Daily Archives: September 5, 2015

NEWS

By Leonard Pitts Jr and By Leonard Pitts Jr | January 9, 2014

Here is what he said: "...all constitutional rights are regulated, always have been, and need to be. " It would seem to be a self-evident truth. After all, your First Amendment right to freedom of speech is regulated. If you don't believe it, write something libelous about a guy with deep pockets and man-eating lawyers. Your Fourth Amendment right to freedom from unreasonable searches and seizures is regulated and then some. If you don't believe that, pick up your phone and ask the NSA agent tapping your line.

NEWS

By Alexander E. Hooke | August 28, 2013

"Can we say then that the general economy of power in our societies is becoming a domain of security?" Michel Foucault, 1978 In 1791, the Fourth Amendment - sanctifying what we now call the human right to privacy - became part of the Bill of Rights. Barely had the ink of the signatures dried when it was already threatened by government. Congress immediately planned to take a census of the newly established country's population, only to be met by numerous citizens resisting officials poking their heads onto their property and asking about their children, size of home, how many males and females were over the age of 16. More than two centuries later, the right to privacy continues to be threatened and violated.

NEWS

June 13, 2013

Reader David Liddle writes that "since I have nothing to hide and would like to protect myself and my family from terrorists, I have no problem with the government looking at my emails and listening to my phone calls" ("'Don't worry: The NSA isn't interested in you," June 12). I would ask if he sees any value in the Fourth Amendment to the Constitution guaranteeing privacy from government intrusion? Would he prefer to live under a totalitarian government that spies on all its citizens in order to silence dissent?

NEWS

June 10, 2013

I was somewhat disturbed by reports the National Security Agency has been monitoring all phone calls on the Verizon system for years ("Surveillance state," June 7). But like most Americans I accepted it as my government protecting the country against terrorists. Today, however, I made a point of reading the Fourth Amendment to the Constitution rather than just believing I knew what it meant - and realized how wrong I was. I recommend that citizens of this country obtain and review a copy of the Constitution, including the Bill of Rights, before formulating an opinion on major issues such as this.

NEWS

June 7, 2013

The Sun's reasoning regarding the recent ruling on DNA collection is severely flawed ("Court is right on DNA," June 4). DNA is not 21 s t -century fingerprinting, and it does more than identify a person. It's likely there is yet undetermined information stored in the "non-coding" section of DNA. It is irrelevant whether the information gathered is used or not. The very fact that the state has taken the information from an individual violates the Fourth Amendment. It can be likened to taking someone's computer.

NEWS

By Justin Fenton, The Baltimore Sun | June 3, 2013

A divided U.S. Supreme Court ruled Monday that police in Maryland and elsewhere can continue the warrantless collection of DNA from people arrested - but not convicted - of serious crimes. The 5-4 decision upheld a state law that allows investigators to take genetic information from arrestees, a practice followed by the federal government and about half the states. Police generally compare suspects' DNA to records from other cases in hopes of developing leads. The case, which amplified a long-running debate over the limits of government search-and-seizure powers, began with a challenge from a Wicomico County man linked to a rape after his DNA was taken in an unrelated arrest.

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Articles about Fourth Amendment - tribunedigital-baltimoresun

Elections

Sep 1, 2015

The Kentucky senator assures Vermont voters he can win in blue and purple states.

The Kentucky senator assures Vermont voters he can win in blue and purple states.

April Burbank, The Burlington (Vt.) Free Press

Jun 30, 2015

July 1 is the effective date of many state laws.

July 1 is the effective date of many state laws.

Erin Raftery, USA TODAY

Aug 31, 2015

The Supreme Court says former Virginia governor Bob McDonnell can remain out of prison

The Supreme Court says former Virginia governor Bob McDonnell can remain out of prison

Richard Wolf, USA TODAY

Jul 1, 2015

Readers share a patriotic moment and thoughts on how to unite country.

