Back in August, the Third Circuit handed down an unpublished opinion in United States v. Gomez (August 8, 2014), that appears to have rejected the mosaic theory of the Fourth Amendment, at least in the context of telephone metadata. I havent seen any coverage of the decision elsewhere, so I thought I would blog it.

In Gomez, the government obtained a pen register order to monitor the metadata for Gomezs telephone calls for about 5 weeks. Gomez argued that under the Jones concurrences, the prolonged surveillance was sufficient to constitute a Fourth Amendment search. The Third Circuit disagreed in an opinion by Judge Smith joined by Judges Vanaskie and Schwartz:

Gomez first argues that the DEAs prolonged warrantless use of a pen register and trap and trace device violated his privacy rights under the Fourth Amendment. We agree with the District Court that this argument is foreclosed by Smith [v. Maryland]. Gomez provided a third party in this case, Sprint with all the data that the DEA obtained through the use of the pen register and trap and trace device. In so doing, Gomez abandoned his privacy interest in this data because he assumed the risk that the information would be divulged to police. Smith, 442 U.S. at 745, 99 S.Ct. 2577. Although Justice Sotomayor has urged the Court to reconsider Smiths holding that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties, United States v. Jones, U.S. , 132 S.Ct. 945, 957, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring), we remain bound by Smith until a majority of the Court endorses this view.

The Third Circuit then adds the following explanatory footnote:

In the proceedings below, Gomez conceded that his position was contrary to Smith, but cited Justice Sotomayors concurrence in Jones for the proposition that Smith is antiquated and must be reconsidered. J.A. 60. Gomez presents a different argument on appeal. Instead of urging us to overrule Smiths third party doctrine, Gomez contends that this doctrine has already been cabined by five Justices of the Supreme Courta number he reaches by combining Justice Sotomayors and Justice Alitos concurrences in Jones. Appellants Br. 27, 31. As Gomez did not raise this argument before the District Court, it is waived. Holk v. Snapple Beverage Corp., 575 F.3d 329, 336 (3d Cir.2009).

In any event, we reject Gomezs contention that the concurrences in Jones cabined Smith. Justice Alitos concurrence did not explicitly seek to limit Smith, and indeed relied heavily on the fact that drivers of automobiles do not expect third parties to possess detailed, long-term data regarding their location. Jones, 132 S.Ct. at 964 (Alito, J., concurring). By contrast, cell phone users do expect service providers to possess detailed, long-term data regarding the numbers they dial because this information is necessarily conveyed in the course of connecting a call. Smith, 442 U.S. at 743, 99 S.Ct. 2577. By disclosing this data, cell phone users, unlike drivers of automobiles, assume[ ] the risk that a third party will convey it to law enforcement. Id. at 744, 99 S.Ct. 2577. Therefore, we are not persuaded that the two concurrences in Jones have limited Smith to short-term call monitoring.

Off the top of my head, I think this is the first federal court of appeals opinion to directly address the important question of whether the mosaic theory modifies Smith v. Maryland. The opinion was not published and is therefore non-precedential. But given that this is likely to be an important issue when the D.C. Circuit reviews Klayman v. Obama on November 4th, I thought the Third Circuits opinion was worth noting.

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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Volokh Conspiracy: Third Circuit on the mosaic theory and Smith v. Maryland

The first argued case in the new Supreme Court term will be Heien v. North Carolina, a Fourth Amendment case about whether a reasonable mistake of law can create cause for a Fourth Amendment search or seizure. I think the defendant has the better argument that the answer is no. In this post, Ill explain the case and why I think the defense should prevail.

I. The Facts, and A Brief History of Brake-Light Law

The facts of the case are simple. A North Carolina police officer stopped a car for having a broken right rear brake light. The stop led to a consent search, and the search led to the discovery of drugs in the car. So far it sounds like a pretty routine Fourth Amendment traffic stop case. But heres the twist: If you look closely at thetext of North Carolinas traffic laws, its at best unclear whetheritprohibits driving with one broken brake light.

A little bit of history is helpful here. Decades ago, it was common for cars to come equipped with only one brake light. The early brake lights often had STOP written on them,and unsurprisinglythey were known as stop lamps. At the time, it was common for the traffic laws to require cars to have only one stop lamp.

Thats antiquated now, of course. But a lot of state laws still have a residual form of this. In particular, many state laws require one working stop lamp for antique cars but two such stop lampsfor more modern cars. To get a flavor of this common practice, see the laws of Florida, California, Texas, New York, Michigan, Tennessee, the District of Columbia, or Ohio.

North Carolinas traffic law is different. The key statutory provision requires that modern cars have a stop lamp but has no such requirement for pre-1956 cars.Heres the language:

No person shall sell or operate on the highways of the State any motor vehicle, motorcycle or motor-driven cycle, manufactured after December 31, 1955, unless it shall be equipped with a stop lamp on the rear of the vehicle. The stop lamp shall display a red or amber light visible from a distance of not less than 100 feet to the rear in normal sunlight, and shall be actuated upon application of the service (foot) brake. The stop lamp may be incorporated into a unit with one or more other rear lamps.

Violation of this law is a misdemeanor criminal offense, see N.C.G.S.A. 20-176.

Why require only one stop lamp for more modern cars and none for older cars? I have no idea. Its hard to know what the legislature was thinking. A few other states in the southern U.S. have traffic codes that also require only one stop lamp, perhaps just as a historical relic. See Alabamas code, for example, which dates back to 1927. Georgia, West Virginia, and South Carolina have similar language but add the additional requirement that all original equipment has to be working properly, which as a practical matter requires multiple working brake lights. See, e.g., Georgia 40-8-26; W. Va. Code Ann. 17C-15-18(a)(1); State v. Jihad, 553 S.E.2d 249 (S.C 2001) (interpreting South Carolinas brake light law). North Carolinas law appears to be somewhat unique. It has a provision that the originally-equipped tail lights have to be working (that is, the red lights that go on when the front headlights or parking lights are on), but it does not appear to apply that same standard to brake lights.

Ok, back to the case. At trial, Heien argued that the North Carolina traffic law did not prohibit driving with one broken brake light so long as the other brake light was working. After all, with one brake light out and the other working, the car did have a functioning stop lamp. The North Carolina Court of Appeals agreed with Heiens reading of North Carolinas law. Under its decision, driving with one broken brake light is perfectly legal in North Carolina.

