Criminal Procedure tutorial: Introduction to the Fourth Amendment | quimbee.com
A brief excerpt from Quimbee #39;s tutorial video on the structure and operation of the Fourth Amendment. Watch more at https://www.quimbee.com/courses/criminal-...
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Criminal Procedure tutorial: Introduction to the Fourth Amendment | quimbee.com - Video
Criminal Procedure tutorial: Derivative Evidence and the Fourth Amendment | quimbee.com
A brief excerpt from Quimbee #39;s tutorial video on the rules governing when police interrogation may resume after Miranda rights have been effectively invoked....
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Criminal Procedure tutorial: Derivative Evidence and the Fourth Amendment | quimbee.com - Video
The first case argued Tuesday morning, City of Los Angeles v. Patel, was about whether a Los Angeles ordinance that requires motel operators to allow the police to examine hotel guest registers, without seeking a warrant first, is constitutional. The en banc Ninth Circuit ruled that is is not, because the ordinance lacks an essential procedural safeguard pre-compliance judicial review. Prior to argument, many observers thought this meant that some judicial administrative warrant process was required. But now, after reviewing the argument transcript, confusion regarding exactly what the plaintiffs are seeking, as expressed by more than one Justice, may lead to reversal and remand rather than a substantive Fourth Amendment ruling.
Background
Recall from the preview that a group of motel owners sued Los Angeles, seeking to invalidate a municipal ordinance that requires them to make information about guests that they are required by law to record, available to any [LAPD] officer for inspection at a time and in a manner that minimizes any interference with the operation of the business. But no trial or evidentiary hearing was ever held; instead, the parties stipulated to a few facts and then agreed that the sole issue remaining was a facial constitutional challenge to the ordinance.
One stipulation was that, under the law in question, the motel operators have been subject and continue to be subject to searches and seizures of their motel registration records by the [LAPD] without consent or warrant. The Ninth Circuit ultimately ruled that this without a warrant stipulation rendered the law unconstitutional under the Fourth Amendment.
In its petition for certiorari, Los Angeles presented what amounts to three questions: (1) whether facial challenges to ordinances and statutes are ever permissible under the Fourth Amendment; (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry; and, if so, (3) whether the ordinance is unconstitutional because it does not require a warrant or other pre-compliance judicial review. Whether the Court should answer all of these questions, or whether the first one is instead dispositive, seemed to be a primary focus of oral argument yesterday.
Tuesdays oral argument and expectations of privacy
Observers, including this observer, sometimes forget how much close attention the Justices pay to the questions presented. At Tuesdays argument, Joshua Rosenkranz (arguing on behalf of the city) went immediately to the third question that is, the substantive constitutionality of the ordinance in question. The parties (and the Ninth Circuit) appeared to consider the second question to be moot, because they agreed by the time of argument that motel operators do have some limited expectation of privacy in their registers. But Justice Anthony Kennedy appeared to still be concerned: If a member of this Court sits down to write the opinion, does he or she have to use the phrase reasonable expectation of privacy, or do we just forget [it]? Then referencing prior administrative search cases, he asked whether the phrase closely regulated is another way to talk about reasonable expectation of privacy?
Both Rosenkranz and Deputy Solicitor General Michael Dreeben (arguing on behalf of the federal government in support of Los Angeles) quickly picked up on the point: noting that the ordinance has been on the books for many years, Rosenkranz argued that no one goes into the hotel business unaware that their registers will be inspected. Dreeben later chose to begin his argument by proposing a much narrower basis: the ordinance involves an entry only into the public lobby area of a motel. Although Chief Justice John Roberts and Justice Sonia Sotomayor quickly took issue with Dreebens suggestion, the second question (whether there is a reasonable expectation of privacy and, if so, how that affects the case) does not appear to be dead.
The substantive merits: The warrant requirement argument appears to be obscured.
With only twenty minutes (because the city was sharing its time with the federal government), Rosenkranzs opening argument otherwise focused entirely on the merits of the ordinance; the facial challenge aspect of the case was not raised until Dreeben stood up. Rosenkranz began by dramatically asserting that this case is about whether to deprive cities of one of the most effective tools they have to deter human trafficking and other short-term criminal activity in motels. He argued that it is necessary to allow frequent, unannounced spot inspections in real time without notice.
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GTA Online - Team Deathmatch - Fourth Amendment - PS4
Team deathmatch on the map "Fourth Amendment" on PS4.
By: widd77
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GTA Online - Team Deathmatch - Fourth Amendment - PS4 - Video
Fourth Amendment Police Potty Program
Retired Maryland state police officer Captain Jack McCauley speaking to a group of second amendment activists in Maryland.
By: James Madison
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Judge Napolitano On The NSA And The Fourth Amendment
Source: https://www.youtube.com/user/FoxNewsChannel February 26, 2015 - Judge Andrew Napolitano on the NSA #39;s ability to ignore the Constitution. PigmineNews....
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Judge Napolitano On The NSA And The Fourth Amendment - Video
Mobile Security And The Fourth Amendment
There are a lot of things going on with mobile security that could be used against the American people. Stingray implementation, the FBI being able to spy on...
By: Bill Wynne
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Even if proponents of the NSA win over public opinion, their agenda will still be contrary to the Fourth Amendment.
