Contractor charged with leaking classified NSA info on …

CNN is told by sources that the document Winner allegedly leaked is the same one used as the basis for the article published Monday by The Intercept, detailing a classified National Security Agency memo. The NSA report, dated May 5, provides details of a 2016 Russian military intelligence cyberattack on a US voting software supplier, though there is no evidence that any votes were affected by the hack.

US intelligence officials tell CNN that the information has not changed the January 2017 Intelligence Community Assessment, which found: "Russian intelligence obtained and maintained access to elements of multiple US state or local electoral boards. DHS assesses that the types of systems Russian actors targeted or compromised were not involved in vote tallying."

Prosecutors say when confronted with the allegations, Winner admitted to intentionally leaking the classified document -- and she was arrested June 3 in Augusta, Georgia.

An internal audit revealed Winner was one of six people who printed the document, but the only one who had email contact with the news outlet, according to the complaint. It further states that the intelligence agency was subsequently contacted by the news outlet on May 30 regarding an upcoming story, saying it was in possession of what appeared to be a classified document.

The Intercept's director of communications Vivian Siu told CNN the document was provided anonymously.

"As we reported in the story, the NSA document was provided to us anonymously. The Intercept has no knowledge of the identity of the source," Siu said.

"Releasing classified material without authorization threatens our nation's security and undermines public faith in government. People who are trusted with classified information and pledge to protect it must be held accountable when they violate that obligation," Deputy Attorney General Rod Rosenstein said in a statement Monday.

Winner faces up to 10 years in prison for leaking classified information. Winner's court-appointed attorney, Titus Nichols, said a detention hearing will take place on Thursday in Augusta, where the judge will determine whether to release her on bond. Winner did not enter a plea in her initial appearance Monday.

Last month Attorney General Jeff Sessions slammed leaks in the wake of the Manchester attacks, saying: "We have already initiated appropriate steps to address these rampant leaks that undermine our national security."

Winner's mother said that her daughter is "touch and go" in an interview with CNN on Monday.

"I think she's trying to be brave for me," Billie Winner said. "I don't think she's seeing a light at the end of the tunnel."

She also said her daughter wasn't especially political and had not ever praised past leakers like Edward Snowden, to her knowledge. "She's never ever given me any kind of indication that she was in favor of that at all," her mother said. "I don't know how to explain it."

Nichols told CNN that Winner spent six years in the military, speaks Farsi and Pashtun, and has been with her current company since 2017. He added that he has not received any evidence from the government about the arrest warrant and case files, and hasn't seen evidence of a relationship between his client and the reporter.

"She's just been caught in the middle of something bigger than her," Nichols said.

Virginia Sen. Tim Kaine, the former Democratic vice presidential candidate, said on CNN's "Erin Burnett OutFront" that people who leak classified information should face the full force of the law, but added that Americans need to know much more about alleged Russian attempts to influence the election.

"Somebody who leaks documents against laws has got to suffer the consequences" Kaine said. "But the American public is also entitled to know the degree to which Russia invaded the election to take the election away from American voters."

Kaine noted he knew of no evidence that showed Russia affected machine voting totals and said he was referring to intelligence assessments that Russia had acted to influence the election.

The October information appears to be part of what is contained in the new NSA document, but the document contains additional details.

Most significantly, as CNN reported at the time, and The Intercept also reports Monday based on the this document, that there is still no evidence any votes were affected by Russian hacking.

CNN's David Shortell and Nick Valencia contributed to this report.

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NSA contractor accused of leaking top secret report on …

A federal contractor was arrested over the weekend and accused of leaking a classified report containing "Top Secret level" information on Russian hacking efforts during the 2016 presidential election.

Reality Leigh Winner, 25, appeared in U.S. District Court in Augusta, Ga., to face one charge of removing classified material from a government facility and mailing it to a news outlet, theJustice Department said Monday.

Winner's arrest was announced shortly after the Intercept website published a story detailing how Russian hackers attacked at least one U.S. voting software supplier and sent so-called "spear-phishing" emails to more than 100 local election officials at the end of October or beginning of November.

The Justice Department did not specify that Winner was being charged in connection with the Intercept's report. However, the site noted that the National Security Agency (NSA) report cited in its story was dated May 5 of this year. An affidavit supporting Winner's arrest also said that the report was dated "on or about" May 5.

The Intercept contacted the NSA and the national intelligence director's office about the document and both agencies asked that it not be published. U.S. intelligence officials then asked The Intercept to redact certain sections. The Intercept said some material was withheld at U.S. intelligence agencies' request because it wasn't "clearly in the public interest."

The report said Russian military intelligence "executed cyber espionage operations against a named U.S. company in August 2016 evidently to obtain information on elections-related software and hardware solutions, according to information that became available in April 2017."

The hackers are believed to have then used data from that operation to create a new email account to launch a spear-phishing campaign targeting U.S. local government organizations, the document said. "Lastly, the actors send test emails to two non-existent accounts ostensibly associated with absentee balloting, presumably with the purpose of creating those accounts to mimic legitimate services."

The document did not name any state.

The information in the leaked document seems to go further than the U.S. intelligence agencies' January assessment of the hacking that occurred.

The Washington Examiner reported that Winner worked forPluribus International Corporation and was assigned to a U.S. government facility in Georgia. She had held a top-secret classified security clearance since being hired this past February. The affidavit sworn by FBI agent Justin Garrick said that she had previously served in the Air Force and held a top-secret security clearance.

Late Monday, Wikileaks founder Julian Assange tweeted his support for Winner.

Winner's attorney, Titus Thomas Nichols, declined to confirm whether she is accused of leaking the NSA report received by The Intercept. He also declined to name the federal agency for which Winner worked.

"My client has no (criminal) history, so it's not as if she has a pattern of having done anything like this before," Nichols told the Associated Press in a phone interview Monday. "She is a very good person. All this craziness has happened all of a sudden."

Garrick said in his affidavit that the government was notified of the leaked report by the news outlet that received it. He said the agency that housed the report determined only six employees had made physical copies. Winner was one of them. Garrick said investigators found Winner had exchanged email with the news outlet using her work computer.

Garrick's affidavit said he interviewed Winner at her home Saturday and she "admitted intentionally identifying and printing the classified intelligence reporting at issue" and mailing it to the news outlet.

Asked if Winner had confessed, Nichols said, "If there is a confession, the government has not shown it to me."

House Oversight Committee Chairman Rep. Jason Chaffetz, R-Utah, praised the arrest in an appearance on Fox News' "The Story with Martha MacCallum."

"When you have classified information, you cannot put that out there just because you think it would be a good idea," Chaffetz said. "I want people in handcuffs and I want to see people behind bars."

Chaffetz also criticized federal agencies for failing to protect sensitive information after a series of high-profile leaks.

"They have hundreds of thousands of people that have security clearances," Chaffetz said. "There are supposed to be safeguards in there ...But how many times do we have to see this story happen? They obviously dont have the safeguards."

The Associated Press contributed to this report.

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What we know about the leaked NSA report on Russia

Reality Winner, a government contractor accused of leaking top secret National Security Agency intelligence on Russias alleged interference in last years election, was arrested on Monday, according to court documents filed in the case.

Within hours of the arrest, the Department of Justice announced she had been charged with removing classified material from the government facility where she worked and mailing it to a news outlet. She could now face 10 years in prison.

A source with knowledge of the matter later confirmed to ABC News that the charges stemmed from a May 5, 2017, intelligence document published on Monday by The Intercept, an online news organization best known for its publication and coverage of leaked documents on government activities provided by Edward Snowden.

Winner's background

Winner of Augusta, Georgia, is a contractor with Pluribus International Corporation, authorities said. She had been working at an unidentified government facility in Georgia "since on or about Feb. 13" and held a top secret security clearance, according to authorities.

She is a former Air Force linguist who speaks Pashto, Farsi and Dari, according to her attorney, and had recently worked as a yoga instructor at Oh Yeah Yoga in Augusta.

"She is still in federal custody and we have a detention hearing on Thursday to determine if shell be released before trial," her attorney, Titus Thomas Nichols, told ABC News in a statement Monday night. "Shes a good person with no criminal history who is caught in a political whirlwind."

Winners mother, Billie Winner-Davis, described her as a "very passionate" person who was outspoken about her beliefs.

"Very passionate about her views and things like that, but shes never to my knowledge been active in politics or any of that, Winner-Davis told The Daily Beast on Monday.

How the alleged leak started

On March 22, The Intercept hosted a podcast online looking at, among other things, the public outcry over Russia's alleged collusion with associates of President Donald Trump and the Kremlin's alleged interference in last year's presidential election.