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Volokh Conspiracy: A few thoughts on Heien v. North Carolina

TIME U.S. Law Pet Owners Look to Muzzle Police Who Shoot Dogs Brittany Preston Bereaved owners argue that when police shoot dogs it a violates their Fourth Amendment rights

Correction appended, Sept. 26

Lexie, a Labrador mix, was barking in fear when the police arrived at her owners suburban Detroit house early in the morning last November. The officers, responding to a call about a dog roaming the area, arrived with dog-catching gear. Yet they didnt help the one-year-old dog, who had been left outside the house, according to a lawsuit filed in federal court: Instead, they pulled out their guns and shot Lexie eight times.

The only thing Im gonna do is shoot it anyway, the lawsuit quotes an officer saying. I do not like dogs.

Such a response, animal advocates say, is not uncommon among law enforcement officers in America who are often ill-equipped to deal with animals in the line of duty. And now bereaved owners like Brittany Preston, Lexies owner, are suing cities and police departments, expressing outrage at what they see as an abuse of power by police. Animal activists, meanwhile, are turning to state legislatures to combat the problem, with demands for better police training in dealing with pets.

There are no official tallies of dog killings by police, but media reports suggest there are, at minimum, dozens every year, and possibly many more. When it comes to Prestons dog, officials from the city of St. Clair Shores and the dog owner agree on little. City police say the dog attacked, prompting officers to open fire in self-defense. But the lawsuit filed by Preston cites police audio recordings to argue that the November 2013 shooting was premeditated, prompted by officers eager to kill a dog. Preston is suing the city for violating her Fourth Amendment right to protection from unreasonable search and seizure.

We want whatever it takes to make sure it doesnt happen again, said Christopher Olson, Prestons lawyer. Before this case I wasnt a dog shooting lawyer, but I am now.

St. Clair Shores defended the officers actions.

The animal was only put down after a decision was made that it was in the best interest of the residents, said city attorney Robert Ihrie, who is defending the city in the lawsuit. Sometimes police officers are in a position where they need to make very quick decisions for the protection of themselves and others.

The Fourth Amendment argument gained traction in 2005, when the San Jose chapter of the Hells Angels sued the city and the police department because officers had killed dogs during a gang raid in 1998. A federal appeals judge found that the Fourth Amendment forbids the killing of a persons dog when that destruction is unnecessary, and the Hells Angels ultimately won $1.8 million in damages. In addition to the St. Clair lawsuit, other lawsuits stemming from police shootings of dogs are being planned or filed in Idaho, California, and Nevada.

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Pet Owners Look to Muzzle Police Who Shoot Dogs

This article originally appeared on AlterNet.

Checkpoints occupy a unique position in the American justice system. Atthese roadside stations, where police question drivers in search of the inebriated or illegal, anyone can be stopped and questioned, regardless of probable cause, violating theFourth Amendments protection against general warrants that do not specify the who/what/where/why of a search or seizure. Though the Supreme Court agrees that checkpoints skirt the FourthAmendment, the Court has been clear that the special needs checkpoints serve, like traffic safety andimmigration enforcement, trump the slight intrusions on motorists rights.

We have checkpoints for bicycle safety, gathering witnesses, drug trafficking, illegal immigration and traffic safety.Many states,like California, require cops to abide by neutral mathematical formulas when choosing which drivers to pull over (like 1 in every 10 cars). In reality, these decisions are left to the discretion of individual police officers, which results in a type of vehicular stop and frisk.

Thats why people in Arizona havesuedthe Department of Homeland Security for its wantondeployment of immigration checkpoints in their state.Among their complaints are racial profiling, harassment, assault and unwarranted interrogation,and detention not related to the express special need of determining peoples immigration status.

A key legal detail about checkpoints is that they cannot be used for crime control, as that would require individualized probable cause. But legal scholarsarguethat non-criminally-minded checkpoints are also illegal. They point out that the FourthAmendment protected the colonists from being searched for non-criminal wrongdoing. Doing nothing wrong at all, they argue,is not grounds to be searched or haveyour property seized.

Regardless, unlike DUI checkpoints, these immigration checkpoints, expanded by the 2006Secure Fence Act, are only allowed within 100 miles of the continental United States border. But thats abig perimeter. Nine of the countrys 10 largest cities, entire states and some two thirds of the US population reside within this constitutionallyexempt zone.

At these checkpointssome of which have becomepermanentfixtures on the highwaypeople are forced to stop when flagged down, againregardless of probable cause. But the extent to which people are legally obliged to answer officers questions isunclearand seemingly arbitrary. Not surprisingly, the militarysimmigration checkpoints havegarneredoutspoken criticism from across the political spectrum.Legalized by the Supreme Court in1976, these checkpointsseem to have taken on a newmomentum in the post-9/11era. (Private militias have eventaken tosetting uptheir own versions.)

DUI checkpoints, on the other hand,deemedconstitutional in 1990, monitor roadwaysin38 states. But they have been outlawed by12 othersthat have invoked states rights to increase federal civil liberty protections.In the Courts 1990opinion, Chief JusticeWilliam Rehnquist wrote that states interest in eradicating drunk driving is indisputable and that this interest outweighed the measure of the intrusion on motorists stopped briefly at sobriety checkpoints, which he described as slight.

In the dissent, William Brennan reminded the Court that, some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action. In pulling people over at random, checkpoints remove this individualized component.

Today, the practice seems to be experiencing a renaissance of sorts. With the help of local police, private government contractors have used the tactic to collect anonymous breath, saliva and blood (DNA) samples of American motorists for the federally fundedNational Roadside Survey of Alcohol and Drugged Driving. Participation in the survey is voluntary, despite the confusion that may come with uniformed police asking for bodily fluids. Motorists are offered $10 for cheek swabs and $50 for blood samples. These practices have sparked considerable publicoutrage; law enforcement officials inSt. Louis, Missouriand Fort Worth, Texashavestatedtheir intent to limit their future participationin the study.

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The chilling loophole that lets police stop, question and search you for no good reason

From Berry v. Leslie (11th Cir. Sept. 16, 2014):

It was a scene right out of a Hollywood movie. On Aug. 21, 2010, after more than a month of planning, teams from the Orange County Sheriffs Office descended on multiple target locations. They blocked the entrances and exits to the parking lots so no one could leave and no one could enter. With some team members dressed in ballistic vests and masks, and with guns drawn, the deputies rushed into their target destinations, handcuffed the stunned occupants and demanded to see their barbers licenses. The Orange County Sheriffs Office was providing muscle for the Florida Department of Business and Professional Regulations administrative inspection of barbershops to discover licensing violations.