When The Washington Post reported that 63 percent of Americans are "willing to give up personal privacy to let the federal government investigate terror threats," the polling data seemed like bad news for privacy activists and civil libertarians. But Reihan Salam argues that the 32 percent of Americans who oppose giving up privacy in the name of national security are winning. "They dont need a majority of the electorate to embrace their position in order to achieve their goals," he writes. "They merely need a vocal, well-organized minority."
To support that analysis, he points to the experience of gun owners, who've defeated various firearms restrictions even when a majority of Americans favored them. The intensity of their pro-gun views helps them to succeed, he observed, as do their strong social bonds, facilitated by pastimes like hunting and going to gun shows, where they see other gun owners, spread political information, and channel their intense views. Gun control advocates have no equivalent social ties.
Salam believes that surveillance skeptics have a similar edge over surveillance defenders:
No, not all of Snowdens biggest fans in America are affluent, well-educated libertarian technophiles who spend much of their spare time socializing on lesser-known corners of the Web. But these groups certainly overlap. Just as hunting and target shooting are ways that older gun owners cement social bonds, gaming and obsessively following Reddit could serve much the same function among young surveillance skeptics. Libertarian Republicans like Kentucky Rep. Thomas Massie, Michigan Rep. Justin Amash, and Kentucky Sen. Rand Paul have recognized the growing power of this constituency, and they cater to it by regularly addressing libertarian groups and pushing for surveillance reform...
...it gets worse for the defenders of surveillance authority. The Snowden revelations didnt just make working for the NSA less attractive. As Julian Sanchez, a privacy expert at the libertarian Cato Institute has explained, the revelations badly embarrassed major U.S. technology companies, particularly those that have substantial operations outside of the country. Suddenly the notion that Google and Facebook were essentially arms of the U.S. government seemed like more than a paranoid fantasy, particularly to consumers in Europe and Asia already inclined toward anti-Americanism. Before the revelations, these companies could work closely with the U.S. government to facilitate its surveillance efforts without ever being held to account. Even if they objected to getting pushed around by Uncle Sam behind closed doors, they had little incentive to make a stink about it, as doing so could jeopardize their business by raising suspicions. After the revelations, the international reputation of U.S. tech giants took a hit, and they had little choice but to push back forcefully and to ally themselves with civil liberties groups.
While I don't know who will ultimately win the fight over surveillance policy, these are, indeed, among the factors that give privacy advocates a fighting chance. I'd only add that there is an even bigger advantage that civil libertarians can press, and it too is helpfully illuminated by way of analogy to the gun-control debate. The NRA's most significant advantage is the 2nd Amendment. With its adoption, the Framers decided that the right to bear arms should be protected even in a future instance when a majority of the public and the legislature might feel otherwise.
Surveillance policy is comparable: 63 percent of Americans may be willing to sacrifice privacy in the War on Terrorism, but they lack the power to overturn the Fourth Amendment. Many seem to have forgotten its actual text, so here it is in full:
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.
That is the law of the land. And the NSA is violating its letter and spirit, no matter how many times its defenders use dubious legal reasoning to argue otherwise. The right of the people to be secure in their "persons, houses, papers, and effects" is meaningless if the NSA can seize and later search details about everyone's communications. The requirements for probable cause and particularity cannot be squared with surveillance that implicates practically everyone. The Fourth Amendment's historic attempt to end general warrants cannot be viewed as a success so long as the government is prying into the private affairs of tens of millions of people who are not even suspected of any wrongdoing.
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The Surveillance State's Greatest Enemy? The U.S. Constitution
Tuesdays argument in City of Los Angeles v. Patel, a Fourth Amendment case, presents a particularly difficult example of a common Supreme Court question: should the Court rule narrowly on the case before it, or answer far broader questions? That question does not always have obvious ideological parameters (although the Fourth Amendment context may color the Justices views in this case), and Tuesdays argument may be most interesting for the perspective it may provide on each Justices jurisprudential approach.
Moreover, both sides in Patel have assembled all-star casts of lawyers and amici. The plaintiffs brief shows Tom Goldstein (founder of this blog) and the Harvard Supreme Court clinic; while Los Angeless merits briefs show Josh Rosenkranz (former director of the Brennan Center) and Orin Kerr (also an occasional writer for this blog). Eighteen amicus briefs have been filed (and I do not pretend to have read them all). Thus, although the bulk of media attention this week will likely focus on Wednesdays argument in the challenge to the Affordable Care Act, this case now looks much harder, and more important, than it first appeared.
The basics of the case
The case presents a Fourth Amendment challenge to a municipal ordinance that authorizes administrative law-enforcement searches of hotel and motel guest registers. Administrative search is a label generally used to describe governmental inspections of commercial premises for health and safety reasons that is, not based on probable cause to believe a crime has been committed, and not looking primarily for evidence of crime. (In recent years the Court has used the label of special needs searches to capture an even broader category of searches that includes administrative).
Here, the Los Angeles ordinance in question provides that records of information about guests that hotel are required by law to keep guest registers shall be made available to any officer of the Los Angeles Police Department for inspection at a time and manner that minimizes any interference with the operation of the business. The ordinance appears to have been enacted to provide a disincentive for the short-term use of hotels and motels for crime. It was stipulated below (that is, agreed to by all parties) that the ordinance authorizes the police to inspect such guest registers without the hotel owners consent and, most significantly, without a warrant. A group of motel owner-operators sued, and once various stipulations were reached, all parties agreed that the sole issue is a facial constitutional challenge to the ordinance under the Fourth Amendment. They sought a declaratory judgment against the ordinance and an injunction prohibiting its enforcement.