Host Jeremy Scahill said "there is a tremendous amount of hysterics" and "a lot of premature conclusions being drawn around all of this Russia stuff," but "there's not a lot of hard evidence to back it up."

Appearing as a guest on the podcast, Intercept reporter Glenn Greenwald agreed, saying that while "it's very possible" Russia was behind election-related hacks last year, "we still haven't seen any evidence for it."

Little more than a week later, Winner allegedly used a Gmail account to contact The Intercept, and she "appeared to request transcripts of a podcast," court documents said.

More than a month later, the NSA secretly issued the classified document now at the center of the leak case. And within days, Winner allegedly found it, printed it out and mailed it to The Intercept.

How it all came to light

On May 30, three weeks after Winner allegedly printed the classified document, The Intercept contacted the U.S. government, likely through the NSA, to discuss an upcoming story based on the intelligence document it had obtained. The Intercept even shared a copy of the document with government officials, who confirmed that it was indeed classified at the top secret level, "indicating that its unauthorized disclosure could reasonably result in exceptionally grave damage to the national security," the affidavit said.

Two days later, the FBI was notified of the matter and initiated an investigation to determine the source of the leak.

Further analysis of the documents showed that they "appeared to be folded and/or creased, suggesting they had been printed and hand-carried out of a secure space," according to the affidavit.

Winner was one of just six individuals who had printed the intelligence document, according to an internal audit of the agency that housed the report. The audit also revealed that Winner was the only individual of the group that had email contact with the news outlet.

FBI agent Justin Garrick said in the affidavit filed with the court that he interviewed Winner at her home on Saturday and that she "admitted intentionally identifying and printing the classified intelligence reporting at issue" and sent it to a news outlet.

The news outlet was not identified in the charging documents, but a source with knowledge of the matter confirmed that the charges were connected to The Intercepts Monday report titled: "Top-Secret NSA report details Russian hacking effort days before 2016 election."

The potential impact

As stated above, the leaked document has provided the public with the most detailed account yet of how Russian hackers targeted American election systems.

The Intercept posted a redacted classified NSA document, detailing how Russian hackers allegedly infiltrated outside vendors dealing with voter-related information ahead of last year's presidential election.

The document said Russian military intelligence "executed cyber espionage operations against a named U.S. company in August 2016 evidently to obtain information on elections-related software and hardware solutions, according to information that became available in April 2017."

ABC News' Mike Levine contributed to this report.

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What we know about the leaked NSA report on Russia

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Feds Arrest NSA Contractor in Leak of Top Secret Russia …

Barely an hour after a news organization published an article about a top-secret National Security Agency document on Russian hacking, the Justice Department announced charges against a 25-year-old government contractor who a senior federal official says was the leaker of the document.

The May 5, 2017, intelligence document published by The Intercept, an online news organization, describes new details about Russian efforts to hack voting systems in the U.S. a week prior to the 2016 presidential election. While the document doesnt say the hacking changed any votes, it "raises the possibility that Russian hacking may have breached at least some elements of the voting system, with disconcertingly uncertain results."

Even as the document was ricocheting around Washington, the Justice Department announced that a criminal complaint was filed in the Southern District of Georgia, charging Reality Leigh Winner, 25, a federal contractor, with removing classified material from a government facility and mailing it to a news outlet.

The complaint did not link the charges with the story, but a senior federal official confirmed to NBC News that Winner is the accused leaker of the document published by the Intercept. The NSA has a large facility in Georgia.

The complaint says she admitted to printing out the document and mailing it to the news outlet.

It adds that the government found evidence that Winner "had email contact" with the news outlet, and that Winner was one of just six individuals who had viewed the intelligence reporting since the U.S. government published it internally.

Related: NSA Leak Mystery Not Solved With Arrest of Hal Martin

She was arrested by the FBI at her home Saturday, according to a senior federal official. She faces a single charge of "gathering, transmitting or losing defense information."

Winner is a contractor with Pluribus International Corporation, authorities said. She had been employed at the facility since on or about February 13, and held a Top Secret clearance.

Her attorney, Titus Thomas Nichols, told NBC News that his client is "looking forward to putting this behind her," and has no prior criminal history.

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FBI Arrests Federal Contractor In Leak Of NSA Report On …

WASHINGTON A government contractor in Georgia was arrested this weekend after a classified National Security Agency reportwas leaked on an alleged cyberattack attempt by Russian military intelligence officers on a voting software company and local election officials.

Reality Leigh Winner, a 25-year-old federal contractor for Pluribus International Corp. who had a top secret security clearance and was working at a government agency, was arrested by FBI agents Saturday at her home in Augusta, Georgia, according to the Justice Department.

The Intercept published a storyMonday on a highly classified May 5 intelligence report the outlet had received anonymously thatanalyzes intelligence very recently acquired by the agency about a months-long Russian intelligence cyber effort against elements of the U.S. election and voting infrastructure.

Reuters

The Justice Department announced Winners arrest hours after The Intercept story was published. While it did not name The Intercept or the NSA, the details included in an affidavit from an FBI agent leave little doubt the case revolves around the disclosure of the May 5 NSA report that The Interceptpublished online.

The affidavit states that an Intelligence Community Agency was contacted by a News Outlet about an upcoming story on May 30.The news outlet gave the agency a copy of the May 5 document, and the agency determined the pages of the intelligence reporting appeared to be folded and/or creased, suggesting they had been printed out and hand-carried out of a secure place, the affidavit states. The copy of the May 5 report published by The Intercept shows creases that make it appear it was folded to fit into a letter-sized envelope.

The NSA conducted an internal audit and determined that six people had printed the May 5 report. The agency audited six desktop computers and found that Winner had email contact with the news outlet and that no others had communicated with the publication.

Winner, who had worked for Pluribus since February, reportedly admitted to government agents Saturday that she had printed the report, removed it from her office and mailed it to the news outlet from Augusta. Winner also allegedlyacknowledged that she was aware of the contents of the intelligence reporting and that she knew the contents of the reporting could be used to the injury of the United States and to the advantage of a foreign nation, the FBI affidavit said.

Winner, an Air Force veteran, has been an outspoken critic of the Trump administration on Twitter, tagging the presidents Twitter account in multiple messages.

Winners mother, Billie Winner-Davis,told Guardian reporter Jon Swaine that she is a former U.S. Air Force linguist who speaks Pashto, Farsi and Dari. But she was not able to provide any insight into her daughters arrest.

I dont know who she might have sent it to, Winners mother told The Daily Beast in an interview, adding that Justice Department officials were very vague.

They said she mishandled and released documents that she shouldnt have, but we had no idea what it pertained to or who.

She called us yesterday night. She asked if we could help out with relocating her cat and dog, she said.

The Intercept indicated it does not know who sent the document but was able to independently authenticate it.

As we reported in the story, the NSA document was provided to us anonymously, Ryan Grim, the Washington bureau chief of The Intercept, said in an email. The Intercept has no knowledge of the identity of the source.(Grim is HuffPosts former Washington bureau chief.)

Notably, the quote included in the DOJ press release on the case comes from Deputy Attorney General Rod Rosenstein rather than Attorney General Jeff Sessions, who had recused himself from cases involving Russia and the 2016 campaign.

Exceptional law enforcement efforts allowed us quickly to identify and arrest the defendant, Rosensteins statement said. Releasing classified material without authorization threatens our nations security and undermines public faith in government. People who are trusted with classified information and pledge to protect it must be held accountable when they violate that obligation.

President Donald Trump has told the Justice Department to get more aggressive in cracking down on leaks. He reportedly told former FBI Director James Comey to consider jailing journalists.

Leaks to journalists occur every day, as they have for decades, and are a vital source of information for the public in our democracy, said ACLU attorney Patrick Toomey. It would be deeply troubling if this prosecution marked the beginning of a draconian crackdown on leaks to the press by the Trump administration.

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NSA Leaker: ‘Being White Is Terrorism’ | The Daily Caller

The woman charged by the Department of Justice with stealing Top Secret information from the National Security Agency apparently believes being white is a form of terrorism.

Thats according to a tweet the alleged leaker, Reality Winner, sent in February. Winner, who is herself white, tweeted at rapper Kanye West that he should make a shirt declaring whiteness an act of terror.

@kanyewest you should make a shirt that says, being white is terrorism, she tweeted.

Winners social media history is filled with left-wing messages and support for progressives like Bernie Sanders, as The Daily Callers Chuck Ross has previously documented. (RELATED: NSA Leaker Is A Bernie Supporter Who Resists Trump)

The majority of her recent tweets are angrily directed against President Donald Trump, in particular rehashing the liberal trope about tiny hands. She has also called the president an orange fascist, a cunt and bashed his selection of Confederate General Jeff Sessions amounts to racism. Sessions is head of the agency currently prosecuting Winner.