We first held 19 years ago that conducting a run-of-the-mill administrative inspection as though it is a criminal raid, when no indication exists that safety will be threatened by the inspection, violates clearly established Fourth Amendment rights. See Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995). We reaffirmed that principle in 2007 when we held that other deputies of the very same Orange County Sheriffs Office who participated in a similar warrantless criminal raid under the guise of executing an administrative inspection were not entitled to qualified immunity. See Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007). Today, we repeat that same message once again. We hope that the third time will be the charm.

The Fourth Amendment guarantees [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Its protections apply to commercial premises, as well as to private homes. In general, the Fourth Amendment requires a warrant supported by probable cause to effectuate a constitutional search. Indeed, this Court has explained, The basic premise of search and seizure doctrine is that searches undertaken without a warrant issued upon probable cause are `per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well-delineated exceptions.

One of those limited exceptions involves administrative inspections of closely regulated industries. Because an owner or operator of commercial property has a reduced expectation of privacy in this context, the standard for what may be reasonable under the Fourth Amendment is correspondingly broader.

To fall within this exception, a warrantless inspection must satisfy three criteria: (1) a `substantial government interest [must] inform[] the regulatory scheme pursuant to which the inspection is made; (2) the inspection must be necessary to further [the] regulatory scheme; and (3) the statutes inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant. The regulatory statute must [also] be sufficiently comprehensive and defined such that it limits the discretion of inspecting officers. Where a statute authorizes the inspection but makes no rules governing the procedures that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.

But even when the criteria set forth above are met, to satisfy the Fourth Amendment, an administrative inspection must be appropriately limited in both scope and execution and may not serve as a backdoor for undertaking a warrantless search unsupported by probable cause. Above all, such inspections may never circumvent the Fourth Amendments requirement for reasonableness. In this regard, an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.

As detailed earlier, the regulatory framework for barbershop inspections in Florida is embodied in Fla. Stat. 476.184 and its implementing rules. In particular, 476.184 requires all barbershops to have a license issued by the DBPR and directs the Florida Barbers Board to adopt rules governing the operation and periodic inspection of barbershops licensed in Florida. Rule 61G3-19.015(1), Fla. Admin. Code, in turn, provides that the DBPR may conduct inspections biennially on a random, unannounced basis. The regulatory framework, which sets forth who may conduct such inspections, notifies barbers that only the DBPR is so authorized. In this case, no one disputes that the DBPR possesses statutory authority to conduct warrantless inspections of barbershops, nor do the parties assert that the statute authorizing such inspections is constitutionally impermissible.

Instead, the plaintiffs contend that the search of Strictly Skillz, which they allege was undertaken with an inordinate display of force, failed to conform to the Fourth Amendments requirement for reasonableness. Because we have twice held, on facts disturbingly similar to those presented here, that a criminal raid executed under the guise of an administrative inspection is constitutionally unreasonable, we agree.

Unlike previous inspections of Strictly Skillz, which were all conducted by a single DBPR inspector without the aid of law enforcement, the August 21 search was executed with a tremendous and disproportionate show of force, and no evidence exists that such force was justified. Despite the fact that neither OCSO nor the DBPR had any reason to believe that the inspection of Strictly Skillz posed a threat to officer safety, the record indicates that several OCSO officers entered the barbershop wearing masks and bulletproof vests, and with guns drawn; surrounded the building and blocked all of the exits; forced all of the children and other customers to leave; announced that the business was closed down indefinitely; and handcuffed and conducted pat-down searches of the employees while the officers searched the premises. Such a search, which bears no resemblance to a routine inspection for barbering licenses, is certainly not reasonable in scope and execution. Rather, [i]t is the conduct of officers conducting a raid.

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Volokh Conspiracy: When administrative inspections of businesses turn into massive armed police raids

The Fourth Amendment By Maison Erdman
description.

By: Monkey5EM

Excerpt from:

The Fourth Amendment By Maison Erdman - Video

When you signed up with your ISP, or with a wireless carrier for mobile devices, if you gave it any thought at all when you signed your name on the contract, you likely didn't expect your activities to be a secret, or to be anonymous, but how about at least some degree of private? Is that reasonable? No, as the law currently suggests that as a subscriber, you "volunteer" your personal information to be shared with third-parties. Perhaps not the content of your communications, but the transactional information that tells things like times, places, phone numbers, or addresses; transactional data that paints a very clear picture of your life and for which no warrant is required.

I'd like to direct your attention to an essay titled "Failing Expectations: Fourth Amendment Doctrine in the Era of Total Surveillance" by Olivier Sylvain, Associate Professor of Law at Fordham University School of Law. He said, "Today's reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials."

Reasonableness is all-important when it comes to the law...what a reasonable person would expect, such as a reasonable expectation of privacy. Although you may try to hold onto your privacy, you also know that most of what you do online can be discovered. "Every moment that a user is connected to the network has become an opportunity to be surveilled by law enforcement and national security agencies." Since we are not all criminals and terrorists, how is that reasonable?

Regarding our cell phones, is it reasonable that our "telecommunication carrier, smartphone manufacturer and others are aware of the location of their cell phone at any given time" because we happened to buy a specific model of phone, signed up with a carrier or installed apps? Additionally, "service providers and governments have forged a public-private collaboration through which law enforcement officials obtain location information about user accounts." In fact, the more we come to accept being tracked, to having our data sold, traded and shared, the more it gnaws away at what the public can consider a reasonable expectation of privacy. Sadly, the new normal is that the Fourth Amendment is in tatters.

For some, ignorance may be bliss; for none, however, is ignorance an excuse in the eyes of the law. Take the third-party doctrine, for example. Sylvain wrote, "Courts have presumed that users consent to the public disclosure of transactional data when they volunteer them to their service providers. The third-party doctrine presumes that, when users share it with third-party service providers, they convey an expectation that the information is not private. And 'it is not a defense that defendants do not control or know about the role of the third-party service provider'."

In the courts, judges want guidance from legislatures, but let's face it; the majority of Congress couldn't fill a thimble with their combined technical prowess. Yet these individuals are working on legislation that eventually determines what can and cannot be done...what is or is not the public's reasonable expectation of privacy.

Sylvain argues that "the reasonable expectation standard is particularly flawed if it has the effect of encouraging judges to seek guidance from legislatures on constitutional norms and principles. Judicial review is the vital antimajoritarian check against excessive government intrusions on individual liberty under our constitutional scheme. This is a responsibility that courts cannot pass off to the political branches when, as is the case today, most people expect that the cost of network connection is total surveillance."

He adds that "court-administered privacy law doctrine must change if the protection against 'unreasonable searches and seizures' is to have any positive legal meaning. The current court-created doctrine will not be able to keep up if it compels judges to measure public expectation. It is time for courts to reassert their positive duty to say what privacy law is."