The district court upheld the ordinance, ruling that hotels have no reasonable expectation of privacy in their guest information. That issue, however, appears to have dropped out of the case: the Ninth Circuit ruled, and Los Angeles now concedes, that hotels have some privacy interest in their guest registers, even if limited, such that an inspection under the ordinance constitutes a search for Fourth Amendment purposes. (Also, be careful not to confuse the privacy interests of the hotel owners with privacy concerns of guests. Only the former are at issue here; and because guests have already disclosed their personal information to the hotels, precedent would say that they have no further expectation of privacy in the records in any case.)
Not one, but two, questions are presented
In its current appellate posture, the substantive Fourth Amendment issue before the Court seems clear: is a municipal ordinance, which requires hotels to make their hotel registers available for surprise (unannounced) inspections by the police, unconstitutional because the police are not required to obtain a warrant in advance? By a vote of seven to four, the Ninth Circuit ruled en banc that such a warrantless business-information search ordinance is unconstitutional. The circuit relied on cases such as Camara v. Municipal Court of the City and County of San Francisco (1967) and Marshall v. Barlows, Inc. (1978), which hold that under the Fourth Amendment, governmental officials generally must obtain administrative warrants in advance of conducting commercial business searches. The majority rejected the idea that hotels are closely [that is, pervasively] regulated businesses, which prior decisions hold can support an exception to the general advance-warrant rule.
The dissenting Ninth Circuit judges, however, while debating the substantive point, made a procedural argument their main focus. They quoted Sibron v. New York (1968): The constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of [an] individual case. Because the hotel-owner plaintiffs here had agreed in the trial court to drop their as applied challenge in favor of a facial attack based on stipulated facts, this case now presents an issue far broader than the specific hotel-register ordinance: may statutes and ordinances ever be challenged under the Fourth Amendment on a facial basis? Substantial party and amicus briefing has now gone into this second, procedural, issue.
Three reasons that this case is harder, and more important, than it may look
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Argument preview: Hotel guest registers and the Fourth Amendment harder than it looks?
By Andrew P. Napolitano
What if the current massive spying on Americans began with an innocent secret executive order signed by President Ronald Reagan in 1986? What if Reagan contemplated that he was only authorizing American spies to spy on foreign spies unlawfully present in the United States?
What if Reagan knew and respected the history of the Fourth Amendment? What if the essence of that history is the Colonial revulsion at the British use of general warrants?
What if general warrants were issued by a secret court in London and authorized British agents in America to search wherever they wished and to seize whatever they found? What if the revulsion at this British government practice was so overwhelming that it led to the Revolutionary War against the king?
What if the whole purpose of the Fourth Amendment was to outlaw general warrants? What if the Fourth Amendment specifically guarantees the right to privacy to all in America in their persons, houses, papers and effects?
What if, in order to emphasize its condemnation of general warrants, the Fourth Amendment requires the government to obtain a warrant from a judge before invading the persons, houses, papers or effects of anyone and lays down the preconditions for the issuance of such warrants? What if those preconditions are individualized suspicion and articulated evidence of crime called probable cause about the specific person whose privacy the government seeks to invade?
What if these principles of constitutional fidelity, privacy and probable cause and the unlawfulness of general warrants have been regarded universally and publicly as quintessentially American values values that set this nation apart from all others?
What if the administration of President George W. Bush was so embarrassed that 9/11 happened on its watch that it fought a useless public war in Iraq which had nothing to do with 9/11 and a pernicious private war against American values by unleashing American spies on innocent Americans as to whom there was no individualized probable cause so that it could create the impression it was doing something to keep America safe from another 9/11-like attack?
What if the Bush folks took Reagan's idea of spying on foreign spies and twisted it so that they could spy on not just foreign spies but also on foreign persons? What if they took that and leapt to spying on Americans who communicated with foreign persons?
What if they then concluded that it was easier to spy on all Americans rather than just those who communicated with foreign persons? What if they claimed in secret that all this was authorized by Reagan's executive order and two federal statutes, their unique interpretations of which they refused to discuss in public?
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The Bill of rights in Action: The Right to Privacy - 1970 Educational Film - S88TV1
An open-ended film designed to instigate discussion on what constitutes an unreasonable invasion of privacy, focusing on the Fourth Amendment, Search and Sei...
By: Tomorrow Always Comes
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The Bill of rights in Action: The Right to Privacy - 1970 Educational Film - S88TV1 - Video
Forced Blood Draws, DNA Collection and Biometric Scans: What Country Is This?
By John W. Whitehead
February 24, 2015
The Fourth Amendment was designed to stand between us and arbitrary governmental authority. For all practical purposes, that shield has been shattered, leaving our liberty and personal integrity subject to the whim of every cop on the beat, trooper on the highway and jail official. The framers would be appalled.Herman Schwartz,The Nation
Our freedomsespecially the Fourth Amendmentare being choked out by a prevailing view among government bureaucrats that they have the right to search, seize, strip, scan, spy on, probe, pat down, taser, and arrestanyindividual atanytime and for theslightestprovocation.
Forced cavity searches, forced colonoscopies, forced blood draws, forced breath-alcohol tests, forced DNA extractions, forced eye scans, forced inclusion in biometric databasesthese are just a few ways in which Americans are being forced to accept that we have no control over what happens to our bodies during an encounter with government officials.
