Monthly Archives: March 2017

This week liberals have displayed their willingness to play politics with our constitutional rights. It is wrong. It is unfortunate. And most of all, it is dangerous.

Recognizing that national interest should supersede partisan interest, I have said repeatedly that the Russian hacking into the Democratic National Committee is not just an attack on Democrats, it is an attack on all Americans. I say this despite being an avowed Republican and supporter of President Donald Trump.

In the course of investigating the Russian hacking, a new, extremely troubling development has developed: duringroutine monitoring of foreign diplomats, the conversations of American citizens were transcribed and disseminated around government, in some cases for no apparent reason. These American citizens happened to be members of the incoming Trump administration and transition team.

This development should concern all Americans regardless of ideology or political party, but unfortunately the left has opted to ignore the charge and in some cases outright marginalize it.

As any 1L law student could tell you, the Fourth Amendment protects American citizens against unreasonable search and seizure. This includes our private communications.

As such, rules surrounding wiretapping are detailed, nuanced, specific, and carefully crafted to safeguard this constitutionally enshrined Fourth Amendment right. For instance, to monitor the communications of a U.S. citizen suspected of being an agent of a foreign power who is knowingly engag[ing]in clandestine intelligence activities, you must obtain a warrant from the FISA court.

If an American citizens communications are intercepted in the course of listening in on a foreign diplomat, the Director of National Intelligence has issued detailed guidance to minimize surveillance of this U.S. citizen.

Unless there is (1) evidence of a crime or (2) the communication is necessary to understand foreign intelligence, the intelligence official must minimize the acquisition and retention, and prohibit the dissemination of such information,according to 50 U.S.C. 1801. In addition to prohibiting dissemination of the U.S. citizens conversation, their names are to be kept private.

But these procedures were allegedly disregarded not once but on several occasions during the Obama administration. For example, the personal communications of Trumps former National Security Adviser, Mike Flynn, with the Russian ambassador were transcribed and disseminated around government.

Was Flynn committing a crime? Or were Flynns words pertinent to foreign intelligence? Even if the answer is yes, the egregious actions of the intelligence community went further.

Nine current and former officials in senior positions discussed the situation with the Washington Post, and some details of Flynns conversation were made public. As Congressman Trey Gowdy reminded FBI Director James Comey, leaking classified information carries a penalty of up to ten years.

The trampling of Flynns rights was of little concern to the left. And as the grievances continue to grow, outrage is still strangely muted.

The head of the House Intelligence Community, Congressman Devin Nunes, announced last week that on numerous occasions the intelligence community incidentally collected information about U.S. citizens involved in the Trump Transition. The collected communications of U.S. citizens appeared to have little or no apparent intelligence value but were nevertheless widely disseminated in intelligence community reporting.

The names of the Trump officials were unmasked and none of this surveillance was related to Russia or the investigation of Russian activities or of the Trump team, said Nunes.According to reporting, some of the unmasked conversations were innocuous discussions about Trumps children!

This information should alarm anyone concerned about protecting the rights of American citizens, especially when coupled with the Obama administrations last-minute executive order, E.O. 12333, which permits the NSA to share private communications widely around government.A curious last move for an outgoing administration accused of unauthorized unmasking of Trump transition officials communications.

Despite the law being changed to allow widespread dissemination of communications in some cases, according to Nunes, this change was implementedafter the apparent violations that took place in disseminating Trump transition officials communications.

Liberals should be alarmed at the accusations of wrongful surveillance of American citizens. The Fourth Amendment should not be a partisan issue but a cherished constitutional right that both parties seek to protect.

The liberal promotion of politics above constitutional principle is extremely concerning and threatening to the cherished values of our American democratic system.

Kayleigh McEnany is a CNN political commentator. She is a graduate of Harvard Law School and Georgetown Universitys School of Foreign Service, and she also studied politics at Oxford University. In addition to writing a column for Above the Law, she is a contributor for The Hill. She can be found on Twitter at @KayleighMcEnany.