Winner held a Top Secret security clearance for her job at Pluribus International, an NSA contractor. She reportedly is the source for The Intercepts Monday report about previously unknown Russian interference in the 2016 election. (RELATED: Trump Admin Catches One Of The Leakers)

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NSA Leaker: 'Being White Is Terrorism' | The Daily Caller

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NSA Leaker Is A Bernie Supporter Who ‘Resists’ Trump | The …

The 25-year-old woman who stole Top Secret documents from the National Security Agency and leaked them to The Intercept appears to be a supporter of Bernie Sanders and other progressive icons, such as Bill Maher and Michael Moore.

Reality Leigh Winners apparent social media footprint also shows that she is a supporter of other liberal causes, including the Womens March and the Islamic Society of North America, the Muslim civil rights group.

She also recently referred to President Trump as a piece of shit because of his position on the Dakota Access Pipeline (DAPL) protests.

Winner was indicted in federal court on Monday after she allegedly stole classified documents from her employer, Pluribus International, a defense contractor that does work for the NSA from its offices in Augusta, Ga.

Winner admitted to FBI agents that she stole the documents and provided them to The Intercept. The news site published an article on Monday that appears to be based on the stolen materials.The Top Secret records show that Russian agents attempted to hack into U.S. voting systems prior to the November election.

The federal complaint filed against Winner reveals that she stole the classified documents on May 9, four days after they were published by the NSA. She printed the report and sent it through ground mail to The Intercept. On May 30, a reporter with the outlet contacted the NSA inquiring about the documents. The agency then contacted the FBI, which dispatched agents to interview and apprehend Winner at her home in Augusta.

Other than her left-leaning Facebook page, Winner has a limited online footprint. One news article from the Kingsville (Tex.) Record shows that she graduated from Air Force basic training in March 2011.

A photo of Winner has not been publicly released, but her Facebook page includes information that matches details contained in a federal indictment filed against her in New York on Monday.

The indictment states that Winner has blonde hair and is five-feet-five.The document also mentions that Winner was planning a vacation to Belize last month and that she drives a light-colored Nissan Cube. Winners social media accounts show that she visited Belize and drives a car matching that description.

Jon Swaine, a reporter with The Guardian, also identified Winner.

Winners posts on Facebook suggest that she is politically active.

OnFeb. 14, a day after Winner took her Top Secret job at Pluribus, Winner posted a photo outside of the Atlanta offices of Georgia Sen. David Perdue.

Winner wrote that she had a 30-minute private meeting with the Republican lawmakers state policy director.

She said they discussed my concerns regarding climate change and what the state of Georgia is doing to reduce dependency on fossil fuels.

Meanwhile, my plea that our senators not be afraid to directly state when our president or his cabinet tell outright lies was well heard. I was able to draw the parallel between the 2011 interview of President Bashar al Assad claiming utter ignorance of the human rights violations his citizens were protesting to Trumps statement last week that the White House hadnt received any calls about the DAPL, nor were there any protests before last week. They got the message, she wrote.

A spokeswoman for Perdue released a statement on Tuesday calling the allegations against Winner very serious.

The allegations against Ms. Winner are very serious, and if true, directly threaten our national security.Wetrust our Justice Department will get to the bottom of this and handle it appropriately, the spokeswoman said.

Winner was heavily critical of Trump just after he took office. She used the hashtag NeverMyPresident and Resist in a Facebook post about his position on DAPL.

Winner posted on Facebook most recently on Friday, the day before she was interviewed by the FBI.

You are what you love, not who loves you, she wrote.

This article has been updated with additional information, including about Winners meeting in February at the offices of Georgia Sen. David Perdue.

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How Did Accused NSA Leaker Reality Winner Get Security Clearance? – NBCNews.com

Reality Leigh Winner, 25, a federal contractor charged by the U.S. Department of Justice for sending classified material to a news organization, poses in a picture posted to her Instagram account. Reality Winner / Instagram via Reuters

"Its a new kind of insider threat that the agency cant defend against," Aid said.

And its getting worse, he added, in part because "Donald Trump and the change in the political scene in America has created an environment for a lot of people who feel that they have to DO something. You become an instant activist."

Winner was vocal in her opposition to Trump on social media, but her motives are unclear. According to federal charging documents, she admitted to mailing a Top Secret document detailing Russian hacking intelligence to the news media. She faces one count of "gathering, transmitting or losing defense information."

The lines are blurry, but Winner and those like her seem in a different class than the Washington insiders who have always leaked to settle internal scores or to make policy points. They are small fries, far from the nations power centers, inside a vast intelligence apparatus who decide the public needs to know what they do. Manning leaked from Baghdad; Snowden was based in Hawaii; Winner was in Georgia.

"These are people who have a greater sense of loyalty to some outside cause than to the organization they are working in, and thats a new thing for the intelligence community," said a former senior NSA official, who asked not to be named so he could speak more candidly about sensitive topics.

There is another dimension, another former NSA official said: Too much information is classified, and everyone working in intelligence knows it.

Related:

Indeed, the document Winner allegedly leaked did not seem, on its face, to be terribly sensitive. The U.S. government, after all, was perfectly willing to acknowledge its authenticity by charging Winner barely an hour after the story broke on The Intercept, as if to send a message. The charging documents dont link the case to The Intercept, but officials quickly did so in background comments to reporters.

Her attorney, Titus Thomas Nichols, said Winner has yet to enter a plea, although a detention hearing is scheduled for Thursday. She remains jailed in Lincoln County.

"A week ago today she was living her life," he said. "Now shes in the middle of a political whirlwind."

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How Did Accused NSA Leaker Reality Winner Get Security Clearance? - NBCNews.com

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Accused NSA leaker cursed out Trump in social media posts – New York Post


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Accused NSA leaker cursed out Trump in social media posts
New York Post
When she's not leaking government secrets she's crushing it at the gym and cursing out the Leader of the Free World. Reality Leigh Winner, the 25-year-old contractor accused of leaking classified NSA documents, is a die-hard CrossFit competitor who ...

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Accused NSA leaker cursed out Trump in social media posts - New York Post

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Alleged NSA Leaker Once Said ‘Being White Is Terrorism’ – Breitbart News

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Reality Winner, who is white, tweeted to rapper Kanye West in February that he should make a shirt saying whiteness is a form of terrorism.

@kanyewest you should make a shirt that says, being white is terrorism,' Winner wrote on Twitter.

A search of Winners Twitter account shows multiple left-wing messages disparaging President Trump and Attorney General Jeff Sessions, ranging from calling the president an orange fascist to calling Sessions a Confederate general whoencourages racism:

Winners Facebook page also shows posts resisting Trump with the hashtags #NeverMyPresident and #resist, but one such post is no longer available:

The left-wing activist reportedly supported Sen. Bernie Sanders in the 2016 election and followedNSA leaker Edward Snowden on Twitter.

Winner worked as a government contractor with Pluribus International Corporation in Georgia and was charged Monday with allegedly leaking NSA documents on Russian election hacking to The Intercept.

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Alleged NSA Leaker Once Said 'Being White Is Terrorism' - Breitbart News

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Man jailed for refusing to disclose iPhone passcode underlines Fifth Amendment uncertainties – 9to5Mac

The law lags badly behind technology in a great many areas. One area where there is still huge uncertainty is whether the Fifth Amendment right against self-incrimination protects someone who refuses to disclose the passcode to their phone.

Weve seen conflicting rulings in the past, and a Miamireport shows that rulings may even vary between courts in the same state

TheMiami Herald reports that a child abuse suspect was jailed for six months for contempt of court after failing to reveal the correct passcode to his iPhone. Christopher Wheeler was arrested on suspicion of hitting and scratching his young daughter, with police believing that photos on the iPhone would help prove their case.

Detectives believe that his phone contains images of repeated injuries to the child, which could prove evidence in the case. A Broward judge earlier authorized a search warrant for Wheelers iPhone, but detectives had been unable to get in.

When a judge ordered him to provide the pass code, it didnt work. Rothschild held him in criminal contempt earlier this month.

Wheeler claimed he had given police the code and didnt know why it didnt work. The judge ruled that he would be released from jail if he reveals the correct code.

In a separate case in the same state, aMiami-Dade judge decided against holding a suspect in contempt of court for similarly refusing to reveal his passcode. Extortion suspectWesley Victor claimed that he didnt remember his passcode, and the judge ruled that there was no way to know given the passage of time.

[Wesley Victor was] accused of extorting a social-media celebrity over stolen sex videos. [He] and his girlfriend had been ordered by a judge to produce a pass code to phones suspected of containing text messages showing their collusion in the extortion plot. Victor claimed he didnt remember the number. He prevailed.