Worse, on a daily basis, Americans are being made to relinquish the most intimate details of who we areour biological makeup, our genetic blueprints, and our biometrics (facial characteristics and structure, fingerprints, iris scans, etc.)in order to clear the nearly insurmountable hurdle that increasingly defines life in the United States: we are all guilty until proven innocent.
Thus far, the courts have done little to preserve our Fourth Amendment rights, let alone what shreds of bodily integrity remain to us.
For example, David Eckert was forced to undergoan anal cavity search, three enemas, and a colonoscopyafter allegedly failing to yield to a stop sign at a Wal-Mart parking lot. Cops justified the searches on the grounds that they suspected Eckert was carrying drugs because his posture [was] erect and he kept his legs together. No drugs were found. During a routine traffic stop, Leila Tarantino was subjected to two roadside strip searches in plain view of passing traffic, during which afemale officer forcibly removed a tampon from Tarantino. Nothing illegal was found. Nevertheless, such searches have been sanctioned by the courts, especially if accompanied by a search warrant (which is easily procured), as justified in the governments pursuit of drugs and weapons.
Close to 600 motorists leaving Penn State University one Friday night were stopped by police and, without their knowledge or consent, subjected to a breathalyzer test usingflashlights that can detect the presence of alcohol on a persons breath. These passive alcohol sensors are being hailed as a new weapon in the fight against DUIs. However, because they cannot be used as the basis for arrest, breathalyzer tests are still required. And for those who refuse to submit to a breathalyzer, there are forced blood draws. One such person is Michael Chorosky, who was surrounded by police, strapped to a gurney and thenhad his blood forcibly drawn after refusing to submit to a breathalyzer test. What country is this? What country is this? cried Chorosky during the forced blood draw.Thirty states presently allow police to do forced blood draws on driversas part of a nationwide No Refusal initiative funded by the federal government.
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Forced Blood Draws, DNA Collection and Biometric Scans: What Country Is This?
The Transportation Security Administration (TSA) is either the face of a terrifying proto-police state or a startlingly inept bureaucracy. Either way, it needs to be reined in. On a recent family trip to Nashville, my wife, two children, ages 9 and 11, and I had our own kafkaesque brush with the TSA as we passed through security at Philadelphia International Airport, ending in the violation of my fourth amendment rights and a thorough pat-down.
In the bizarre choreography of TSA security theater, one parent is allowed to pass through a traditional metal detector while the other must pass through an Advanced Imaging Technology (AIT) device. There can be no security rationale for this split-the-baby wisdom. I went through the metal detector and my wife through the AIT. As we awaited our bags at the scanner exit, one bag was singled out by a Transportation Security Officer (TSO). He pointed to an image on his screen. I called over to my wife, asking what was in the bag. It was my sons nebulizer, which he needs for occasional asthma. The bag was opened, and the TSO was apparently satisfied that, despite what he claimed was an alarming image on the monitor, the nebulizer was not a concealed explosive. I wish that wasthe end of the story.
The TSO explained that since the nebulizer was in the bag but should have been placed separately in a bin, a complete pat-down was now required. I objected to this and asked that a supervisor be summoned. The supervisor arrived and statedthat only a mandatory pat-down ofsomeonewould resolve this situation, and that this was required by procedure. Rather than miss my flight and traumatize my children, I subjected myself to a pat-down, despite the fact that I had not even packed the bag. After being poked and prodded for several minutes, I offered in my most sarcastic tone, I feel much safer now. The TSO supervisor replied with conviction, You would if it were someone elses nebulizer. The notion that a medical device erroneously left in a bag raises thea prioririsk that I am smuggling something else in my underwear is nothing less that insane. If TSA big data cannot conclude that a middle-aged dermatologist from New Jersey traveling with his family isnotlikely to be smuggling a weapon in his groin, then a lot of effort has been squandered developing TSA Risk Assessment.
This violation of my Fourth Amendment rights was based either on misguided policy or intended strictly as a punitive measure to remind people to properly sort their items at screening. In either scenario, the TSA emerges as a profound threat to the civil liberties of all Americans.
The Fourth Amendment to the U.S. Constitution states 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, 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.
If a Transportation Security Officer, claiming a very Nuremberg responsibility of following procedure, had his hand in my crotch against my will with no probable cause, then a reasonable person should conclude that my Fourth Amendment rights have been violated. Whether from malice or bureaucratic ineptness, this intrusion must be stopped. There is no end to the slippery slope of following procedure. Procedure can expand to include a strip search, body cavity probe, or invasion of home, vehicle, and private data. Unchecked, procedure will inevitably expand to include warrantless searches on highways, trains, and buses.
The following must occur:
First, the TSA, after nearly 15 years of operation, must present concrete evidence that its methods meaningfully contribute to public safety in a way that cannot be achieved by less intrusive means. Can the fleet of AIT scanners and army of mall cops employed by the TSA truly prevent a determined attack? Rather than preventing terrorism, this standing federal army deployed against the American people makes us less safe and undermines our core values. If the TSA cannot meet this threshold then airport security should immediately be returned to the hands of private contractors with intelligent standards to be developed by a new government agency.