Readers share a patriotic moment and thoughts on how to unite country.

USA TODAY

Jul 7, 2013

It's our right as American citizens to have privacy in our own homes.

It's our right as American citizens to have privacy in our own homes.

Glenn Harlan Reynolds

Jul 1, 2014

ACLU says warrantless inspection is a violation of the Fourth Amendment.

ACLU says warrantless inspection is a violation of the Fourth Amendment.

Rachel Chason, USATODAY

May 11, 2015

He wants to combat the disrespect of American flags he's been seeing on social media.

He wants to combat the disrespect of American flags he's been seeing on social media.

Anne Stegen, KPNX-TV, Phoenix

Apr 21, 2015

Some want Delaware to become the fourth state to restrict vaping as smoking already is.

Some want Delaware to become the fourth state to restrict vaping as smoking already is.

Jon Offredo, The (Wilmington, Del.) News Journal

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Fourth Amendment - USA TODAY

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Photo Credit: Getty Images/David De Lossy

Reasonable Suspicion

Most student searches in schools begin as a result from some reasonable suspicion by a school district employee that the student has violated a law or school policy. In order to have reasonable suspicion a school employee must have facts that support the suspicions are true. A justifiable search is one in which a school employee:

The information or knowledge possessed by the school employee must come from a valid and reliable source to be considered reasonable. These sources can include the employees personal observations and knowledge, reliable reports of other school officials, reports of eyewitnesses and victims, and/or informant tips. The suspicion must be based on facts and weighted so that the probability is sufficient enough that the suspicion may be true.

A justifiable student search must include each of the following components:

In general, school officials cannot search a large group of students just because they suspect that a policy has been violated, but have been unable to connect the violation to a particular student.

However, there are court cases that have allowed such large group searches particularly concerning the suspicion of someone possessing a dangerous weapon, which jeopardizes the safety of the student body.

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Fourth Amendment Rights - Search and Seizure in Schools

Subscribe to Fourth Amendment RSS Feed By Angel Diaz on July 13th, 2015 Posted in Fourth Amendment, Privacy Litigation

In City of Los Angeles v. Patel, the Supreme Court invalidated a Los Angeles law that allowed law enforcement officials to inspect hotel and motel guest registries at any time, without a warrant or administrative subpoena. The Court ruled that the law violated hotel owners Fourth Amendment rights because it penalizes them for declining to Continue Reading

On June 25, 2014, the Supreme Court unanimously ruled that police must first obtain a warrant before searching the cell phones of arrested individuals, except in exigent circumstances. Chief Justice John Roberts authored the opinion, which held that an individuals Fourth Amendment right to privacy outweighs the interest of law enforcement in conducting searches of Continue Reading

The U.S. Supreme Court heard arguments last month inClapper v. Amnesty International, a case that asks the Court to determine whether a group of lawyers, journalists, and human rights workers have standing to challenge the federal governments international electronic surveillance program under the Foreign Intelligence Surveillance Act. The plaintiffs alleged Fourth Amendment privacy violations among Continue Reading

On Monday, the California Supreme Court ruled that the Fourth Amendment to the United States Constitution did not prohibit a deputy sheriff from conducting a warrantless, post-arrest search of the text messages of an arrestee.Specifically, the Court affirmed the decision of the Court of Appeal that the cell phone was immediately associated with [defendants] person Continue Reading

According to a federal court in the Northern District of California, United States border agents may not search a laptop without a warrant several months after the agents seized the laptop.

The June 18, 2008 Ninth Circuit panel decision in Quon et al. v. Arch Wireless et al., No. 07-55282 (9th Cir. June 18, 2008) has sparked a flurry of news reports and speculation regarding employers ability to monitor employees e-mails and text messages.In fact, the decision appears to change very little for private employers who Continue Reading

My very first blog post addressed a precedent-setting decision of the Central District of California holding that federal agents could not conduct a border search of the private and personal information stored on a travelers computer hard drive or electronic storage devices without reasonable suspicion. Eighteen months later, the Ninth Circuit has squarely reversed that decision. In a short opinion filed April 21, 2008, Judge OScannlain wrote in U.S. v. Arnold, No. 06-50581, that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border. As far as the Ninth Circuit is concerned, for purposes of border searches under the Fourth Amendment, laptops and other electronic storage devices are not so much like a home or the human mind they are more akin to luggage or a car.