On Tuesday, Miami-Dade Circuit Judge Charles Johnson ruled that there was no way to prove that Victor actually remembered his pass code, more than 10 months after his initial arrest.

Back in 2014, a Virginia District Court ruledthat phone passcodes are protected by the 5th Amendment, though there is no such protection against using a suspects fingerprint to unlock a phone. Another Florida court took the opposite stance, insisting that the 5th Amendment does not apply to passcodes.

The legal position on using Touch ID to unlock a phone seems clearer, where multiple court rulings have decided that a fingerprint is the equivalent of a safe key, and police are free to use a suspects fingerprint to unlock the device. You can read a 2014 analysis of the legal position of both forms of protection here.

Via Engadget. Photo: MacWorld.

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Man jailed for refusing to disclose iPhone passcode underlines Fifth Amendment uncertainties - 9to5Mac

Sixth Circuit Appeals Court Latest To Say Real-Time Cellphone Location Tracking Not A Fourth Amendment Issue – Techdirt

The Sixth Circuit Appeals Court is the latest to weigh in on cell site location info. It joins every other circuit that has handled the issue in deciding the gathering of cellphone GPS data by law enforcement is not a search under the Fourth Amendment.

This decision [PDF] isn't too surprising considering the court reached the same conclusion last year in a similar case. The difference between the two is the latest case deals with real-time collection of GPS data, rather than historical GPS records. But that's the only difference. The Appeals Court believes the same holds true for real-time location info, although it cites something other than 1979's Smith v. Maryland in its analysis.

[T]he district court heldand we affirm, holding that the governments detection of Montai Rileys whereabouts in this case, which included tracking Rileys real-time GPS location data for approximately seven hours preceding his arrest, did not amount to a Fourth Amendment search under our precedent in United States v. Skinner, 690 F.3d 772, 781 (6th Cir. 2012). The government used Rileys GPS location data to learn that Riley was hiding out at the Airport Inn in Memphis, Tennesseebut only after inquiring of the front-desk clerk did the government ascertain Rileys specific room number in order to arrest him. The GPS tracking thus provided no greater insight into Rileys whereabouts than what Riley exposed to public view as he traveled along public thoroughfares, id. at 774, to the hotel lobby. Therefore, under Skinner, Riley has no reasonable expectation of privacy against such tracking, and the district court properly denied Rileys motion to suppress evidence found upon Rileys arrest.

While tracking a robbery suspect, law enforcement obtained an order demanding AT&T hand over location data as soon as it was collected.

The court order compelled disclosure of call metadata such as inbound and outbound phone numbers and cell-site location (CSL) data, as well as real-time tracking or pinging of the latitude and longitude coordinates of Rileys phone. Specifically, the order required AT&T to disclose the following, potentially for two months, until August 26, 2015:

16. Precision location of mobile device (GPS Location) such that service provider shall initiate a signal to determine the location of the subjects mobile device on the service providers network or with such other reference points as may be reasonable [sic] available and a [sic] such intervals and times as directed by State Task Force Investigators and Deputy Marshals of the United States Marshal Service.

The court goes on to note that the location records submitted as evidence do not show whether this collection of info was triggered by AT&T or by the cellphone's owner.

No evidence of record indicates whether Rileys phone automatically transmitted its GPS coordinates to AT&T (and if so, whether on a continuous basis or otherwise) or whether AT&T affirmatively sent a signal to Rileys phone to cause it to send AT&T its GPS coordinates.

This should have been a warning flag. It's one thing to collect this info as it comes in. If AT&T is pinging the phone to generate GPS coordinates, AT&T is essentially performing a search on behalf of the government. That should make a difference in this case, as it shifts it from being about a collection of third-party records to an affirmative gathering of records by the government, using AT&T as a third-party stand-in to work around warrant requirements. (Not that case law is settled for GPS tracking, but still)

But it doesn't. The court goes on to say it doesn't matter because the records were gathered by a third party and they all dealt with the movement of an individual in a public area (the motel where he was arrested). That's why the court cites the Skinner decision, rather than relying exclusively on Smith v. Maryland.

In Skinner, we held that location data emitted by a voluntarily procured cell phone could not be subject to a reasonable expectation of privacy, even if the cell-phone user had no reason to expect that the government would compel the service provider to disclose those data. Id. at 779. There, because the defendants movements could have been observed by any member of the public, ibid., we held that it could not possibly be a Fourth Amendment violation for law-enforcement officers to monitor those movements by using cell-phone location data just because such electronic monitoring was more efficient than relying on visual surveillance alone.

But it then goes on to reach a conclusion which seems to contradict the evidence provided.

Using seven hours of GPS location data to determine an individuals location (or a cell phones location), so long as the tracking does not reveal movements within the home (or hotel room), does not cross the sacred threshold of the home, and thus cannot amount to a Fourth Amendment search. After all, the tracking in Knotts revealed the location of the cabin to which the criminal suspects had traveledbut the tracking in Knotts was not a search because it revealed no information about the interior of the cabin itself. Likewise here, the tracking revealed only that Riley had traveled to the Airport Inn, not which room (if any) the phone was in at the time of the tracking.

The lack of location info particularity should have worked against the government's argument. The court even admits in a footnote the government had no idea where exactly the suspect was located -- only a general idea that he was likely in a publicly-accessible building.

When viewed on a map, the majority of these coordinates are scattered within the perimeter of the Airport Inn, but with insufficient precisioneven if the Airport Inn were only one story tallto reveal which room, if any, the phone was in at the time of each ping.

So, it could be argued the government did track the suspect's "movements within a hotel room," which would put this back in Fourth Amendment territory. But the court never attempts to reconcile these contradictory statements and instead continues to use both the motel's accessibility and the coarse location info as an argument against potential Fourth Amendment violations.

That Riley was arrested in a motel is of no moment, for the government learned no more about Rileys whereabouts from tracking his cell-phone GPS data than what Riley exposed to public view by traveling to the motel lobby along public thoroughfares, Skinner, 690 F.3d at 774even if Riley meant to keep his location a secret, one cannot expect privacy in ones public movements.

Certainly the arrest was "no moment," but the tracking that occurred once he was inside the building should have been given more consideration. The fact that law enforcement can obtain real-time location tracking information definitely needs to be examined more closely, especially when there's ample evidence law enforcement has effectively backdated orders like these to cover up use of more intrusive technology like Stingray devices.

More here:

Sixth Circuit Appeals Court Latest To Say Real-Time Cellphone Location Tracking Not A Fourth Amendment Issue - Techdirt

Supreme Court agrees to hear ‘Carpenter v. United States,’ the Fourth Amendment historical cell-site case – Washington Post

Therewas enormously important Fourth Amendment news from the Supreme Court on Monday: The justices agreed to review the U.S. Court of Appeals for the 6th Circuits decision in Carpenter v. United States, one of the long-pending cases on whether the Fourth Amendment protects government access to historical cell-site records.

This is a momentous development, I think. Its not an exaggeration to say that the future of surveillance law hinges on how the Supreme Court rules in the case. Let me say a bit about the case, the issues it will decide and why it matters.

I. The Facts of the Case

Carpenter involves a string of armed robberies that occurred over a two-year period. A group of men (at least five of them) would go into cellphone stores armed with guns, order the customers and employees to the back, and steal the phones. Carpenter was the lead organizer of the conspiracy, and he often supplied the guns, acted as a lookout and would signal when each robbery was to begin.

One of Carpenters conspirators confessed to the crime and gave the government his cellphone number and the numbers of the other conspirators (16 numbers total). The government applied for three different court orders for the cell-site records associated with those numbers, which included Carpenters number. Specifically, the orders sought cell site information for Carpenters phone at call origination and at call termination for incoming and outgoing calls. The government obtained the orders under the Stored Communications Act. They complied with the statute, but the statute requires only reasonable suspicion and not probable cause.

The order that covered Carpenter was directed at his cellphone provider MetroPCS. MetroPCS produced 127 days of historical cell-site records. (Sprint produced another seven days of historical cell-site records for Carpenters phone from a time window when he was roaming and Sprint picked up his service instead of MetroPCS.) Together with the orders obtained, the records showed that that the phones of the alleged conspirators were within distances ranging from a half-mile up to two miles of the robberies at the time they occurred. Specifically, Carpenters phone was shown to be in communication with cell towers near four robberies over a five-month window.

II. The Legal Issues

Here is how counsel for the petitioner framed the question presented:

Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.

And heres how the United States redrafted the question presented in its brief in opposition:

Whether the governments acquisition, pursuant to a court order issued under 18 U.S.C. 2703(d), of historical cell-site records created and maintained by a cellular-service provider violates the Fourth Amendment rights of the individual customer to whom the records pertain.