Second, a determined legal challenge must be mounted to the TSA. A 1973 ruling (U.S. vs Davis) classifiesairport screenings as administrative searches and notes that a search should be no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly. The TSAs intrusive pat-downs and privacy-violating AITs, coupled with a lack of evidence for the effectiveness of these methods in deterring terrorism, do not meet the criteria demanded by U.S. vs Davis. Furthermore, the TSA must be barred from extending its reach into other modes of travel, as its overreaching moniker implies it is set to do. A future in which we are told that we can avoid search by electing not to drive or ride a train or even walk must be avoided.
Third, we must place our elected representatives to Congress on notice that erosion of our civil liberties in the name of security will not be tolerated. Only candidates who pledge to defend the privacy of Americans in the face of overreach by government agencies should be supported for election.
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The TSA Has Fallen So Far It Represents a Threat to American Liberties
Philadelphia, Pennsylvania (PRWEB) February 25, 2015
In its recent decision in U.S. v. Michael Wright, 2015 WL 507169 (3d Cir., Feb. 2015), the Third Circuit extended its recent holding in U.S. v. Franz, 772 F. 3d. 134 (3d Cir. 2014), thereby further diluting the protection of the Fourth Amendment, says federal criminal defense attorney Ms. Hope Lefeber.
According to court documents, as part of their investigation,DEA agents obtained a search warrant, signed by a magistrate judge, for Defendant Michael Wrights apartment. An affidavitsummarizing the Governments knowledge of the conspiracy and containing a list of items the DEA expected to findwas also attached and signed. Subsequently, the Government sealed the affidavit (to preserve details relating to an ongoing investigation). When the DEA executed the search, they were unable to provide Defendant with a list of items to be seized, in violation of the Fourth Amendment.
Ms. Lefeber explains that the lower court initially suppressed the search, ruling that the good-faith exception to the exclusionary rule could not excuse a facially invalid warrant under U.S. v. Leon, 468 U.S. 897 (1984). The Third Circuit vacated the lower court's decision and remanded based on Herring v. U.S., 555 U.S. 135 (2009). On remand, the District Court denied the motion to suppress, concluding that the DEAs mistake was simple and did not benefit the Government. Accordingly, Defendant was convicted of conspiracy to distribute marijuana.
Defendant Wright appealed his conviction, arguing that denying his motion to suppress reduced the Governments incentive to carefully scrutinize the contents of each warrant before execution. The Third Circuit disagreed and noted that the DEA agents negligence fell below the grossly negligent exception to the good-faith rule, articulated in Herring. Similar to its recent ruling in Franzwhere an officer mistakenly read a sealing orderthe DEAs conduct was held not to be grossly negligent, since the omission of the list was inadvertent, observes Ms. Lefeber. Therefore, though the search violated the Fourth Amendment, the officers could rely on the good-faith exception to the exclusionary rule because deterring isolated negligence is not with the social cost of excluded evidence.
Ms. Lefeber believes that this case further erodes the protections of the Fourth Amendment and renders meaningless the requirement to specify the items to be seized. Officers can now "search and seek" and later legitimize the search by listing the items later.
About Hope Lefeber:
In practice since 1979, Lefeber is an experienced and aggressive criminal defense attorney in Philadelphia. As a former Enforcement Attorney for the U.S. Securities & Exchange Commission, Lefeber uses the knowledge she gained while working for the government to best defend her clients facing serious state and federal charges related to drug offenses and white collar crime, including business and corporate fraud, mail and wire fraud, money laundering, financial and securities fraud, and tax fraud. A member of the invitation-only National Trial Lawyers Top 100, Lefeber has been recognized by Thomson Reuters as a 2014 Super Lawyer. She has also been recognized by the National Association of Criminal Defense Lawyers as one of the Top Ten Criminal Defense Attorneys. She has represented high-profile clients, published numerous articles, lectured on federal criminal law issues, taught Continuing Legal Education classes to other Philadelphia criminal defense attorneys and has been quoted by various media outlets, from TV news to print publications.
Learn more at http://www.hopelefeber.com/
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On Tuesday of this week, the en banc Eleventh Circuit will hear oral argument in United States v. Davis, the case I blogged about here and here on whether the Fourth Amendment protects cell-site records. The en banc briefs are here, and an exhibit from the trial showing some of the cell-site records is here. The Eleventh Circuit doesnt post oral argument audio, so well likely be stuck relying on press accounts to find out what happened.
Whichever way the Eleventh Circuit rules, Supreme Court review is a possibility. It seems likely that Fourth Amendment protection for cell-site data will be the next big Fourth-Amendment-and-technology case at the Supreme Court, following the GPS case in 2012 and the searching-cellphones-on-arrest case in 2014. But when?
Lets recall the lower court cases so far. The Fifth Circuit has held that there is no Fourth Amendment protection for historical cell-site records, and the Florida Supreme Court has held that the Forth Amendment protects cell-site records at least in real time. The Fourth Circuit held argument in mid-December on a historical cell site case, and in Davis well get a ruling from the en banc Eleventh Circuit on the same issue. There may be some other cases working their way up to state Supreme Courts or even a federal circuit that I dont know about. (The Third Circuit offered some dicta on the issue in 2010 without reaching a decision, but that doesnt count.)
In light of these cases, decided and pending, theres likely to be a colorable case for Supreme Court review no matter how the Fourth and Eleventh Circuits rule. Supreme Court review focuses heavily on splits, that is, clear and outcome-determinative disagreement among federal circuits and state supreme courts about how the law applies. If the Fourth and Eleventh Circuits hold that the Fourth Amendment applies, it creates a plausible split with the Fifth. If they hold that the Fourth Amendment doesnt apply, they create a plausible split with the Florida Supreme Court especially pressing in the case of the Eleventh Circuit, as it would be within the same jurisdiction.
