Category Archives: Fourth Amendment

A $6 million federal lawsuit claims that during a traffic stop two Warren County Sheriffs Office deputies used excessive force against a man who died days later.

Ian R. Ennis, the son and administrator of the estate of the late Ralph C. Ennis, filed a civil lawsuit in the U.S. District Court for the Western District of Virginia in August. The plaintiff names Deputies Tyler Poe and Zachary Fadley as defendants.

Attorneys Seth Carroll and Susan Pierce represent the plaintiff and filed the lawsuit on Ennis behalf on Aug. 8.

Attorney Carlene Johnson represents Poe. Alexander Francuzenko represents Fadley. In separate response filings to the lawsuit, Poe and Fadley deny any allegations of misconduct and have asked that the lawsuit be dismissed. Poes attorney filed a memorandum in the court on Friday to further support his clients request to dismiss the case.

Ralph Ennis, 77, died on April 15 in the care of Blue Ridge Hospice, 13 days after sustaining a head injury during an April 2 traffic stop in Warren County. In August, a state medical examiner in Manassas determined that Ralph Ennis died from natural causes. But the plaintiff claims the deputies actions during the traffic stop directly caused his fathers death.

The two-count complaint accuses the deputies of using excessive force in violation of Ralph Ennis Fourth Amendment right against unreasonable search and seizure.

Defendants unreasonably used excessive force against Mr. Ennis when they effected their arrest by slamming the elderly man face first into his vehicle and then tackling him (to) the ground after he was already restrained, causing a traumatic and ultimately fatal brain injury, the complaint states. No objectively reasonable law enforcement officer would have believed that the elderly and visibly confused Mr. Ennis posed any threat or significant risk of harm to himself or any other person. No objectively reasonable law enforcement officer would believe that the level of force used by the Defendants was necessary to subdue an elderly and visibly confused man during a routine traffic stop.

The second count accuses the deputies of battery leading to Ralph Ennis wrongful death in violation of Virginia law.

At all relevant times, both Defendants had a duty to use only the amount of force necessary in subduing Mr. Ennis, the complaint states. Defendants excessive physical force against Ralph Ennis was utilized without proper verbal warning and was not justified in any way.

The extensive injuries suffered by Mr. Ennis demonstrate the excessive force used to subdue a person who was complying with verbal commands, appeared elderly and confused, and posed no immediate threat to others, the complaint states.

Ralph Ennis traveling southbound on Winchester Road passed Warren County Sheriffs Office Deputy Christopher Pontious, who was running stationary radar, at approximately 1:20 a.m. on April 2, the complaint states. Pontious reported Ennis traveling 63 mph in a 55 mph zone. Pontious also reported Ennis vehicle was swaying from side to side in its lane and had a problem with a tail light.

Pontious pursued Ennis and activated the patrol vehicles blue lights to initiate a routine traffic stop. Ennis slowed his vehicle to around 45 mph but continued traveling south on Winchester Road toward Front Royal without pulling over, the complaint states. Pontious called in on his radio to report that he was trying to stop the vehicle, which had slowed down, but was continuing to travel toward Front Royal. Pontious activated his vehicle siren after Ennis passed several chances to pull over. Ennis then slowed to approximately 35 mph.

The lawsuit cites events recorded by Pontious body camera.

Pontious activated his body camera while following Ennis. Shortly after Pontious activated the siren, Ennis turned his vehicle into the Royal Farms gas station parking lot at 260 Crooked Run Road, through to the 7-Eleven lot and pulled into a parking space. Pontious pulled up behind Ennis vehicle, blocking it in. The deputy turned off the siren but left the blue lights flashing. Pontious exited his vehicle and began commanding for Mr. Ennis to step out of the car, the complaint states.

Ennis started to exit the vehicle in an attempt to comply with Pontious command.

However, (Ennis) had only slightly opened his driver side door when Canine Officer Sergeant (J.) Gregory shouted a conflicting command of Driver stay in the car! Follow our commands! and notified Mr. Ennis of the presence of a canine officer, adding that if you do not follow our commands, you will get bit! the complaint states. At this point, Mr. Ennis started to close his door.

