Category Archives: Fourth Amendment

A federal magistrate in San Jose has rejected a bid by prosecutors to search an unidentified target's Google e-mail account, criticizing the "seize first, search second" request as overbroad and unreasonable under the Fourth Amendment.

U.S. Magistrate Paul Grewal could have simply denied the request in a stark order without preamble or explanation.

Instead, Grewal waxed poetic, beginning his seven-page ruling Friday by painting a portrait of how each day he "joins the teeming masses of the Bay Area on Highway 101 or 280," marked by "lengthy queues" at exits in Mountain View, Sunnyvale and Cupertino. "The Technorati are, in short, everywhere" in Silicon Valley, from the "humble downtown San Jose taqueria" to the "overpriced Palo Alto cafe," he said.

Grewal said he was hammering home a point, that "too few understand, or even suspect, the essential role played by many of these workers and their employers in facilitating most government access to private citizens' data."

The magistrate said he had reviewed an application by the government to search the Gmail account of a person suspected of stealing government funds.

The judge noted that "no defendant yet exists, as no case has yet been filed. There are no hearings, no witnesses, no briefs and no debate. Instead, a magistrate judge is left to predict what would or would not be reasonable in executing the warrant without any hard, ripe facts. This is hardly a recipe for success."

Although Grewal said he did find probable cause to believe that the Gmail account in question in fact contained evidence of theft, "what of all the data associated with the account which supplies no such evidence whatsoever?"

Grewal blasted the request as overreaching under the Fourth Amendment, which bans unreasonable searches. He said federal officials failed to provide any date restriction, other than to say the alleged crimes began in 2010.

"Nor has the government made any kind of commitment to return or destroy evidence that is not relevant to its investigation," Grewal wrote.

"This unrestricted right to retain and use every bit Google coughs up undermines the entire effort the application otherwise makes to limit the obvious impact under the plain view doctrine of providing such unfettered government access," he wrote.

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Magistrate waxes poetic while rejecting Gmail search request

The Fourth Amendment
Gov 2.

By: Michael Sovers

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The Fourth Amendment - Video

By Guest Contributor on May 09th, 2014

Editor,

Criminalizing homelessness raises constitutional concerns. For example, some courts uphold that begging is protected under the First Amendment as freedom of speech. When police search the belongings of a homeless person without a search warrant, they could be violating the Fourth Amendment right to be free from unreasonable searches and seizures.

Jailing and imposing penalties on homeless people for sleeping in public or loitering when they have nowhere else to go, could be a violation of the Eighth Amendment right to be free from cruel and unusual punishment.

For sure criminalizing homelessness does nothing to deter homelessness. It only makes it infinitely more difficult for the homeless person to get on their feet and for those trying to help them.

If someone has broken the law they deserve to be punished, but criminalizing homelessness exacerbates the problem. I believe we in Laguna are capable of something better than this.

Utah has reduced its number of chronically homeless by 74 percent. They are out to end homelessness in their state by 2015.

They found that it cost less to give away apartments with wrap around services to the homeless than it did to criminalize them. They calculated the cost of ER visits, police calls, ticketing and jailing cost more than an apartment with a caseworker. This is all documented on line for anyone wanting verification.

With all the creative minds in Laguna surely we can at least match what was done in Utah.

Jessica deStefano, Laguna Beach

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It Costs Less to Care

Is Big Brother Listening? Applying the Fourth Amendment in an Electronic Age
Maryland State National History Day 2014 Noah Pritt, Spencer Paire, Emily McGovern and Priya Stepp.

By: NHD Videos

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Is Big Brother Listening? Applying the Fourth Amendment in an Electronic Age - Video

LAS VEGAS -- Could police be playing favorites when it comes to getting search warrants signed by local magistrates? An I-Team investigation shows one judge has signed nearly twice as many warrants this year, as any other judge.

The Fourth Amendment prevents police from entering your home or seizing your property without obtaining a warrant signed by an impartial magistrate.

But one expert the I-Team spoke with questions whether judges with strong ties to law enforcement can truly be impartial. Why do certain judges sign lots of warrants for police, while other sign hardly any.

Law enforcement officers went to Las Vegas Justice Court for search warrants more than 2,000 times last year. Each warrant has to be signed by a judge whose job it is to impartially review the facts before approving it. But can a judge who's married to a police officer be impartial when signing warrants for that officer's department?

A judge has to be neutral and detached and somebody who is married to a police office is not neutral and detached. Period, said John Wesley Hall, a Fourth Amendment expert.