Maybe, but there are two important caveats. [UPDATE: Actually, only one caveat. See below.]
First, the Florida Supreme Court repeatedly tried to limit its holding to real-time cell-site monitoring as opposed to historical access. There are possible grounds to say that at least some kinds of real-time cell-site monitoring might raise some different issues. So if the Fourth and Eleventh hold that there is no protection, you could say that there is no split because the Florida Supreme Courts decision was only about real-time monitoring. Its a possible argument, although its worth noting that the Florida Supreme Court didnt actually offer a legal basis for limiting its holding to real-time monitoring. It announced the limitation, but it didnt actually develop a clear reason why it could make a difference.
Similarly, its possible to say that a Fourth and Eleventh Circuit finding cell site protection for historical cell site data wouldnt create a real split with the Fifth Circuit given the unusual procedure of the Fifth Circuit case. [BUT SEE UPDATE BELOW] Recall that the Fifth Circuit case arose when the government applied for an order for historical cell site data and the Magistrate Judge denied the application on Fourth Amendment grounds. In response to an academic amicus brief that raised ripeness problems with ruling in that context absent any facts, the Fifth Circuit limited its analysis to whether access to historical cell site records was per se unconstitutional. By answering only the issue of per se unconstitutionality, which I take to be kind of like asking whether a statute is facially unconstitutional, the Fifth Circuit arguably only answered whether access to historical cell site records always violated the Fourth Amendment, not whether it would in a particular case. If you take that reading of the case, then perhaps there would be no split with a decision finding a Fourth Amendment violation based on a specific set of facts. This is a possible argument, but not an obvious one, as the reasoning actually adopted by the Fifth Circuit applies more broadly than that limited reading would suggest.
Putting all these pieces together, its hard to know when the Supreme Court might be interested. We might get a clear split from the Fourth and/or Eleventh Circuit cases, but the Court might decide to wait a while given the possible arguments that there is not yet a super-clear split. As always, stay tuned.
UPDATE: A reader reminds me that in a subsequent case, United States v. Guerrero, 768 F.3d 351 (5th Cir. 2014), the Fifth Circuit applied the reasoning of its initial cell-site case to an as-applied set of facts involving historical cell site records. After Guerrero, the Fifth Circuit rule is clear: Historical cell-site data is not protected. So scratch that second caveat above.
Also, another reader points out in United States v. Skinner, where the Sixth Circuit also suggested that cell-site data is not protected. Maybe, although recall that Skinner involved pinging a phone, which raises some different issues.
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Google has strongly opposed US government plans to expand federal powers to authorise remote searches of digital data - claiming in a letter the powers will weaken citizens' fourth amendment rights.
The right is the part of the US Constitution that prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause.
In a letter to the Washington committee considering the proposed changes to the Federal Rule of Criminal Procedure 41, Google said the amendments raise a number of "monumental and highly complex constitutional, legal, and geopolitical concerns."
"Google urges the committee to reject the proposed amendment and leave the expansion of the government's investigative and technological tools, if any are necessary or appropriate, to Congress," it said.
The changes would permit any court within any district to issue a warrant authorising remote access searches of electronic information.
The company said a magistrate judge in the Southern District of Texas recently denied an application for a Rule 41 Warrant to permit US law enforcement agents to hack a computer whose location was unknown, but whose IP address was most recently associated with a country in South-East Asia. "Such searches clearly violate the extraterritorial limitations of Rule 41," it said.
It added: "The nature of today's technology is such that warrants issued under the proposed amendment will in many cases end up authorising the government to conduct searches outside the United States.
"Although the proposed amendment disclaims association with any constitutional questions, it invariably expands the scope of law enforcement searches, weakens the Fourth Amendment's particularity and notice requirements, opens the door to potentially unreasonable searches and seizures and expands the practice of covert entry warrants."
Richard Salgado, Google's director for law enforcement and information security, said the proposed change "raises a number of monumental and highly complex constitutional, legal, and geopolitical concerns that should be left to Congress to decide".
Google raised its objections as part of a public consultation that ended on Tuesday.
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Google strongly opposes plans to let ANY US COURT authorise digi-snoops
National Assembly building, Abuja
No fewer than 20 states in the country rejected autonomy for local governments in the fourth amendment to the 1999 Constitution, passed by the Senate on Wednesday.
However, the National Assembly has also approved the inclusion of independent candidacy in the new proposed constitution.
The extant electoral law in section 177 stipulates that candidates for elections must be sponsored by political parties. But the lawmakers have altered this section by inserting a new paragraph that a candidate must be sponsored by political party or he is an independent candidate.
Consequently, any qualified Nigerian can now stand for election without necessarily belonging to any political party.
Our correspondent, who obtained a copy of the report of the Committee on the Review of the 1999 Constitution, submitted by Deputy Senate President, Ike Ekweremadu, on the floor of the Senate, noted that 20 states voted against local government autonomy while 16 states voted in support.
The 20 states that voted against were: Akwa Ibom, Bayelsa, Borno, Cross River, Delta, Ebonyi, Ekiti, Enugu, Jigawa, Kaduna, Kano, Katsina, Kwara, Lagos, Ondo, Osun, Rivers, Taraba, Yobe and Zamfara.states.