I gather, then, that the case will consider two distinct questions. First, is the collection of the records a Fourth Amendment search? And second, if it is a search, is it a search that requires a warrant?

Notably, neither side sought review of whether the good-faith exception applies if the answer to both of these questions is yes. The parties are asking only for a ruling on the merits, with any remedies decision bifurcated for review on remand if the Supreme Court reverses.

III. Why The Case Matters

The Carpenter case is tremendously important, I think. The structure of modern surveillance law is built on the idea that the contents of communications receive Fourth Amendment protection but that non-content metadata records about communications, and other third-party business records do not. That has been the rule since the 19th century for postal letters, and it has been the rule since 1979 for phone calls. Carpenter will help determine if that basic rule framework will remain, or if the Supreme Court will amend it somewhat or even dramatically change it.

Part of the importance of the case is that its not just about cell-site records. Although the case is formally about cell-site records, its really about where to draw lines in terms of what network surveillance triggers the Fourth Amendment and how the Fourth Amendment applies. The justices cant answer how the Fourth Amendment applies to cell-site records without providing a framework for how the Fourth Amendment applies to many other forms of surveillance, such as visual surveillance, obtaining traditional phone records, obtaining e-mail transactional records, obtaining credit card records and the like.

For example, readers will recall the debate over the mosaic theory of the Fourth Amendment. Among the issues likely to be pressed in Carpenter is whether the justices should adopt or reject the mosaic theory. Note that the question presented focuses on the fact that the records covered 172 days. Should the length covered by the records matter? Is evidence collection for a short time window no search that becomes a search because the records spanned a long time window?

Plus, remember that the justices will have two questions: what a search is, and when searches are reasonable. Most will focus on the first question, but note that the two issues go together. As I explained here, the broader the court interprets search, the more pressure there is to water down reasonableness. The narrower the definition of search, the stronger the reasonableness standard tends to be. This creates some interesting dynamics. For example, you might get a ruling that there is no search but that retains the traditional default warrant rule for searches. On the other hand, you might get a ruling that a search occurred but that authorizes a new category of warrantless surveillance. This is just speculation, of course, but I suspect the briefing will urge major doctrinal innovations on both questions.

IV. Why Did the Justices Take the Case?

Some will speculate that the Supreme Court would have taken the case only if it were going to reverse. I have no idea how the court will rule, but I tend to doubt that. If I had to guess, I would guess that the court took these cases because theyre really important. The lower court rulings are based on the third-party doctrine, and none of the current justices were on the court the last time the justices decided a case on the third-party doctrine. Its pretty sensible to have the current Supreme Court weigh in.

As it happens, I think the third-party doctrine is essential to technological surveillance in a digital age. As I see it, the doctrine is needed to maintain the essential balance on which Fourth Amendment law has been built and on which it evolves in response to new technology. Prominent alternatives, like the mosaic theory, strike me as a dead end. But it makes a lot of sense for the justices to review these cases and decide whether they agree and if not, identify what new framework should replace it.

V. Lots of Blogging Ahead

Finally, Ill probably be doing a lot of carpentry (that is, blogging about the issues raised in Carpenter) over the next few months. A lot of my academic work in the past decade has been about issues that touch on the case, so it will be really fun to see what the justices do.

Excerpt from:

Supreme Court agrees to hear 'Carpenter v. United States,' the Fourth Amendment historical cell-site case - Washington Post

Opinion analysis: Finding Fourth Amendment unanimity while … – SCOTUSblog (blog)

In an opinion that seems carefully crafted to achieve unanimity rather than break new ground, the court yesterdayunsurprisingly and unanimously rejected the U.S. Court of Appeals for the 9th Circuits Fourth Amendment provocation rule while leaving the specific facts open for further analysis on remand. Justice Samuel Alito authored a crisp 11-page opinion, without dissent, for an eight-justice court (Justice Neil Gorsuch did not participate) that is rightfully weary of 4-4 tie possibilities. Alitos opinion hewed closely to the excessive force precedent of Graham v. Connor and avoided points that had provoked strong disagreement at oral argument and in the briefs. As a result, the opinion masks more issues than it resolves. All we know, after reading this opinion, is this: When law enforcement uses force that is judged reasonable based on circumstances relevant to that determination, then a different Fourth Amendment violation cannot transform [that] reasonable use of force into an unreasonable seizure.

Sympathetic facts and three distinct Fourth Amendment claims

As detailed in my prior summary, two deputy sheriffs, searching for a felon, entered a shack where they had been told a homeless couple lived, without a search warrant and without knocking or announcing their presence or identity. Angel Mendez and his then-girlfriend were resting inside. When he heard someone entering, Mendez picked up a BB gun to move it in order to stand up. The deputies saw what they reasonably viewed as a weapon pointed in their direction, and immediately opened fire, severely injuring the woman and Mendez (whose lower leg was amputated as a result).

The Mendezes (now married) pursued three distinct Fourth Amendment claims in their federal lawsuit against the deputies and Los Angeles County: the failure to get a search warrant, the failure to knock and announce, and excessive force. No one has disputed that, at the moment of the shooting, the deputies acted reasonably in shooting to protect themselves. But as Alito notes, the district court did not end its excessive force analysis at this point. Instead, the court awarded damages based on why the shooting took place, noting that were it not for the failure to get a warrant and to knock and announce both constitutional violations Mendez would not have been startled or picked up his gun.

In so ruling, the district court applied the 9th Circuits provocation rule, which as described by Alito permits an excessive force claim where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation. On appeal, the 9th Circuit affirmed this application of its doctrine. The appeals court held that entering the residence without a warrant violated clearly established Fourth Amendment law. But the court ruled that the deputies were entitled to qualified immunity for the knock-and-announce violation, because it was not clearly established in this context: Other officers had in fact knocked and announced at the front door of the main house. Still, because the deputies unconstitutional warrantless entry had recklessly provoked the otherwise reasonable shooting, the court of appeals affirmed the damages award.

As an alternative rationale, the appeals court said that basic notions of proximate cause also supported the damages award, regardless of the provocation rule, because it was reasonably foreseeable that the officers would meet an armed homeowner when they barged into the shack unannounced. But, as the Supreme Court noted in remanding on this alternative theory, by relying on the unannounced nature of the entry, the court of appeals appeared to focus on the same knock-and-announce violation for which it had already ruled that the officers should receive immunity.

The court rejects the provocation rule as an unwarranted and illogical expansion of Graham

When law enforcement officers use force to effect a search or seizure, the Fourth Amendment requires reasonableness. A law-enforcement entry, an arrest, and even a shooting (a seizure) are Fourth Amendment events governed by this timeless yet amorphous constitutional standard. Claims of unreasonable force by law enforcement in such circumstances are characterized as excessive force, and can lead to constitutional tort damage awards for violating the Fourth Amendment, unless qualified immunity intervenes to protect the law-enforcement officers from liability.

As the court pointedly noted yesterday, The framework for analyzing excessive force claims is set out in Graham v. Connor. In Graham, Alito emphasized, the court held that the operative question in excessive force cases is whether the totality of circumstances justifies a particular search or seizure, paying careful attention to the facts and circumstances of each particular case.

No one can argue with this account of settled law because, of course, it is so general that it answers no specific questions. The trick how such general legal principles are applied to the specific facts of each case.

It is in this application that the 9th Circuit erred, said the court as it overturned the provocation rule. [T]he objective reasonableness analysis, the court explained, must be conducted separately for each search or seizure. In the courts view, the fundamental flaw of the provocation rule is that it uses a separate and independent constitutional violation to manufacture an excessive force claim where one would not otherwise exist. When viewed from the deputies perspectives at the time they confronted a weapon pointed at them, the shooting in this case was not unreasonable. By asking a court to look back in time to see if there was a different Fourth Amendment violation that is somehow tied to the eventual use of force, the Supreme Court reasoned, the 9th Circuits novel and unsupported rule conflates distinct Fourth Amendment claims.

A key footnote necessary to avoid a 4-4 tie?

If you followed the courts opinion to this point, you might think that the it would conclude by holding that Mendez cannot recover damages in this case. But that is not what the opinion says at all. Instead, a single footnote appears in the opinion, marked with an * rather than a number. One can speculate that this footnote was first suggested by someone other than the opinions author a justice who threatened otherwise to dissent. Even more likely, four justices may have asked for this footnote as a condition for joining, thereby threatening a 4-4 affirmance of the judgment below and continuation of the provocation rule. That was surely an outcome Alito and other justices wanted to avoid. Thus footnote * is the key to this opinion. Here is what it says:

Graham commands that an officers use of force be assessed for reasonableness under the totality of the circumstances. On respondents view, that means taking into account unreasonable police conduct prior to the use of force that foreseeably created the need to use it. We did not grant certiorari on that question . All we hold today is that once a use of force is deemed reasonable under Graham, it may not be found unreasonable by reference to some separate constitutional violation.

