlantic. "Putting that tracking device on a car or a person is a search."

Still, the Fourth Amendment takes poor account of digital technology generally, and courts have only ruled on a small number of cases involving GPS data. At some point, as Lynch points out to The Atlantic, the justice system will need to establish how geo-location datanow prolific in phones, cars, watches and moreis governed and protected. In the meantime, though, North Carolina better rethink its policy on issuing GPS trackers to sex offenders. [The Atlantic, Washington Post]

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Supreme Court Rules Government GPS Trackers Can Break Fourth Amendment

Speaking on Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015
27 March 2015 Speaking in Seanad Debate on Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015.

By: Mary Moran

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The case is Grady v. North Carolina. Held: Forcing someone to wear an ankle bracelet to monitor location is a Fourth Amendment search. The new decision extends the Jones search doctrine to searches of persons, and it provides more opportunity to ponder what the Jones test means. Ill start with the history, then discuss the new decision, and then offer some thoughts on the new case.

I. A Brief History of Fourth Amendment Searches

First, some Fourth Amendment history. As I explained in this article, the Supreme Court had not identified a clear test for what counts as a Fourth Amendment search until Katz v. United States (1967). In Silverman v. United States (1961), the Court had indicated that a physical intrusion was enough to be a search but left open what beyond physical intrusion counted. In Katz, the government had taped a microphone to the top of a public phone booth and listened to the microphone feed from a listening station nearby when Katz placed a call. The Court in Katz announced that it could no longer follow earlier caselaw, which it claimed had imposed a trespass test. The Court held that the governments conduct triggered the Fourth Amendment:

The Governments activities in electronically listening to and recording the petitioners words violated the privacy upon which he justifiably relied while using the telephone booth, and thus constituted a search and seizure within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.

Justice Harlan concurred. According to Harlan, the key was that Katzs expectation of privacy in the phone booth was one society was prepared to recognize as reasonable. When Katz went into the phone booth, closed the door, and put a coin in the coin slot, the phone booth became a temporarily private place whose momentary occupants expectations of freedom from intrusion are recognized as reasonable. The full Court later adopted Justice Harlans concurring opinion, usually known as the reasonable expectation of privacy test, or just as short hand, the Katz test. (Im ignoring subjective expectations of privacy for reasons explained here.)

In United States v. Jones (2012) the Supreme Court held that the government conducted a search when it installed a GPS device to the underbody of a suspects car to monitor his location over time with intent to get information. The Court reasoned that the trespass test that Katz said existed before Katz still existed, and that because installing a GPS device on a car is trespassory, installing the GPS device was a trespass search without having to reach the issue of whether it violated a reasonable expectation of privacy under the Katz test. Because the trespass occurred with the intent to get information, it was a Fourth Amendment search.

As I detailed in this article and I have blogged about occasionally since then, this history leaves us unsure of what the Court thinks the Jones test is. Is the test physical intrusion as in Silverman, or is it trespass? If its trespass, which kind of trespass, given that trespass is an accordian-like term that has both broad and narrow meanings? And if attaching a GPS device to the underbody of a car was trespassory in Jones, why wasnt taping a microphone to the top of a phone booth trespassory in Katz?

II. Grady v. North Carolina

That brings us to the new case. In Grady, the defendant is a recidivist sex offender who was ordered to wear an ankle bracelet that determines his location using GPS. The bracelet was installed against his consent, and he was ordered to wear it for life.

The defendant argued that this violated his Fourth Amendment rights under the Jones case, but the North Carolina Court of Appeals disagreed. First, it relied on its own precedent that had earlier rejected the analogy to Jones for a bizarre reason: Because Jones arose in a motion to suppress rather than a civil case, it was inapplicable and using the ankle bracelet was not a search. Second, the earlier precedent had relied post-Jones on dicta in a pre-Jones North Carolina Supreme Court case, Bowditch, that had suggested that sex offenders have a lesser expectation of privacy against monitoring.

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Volokh Conspiracy: Affixing ankle bracelet to monitor suspect is a search, Supreme Court holds

Forcing someone to wear a location tracker apparently constitutes a Fourth Amendment "search" - the Supreme Court effectively said so when ruling on a North Carolina case where a convicted sex offender was forced to wear a GPS monitor at all times in 2013. The offender challenged the court, and while the state's court first ruled in favor of the tracker, stating it was no search at all, the Supreme Court said that didn't follow that court's precedents. And what the Supreme Court says, goes.

"It doesn't matter what the context is, and it doesn't matter whether it's a car or a person. Putting that tracking device on a car or a person is a search," said Jennifer Lynch, a senior staff attorney at the Electronic Freedom Foundation (EFF), talking to The Atlantic. Lower courts will now have to consider whether attaching a GPS tracker to both people and property constitutes a reasonable search. Lynch believes that the lifelong GPS tagging is an unreasonable one -- and the EFF is looking at similar cases in other states. She added: "Sex offenders - it's the easiest class of people to place these kinds of punishments on, but I worry that we start with sex offenders and then we go down the line to people who've committed misdemeanors."

[Image credit: Getty Images/Flickr RF]

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US Supreme Court: GPS tracking could violate the Fourth Amendment