The reasonable expectation standard and the third-party doctrine have outlived their time and usefulness. Reform is especially urgent today, in the era of total surveillance, when data brokers and governments can aggregate and trade transactional subscriber data about electronic communications so easily. Expectations are difficult to define when everyone, it seems, shares their personal information with service providers and application developers in order to be connected.

Courts should "bring a needed dose of reality to Fourth Amendment analysis by excising any broad assumptions about the nature of user consent in the third-party doctrine. This reform would recognize that users do not generally choose to compromise their data about their phone use (or web browsing or e-mailing) just because they disclose information for the limited purpose of obtaining telecommunications service. Participation in the networked information economy is practically a necessity today."

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Great privacy essay: Fourth Amendment Doctrine in the Era of Total Surveillance

EUREKA SPRINGS -- If you're stopped for a moving traffic violation, does the officer have the right to search your vehicle without a warrant? Ask to look at your cell phone? Detain you for longer than 15 minutes?

Judge Kent Crow addressed those and other questions last week at a program on the Fourth Amendment to the Constitution, given to the local chapter of the Daughters of the American Revolution. What he finds fascinating about the amendment, which protects against unreasonable search and seizure:

"It's an absolute mess," he said. "It has created more litigation than any other amendment."

Crow, whose ancestors fought in the American Revolution, said the Fourth Amendment was a response to English writs of assistance, which gave the king's men the right to enter a home and search it any time they wanted.

"We are a nation of thieves," Crow said. "We were smugglers. We didn't want to pay the king's tax."

What the Fourth Amendment prevents: officers from crossing the threshold of your home without a search warrant specifying what (or who) they are looking for, and where it is likely to be found. If they have a warrant to search your computer, for example, they cannot go through your bedroom drawers or open the refrigerator, he said.

If, however, officers knock on your door and ask to come in and you admit them, then they are free to search the house, he said, something people may not be aware of. There is also a "knock and announce" law, meaning that with a search warrant, they can enter the house after waiting a reasonable time for someone to answer the door. They can also enter your home if there are exigent circumstances, meaning immediate concerns of an emergency nature, for example, for the safety of a person inside.

Once you are served with a search warrant, officers will proceed to the area specified and search while you peruse the warrant, Crow said. If the search is improperly conducted, you can challenge the evidence in court.

Fourth Amendment rulings have had a hard time keeping up with changing technology, Crow said, which have opened up more ways "the king's men" can cross your threshold. The general rule: If you are in a place where you have a reasonable expectation of privacy, for example, in a fenced backyard surrounded by shrubs, the Fourth Amendment protects you from government entry or surveillance.

"The right of privacy keeps expanding," he said.

Excerpt from:

Judge expounds on privacy rights

Apple has announced that it has designed its new operating system, iOS8, to thwart lawful search warrants. Under Apples old operating system, if an iPhone is protected by a passcode that the government cant bypass, the government has to send the phone to Apple together with a search warrant. Apple will unlock at least some of the contents of the phone pursuant to the warrant. Under the new operating system, however, Apple has devised a way to defeat lawful search warrants. Unlike our competitors, Apples new privacy policy boasts, Apple cannot bypass your passcode and therefore cannot access this data. Warrants will go nowhere, as its not technically feasible for [Apple] to respond to government warrants for the extraction of this data from devices in their possession running iOS 8. Anyone with any iPhone can download the new warrant-thwarting operating system for free, and it comes automatically with the new iPhone 6.

I find Apples new design very troubling. In this post, Ill explain why Im troubled by Apples new approach coded into iOS8. Ill then turn to some important legal issues raised by Apples announcement, and conclude by thinking ahead to what Congress might do in response.

Lets begin with a really important point: In general, cryptography is an awesome thing. Cryptography protects our data from hackers, trespassers, and all sorts of wrongdoers. Thats hugely important. And under Apples old operating system, cryptography protects iPhones from rogue police officers, too. Thanks to the Supreme Courts recent decision in Riley v. California, the Fourth Amendment requires a warrant to search a cell phone. Apples old operating system effectively enforced the warrant requirement technologically by requiring the government to serve a warrant on Apple to decrypt the phone.

Up to that point, I think its all good. But the design of Apples new operating system does something really different.

If I understand how it works, the only time the new design matters is when the government has a search warrant, signed by a judge, based on a finding of probable cause. Under the old operating system, Apple could execute a lawful warrant and give law enforcement the data on the phone. Under the new operating system, that warrant is a nullity. Its just a nice piece of paper with a judges signature. Because Apple demands a warrant to decrypt a phone when it is capable of doing so, the only time Apples inability to do that makes a difference is when the government has a valid warrant. The policy switch doesnt stop hackers, trespassers, or rogue agents. It only stops lawful investigations with lawful warrants.

Apples design change one it is legally authorized to make, to be clear. Apple cant intentionally obstruct justice in a specific case, but it is generally up to Apple to design its operating system as it pleases. So its lawful on Apples part. But heres the question to consider: How is the public interest served by a policy that only thwarts lawful search warrants?

The civil libertarian tradition of American privacy law, enshrined in the Fourth Amendment, has been to see the warrant protection as the Gold Standard of privacy protections. The government cant invade our private spaces without a showing that the invasion is justified by the expectation that the search will recover evidence. And the government must go to a neutral magistrate and make that case before it conducts the search. When the government cant make the showing to a neutral judge, the thinking runs, the public interest in privacy outweighs the public interest in solving crime. But when the government does make that showing, on the other hand, the public interest in solving crime outweighs the privacy interest. Thats the basic balance of the Fourth Amendment, most recently found in the stirring civil libertarian language in Riley just a few months ago.

Apples new policy seems to thumb its nose at that great tradition. It stops the government from being able to access the phone precisely when it has a lawful warrant signed by a judge. Whats the public interest in that?

One counterargument I have heard is that there are other ways the government can access the data at least some of the time. With the warrant required under Riley, agents could take a stab at guessing the passcode. Perhaps the phones owner used one of the popular passwords; according to one study, the top 10 most often-used passcodes will unlock about 15% of phones. Alternatively, if the phones owner has backed up his files using iCloud, Apple will turn over whatever has been backed up pursuant to a lawful warrant.

These possibilities may somewhat limit the impact of Apples new policy. But I dont see how they answer the key question of whats the public interest in thwarting valid warrants. After all, these options also exist under the old operating system when Apple can comply with a warrant to unlock the phone. And while the alternatives may work in some cases, they wont work in other cases. And that brings us back to how its in the public interest to thwart search warrants in those cases when the alternatives wont work. Id be very interested in the answer to that question from defenders of Apples policy. And Id especially like to hear an answer from Apples General Counsel, Bruce Sewell.