In a novel case, the Ninth Circuit ruled on July 6, as amended July 25, that government surveillance of Internet Protocol (IP) addresses visited, to/from addresses of emails, and the total volume of information sent to or from an email account does not violate the Fourth Amendment.United States v. Forrester, No. 05-50410, F.3d Continue Reading

Last week, a panel of the Ninth Circuit Court of Appeals held that in the absence of an announced monitoring policy, the mere act of connecting a computer to a network does not extinguish a users reasonable expectation of privacy, under the Fourth Amendment, in the contents of his or her computer.The panel announced its Continue Reading

Welcome to the LACBA California Privacy Law blog.This blog will provide a forum for summary and discussion of recent developments in California privacy law.California was the first state in the nation to require operators of commercial websites or online services to post privacy policies, and was the first state to pass legislation requiring notification to Continue Reading

Paresh Trivedi is a transactional lawyer with more than ten years of experience representing clients in technology, media, communications, cable programming, digital advertising and content distribution transactions and counseling clients on related legal compliance issues.

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Fourth Amendment | Privacy Law Blog

Posted Fri, August 10th, 2012 2:05 pm by Orin Kerr

The Fourth Amendment docket from the recently completed Supreme Court Term included four cases. Heres a run-down of the cases, with my thoughts on their significance to the development of Fourth Amendment law.

The most important Fourth Amendment case of the Term was United States v. Jones, widely known as the GPS case. The FBI installed a GPS device on the suspects car and tracked it for twenty-eight days. Most lower courts had ruled such conduct was not a Fourth Amendment search under United States v. Knotts, a 1983 case involving a radio beeper. To most lower courts, a passage from Knotts had a clear answer to GPS surveillance: A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.

The Courts decision was a surprise on several levels. First, the Court was unanimous as to the result; and second, the Justices split almost evenly along two equally underdeveloped rationales. Justice Scalias majority opinion for five Justices decided the case by purporting to rediscover a lost trespass test in Fourth Amendment law. Because installing a GPS device on the car would have been a trespass under eighteenth-century property law, Scalia asserted, the installation was a search. Followers of Justice Scalias Fourth Amendment opinions werent surprised that Scalia would want to move the Court in that direction: Justice Scalia has long wanted to find ways to move Fourth Amendment law towards what he sees as an originalist standard and away from the 1960s-era Katz framework. But as I explain in a forthcoming article for the Supreme Court Review, Justice Scalias claim that Fourth Amendment law adopted a trespass standard before Katz is itself a myth of the Katz Court. Although pre-Katz cases sometimes focused on physical entry, they did not adopt a trespass test. Given the protean nature of trespass concepts, the introduction of a trespass test in Fourth Amendment law under the guise of originalism is likely to raise many more questions than it answers.

The two concurring opinions in Jones suggested even more dramatic and far-reaching changes. Joined by a total of five Justices, the two concurring opinions offer a reconceptualization of the basic building block of Fourth Amendment analysis: Instead of asking whether individual government intrusions are searches, they suggest, the Court should look to whether aggregated acts of evidence collection and evidence are searches. Ill refer the reader to another forthcoming article for the details, if any are interested. Combining the three opinions together, all nine Justices wrote or joined opinions in Jones suggesting a considerable reworking of traditional Fourth Amendment doctrine. All in a decision ruling nine to zero in favor of a criminal defendant who ran a massive narcotics conspiracy.