More here:
Liberal Silence Tramples The Fourth Amendment - Above the Law

The city of Joliet, Illinois, is about to find out just how costly its miscarriage of justice can be, now that the U.S. Supreme Court ruled unanimouslylast week that it cannot incarcerate an individual while he is awaiting trial, absent probable cause. Supreme Court Justice Elena Kagan was succinct in delivering the courts opinion:

The primary question in this case is whether Manuel [the petitioner] may bring a claim based on the Fourth Amendment to contest the legality of his pro-trial confinement.... We hold today that Manuel may challenge his pretrial detention on the ground that it violated [his] Fourth Amendment [rights]....

Manuels claim fits the Fourth Amendment, and the Fourth Amendment fits Manuels claim, as hand in glove.

What the ruling does is confirm 10 lower courts similar rulings, as Kagan noted: There is now broad consensus among the circuits that the Fourth Amendment right to be free from seizure but upon probable cause extends through the pretrial period.

It all began shortly after midnight, March 18, 2011 when Joliet police pulled over an automobile in which Elijah Manuel was riding, claiming that his brother who was driving failed to signal for a left turn. Rory Little, a law professor at the University of California Hastings College of Law, explained what happened next:

Elijah Manuel alleged that an officer pulled him from a car, beat him, called him racial slurs, and then arrested him for drugs even though a field test on pills Manuel was carrying came back negative. He further alleged that an evidence technician at the police station conducted another test on the pills that also came back negative, but that the technician falsely stated that the test was positive.

Another officer then swore out a complaint against Manuel; based on all these false statements, a county judge ordered Manuel to be detained. Manuel was not released until seven weeks later, after a state police lab reported that the pills contained no controlled substances and for unknown reasons, the state prosecutor waited a month to move for dismissal.

Two years later, Manuel sued the City of Joliet and its officers for violation of his civil rights under 42 U.S.C. 1983, alleging two Fourth Amendment violations: his false arrest and his prolonged unlawful post-arrest detention.

Manuel lost the first round with the district court ruling that he waited too long before filing his complaint and second that this wasnt a Fourth Amendment issue but a Due Process issue. When Manuel appealed, the appeals court upheld the lower courts decision. He THEN appealed to the U.S. Supreme Court, which reversed unanimously on March 21.

An Amicus Curiae (friendly brief) was filed on Manuels behalf by the U.S. Justice Foundation, the Downsize DC Foundation, the Conservative Legal Defense and Education Fund, the Institute on the Constitution, and the Gun Owners of America (GOA) and its foundation. This allowed these groups to present their point of view on the matter before the Supreme Court:

Petitioner Elijah Manuel has appropriately invoked the Fourth Amendment as a basis for his claim of malicious prosecution. Arrested without probable cause, Manuel was detained in actual custody for 48 days during which time the police falsified evidence before a grand jury leading to his arraignment on false charges which were dropped by the prosecutor only after discovery that the charges were baseless.

The Fourth Amendment guarantee against unreasonable searches and seizures is predicated on the right of the people to be secure in their persons, houses, papers, and effects. Viewed against its common law backdrop, the Amendments purpose and scope extend throughout any period of pretrial detention up to and including the day upon which all criminal charges are dropped.

During that time interval, the Fourth Amendment governs the actions of the arresting authorities. While the immediate effect of a violation of the Fourth Amendment is the deprivation of ones liberty, the interest protected by that Amendment is ones property rights.

The brief allowed the GOA to expand on one of its most salient and persuasive reasons for supporting the Fourth Amendment: the right to life and the reasonable implication that with that right comes the right to defend that life, with deadly force if necessary. As the GOA explained: This is why GOA is working to explain to courts that the Fourth Amendment protects each Americans property interests, including Americans property interest in their own body and firearms.

The Amicus Curiae will also likely serve Manuel and his attorneys well as they take the next step in obtaining justice by filing for damages against Joliet and its offending officers who were involved in this egregious miscarriage: Indeed, by wrongfully holding Manuel in pretrial detention for 48 days, the City of Joliet and its police officers caused him not only emotional distress, but harmed his reputation, inflicted out-of-pocket losses, and deprived him of employment opportunities.

Now that the Supreme Court has cleared the way, confirming 10 lower courts similar rulings, Manuel is likely to exact justice and restitution from Joliet, Illinois, while simultaneously performing the necessary warning to other localities abusive of precious rights such as the Fourth Amendment to the Constitution of the United States. Remember what Kagan concluded: We hold today that Manuel may challenge his pretrial detention on the ground that it violated [his] Fourth Amendment [rights].