The states that voted in favour of the councils autonomy were Adamawa, Anambra, Abia, Bauchi, Benue, Edo, Gombe, Imo, Kebbi, Kogi, Nasarawa, Niger, Ogun, Oyo, Plateau and Sokoto states.
The proposed amendments which was rejected had stated that a local government council not democratically elected shall not be recognised by all authorities and persons and shall not be entitled to any revenue allocation from the Federation Account or the state government.
It shall not also exercise any function exercisable by a local government council under this constitution or any law for the time being in force; and shall stand dissolved at the expiration of a period of four years, commencing from the date the members of the Council were sworn in.
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New constitution: NAssembly okays independent candidacy for poll
In an earlier post, co-blogger David Post pointed to a state trial court ruling in Montana, for which he was an expert for the defense, which concluded that the government needs a warrant under the Fourth Amendment and/or the Montana Constitution for a police officer to go undercover on Facebook as a teenage girl, friend a target, and have conversations with that target. Heres a different perspective on the case. To the extent the judge was relying on the Montana Constitution, the decision is plausible. On the other hand, the decision is plainly wrong if it was relying on the federal Fourth Amendment.
For purposes of the federal Fourth Amendment, the law is really clear: You give up your Fourth Amendment rights in what you knowingly disclose to another person such as an undercover officer or informant. If you communicate with a person in a Fourth Amendment protected space such as your home, you cant claim a Fourth Amendment violation in what you shared with the person if they violated your confidences and happen to be (or are working with) law enforcement. See, e.g., United States v. White, 401 U.S. 745 (1971); Hoffa v. United States, 385 U.S. 293 (1966); Lewis v. United States, 385 U.S. 206 (1966); Osborn v. United States, 385 U.S. 323 (1966); Lopez v. United States, 373 U.S. 427 (1963); On Lee v. United States, 343 U.S. 747 (1952).
As I explained in a forthcoming article, this legal rule was originally the point of the subjective expectation of privacy test of Katz, the thought being that you did not manifest your privacy rights in what you disclosed to another even in Fourth Amendment protected space. The Supreme Court later moved the principle over to the objective expectation of privacy test instead, where it announced the idea as the so-called third-party doctrine: [T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. United States v. Miller, 425 U.S. 435, 443 (1976).
Those principles are directly applicable in the Montana decision. The defendant, Windham, thought he was communicating with a 16-year old girl named Tammy Andrews. It turned out that Andrews was actually an adult police officer, proof that on the Internet nobody knows youre a cop. The government is trying to use what the officer saw as Tammy Andrews in communication with Windham, which is only what Windham knowingly reveled to Andrews. From a standpoint of the federal Fourth Amendment, its a trivial case. Theres no plausible argument for Fourth Amendment protection.
Importantly, though, that doesnt mean that the result is wrong. It may just be correct as to the Montana Constitution instead of the Fourth Amendment. State courts can interpret the state constitution more broadly than the federal Fourth Amendment And in State v. Goetz, 345 Mont. 421 (2008), the Montana Supreme Court held that the state constitution requires a warrant when an undercover agent wants to record a one-on-one conversation with a target, even though the Fourth Amendment doesnt require that. Under Goetz, theres at least a plausible argument that either the use of the undercover, or at least the recording of the communications, required a warrant under the state constitution.
Its not a slam dunk, though, for two reasons. First, the focus in Goetz seems to be the recording of the communication without the targets consent. Facebook communications are inherently recorded in the sense that this is how Facebook works. In analogous contexts, some state courts have held that a target consents to recording when they use messaging services that necessarily record their messages.
Second, it might matter that the defendant in this case was in Germany at the time these communications ensued. Assume theres a requirement of a warrant under the Montana Constitution for communications that occur inside Montana. If an undercover officer in Montana has communications with a target in Germany, does the Montana Constitution require the same warrant? Is the search occurring in Germany for purposes of the state constitution, and if so can a Montana court issue a warrant for a search there? Or does the search occur in Montana for state constitutional purposes because the recording occurred there? Im not sure.
However a court should resolve these questions, though, this is an argument only about the state constitution rather than the Fourth Amendment. Under the Supremacy Clause, the ruling would apply to state officers but not federal officers.
Finally, in the comment threads to Davids post, several commenters raised the Computer Fraud and Abuse Act. If the government thinks its a crime to violate Terms of Service on Facebook, which was the DOJ position in the Lori Drew case, why doesnt that forbid the governments procedure here as a matter of federal law? I think there are three independent reasons. First, an exception to the CFAA expressly exempts law enforcement investigations, see 18 U.S.C. 1030(f), so this wouldnt violate the CFAA even if you believe that TOS violations generally violate the CFAA. Second, there is no federal suppression remedy for statutory violations absent a clear directive of Congress, of which there is none here. And third, even though DOJ argued that the TOS violations in Drew violated the CFAA, the DOJ was wrong, as the district court recognized in tossing the convictions.
Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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No fewer than 20 states in the country rejected autonomy for local governments in the fourth amendment to the 1999 Constitution (as amended), passed by the Senate on Wednesday.
Our correspondent, who obtained a copy of the report of the Committee on the Review of the 1999 Constitution submitted by Deputy Senate President Ike Ekweremadu on the floor of the senate, noted that 20 states voted against local government autonomy while 16 states voted in support.