The second most prominent Fourth Amendment case last Term was Florence v. Board of Chosen Freeholders, sometimes known as the prison strip search case. This case considered whether the Fourth Amendment allows detention facilities such as jails and prisons to force every person admitted to the facility to strip naked and be observed at close distance before entering the facility. In a five-to-four opinion by Justice Kennedy, the Court ruled that such observation was generally allowed. Jails are dangerous places, and the authorities need general rules to keep them safe without judicial micromanagement; as long as the person was to be admitted to the general prison population, such a search was permissible. Importantly, however, both Chief Justice Roberts and Justice Alito authored concurring opinions emphasizing that the Courts general rule might have exceptions. Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan, and argued that the Court could better balance the interests with a rule that such searches are unreasonable absent reasonable suspicion that the individual possesses contraband if the arrest was for a minor offense that does not involve drugs or violence.

If Jones stands out for how surprising the opinions were, Florence is the opposite. Its a classic balancing case in which the Justices tried to weigh the different interests and look for plausible lines to draw. The five Justices nominated by Republican Presidents weighed the interests more in favor of the jail administrators; the four Justices nominated by Democratic Presidents weighed the interests more in favor of the inmates. Although a lot of people have strong views about the case, I dont see much novel ground covered here as a matter of Fourth Amendment law.

That brings us to our two remedies cases, Messerschmidt v. Millender and Ryburn v. Huff, both civil cases brought under 42 U.S.C. 1983. In both cases, the Court reversed Ninth Circuit rulings that had denied qualified immunity. Ryburn was the easier case. The Court reversed summarily and unanimously a divided Ninth Circuit ruling authored by a district judge sitting by designation that was also joined by Chief Judge Kozinski (who reveals his libertarian streak in Fourth Amendment cases).

Messerschmidt is the more interesting remedies case, in part because it involved the all-too-common practice among investigators of being sloppy with the particularity of warrants. The Fourth Amendment requires warrants to particularly describe the property to be seized, and the warrants must develop probable cause for each of those items to be seized. In the suppression context, which is by far the more common context in which warrant particularity is litigated, courts tend to be quite generous with defects in particularity. If the police add in a catch all clause in the warrant that is obviously overly broad, courts usually just sever the obviously unconstitutional part of the warrant and allow the evidence if it was obtained by reliance on other parts of the warrant. (See, for example, the Sixth Circuits 2001 decision in United States v. Greene.) As a result, officers often arent as careful with particularity as they should be. By arising in a civil setting, Messerschmidt didnt allow the easy path of severability often seen in criminal cases.

A divided Court in Messerschmidt ruled that qualified immunity applied by taking a rather generous view of what kind of evidence might be present and relevant to a domestic dispute involving a gun fired by a gang member. As a practical matter, the most important aspect of the majority opinion is its conclusion that seeking and obtaining the approval of higher-ups bolstered the case of qualified immunity by indicating that the officer was not at personal fault. This ruling is in in significant tension with United States v. Leon, which generally requires only a facial review of the warrant to see if a defect is so significant that suppression is warranted. (The Court has generally equated the good-faith exception in the criminal setting and qualified immunity standard in the civil setting, so precedents from one context should be applicable to the other.) At the same time, the ruling is consistent with the recent trend of Roberts Court cases on Fourth Amendment remedies in emphasizing the personal culpability of individual officers as a prerequisite to liability. In my view, focusing on personal culpability is problematic: Bad faith is hard for defendants to uncover and the appearance of good faith is relatively easy for the police to game. Under Messerschmidt, even if the warrant has a serious defect, review by higher-ups may provide an extra defense against not only personal liability but suppression of evidence. Its too early to tell whether lower courts will connect those dots and use Messerschmidt in this way, but it seems quite plausible that they will.