Joliet, Illinois: Get ready to write a big check to Elijah Manuel.

An Ivy League graduate and former investment advisor, Bob is a regular contributor to The New American magazine and blogs frequently at LightFromTheRight.com, primarily on economics and politics. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

Visit link:
Supreme Court Unanimously Upholds Fourth Amendment in Illinois ... - The New American

Most cars manufactured in the past three years come with event data recorders, sometimes known as black boxes. These devices are computers that record and store crash data in the event of an accident. Under regulations adopted by the National Highway Traffic Safety Administration, the event data recorders must record 15 data inputs. They include engine rpm, steering, the length and severity of the crash, and the braking during the crash. The data on the devices are intentionally difficult to access. Doing so generally requires specialized equipment that a typical car owner wont have.

A new Florida state court decision, State v. Worsham, considers an interesting question: How does the Fourth Amendment apply to government efforts to retrieve data from event data recorders? Worsham was in a terrible accident, and his car was impounded. Twelve days later, the police downloaded the data from the event data recorder without obtaining a warrant. Worsham has been charged with drunken driving and vehicular homicide, and the police want to use the data from the event data recorder to show Worshams guilt.

The question is: Does the Fourth Amendment allow it?

The Florida court divides 2-1. According to the majority, accessing the data is a search that requires a warrant. Because the police accessed the data without a warrant, the evidence must be suppressed. From the majority opinion:

A cars black box is analogous to other electronic storage devices for which courts have recognized a reasonable expectation of privacy. Modern technology facilitates the storage of large quantities of information on small, portable devices. The emerging trend is to require a warrant to search these devices. See Riley v. California, 134 S. Ct. 2473 (2014) (requiring warrant to search cell phone seized incident to arrest); Smallwood, 113 So. 3d 724 (requiring warrant to search cell phone in search incident to arrest); State v. K.C., 207 So. 3d 951 (requiring warrant to search an abandoned but locked cell phone).

The majority offers several rationales for its decision, but this seems to be the main one:

Extracting and interpreting the information from a cars black box is not like putting a car on a lift and examining the brakes or tires. Because the recorded data is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment, which required law enforcement in the absence of exigent circumstances to obtain a warrant before extracting the information from an impounded vehicle.

Although electronic data recorders do not yet store the same quantity of information as a cell phone, nor is it of the same personal nature, the rationale for requiring a warrant to search a cell phone is informative in determining whether a warrant is necessary to search an immobilized vehicles data recorder. These recorders document more than what is voluntarily conveyed to the public and the information is inherently different from the tangible mechanical parts of a vehicle. Just as cell phones evolved to contain more and more personal information, as the electronic systems in cars have gotten more complex, the data recorders are able to record more information. The difficulty in extracting such information buttresses an expectation of privacy.

The dissent argues that people have no reasonable expectation of privacy in the data stored in event data recorders:

In contrast to a cellular phone, an EDR does not contain a broad array of private information such as photos, passwords, and other sensitive records previously found in the home. Riley v. California, 134 S. Ct. 2473, 2491 (2014). Significantly, the EDR in the instant case did not contain GPS information relative to the vehicles travels, which may be subject to privacy protection. See United States v. Jones, 565 U.S. 400, 415-17 (2012) (Sotomayor, J., concurring) (expressing concern with GPS information which reflects a wealth of detail about [a persons] familial, political, professional, religious, and sexual associations). As noted in the majority opinion, the EDR in this case was only recording speed and braking data, the cars change in velocity, steering input, yaw rate, angular rate, safety belt status, system voltage, and airbag warning lamp information. Moreover, this data had not been knowingly inputted by Appellee; in fact, it is likely that Appellee did not even know that the vehicle he was driving had an EDR. Therefore, it would be quite a stretch to conclude that Appellee sought to preserve this information as private.

More from the dissent:

The data that the government extracted from the vehicle that was owned and driven by Appellee in this case was not information for which Appellee or any other owner/driver had a reasonable expectation of privacy. The data was not personal to Appellee, was not password protected by Appellee, and was not being collected and maintained solely for the benefit of Appellee. The EDR was installed by the vehicles manufacturer at the behest of the National Highway Traffic Safety Administration and, as distinct from Jones, the purpose of the data collection is highway and driver safety. See New York v. Class, 475 U.S. 106, 113 (1986) ([A]utomobiles are justifiably the subject of pervasive regulation by the State [and e]very operator of a motor vehicle must expect the State, in enforcing its regulations, will intrude to some extent upon that operators privacy.).