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Volokh Conspiracy: Apples dangerous game

NEARLY everyone lives by their smartphone these days, including U.S. Supreme Court justices. In Riley v. California, the nations highest court recently acknowledged this, finding all citizens have a Fourth Amendment right of privacy in their cellphones. The often-divided court was unanimous.

Before the Riley decision, lower courts were split on whether it was necessary to obtain a warrant before searching a suspects cellphone. Justice John Roberts definitively settled the dispute: Get a warrant.

The federal and Washington state constitutions are often tested in the context of criminal activity, but the ramifications of this ruling are weighty and will send ripples well beyond criminal suspects. The Riley decision speaks to the privacy rights of all in the digital age, including public employees.

Washington states Constitution provides citizens broader privacy rights than the Fourth Amendment, and the state Supreme Court has been ahead of the U.S. Supreme Court on this issue.

The Riley ruling will help decrease harassment of public employees by prison inmates and others who attempt to use Washington states Public Records Act to violate the privacy rights of teachers, firefighters, police officers, prosecutors and other public servants.

Pierce County and other government entities have been sued by requesters who wrongly claim the Public Records Act is a license to search the personal phones of public servants to determine if there have been work-related conversations or if personal phones were used during work hours. This far-fetched and shortsighted theory violates the privacy of public servants, their families, friends, and everyone who contacts them.

Such lawsuits against Pierce County have been twice dismissed by Superior Court judges, though the issues are continuing to wind through the courts. The Superior Court agreed that personal phone records and text messages are not public records and are protected by both the Washington and U.S. constitutions.

Public servants and other law-abiding citizens do not have fewer rights than criminals.

Some argue public servants could hide behind the state or federal constitution and somehow create shadow governments, and therefore they should give up their constitutional rights. Imagine, teachers could be forced to turn over their personal phones to be searched for public records because they might have talked or texted with a students parent. This is a good premise for a dystopian movie, but a bad law for a free society, and fortunately this is not the law in the United States or in Washington state.

Our federal Supreme Court has specifically held that public employees do not give up their constitutional rights by working for the public. Public employees make sacrifices to serve our communities, but they do not sacrifice their constitutional rights. Like private-sector employees, public-sector employees have a free-speech right to talk about their work and a constitutional right to privacy as well. Private landlines, which do not create public records, did not result in shadow governments and neither will personal cellphones.

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Guest: Why the privacy of a public employees cellphone matters

Like my co-blogger Will Baude, I was very interested in the Ninth Circuits recent case, United States v. Dreyer, suppressing evidence as a violation of the Posse Comitatus Act. I think the case is interesting because it demonstrates a view of the exclusionary rule that I havent seen in a while.

First, some history. Back in the the middle of the 20th Century, the federal courts often found ways to impose an exclusionary rule for statutory violations in federal court. For example, in Nardone v. United States, 302 U. S. 379 (1937) (Nardone I) and Nardone v. United States, 308 U.S. 338 (1939) (Nardone II), the Supreme Court adopted an exclusionary rule for violations of the Communications Act. In McNabb v. United States, 318 U.S. 332 (1943), the Court adopted an exclusionary rule for violations of Rule 5 of the Federal Rules of Criminal Procedure. The Court had a rather free-form approach to the exclusionary rule at the time, in part because suppression was seen as the judiciarys domain. The federal courts had an inherent power to control evidence in their own cases, so the Court could be creative in fashioning what evidence could come in to deter bad conduct. If the government did something really bad, the federal courts had the power to keep the evidence out to deter violations and maintain the integrity of the courts.

By the 1980s, after Warren Court revolution, the Supreme Court had a different view of the exclusionary rule. The scope of the rule had expanded dramatically when it was incorporated and applied to the states. But as a kind of tradeoff for that expansion, the Court cut back on the free-form approach outside core constitutional violations. The Burger and Rehnquist Courts saw suppression as a doctrine that had to be rooted in deterrence of constitutional violations and not just something that courts didnt like or found offensive.

In his post, Will points out a passage from Sanchez-Llamas v. Oregon to that effect. And I would add the earlier case of United States v. Payner, 447 U.S. 727 (1980), in which investigators had intentionally violated one persons Fourth Amendment rights to get evidence they were holding of the suspects crimes. The Sixth Circuit had suppressed the evidence on the basis of the federal courts supervisory power to punish the blatant abuse even though the suspect did not have Fourth Amendment standing to object to the violation. The Supreme Court reversed, blocking courts from using the supervisory power as an end-run around the limits of Fourth Amendment doctrine.

The new Ninth Circuit case, Dreyer, strikes me as a vestige of the mid-20th century free-form view of the exclusionary rule. The lower courts in the 1960s and 1970s had a few areas where they rejected suppression outside of constitutional law but recognized the hypothetical possibility that they might suppress evidence if the facts were particularly egregious. For example, a bunch of circuits held that the Fourth Amendment does not regulate evidence collection by foreign governments not acting in coordination with the U.S., but that they would suppress evidence if the foreign government conduct shocked the conscience. See, e.g., Birdsell v. United States, 346 F.2d 775, 782 n. 10 (5th Cir. 1965); United States v. Cotroni, 527 F.2d 708, 712 n. 10 (2d Cir. 1975). But see United States v. Mount, 757 F.2d 1315, 1320 (D.C. Cir. 1985) (Bork, J., concurring) (arguing based on Payner that lower courts lack supervisory powers to impose an exclusionary rule for searches by foreign governments). The caselaw was never reviewed in the Supreme Court, however, perhaps because those egregious circumstances were not found and the evidence wasnt actually suppressed.

Violations of the Posse Comitatus Act, the issue in the new decision, provides another example. The history seems to run like this. First, in the 1970s, a few courts applied the free-form approach to the exclusionary rule and left open the possibility that violations of the Posse Comitatus Act could lead to exclusion if it were necessary to deter violations. See, e.g.,United States v. Walden, 490 F.2d 372, 37677 (4th Cir. 1974); State v. Danko, 219 Kan. 490 (1976). When the Ninth Circuit reached the issue in 1986, the panel did not focus on the Supreme Courts then-new more skeptical approach to the exclusionary rule. Instead, the Ninth Circuit expanded on the 1970s lower-court cases, indicating that the exclusionary rule would be necessary for violations of the Act if a need to deter future violations is demonstrated. United States v. Roberts, 779 F.2d 565, 568 (9th Cir. 1986). Again, though, this was just a possibility, and the issue was never reviewed.