Posted in U.S. v. Jones, Messerschmidt v. Millender, Florence v. Board of Freeholders, Analysis, Featured

Recommended Citation: Orin Kerr, Reviewing the Fourth Amendment cases of OT2011, SCOTUSblog (Aug. 10, 2012, 2:05 PM), http://www.scotusblog.com/2012/08/reviewing-the-fourth-amendment-cases-of-ot2011/

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Reviewing the Fourth Amendment cases of OT2011 : SCOTUSblog

CALIFORNIA | LOCAL

November 7, 2011 | By Carol J. Williams, Los Angeles Times

Sunset Strip bookie Charlie Katz suspected the feds had bugged his apartment, so he would amble over to a pay phone outside where Carney's hot dog joint now stands to call in his bets to Boston and Miami. It was 1965, a time when phone booths had four glass walls and a folding door, allowing Katz to seal himself off from eavesdroppers. Or so he thought. FBI agents planted a recording device at the booth and taped his dealings, leading to his conviction on eight illegal wagering charges.

OPINION

April 9, 2009 | Lawrence Rosenthal, Lawrence Rosenthal is a professor of law at Chapman University School of Law in Orange.

John Yoo is a professor of law at UC Berkeley. This semester, he is my colleague -- as a visiting professor -- at Chapman University's School of Law. Yoo is also under investigation by the Justice Department's inspector general for his role in producing a number of controversial memorandums during his service in the department during the Bush administration. The memos include one stating that the president may authorize the torture of suspected terrorists. I am a former federal prosecutor.

NATIONAL

October 21, 2003 | David G. Savage, Times Staff Writer

The Supreme Court said Monday that it would consider creating a new right to remain silent -- this time for people who are stopped, but not arrested, by police. A stubborn Nevada man who was standing along a roadway when an officer approached him will get a hearing to decide a basic question that the high court has never squarely answered: Does the Constitution give a person the right to refuse to identify himself to the police?

NEWS

March 29, 2000 | DAVID G. SAVAGE, TIMES STAFF WRITER

In a rare rebuff to police, the Supreme Court ruled Tuesday that an officer may not stop and frisk a pedestrian based only on an anonymous caller's tip. Instead, the justices reaffirmed the Constitution's protection against unreasonable searches and stressed that officers need specific, reliable evidence of some wrongdoing before they stop a person on the street. The surprising 9-0 ruling threw out gun-wielding charges against a black youth in Miami who was frisked and arrested at a bus stop.

NEWS

December 2, 1998 | DAVID G. SAVAGE, TIMES STAFF WRITER

The Supreme Court narrowed the privacy protection of the 4th Amendment Tuesday, ruling that short-term visitors to a home are not shielded from police surveillance. The 6-3 decision reinstated the drug convictions of two Minnesota men who were observed by an officer who had peeked through the window blinds of a ground-floor apartment. The men, who were seen putting white powder into bags, did not live in the apartment nor were they overnight guests.

CALIFORNIA | LOCAL

April 8, 1998 | GREG KRIKORIAN, TIMES STAFF WRITER

In the abstract, there are few civil liberties the average person holds as dear as the constitutional protection against unlawful searches and seizures. But that affection is often tested when the 4th Amendment, like a bolted front door, is all that stands between police and the arrest of someone who officers say is a criminal. That is precisely the issue in what many legal observers are calling a groundbreaking case now before Los Angeles Superior Court Judge Gregory Alarcon.

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Articles about Fourth Amendment - latimes

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.

- U.S. Const. amend. IV.

NACDL seeks to ensure that the Fourth Amendment remains a vibrant protection against encroachments on the privacy of the individual through litigation and public advocacy. The Fourth Amendment is the appropriate starting point for assessing the limits on government intrusion into ones privacy, and its protections must continue to thrive in the digital age. The Fourth Amendment and its guarantees should not turn on the medium used to transmit private information, nor on how the information is stored. NACDL strives to guarantee that evidence obtained in violation of the Fourth Amendment is excluded in a court of law.

NEW! NACDL REPORT: Mail Cover Surveillance: Problems and Recommendations

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NACDL - Fourth Amendment