Hall is a lawyer who runs a Fourth Amendment blog and wrote reference books on search and seizure law. He is referring to Judge Melanie Andress-Tobiasson who is married to a career Metro officer who retired last summer. When the I-Team asked Las Vegas Justice Court for numbers on how many warrants were signed by each magistrate Andress-Tobiassons name was at the top of the list.

She signed the greatest number of warrants by a margin of nearly 2 to 1 over the judge with the next highest figure.

I-Team reporter Glen Meek: Do you think the fact that your husband was a career Metro officer tends to prompt police to call you more often for a search warrant?

Tobiasson: Absolutely not. Absolutely not. And I can tell you, though he's retired now probably most of the officers on the department don't even know my husband.

If police seek certain judges for warrants and not others it can create the appearance of judge shopping. It's not illegal, but it can make the process seem unfair and begs the question of why police should favor some judges over others.

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I-Team: Do police seek search warrant friendly judges?

Enforcement Techniques For Violations Of The Fourth Amendment

By: Investigations

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Enforcement Techniques For Violations Of The Fourth Amendment - Video

PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

'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.'

To pass muster under the Fourth Amendment, detention must be 'reasonable. ' See U.S. v. Montoya de Hernandez, 473 U.S. 531, 542-44 ('85) (analyzing constitutionality of length of traveler's border detention under Fourth Amendment reasonableness standard); Caban, 728 F.2d at 75 (considering whether duration of border detention without a hearing was reasonable).

In the context of a criminal arrest, a detention of longer than 48 hours without a probable cause determination violates the Fourth Amendment as a matter of law in the absence of a demonstrated emergency or other extraordinary circumstance. See County of Riverside v. McLaughlin, 111 S.Ct. 1661, 670 ('91). However, the Supreme Court arrived at this rule by considering the time it takes to complete administrative steps typically incident to arrest. See id.

Unreasonable Searches And Seizures.

Non-consensual extraction of blood implicates Fourth Amendment privacy rights. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 16 ('89) ('this physical intrusion, penetrating beneath the skin, infringes [a reasonable] expectation of privacy'); Schmerber v. California, 384 U.S. 757, 67 ('66) (compulsory blood test 'plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment').' '[f]or the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.' Skinner, 489 U.S. at 619; accord Vernonia School Dist. 47J v. Acton, No. 95-590, 1995 WL 373274, at *3 (June 26,'95) ('the ultimate measure of the constitutionality of a governmental search is `reasonableness''). A search's reasonableness under the Fourth Amendment generally depends on whether the search was made pursuant to a warrant issued upon probable cause. U.S. v. Place, 462 U.S. 696, 701 ('83).

Even in the law enforcement context, the State may interfere with an individual's Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. E.g., Michigan State Police Dept v. Sitz, 496 U.S. 444, 450 ('90); Terry v. Ohio, 392 U.S. 1, 20 ('68).

The gathering of fingerprint evidence from 'free persons' constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person's connection to the offense. See Hayes v. Florida, 470 U.S. 811, 813-18 ('85); Davis v. Mississippi, 394 U.S. 721, 726-28 ('69).

Nevertheless, everyday 'booking' procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. See Smith v. U.S., 324 F.2d 879, 882 (D.C. Cir.'63) (Burger, J.) ('it is elementary that a person in lawful custody may be required to submit to . . . fingerprinting . . . as part of the routine identification processes'); Napolitano v. U.S., 340 F.2d 313, 314 (1st Cir.'65) ('Taking fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights.'). Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.

Although the drawing of blood from free persons generally requires a warrant supported by probable cause to believe that a person has committed a criminal offense and that his blood will reveal evidence relevant to that offense, see Schmerber, 384 U.S. at 768-71; U.S. v. Chapel, ___ F.3d ___, slip op. at 5753-54 (9th Cir.'95) (en banc), the absence of such a warrant does not a fortiori establish a violation of the plaintiffs' Fourth Amendment rights.

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Fourth Amendment Defined & Explained - Law

Fourth Amendment Searches And Seizures

By: Investigations

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Fourth Amendment Searches And Seizures - Video

Smartphones and the Fourth Amendment
A speech for Mr. Nye #39;s class.

By: Craig Terrell

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Smartphones and the Fourth Amendment - Video

Gerald Celente - Trends In The News - America #39;s Spiritual Death - (1/20/14)
Some children that are juveniles are facing lifelong terms, the mini-vacations public servants have with our tax dollars President Obama #39;s translation of our Fourth Amendment Rights....

By: C.urrent .J.ournal

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Gerald Celente - Trends In The News - America's Spiritual Death - (1/20/14) - Video