Dreyer picks up that 28-year-old invitation and concludes that the need has finally been demonstrated and that the exclusionary rule therefore must be applied. Dreyer cites Roberts, which in turn cited Walden. So on its face, the court is at least drawing on precedent.

But it seems to me that Dreyer is very vulnerable if DOJ thinks it is worth challenging in the Supreme Court. Dreyer appears to rely on a line of thinking about the exclusionary rule that the Supreme Court has long ago rejected. Of course, we can debate the normative question of how the Justices should approach the exclusionary rule, either in the context of constitutional violations or statutory violations. But just as a predictive matter, I suspect that todays Court would have a different view of the question than the circuit court cases from the 1970s on which the Ninth Circuits Dreyer decision ultimately relies.

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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Volokh Conspiracy: The posse comitatus case and changing views of the exclusionary rule

Law Talk - Obamacare Rollout; Fourth Amendment, NSA Spying Stop Frisk DUI Check Points lta041
This program was aired on KMVT15 Community Media.

By: KMVT

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Law Talk - Obamacare Rollout; Fourth Amendment, NSA Spying Stop & Frisk DUI Check Points lta041 - Video

The Minnesota Supreme Court has ruled a narcotics officer didn't violate Fourth Amendment search and seizure rules when he opened a package containing cocaine and methamphetamine at an airport.

The St. Cloud Times reports (http://on.sctimes.com/Yz3Ggd) the court upheld a county court decision Wednesday that the removal of the package from a conveyor belt wasn't a seizure and sniffing by a police dog wasn't a search in the 2011 incident.

Twenty-three-year-old Corey Eichers of Avon later received the package and was convicted of first-degree controlled substance crime. He was sentenced to 7 1/2 years in prison.

Eichers argued in the lawsuit that the officer didn't have authority to remove and open the package at the Minneapolis-St. Paul International Airport.

It was sent via UPS air mail and a police dog indicated it contained drugs.

Link:

Minnesota Supreme Court upholds airport drug case decision

SAN MATEO COUNTY, Calif.

The family of a mentally ill woman filed a federal civil rights lawsuit against San Mateo County Sheriffs Office Tuesday after a deputy shot and killed the 18-year-old last June. The suit alleges that the deputy violated Fourth Amendment limits on police authority.

In late August, San Mateo County Yanira Serrano-Garcia's mother broke down as she announced the suit.

With her attorney acting as translator Carmen Serrano-Garcia said, They not only killed Yanira they killed the entire family and the goal is to prevent any other family from suffering this kind of pain."

Serrano-Garcia battled mental illness and on June 3rd her brother, Tony Serrano, called 911 because she refused to take her medication and was fighting with their parents.

In addition to filing suit the family released 911 recordings from the incident. Tony Serrano asked for medical help.

"This is not really an emergency. I'm calling because my sister she has the schizophrenia, he can be heard saying in the 911 recording.

According to the familys attorney Yanira was diagnosed with schizophrenia at 15 years old.

"The Sheriff's Department was aware of that, they had visited her on three prior occasions without incident, said Arnoldo Casillas, family attorney.

In the time it took Deputy Menh Trieu to reach the San Mateo County home, the family says Yanira had taken her medicine and was in the house.

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Family of a mentally ill woman files lawsuit against San Mateo Co. after deadly shooting

NEW YORK, N.Y. - Lawyers for a San Francisco man charged with operating an online marketplace for illegal drugs are asking a judge to toss out most of the evidence against him, saying the Fourth Amendment protects their client from "indiscriminate rummaging" through his entire online history.

The lawyers, Joshua Dratel and Lindsay Lewis, said in court papers that the government violated the ban on illegal search and seizure when it scoured the computers, servers and websites 30-year-old Ross Ulbricht used.

They said applications for search warrants described an investigation that began in early 2013 with a server hosting the Silk Road website in a foreign country.

"The wholesale collection and study of Mr. Ulbricht's entire digital history without limitation expressly sought in the warrants and granted represent the very type of indiscriminate rummaging that caused the American colonists so much consternation," according to the papers filed late Friday in federal court in Manhattan.

Ulbricht has pleaded not guilty to charges of narcotics trafficking, computer hacking, running a continuing criminal enterprise and money laundering. His trial is scheduled to begin Nov. 3.

Prosecutors say Ulbricht went by the online handle the Dread Pirate Roberts, an apparent reference to a character in the movie "The Princess Bride," and turned the underground site into a place where anonymous users could buy or sell contraband and illegal services.

Authorities say Silk Road, which had nearly 1 million registered users by July 2013, generated more than $1 billion in illicit business from January 2011 through September. Federal investigators say Silk Road users anonymously browsed through nearly 13,000 listings under such categories as cannabis, psychedelics and stimulants.

The website used Bitcoin, the tough-to-track digital currency, before it was shut down.

Ulbricht was arrested last year at a public library in San Francisco, where he lived. Authorities said he was chatting online at the time with a co-operating witness. He remains incarcerated without bail.

A prosecutor's spokeswoman declined to comment Monday.

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Defence asks judge in NYC to toss out bulk of evidence in Silk Road case as illegally obtained

The U.S. Department of Justice is current prosecuting Ross Ulbricht for being the apparent mastermind of the illegal narcotics website Silk Road, which was run for years on a hidden website. In defending the prosecution, the U.S. Attorneys Office recently filed a very interesting brief explaining how investigators found the computer server that was hosting the Silk Road (SR) server. Although the brief is about the Fourth Amendment, it has very interesting implications for the Computer Fraud and Abuse Act, the federal computer hacking statute.

The brief explains how the FBI found the SR server:

The Internet protocol (IP) address of the SR Server (the Subject IP Address) was leaking from the site due to an apparent misconfiguration of the user login interface by the site administrator i.e., Ulbricht. FBI agents noticed the leak upon reviewing the data sent back by the Silk Road website when they logged on or attempted to log on as users of the site. A close examination of the headers in this data revealed a certain IP address not associated with the Tor network (the Subject IP Address as the source of some of the data). FBI personnel entered the Subject IP Address directly into an ordinary (non-Tor) web browser, and it brought up a screen associated with the Silk Road login interface, confirming that the IP address belonged to the SR Server.

The FBIs declaration explains that the investigating agent entered miscellaneous information into the login prompt of the Silk Road server and received an error message. A forensic analysis of the error message found that it contained an IP address not associated with Tor. That IP address was the address of the Silk Road server.