Thus and this seems surprising given the tone of the opinion up to this point the court did not rule that the Mendezes cannot recover on the facts of their case. All the court held was that the theory of the provocation rule that one constitutional violation can somehow render a different, separate and distinct, reasonable seizure unconstitutional is rejected. This holding does not mean or at least it does not appear to mean that persons injured by law enforcements use of force cannot recover for injuries proximately caused by a Fourth Amendment violation committed before the moment of a shooting. Indeed, a key phrase from Graham at the moment on which the petitioners had relied, was pointedly not mentioned anywhere in this opinion.

In light of footnote *, yesterdays opinion seems uneventful. As with all good proximate cause tort hypotheticals, the outcome will depend on the facts. This is nothing new, given that the Framers made the word unreasonable the fulcrum of the Fourth Amendment in 1790.

Conclusion

In a concluding paragraph that I imagine was also worked on by more than one justice, the court appeared to endorse the objective Alito also called it a notion that it is important to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts. This seems like a healthy recognition in light of contemporary concerns regarding police shootings. Indeed, said the court, both parties and, it appears, the unanimous court accept the principle that plaintiffs can subject to qualified immunity generally recover damages that are proximately caused by any Fourth Amendment violation. This phrasing may satisfy the justices offended by this particular shooting and favoring recovery by persons like the Mendezes severely injured by law enforcement although they had nothing to do with the event, as Justice Sonia Sotomayor said at oral argument. In deference to those justices, the court remanded the case for the lower courts to revisit the proximate cause question. (In a somewhat unusual move, the court pointed to specific pages of the briefing as a useful starting point for the remand.) Meanwhile, the 9th Circuits general provocation rule is dead, as Alito had suggested it should be two years ago in City and County of San Francisco v. Sheehan and, indeed, years earlier as a judge on the U.S Court of Appeals for the 3rd Circuit.

Thus the court preserved the logic of its precedents, while not endorsing the law-enforcement shooting of two innocent people. It would be encouraging if this opinion set a new standard for the newly reconstituted court: finding ways to rule unanimously while reaching fair results.

Click for vote alignment by ideology.

Posted in County of Los Angeles v. Mendez, Analysis, Featured, Merits Cases

Recommended Citation: Rory Little, Opinion analysis: Finding Fourth Amendment unanimity while allowing Fourth Amendment justice, SCOTUSblog (May. 31, 2017, 11:55 PM), http://www.scotusblog.com/2017/05/opinion-analysis-finding-fourth-amendment-unanimity-allowing-fourth-amendment-justice/

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Opinion analysis: Finding Fourth Amendment unanimity while ... - SCOTUSblog (blog)

Exigent Circumstances Under the Fourth Amendment May Extend to the Need to Interview an Arrestee in Place – Lexology (registration)

In a split decision in United States v. Delva, No. 15-cr-683 (Kearse, Winter, Jacobs), the Second Circuit held that the Fourth Amendment allowed law enforcement officers to seize cell phones and a number of letters that were in plain view in the room of a suspects home where he was interviewed immediately after an arrest. The majority opinion, written by Judge Kearse, relied on the exigent circumstances doctrine to hold that it was reasonable under the circumstances to hold an interview in the suspects home, which allowed the officers to seize incriminating evidence that was in plain view without obtaining a search warrant. Although the majority opinion is careful to recognize that the exigent circumstances exception requires a case-by-case analysis, the decision extends the infrequently applied exigent circumstances doctrine to a new set of facts. The decision drew a dissent from Judge Jacobs, who objected to the majoritys reliance on the exigent circumstances doctrine when the government had not raised it in the trial or appellate court, thus denying the defendant any chance to respond to this somewhat novel analysis offered by the Court.

The case arose out of a brutal drug-related double kidnapping, robbery, and assault committed in 2012 in the Bronx. The panel opinion begins with a recitation of the gory facts, which involved a violent home invasion robbery followed by a second kidnapping, all in a search for drug money. The resulting investigation led law enforcement officers to a small, three-room apartment with an arrest warrant for Gregory Accilienbut no search warrant. When the police arrived, Accilien was in the apartment along with defendant David Delva, who was not yet a suspect in the kidnapping/robbery, as well as two other men, a woman, and several children. After entering the apartment, the police moved the woman and children to the living room, handcuffed three of the men in the kitchen, and handcuffed Delva on the floor of the bedroom. While securing Delva and checking the bedroom for additional people, the officers spotted a bag of cocaine and a loaded gun through an open closet door. They seized the gun and the drugs and moved Delva to the kitchen. It took the officers less than two minutes to secure the apartment.

While Accilien was put under arrest for the kidnapping, the officers testified that they did not know who was responsible for the guns and the drugs found in the bedroom, which contained both a bed and an air mattress. The officers took Accilien into the bedroomthe only empty room other than the bathroomto question him. Accilien said that the gun and the drugs were Delvas, and Delva was arrested and charged under state law. However, while they were in the bedroom questioning Accilien, one of the officers observed two cell phones, one on the TV and one on the bed, and several letters addressed to Accilien from an individual who was already under arrest for the kidnapping. The letters implicated Delva in the kidnapping, and he was rearrested on federal charges several months later.

The primary question on appeal was whether the district court (Forrest, J.) erred in denying the motion to suppress the phones and the letters. There was little dispute that the items were in plain view, so, under well-established case law, the officers could seize the phones and letters so long as the officers were lawfully in the bedroom when they spotted them. The Second Circuit began by rejecting the reasoning of the district court, holding that the phone and the letters were not seized as part of a protective sweep of the apartment. The Second Circuit found that the district court erred by treating the phone and letters, which the officers saw in plain view during the interview of Accilien, just like the gun and the drugs, which they saw in plain view while securing Delva and the bedroom. While the officers behaved reasonably to ensure their safety by conducting a protective sweep, handcuffing Delva, and checking that the bedroom was otherwise empty, they did not see the phone or the letters on this first trip to the bedroom during this protective sweep. It was only when the officers re-entered the bedroom, after the apartment had been secured, that the additional evidence was found. At that point, additional searches could not be justified by the officers concern for their safety.

Rather than reverse the decision of the district court and remand the case, the majority instead identified a different doctrine that supported the constitutionality of the search: the exigent circumstances exception. The Court held that this doctrine justified the officers presence in the bedroom when they saw the cell phones and letters. This rationale had not been raised by the government at the trial court or circuit court level. The classic exigent circumstances case involves a situation in which the police must enter a private area to prevent the destruction of evidence or a suspects flight. But the majority extended the doctrines reach to these facts, noting that reasonableness is always the touchstone of Fourth Amendment analysis. The Court cited to its prior decisions considering whether warrantless conduct was permitted. E.g., United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc). The majority found that it was reasonable for the officers to take Accilien into the bedroom to interview him because (1) they did not know who to arrest for possession of the drugs and the cellphone, (2) Accilien might have been intimidated from speaking freely in the presence of the others, and (3) besides the bathroom, the bedroom was the only empty room in the apartment with a door. The case cited by the panel involving the most analogous facts to those in Delva was an unpublished decision from the Sixth Circuit. See United States v. Ocean, 564 F. Appx 765, 771 (6th Cir. 2014).

Judge Jacobs dissented from the Fourth Amendment analysis, and would have remanded the case to the district judge to consider the exigent circumstances exception, the application of which is a fact-dependent question. He observed that because the government had never raised that exception, either before the trial court or on appeal, Delva had no opportunity to respond, either on the facts or the law. Moreover, Judge Jacobs said that [i]t is not as though there would have been nothing for Delvas counsel to say, noting that no published opinion from any circuit court has ever applied the exigent circumstances doctrine to similar facts.

In a brief final section of the opinion, the majority rejected Delvas remaining arguments. It held that the district court did not abuse its discretion in allowing one of the victims to testify about her rape, even though Delva was not charged with rape, because it formed a part of the story line that explained how the crime progressed. The Court also found no abuse of discretion in the removal of a juror who had failed to disclose arrests and convictions at voir dire and during later questioning. Finally, the Court rejected Delvas challenge to his sentence which, at 360 months, was below the Guidelines range of life plus five years.