The 20 states who voted against are: Akwa Ibom, Bayelsa, Borno, Cross River, Delta, Ebonyi, Ekiti, Enugu, Jigawa, Kaduna, Kano, Katsina, Kwara, Lagos, Ondo, Osun, Rivers, Taraba, Yobe and Zamfara.
States who gave the yes votes are: Adamawa, Anambra, Abia, Bauchi, Benue, Edo, Gombe, Imo, Kebbi, Kogi, Nasarawa, Niger, Ogun, Oyo, Plateau and Sokoto states.
The proposed amendments which was rejected had stated that a local government council not democratically elected shall not be recognised by all authorities and persons and shall not be entitled to any revenue allocation from the Federation Account or the state government.
It shall not also exercise any function exercisable by a local government council under this Constitution or any law for the time being in force; and shall stand dissolved at the expiration of a period of four years, commencing from the date the members of the council were sworn in.
The report also indicated that the National Assembly has also empowered the Independent National Electoral Commission to deregister political parties.
It also made provision for independent candidates in elections.
The extant electoral law stipulates that candidates for elections must be sponsored by political parties. Section 177 has been altered, by inserting a new paragraph that a candidate must be sponsored by political party or he is an independent candidate.
It was further observed that the lawmakers inserted section 225A, which states that INEC can deregister political parties if there is a breach of any of the requirements for registration.
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The Fourth Amendment says that warrants must state where the government will search and what evidence the government will seize. In recent years, some federal magistrate judges, when asked to sign warrants for computer searches, have began imposing a new third requirement: limits on how computers can be searched. As I wrote in this 2010 article, I dont think such limits are permissible. In my view, questions about how a computer is searched must be reviewed after the search in adversarial litigation challenging its reasonableness, rather than guessed at beforehand and written into the warrant by an individual magistrate judge.
At present, however, there isnt much in the way of caselaw on which side is right. Theres a ton of circuit precedent saying that search protocols are not required. But theres only one appellate case on whether they are permitted, a Vermont Supreme Court case which concluded that that some restrictions are permitted but others arent. No Article III court has yet ruled on the question.
In light of that ongoing debate, I thought I would flag a recent opinion by Magistrate Judge David Waxse in Kansas, In the Matter of the Search of Cellular Telephones within Evidence Facility Drug Enforcement Administration, Kansas City District Office. The opinion rejects an application for a warrant to search cell phones in DEA custody because the investigators refused to provide the court with a search protocol. If the government seeks review, it may generate the first Article III precedent that grapples with whether such restrictions are permitted. (The case happens to involve cell phones, but there is no Fourth Amendment difference between a cell phone search and any other computer search.)
Waxses opinion is pretty unusual. It includes a long section titled Applying Constitutional Protections in the Digital Era that offers an interesting theoretical account of the role of precedent. According to Waxse, magistrate judges should not be overly beholden to Supreme Court precedent when technology changes:
With technological developments moving at such a rapid pace, Supreme Court precedent is and will inevitably continue to be absent with regard to many issues district courts encounter. As a result, an observable gap has arisen between the well-established rules lower courts have and the ones they need in the realm of technology. Courts cannot, however, allow the existence of that gap to infiltrate their decisions in a way that compromises the integrity and objectives of the Fourth Amendment. . . . The danger, of course, is that courts will rely on inapt analogical reasoning and outdated precedent to reach their decisions. To avoid this potential pitfall, courts must be aware of the danger and strive to avoid it by resisting the temptation to rationalize the application of ill-fitting precedent to circumstances.
Judge Waxse then concludes, relying heavily on the reasoning of the Vermont Supreme Court, that he has the authority to deny applications for computer warrants unless they detail how the search will be executed. Although the Supreme Court has indicated that the reasonableness of a warrant execution should be reviewed ex post, not ex ante, Waxse concludes that its more efficient to have the review occur ex ante:
The fact of the matter is that a court is attempting to avoid entirely the harm that ex post remedies are meant to assuage. By only deciding reasonableness of the governments actions ex post, the government not only possesses a substantial portion of an individuals private life, but it also fails to prevent a person from having to defend against subsequent unreasonable searches stemming from the initial search and seizure. Requiring search protocol in a warrant allows the court to more effectively fulfill its duty to render, as the Supreme Court put it, a deliberate, impartial judgment as to the constitutionality of the proposed search, thus avoiding the need for ex post remedies resulting from an unconstitutional search.
He concludes:
If the Court were to authorize this warrant, it would be contradicting the manifest purpose of the Fourth Amendment particularity requirement, which is to prevent general searches. Given the substantial amount of data collected by the government upon searching or seizing a cell phone, as discussed in Riley, requesting an unrestricted search is tantamount to requesting disclosure of a vast array of intimate details of an individuals private life. For the reasons discussed in this opinion, to issue this warrant would swing the balance between an individuals right to privacy and the governments ability to effectively investigate and prosecute crimes too far in favor of the government.
Accordingly, the Court again finds that an explanation of the governments search techniques is being required in order to determine whether the government is executing its search in both good faith and in compliance with the Fourth Amendment. The Court does not believe that this request will overburden the government. In fact, in Riley, the government advocated and it can be concluded that the Supreme Court endorsed the implementation of search protocols: Alternatively, the Government proposes that law enforcement agencies develop protocols to address concerns raised by cloud computing. Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.
Originally posted here:
Volokh Conspiracy: No cell phone warrants without search protocols, magistrate judge rules