Heres my tentative take: This is a pretty tricky question based on current Fourth Amendment caselaw. Applying that caselaw, I would think that accessing the event data recorder was likely a search. On the other hand, its not obvious to me that it requires a warrant.

Accessing the data was likely a search because it was accessing a closed container inside the persons property. Thats a classic kind of Fourth Amendment search. Whether the contents of the container were sensitive or personal, or how hard it was to access the container, doesnt strike me as relevant here. Because this was an access to a container, revealing information that was hidden from view, what I would call the private facts model doesnt apply under Arizona v. Hicks.

Theres a counterargument that this shouldnt be a search under United States v. Knotts, the beeper case. But the event data recorder stores all sorts of data that were not exposed to public observation, so I would tend to think Knotts doesnt apply. Theres also a counterargument that this is like reaching in to move papers from the VIN on a car that was said to not be a search in New York v. Class. But a VIN is exposed to the public while the data in the black box isnt, and the statement as to VINs in Class appears to be dicta. On the whole, my tentative sense is that this was a search.

Whether accessing the data should require a warrant is an interesting question. Im not sure of the answer. This was information in an automobile: Should the automobile exception apply such that the government needs probable cause but no warrant? Perhaps not, on a theory that Riley trumps the automobile exception and the auto exception doesnt apply to electronic storage devices. See United States v. Camou. Or perhaps so, on the thinking that Riley doesnt change the automobile exception. Also, theres a plausible argument that the regulations governing event data recorders diminish the expectation of privacy such that no warrant should be required even though accessing them is a search. See Delaware v. Prouse.

These are tricky questions, I think, at least based on current Fourth Amendment caselaw.

Link:
The Fourth Amendment and access to automobile 'black boxes' - Washington Post

Rep. Luis Gutirrez (D-Ill.) says Fourth Amendment cities is a more accurate name for the sanctuary cities being targeted by the Trump administration.

Heres how I see it yeah, they call them sanctuary cities, he told host Chris Cuomo Wednesday on CNNs New Day." "What I would say, Chris, is theyre Fourth Amendment cities.

Gutierrez used Chicago as an example of how cities can protect the Fourth Amendment, which prohibits unreasonable searches and seizures by the government unless it obtains a warrant.

The DEA, the FBI, the ATF they get warrants right? he said. "They go and pick people up.

What [Immigration and Customs Enforcement] which is another federal law enforcement agency does is it wants to have people detained and wants the City of Chicago to go after people without any probable cause being submitted before the court and without a warrant, Gutierrez added.

If you supply a warrant to the City of Chicago, we will absolutely honor that warrant. But youve got to get a warrant.

Attorney General Jeff SessionsJeff SessionsSessions: Convictions likely needed to end government leaks Sessions, Comey discuss threats with Jewish leaders Pot state Dems want federal regulation of marijuana MORE said Monday that state and local governments seeking Justice Department grants must certify they are not sanctuary cities before receiving the money.

Such policies cannot continue, Sessions said during a surprise stop at the White Houses daily press briefing. "They make our nation less safe by putting dangerous criminals back on the streets.

The announcement was the latest step by the Trump administration to crack down on sanctuary cities, which do not assist federal authorities in enforcing immigration laws. Those cities say enforcing immigration laws would hurt law enforcement because undocumented immigrants would not come forward with information or to report crimes.

But the attorney general said compliance with federal immigration laws is now a prerequisite for state and local governments to receive grants from the Justice Department's Office of Justice Program.

The office provides billions of dollars in grants and other funding to help criminal justice programs across the country.

See more here:
Dem rep: Sanctuary cities are actually 'Fourth Amendment cities ... - The Hill

Fourth Amendment - RI Future RI Future US Attorney General Jeff Session's threat to cut off federal funding to so-called sanctuary cities is nothing but unseemly saber-rattling, says Steve Brown of the ... and more »

View original post here:
Fourth Amendment - RI Future - RI Future