The Court of Appeals was evidently troubled by the district courts ruling on the protective sweep doctrine, believing that the district court expanded the doctrine beyond the very specific type of situation it was meant to address: a warrantless seizure of evidence that is seen in plain view while the police officers are conducting a necessary safety procedure during an arrest. Where the officers have secured the premises and are taking second-order investigative steps, the protective sweep doctrine no longer applies. By deciding the appeal on alternate grounds, the Court of Appeals was able to avoid remanding this case, involving very serious allegations, for a new trial. However, this result came at the cost of a broadened interpretation of the exigent circumstances doctrine. Given the fact-specific nature of the Courts decision and the Courts emphasis on reasonableness as the touchstone of Fourth Amendment analysis, it leaves open the possibility of limiting the reach of Delva in future cases. Finally, although the majority seems to have believed that no additional fact-finding or briefing was necessary, litigants are rightly disturbed to lose on an issue that they never had the opportunity to brief or argue. In light of this, litigants will probably hope that this procedure continues to be the exception and not the rule.

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Exigent Circumstances Under the Fourth Amendment May Extend to the Need to Interview an Arrestee in Place - Lexology (registration)

Obama vandalized Fourth Amendment – Washington Times – Washington Times

ANALYSIS/OPINION:

The Fourth Amendments barriers to unreasonable searches and seizures dont get the attention the First Amendment does, but theyre at least as important as a guarantee of liberty. And during his White House years Barack Obama vandalized the Fourth Amendment. His glittering words blinded the media to his unprecedented assault on the right to be let alonethe most cherished right among civilized people.

The American Revolution was ignited by British invasions of the right to privacy. James Otis protested British Writs of Assistance that empowered every petty official to rummage through colonial businesses and homes on a hope and a prayer that smuggled goods or other incriminating evidence of wrongdoing might be discovered:

Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

William Pitt the Elder, speaking to the British Parliament, captured the heart and soul of what came to be ratified as the Fourth Amendment:

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

The Fourth Amendment protects reasonable expectations of privacy from government surveillance, and in Olmstead v. United States (1928), Justice Brandeis (dissenting) said that, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

The government cannot invade a persons privacy without documenting a particularized and urgent criminal justice or foreign intelligence need to a neutral and impartial magistrate. The prohibition does not bend even in cases of homicide or international terrorism where its shield might enable serious wrongful conduct to escape detection. Our Constitution is anchored to the high principle that it is better to risk being the victim of injustice than to risk being complicit in it.

That is, until now. President Obamas dragnet collection of internet and phone metadata on every American citizen obliterated the Fourth Amendments privacy fortress. Without getting a court warrant, Mr. Obamas National Security Agencys Stellar Wind program indiscriminately collected internet metadata, i.e., the accounts to which Americans sent and from which they received emails. The metadata detailed the internet protocol (IP) addresses used by people inside the United States when sending emails. Julian Sanchez of the CATO Institute explained the magnitude of the invasion of privacy:

The calls you make can reveal a lot, but now that so much of our lives are mediated by the internet, your IP logs are really a real-time map of your brain: what are you reading about, what are you curious about, what personal ad are you responding to (with a dedicated email linked to that specific ad), what online discussions are you participating in, and how often?Seeing your IP logs and especially feeding them through sophisticated analytic tools is a way of getting inside your head thats in many ways on par with reading your diary.

President Obama also collected metadata on every phone call made by Americans, under a tortured interpretation of section 215 of the USA Patriot Act. Among other things, the telephony metadata included the time, duration, number called, and routing information of every phone communication in the United States. The database would enable the government to create a personal profile of citizen. U.S. District Judge Richard Leon found a high probability that the dragnet collection of telephony metadata violated the Fourth Amendment in Klayman v. Obama.

I cannot imagine a more indiscriminate and arbitrary invasion [of privacy] than this systematic and high-tech collection and retention of personal data on virtually every single citizen for the purpose of querying and analyzing it without prior judicial approval. Surely, such a program infringes on that degree of privacy that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware the abridgment of freedom of the people by gradual and silent encroachments by those in power, would be aghast.

President Obamas own Privacy and Civil Liberties Board similarly found Steller Wind unauthorized by section 215 the USA Patriot Act. It amplified that it could not find a single instance in which the program made a concrete difference in the outcome of a terrorism investigation[and added]we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. The United States Court of Appeals for the Second Circuit also concluded that Stellar Wind was illegal in ACLU v. Clapper.

President Obamas presidency was unprecedented in its scorched earth tactics against the Fourth Amendment. And were only now beginning to find out how he weaponized this information against political enemies.

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Obama vandalized Fourth Amendment - Washington Times - Washington Times

Second Amendment: An American tragedy – Orlando Sentinel

A year ago, Democratic members of the U.S. House of Representatives staged a sit-in demanding a vote on federal gun-safety bills following the shootings at the Pulse nightclub in Orlando. The National Rifle Associations lobbying was largely blamed for no vote happening. But looking deeper, the Second Amendment with the unique American individualism wrapped around it underlies all. It is Americas fundamental gun problem.

As Michael Waldman at the Brennan Center for Justice suggests in Politico Magazine (2014), the NRAs construing of the Second Amendment as an unconditional right to own and carry guns (a right beyond actual constitutional law in Supreme Court rulings) is why it thrives and has clout.

Without clout derived from Second Amendment hyperbole, we might not have, for instance, stand your ground laws in more than 20 states starting with Florida in 2005, laws that professors Cheng Cheng and Mark Hoekstra report in the Journal of Human Resources (2013) do not deter crime and are associated with more killing.

Pockets of America were waiting for the NRAs Second Amendment fertilizer.

For many gun advocates, the gun is an important aspect of ones identity and self-worth, a symbol of power and prowess in their cultural groups. Dan Kahan at Yale University with co-investigators studied gun-safety perceptions and wrote in the Journal of Empirical Legal Studies (2007) how those most likely to see guns as safest of all were the persons who need guns the most in order to occupy social roles and display individual virtues within their cultural communities.

Or, as the essayist Alec Wilkinson writes more starkly on The New Yorkers website (2012), although the [gun] issue is treated as a right and a matter of democracy underlying all is that a gun is the most powerful device there is to accessorize the ego.

A gun owner carrying his semiautomatic long rifle into a family department store, like Target, in a state permitting such if asked why will likely say because it is his right. He is unlikely to reveal the self-gratification gained from demonstrating the prowess and power of his identity, gained from using the gun to accessorize the ego. The Second Amendment here is convenient clothing to cover deeper unspoken needs, needs that go beyond the understandable pleasures and functions of typical hunting, for instance.

Australia is often mentioned as an example of nationwide gun-safety legislation reducing gun violence. Following the 1996 massacre of 35 people in Port Arthur, Australia, the government swiftly passed substantial gun-safety legislation. And as Professors Simon Chapman, Philip Alpers and Michael Jones wrote in JAMAs June 2016 issue, [F]rom 1979-1996 (before gun law reforms), 13 fatal mass shootings occurred in Australia, whereas from 1997 through May 2016 (after gun-law reforms), no fatal mass shootings occurred.

But Australia also has nothing akin to the Second Amendment.

Anthropologist Abigail Kohn studied gun owners in the U.S. and Australia who were engaged in sport shooting. She describes in the Journal of Firearms and Public Policy (2004) how it is immediately apparent when speaking to American shooters that they find it impossible to separate their gun ownership, even their interest in sport shooting, from a particular moral discourse around self, home, family, and national identity.

And thus, American shooters are hostile to gun control because just as guns represent freedom, independence the best of American core values gun control represents trampling on those core values.

In contrast, the Australians view guns as inseparable from shooting sports. And perhaps most importantly, Australian shooters believe that attending to gun laws, respecting the concept of gun laws, is a crucial part of being a good shooter; this is the essence of civic duty that Australian shooters conflate with being a good Australian. While the Australian shooters thought some gun-safety policies were useless and stupid, they thought that overall gun-safety measures were a legitimate means by which the government can control the potential violence that guns can do.

Unlike Australia (itself an individualist-oriented country), America has the Second Amendment. And that amendment has fostered a unique individualism around the gun, an individualism perpetrating more harm than safety.

Maybe someday the Second Amendment will no longer reign as a prop serving other purposes and, thus, substantive federal gun-safety legislation happens. But as Professor Charles Collier wrote in Dissent Magazine: Unlimited gun violence is, for the foreseeable future, our [Americas] fate and our doom (and, in a sense, our punishment for [Second Amendment] rights-based hubris).

The Second Amendment, today, is a song of many distorted verses. A song of a uniquely American tragedy.

Fred Decker is a sociologist in Bowie, Md., with a background in health and social policy research. He earned his doctorate from Florida State University.

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Second Amendment: An American tragedy - Orlando Sentinel

Use Second Amendment rights and arm yourself – Walla Walla Union-Bulletin

After her car broke down out of Lewiston, Idaho, a young woman accepted a ride from a man who was driving a marked company van. Later, a fisherman snagged one of her body parts out of the Snake River. She didnt have a concealed pistol permit.