The DOJ brief argues that there was nothing unconstitutional or otherwise unlawful about obtaining the inadvertently leaked IP address from the Silk Road server:

There was nothing unconstitutional or otherwise unlawful in the FBIs detection of that leak. The Silk Road website, including its user login interface, was fully accessible to the public, and the FBI was entitled to access it as well. See United States v. Meregildo, 883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012) (noting that web content accessible to the public is not protected by the Fourth Amendment and can be viewed by law enforcement agents without a warrant). The FBI was equally entitled to review the headers of the communications the Silk Road website sent back when the FBI interacted with the user login interface, which is how the Subject IP Address was found.

It does not matter that Ulbricht intended to conceal the IP address of the SR Server from public view. He failed to do so competently, and as a result the IP address was transmitted to another party which turned out to be the FBI who could lawfully take notice of it. See United States v. Borowy, 595 F.3d 1045, 1048 (9th Cir. 2010) (finding that defendant had no legitimate privacy interest in child pornography files posted on peer-sharing website, notwithstanding that defendant had made ineffectual effort to use site feature that would have prevented his files from being shared); United States v. Post , __ F. Supp. 2d __, 2014 WL 345992, at *2-*3 (S.D. Tex. Jan. 30, 2014) (finding that defendant had no legitimate privacy interest in metadata used to identify him that was embedded in file he had posted on Tor website, notwithstanding that he did not realize he was releasing that information and he intended to remain anonymous).

In short, the FBIs location of the SR Server was lawful, and nothing about the way it was accomplished taints any evidence subsequently recovered in the Governments investigation.

I wonder: Does DOJs position that there is nothing . . . unlawful about this procedure mean that DOJ concedes that it would not violate the Computer Fraud and Abuse Act, 18 U.S.C. 1030, the federal computer hacking statute?

The FBIs location of the SR server brings to mind the prosecution of my former client Andrew Auernheimer, aka weev, who readers may recall was criminally prosecuted for his role in visiting website addresses on an AT&T server that AT&T had thought and hoped would not be found by the public. Auernheimers co-conspirator found that AT&T had posted e-mail addresses on its server at IP addresses that the public was not expected to find.

Here is the original post:

Volokh Conspiracy: Does obtaining leaked data from a misconfigured website violate the CFAA?

Last month, Ross Ulbrichtthe alleged Silk Road mastermind who is facing trial in November for multiple drug and ID fraud chargesfiled a motion arguing that his Fourth Amendment rights had been violated in the governments seizure of the Silk Road servers and subsequent searches. In response, the prosecution has revealed for the first time how the government was able to uncover and seize the servers of the online drug bazaar.

Ever since the servers were seized in October 2013, the take down of the Silk Road remained a shadowy government secret. Now, the feds have shed some light on their actions in a 59-page rebuttal and 10-page letter letter from former FBI agent Christopher Tarbell filed on Friday.

According to the rebuttal, the downfall of the Silk Road was as simple as some leaky code. The server was located by the FBI New York Field Office in June 2013, when FBI agents noticed the servers Internet protocol (IP) address leaking in traffic sent from the Silk Road website when FBI agents interacted with it. After examining the leaking IP addresses, the FBI says it found IP addresses that were not associated with the Tor network. When those IP addresses were entered into a non-Tor web browser, a partial Silk Road login screen appeared, which the FBI saw as confirmation that the IP addressed belonged to the Silk Road server.

The FBIs next step was to contact authorities in Iceland, where the servers were located and ask for routing information and images of the server contents. The Reykjavik Metropolitan Police sent the FBI routing information, which revealed a high volume of Tor traffic flowing to the server. The RMP then sent the FBI server images containing databases of vendor postings, transaction records, private messages between users, and other data reflecting user activity, which confirmed that the servers were hosting the Silk Road. Additionally, computer code from the servers in Iceland led the feds to a Silk Road server backup at a data center in Pennsylvania. After obtaining warrants, the FBI searched those databases twice before seizing the servers in October.

In the scenario described by the FBI, the takedown of the Silk Road happened not because of a Tor software failure but because of a failure to properly secure the website, according to Forbes contributor and Tor expert Runa Sandvik. To have a secure Tor service, one needs to ensure that the code is secure, that the web server only accepts connections from Tor, and that the server does not reveal its real IP address. The vulnerability through which the FBI says it discovered the servers is surprisingly simple. Sandvik says shes surprised that the FBI would be the first to discover a vulnerability that simple when there were Silk Road users hunting for bugs daily on the website.

Beyond satisfying curiosity, the way the Silk Road servers were seized has important implications for evidence in Ulbrichts case. According to the fruit of a poisonous tree argument presented by Ulbrichts attorney Joshua Dratel in the July motion, if the original searches violated Ulbrichts rights, then all evidence stemming from those searches should be suppressed.

The rebuttal makes the claim that all FBI searches were legal and not violations of Ulbrichts rights. In short, notwithstanding the lengthy exposition of Fourth Amendment jurisprudence in Ulbrichts briefmost of which has nothing to do with this casehis various claims are bereft of any support of the law, the rebuttal reads. Because the servers were located overseas, the FBI says it didnt need a warrant to ask foreign authorities to search the serves, and the rest of the 59-page rebuttal argues for the legality of the rest of the searches leading up to Ulbrichts arrest.

Presented with both the defenses motion and the prosecutions rebuttal, the courts will make a decision about whether to uphold or deny the motion to suppress evidence because of a Fourth Amendment rights violation. In July, Judge Katherine Forrest denied Ulbrichts first motion to dismiss charges. That motion asked if Ulbricht could be charged with money laundering when Bitcoin isnt recognized as currency, and if he could be charged with drug trafficking for simply running the Silk Road website.

Ulbricht has pleaded not guilty to all charges, and his trial is scheduled to begin on November 3, 2014.

Check out the rest of the Forbes Silk Road coverage here.

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The Feds Explain How They Seized The Silk Road Servers

YOU CAN ARREST ME NOW (cops refuse, steal phone)
(07/29/2014) Butler, PA The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights that prohibits unreasonable searches and seizures and requires...

By: muchmusic16001

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YOU CAN ARREST ME NOW (cops refuse, steal phone) - Video

Fourth Amendment:Searches and SeizuresWhat is the Fourth Amendment?The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.The Fourth Amendment Defined:Like the majority of fields within American law, the Fourth Amendment is heavily rooted in the English legal doctrine. In a general sense, the Fourth Amendment was created to limit the power of the government and their ability to enforce legal actions on individuals. The Fourth Amendment was adopted as a direct response to the abuse of the writ of assistance, which was a type of general search warrant used by the government during the American Revolution. The Amendment was created to limit the powers of the law enforcement agency who is conducting a search of an individuals personal property.The Fourth Amendment is a part of the Bill of Rights, which are the first 10 Amendments to the United States Constitution and the framework to elucidate upon the freedoms of the individual. The Bill of Rights were proposed and sent to the states by the first session of the First Congress. They were later ratified on December 15, 1791.The first 10 Amendments to the United States Constitution were introduced by James Madison as a series of legislative articles and came into effect as Constitutional Amendments following the process of ratification by three-fourths of the States on December 15, 1791.Stipulations of the 4th AmendmentThe Fourth Amendment guards against the governments ability to conduct unreasonable search and seizures when the individual party being searched has a reasonable exception of privacy.The Fourth Amendment specifically requires a law enforcement agency to possess judicially sanctioned search and arrest warrants, which are supported by probable clause, to be administered before a persons property can be inspected.The Fourth Amendment ties in numerous limitations whereby an individual may be searched without a warrant given the presence of certain circumstances. The individuals property may be searched and seized if: The individual is on parole or in a tax hearing, faces deportation, the evidence is seized from a common carrier, the evidence is collected by U.S. customs agents, the evidence is seized by probation officers, the evidence is seized outside of the United States, or probable cause is evident.Court Cases tied into the 4th AmendmentIn Mapp v. Ohio, the Supreme Court ruled that the Fourth Amendment is enforceable and should be applied to all states in the Union by way of the Due Process Clause of the Fourteenth Amendment. Additionally, the Supreme Court ruled that certain searches and seizures were in direct violation of the Fourth Amendment even when a warrant was properly issued to the coordinating law enforcement agencies.State Timeline for Ratification of the Bill of RightsNew Jersey:November 20, 1789; rejected article IIMaryland:December 19, 1789; approved allNorth Carolina:December 22, 1789; approved allSouth Carolina: January 19, 1790; approved allNew Hampshire: January 25, 1790; rejected article IIDelaware: January 28, 1790; rejected article INew York: February 27, 1790; rejected article IIPennsylvania: March 10, 1790; rejected article IIRhode Island: June 7, 1790; rejected article IIVermont: November 3, 1791; approved allVirginia: December 15, 1791; approved all

Fourth Amendment:Searches and Seizures

What is the Fourth Amendment? The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment Defined: Like the majority of fields within American law, the Fourth Amendment is heavily rooted in the English legal doctrine. In a general sense, the Fourth Amendment was created to limit the power of the government and their ability to enforce legal actions on individuals. The Fourth Amendment was adopted as a direct response to the abuse of the writ of assistance, which was a type of general search warrant used by the government during the American Revolution. The Amendment was created to limit the powers of the law enforcement agency who is conducting a search of an individuals personal property.

The Fourth Amendment is a part of the Bill of Rights, which are the first 10 Amendments to the United States Constitution and the framework to elucidate upon the freedoms of the individual. The Bill of Rights were proposed and sent to the states by the first session of the First Congress. They were later ratified on December 15, 1791.

The first 10 Amendments to the United States Constitution were introduced by James Madison as a series of legislative articles and came into effect as Constitutional Amendments following the process of ratification by three-fourths of the States on December 15, 1791.

Stipulations of the 4th Amendment The Fourth Amendment guards against the governments ability to conduct unreasonable search and seizures when the individual party being searched has a reasonable exception of privacy.

The Fourth Amendment specifically requires a law enforcement agency to possess judicially sanctioned search and arrest warrants, which are supported by probable clause, to be administered before a persons property can be inspected.

The Fourth Amendment ties in numerous limitations whereby an individual may be searched without a warrant given the presence of certain circumstances. The individuals property may be searched and seized if: The individual is on parole or in a tax hearing, faces deportation, the evidence is seized from a common carrier, the evidence is collected by U.S. customs agents, the evidence is seized by probation officers, the evidence is seized outside of the United States, or probable cause is evident.Court Cases tied into the 4th Amendment In Mapp v. Ohio, the Supreme Court ruled that the Fourth Amendment is enforceable and should be applied to all states in the Union by way of the Due Process Clause of the Fourteenth Amendment. Additionally, the Supreme Court ruled that certain searches and seizures were in direct violation of the Fourth Amendment even when a warrant was properly issued to the coordinating law enforcement agencies.State Timeline for Ratification of the Bill of Rights New Jersey:November 20, 1789; rejected article II

Maryland:December 19, 1789; approved all

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4th Amendment - Laws.com

Published: Tuesday, September 2, 2014 at 6:54 p.m. Last Modified: Tuesday, September 2, 2014 at 6:54 p.m.

DAYTONA BEACH The city has been hit with a federal civil rights lawsuit alleging its 2-year-old residential rental inspection program is unconstitutional.

A lawsuit filed Tuesday in U.S. District Court accuses the city of violating local renters and landlords Fourth Amendment and 14th Amendment rights. The suit argues city inspectors should have probable cause to believe theres been a violation of law and search warrants before they enter leased homes, and that poor people and minorities are being discriminated against because they most often are renters.

The potential for perverse abuse of this power the city claims to have is stunning, said Ponte Vedra Beach attorney Andrew M. Bonderud, the plaintiffs lawyer in the legal action.

Bonderud is representing landlord Jack Aberman, who owns dozens of properties on Daytonas beachside, and three of his tenants. Aberman, a shareholder in GEA Seaside Investment Inc., hasnt allowed inspectors inside his rental homes and hes been papered to death by the city with demands to inspect, Bonderud said.

City Attorney Marie Hartman said Tuesday she hadnt read the lawsuit yet and couldnt comment. Mike Garrett, the citys chief building official, couldnt be reached for comment.

The city has long inspected large rental properties with five or more units, but it wasnt until the summer of 2012 that city commissioners OKd a program that would regularly allow an inspector into rental homes with one to four units to look for everything from broken steps to electrical hazards. The program aims to send an inspector to every rental property with four units or less throughout the city, but its starting with the beachside, where theres a large concentration of older homes that have been subdivided into apartments.

Community leaders and government officials argue overhauling the citys beachside residential rental stock is vital to reviving the area. More than 1,100 rental units have been inspected so far, and nearly half have been cited for code violations.

Those who comply and make repairs quickly are out only the $50 per unit inspection charge and another $40 for an application fee. Those who have not made themselves available for the program or who have not fixed problems are being sent to a special magistrate for hearings.

Delinquent landlords face fines or liens attached to their rental homes. Bonderud argues in his lawsuit that the special magistrate and other city officials have powers that are too broad under the city rental inspection law.

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Suit charges Daytona Beach's rental inspection program violates civil rights