An older lady, again in Lewiston, was brutally murdered, by a sex offender, while taking an evening walk in the park. She didnt have a concealed pistol permit.

While living in the Spokane region, I read about a woman who was stabbed to death while walking on one of the paved trails in the city. She didnt have a concealed pistol permit.

Another woman was kidnapped by two men and thrown, purse and all, into a cars trunk. While in the trunk, the woman retrieved her Smith & Wesson Snub Nose .38 revolver from her purse. When the trunk was opened, the woman shot both of her assailants. She had a concealed pistol permit.

Our graveyards are full of people who died needlessly because they had no way to defend themselves. The latest incident occurred in Portland where two citizens, trying to prevent a hate crime, were stabbed to death by a violent ex-convict who had repeatedly been released from prison after committing serious crimes.

Its ironic that our soft-on-crime liberals/progressives continually release vicious criminals to prey on us, and then suggest that the solution for crime is to take legally owned firearms away from the law-abiding. Thats typical liberal lunacy.

Now that the Republican Party, the party of liberty, is back in control well have at least a four-year respite from the Democratic Partys war on our rights to keep and bear arms. I note, too, that the subversive anti-gun lobby and its network of useful idiots, from Walla Walla to New York, have been deafeningly silent since the election.

Again, we were given the Second Amendment so that we could defend ourselves and our nation.

Now that were finally free, lets take advantage of our Second Amendment rights, which includes the right for law-abiding people to carry concealed arms for self-defense against the monsters.

Excerpt from:

Use Second Amendment rights and arm yourself - Walla Walla Union-Bulletin

2nd Amendment saves, as Oklahoman shoots babies’ would-be killer – Washington Times

ANALYSIS/OPINION:

Yes indeed, the Second Amendment does save.

The latest instance of a gun saving a potential victim from a would-be crime comes by way of Oklahoma, where a Poteau resident, acting quickly, shot and killed a neighbor who was trying to drown his own twin, 3-month-old babies in a bathtub.

KFOR-TV reported Leland Foster, 27, was killed by his neighbor, Cash Freeman. The details?

City of Ada spokeswoman Lisa Bratcher told reporters that [Foster] died from gunshot wound after a 12-year-old girl ran from the home and alerted a neighbor for help, Fox News reported. Bratcher said the neighbor, identified as Cash Freeman, told police he went to the home armed with a handgun and shot Foster twice after seeing him holding the infants under water in a bathtub while threatening the childrens mother with a knife.

Sick.

Whats more, Foster, it was later learned, had been arrested in 2011 for domestic abuse by strangulation and arson.

Good thing Freeman had a gun. The babies were taken to the hospital and reported in stable condition.

He saved their lives by shooting Foster.

But now? Now Freemans worried he may face charges.

The district attorneys office is apparently deciding the matter now. But lets be real here: Only in the lefts mind would Freeman be considered criminal.

To everyone else to all the sane-thinking of the country?

Freemans a hero. A fast-acting, quick-thinking, cape-wearing hero. He couldve simply dialed 9-1-1 and waited probably too late for the police to arrive. He couldve dismissed the 12-year-old as delusional. He couldve done nothing stayed in his home, refused to answer the door, turned up the television to drown out the knocking.

Instead, he grabbed his gun and raced to the rescue. And because of that decision because of the fact, too, America has a Second Amendment that allows for private citizens to own weapons for this very purpose of self-defense and saving two little 3-month-old babies are still alive and well.

Let the lefties lurking in the political background, looking for reasons to strip innocent Americans of their firearms and occasions to blot the Second Amendment from the Constitution, chew on that for a while.

Original post:

2nd Amendment saves, as Oklahoman shoots babies' would-be killer - Washington Times

Angel Mendez Case Shows Flawed Second Amendment … – National Review

One day in October 2010, a man by the name of Angel Mendez was at his home, asleep on a futon next to his pregnant girlfriend. Hed built the home himself, and it almost redefined the word modest. It was little more than a one-room shack in the back yard of another persons residence, with a blanket for a door. He awoke from his nap to see a person pulling back the blanket. He picked up his BB gun, and heard someone shout gun! before 15 rounds came flying at him. He was grievously injured, ultimately losing a leg. His unarmed girlfriend was also wounded.

It turns out the person who shot at Mendez was a police officer. Los Angeles County sheriffs deputies Christopher Conley and Jennifer Peterson were looking for a parolee who was believed to be armed and dangerous. They did not have a warrant to search Mendezs home, and they did not announce their presence or identity before accosting him. They entered, saw his BB gun, and started firing.

Lest you think this is a unique incident, in March I wrote about the terrible case of Andrew Scott. Like Mendez, Scott was an innocent man at home with his girlfriend when the police came. Like Mendez, he was mistaken by police for the armed and dangerous man they sought. They pounded on his door, but they didnt have a warrant, and they didnt announce themselves. Like any reasonable person, he was alarmed at the late-night disturbance and had no reason to expect the police were its source. So he grabbed his gun. When he opened his door, the police shot him dead in two seconds.

Neither Mendez nor Scott did anything wrong. They were both absolutely within their constitutional rights to pick up a weapon in response to the unidentified persons attempting to enter their homes. Yet Mendez, and Scotts heirs, have so far lost in court, unable to collect any meaningful compensation from the police officers who shot them precisely because they exercised those rights.

Scotts estate lost at the Eleventh Circuit Court of Appeals, which held that the doctrine of qualified immunity protected the officers from having to pay any compensation to the innocent victims of their mistaken and wrongful use of force. Mendez lost yesterday in the Supreme Court, which ruled unanimously against a quirky Ninth Circuit use-of-force rule that allowed excessive-force claims where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation. In other words, if the officers violated Mendezs Fourth Amendment rights by unlawfully entering his home, they could be held liable for shooting Mendez even if the shooting itself might otherwise have been justified under existing law.

The Supreme Court found that the Ninth Circuits rule violated court precedent requiring lower courts to instead apply a totality of the circumstances approach to such cases, under which the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The Supreme Court then remanded the case back to the lower courts, where the deck is already stacked against Mendez. The court of appeals, after all, already ruled that the officers had qualified immunity from Mendezs claim, and the trial court determined that Mendezs decision to pick up the BB gun was a superseding cause that limited the damages he could collect.

Its time for a different approach. Its time for Fourth Amendment jurisprudence to explicitly recognize and accommodate the Second Amendment. If the Second Amendment means anything at all, it means that I have a right to defend myself in my own home, where as Justice Scalia noted in District of Columbia v. Heller the need for defense of self, family, and property is most acute. Moreover, the Second Amendment exists in large part to protect the private citizen from state tyranny. It is odd indeed, then, that current law largely grants officers of the state the right to kill me in my own home even if I do nothing wrong. Indeed, the very act of exercising my Second Amendment rights picking up a gun makes it less likely that I will prevail in court.

Theres an old saying that a person would rather be judged by twelve than carried by six. In times of peril, the thinking goes, its better to risk a jury than to risk your life. But under modern jurisprudence, when the police barge in youre likely to be carried by six and then judged wanting by one: Youll die in the face of overwhelming firepower, and your estates case will be tossed right out of court by a judge.

This presents the homeowner especially if he lives in a high-crime area where the need for a gun is most dire with an impossible situation. In the event of a home intrusion, he has to identify the intruder before he picks up his gun or risk being shot dead instantaneously. If the cops make a good-faith mistake, the burden is on the homeowner. If the cops act improperly, as they did in both Scott and Mendez, the burden is still on the homeowner. Heads, they win; tails you lose.

What is to be done about this? Civil-rights jurisprudence must recognize the central legal truths of Heller and empower the original meaning of the Constitution. Police use of force against an armed homeowner should be evaluated on Second Amendment grounds, not merely as an unreasonable search or seizure. Agents of the state should be held liable for violations of Second Amendment rights when they kill or injure someone solely because he or she exercised those rights. Shooting an innocent man in his own home because he grabs a gun when an unidentified person pounds on his door or barges through it isnt just an unreasonable search or seizure. Its a direct violation of his clearly established right to keep and bear arms.

Its not too much to ask police officers to obtain warrants and to knock and announce their presence in all but the most exigent circumstances. In both Scott and Mendez, there was no good reason for police not to identify themselves. Yet in both cases, a residents reasonable response to police failures undermined his efforts to hold them accountable for those failures in court. That is unacceptable. When a person enters my house unannounced, I should have the right to hold a gun in my hand. To argue otherwise is to eviscerate the Second Amendment.

READ MORE: A Federal Appeals Court Goes to War against the Second Amendment What Justice Gorsuch Might Mean for the Second Amendment Why Would Anyone Want a Firearm?

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and an attorney.

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Angel Mendez Case Shows Flawed Second Amendment ... - National Review