Another officer on the scene then commanded for Mr. Ennis to Get out of the car! and Get your hands up! the complaint goes on to state. At this point Mr. Ennis slowly opened his driver side door. (Pontious) then commanded for Mr. Ennis to step out of the car!

Ennis stepped out of his vehicle appearing visibly confused and disoriented, the complaint states.

Deputy Pontious ordered Mr. Ennis to face away from me, face 7-11, and to turn around! while pointing behind Mr. Ennis, the complaint states.

Ennis, who appeared confused by, or did not hear, the multiple and sometimes conflicting commands, complied and walked toward the rear of his vehicle and Pontious, keys in his right hand, according to the complaint. Pontious then ordered Ennis to drop his keys. The complaint states Ennis turned around to face Pontious and appeared in the video to mouth the word what?

At this time, Defendant Poe quickly rushed Mr. Ennis from behind, and without announcing his presence or giving Mr. Ennis any verbal command, violently grabbed Mr. Ennis and slammed Mr. Ennis face and body into the rear of Mr. Ennis truck, the complaint states. Mr. Ennis screamed out in a panic, Wait a minute! as the force of Defendant Poe violently slamming him into the vehicle caused Mr. Ennis baseball cap to fly off his head.

The Warren County Sheriffs Office issued a media release in late April on the incident that stated that Ennis failed to comply with lawful orders to stop, resulting in a deputy approaching Ennis from behind, and grabbing his arms in an attempt to control Ennis and place him under arrest. The deputy continued to give him commands to stop resisting, drop the keys and place his hand behind his back as Mr. Ennis was escorted several feet away to the rear of his pickup truck, according to the media release.

The complaint states that Pontious body camera footage shows Ennis was visibly confused and attempting to comply with all commands when Defendant Poe gave no verbal command or warning and slammed, not escorted, Mr. Ennis into the rear of his vehicle, causing significant injuries.

As Defendant Poe violently pressed Mr. Ennis against the rear of his vehicle, Defendant Fadley immediately rushed in from the side, and without announcing his presence or giving any verbal command, violently pushed and tackled Mr. Ennis and Defendant Poe to the pavement behind the vehicle, the complaint states. As Mr. Ennis was pushed and tackled towards the pavement, his legs were caught on his vehicles protruding tow hitch as he tumbled sideways with Officer Fadleys entire body weight on top of him.

Defendant Fadley issued his first verbal command Get on the ground! as Mr. Ennis head slams into the pavement, the complaint goes on to state. While Defendants handcuffed Mr. Ennis on the ground, Mr. Ennis can be heard on Deputy Pontious body camera footage frantically pleading for help and crying out in extreme pain.

Front Royal Police Detective Corp. R.D. Lowery arrived at the scene in time to see the defendants encounter with Ralph Ennis, according to the complaint. Lowery, while farther away from Ennis than the defendants, described in his report that Ennis appeared elderly and confused. According to the complaint, Lowery states in his report: (Poe) slammed the male into the camper top face first. I observed the male spit something out on the pavement just below his body. Another Deputy (Fadley) came from the side of the male while (Poe) had his hands behind his back. (Ralph Ennis) was pushed over but his legs caught the hitch on the back of the truck.

The complaint states that, as Lowery left the scene, his body camera footage captured him saying that was fking unjust and fing un-fing called for and Jesus Christ, oh thats going to be before the video cuts out.

Corporal Lowerys subjective impression of the situation clearly demonstrates he believed that there was an excessive use of force against Mr. Ennis, the complaint states.

Deputies handcuffed and then searched Ennis. Emergency medical services workers came to the scene to tend to Ennis injuries. Officers found no weapons on Ennis, the complaint states.

There is no factual basis within the materials to indicate that Mr. Ennis gave any of the officers reason to believe he was armed, the complaint states. Mr. Ennis did not act in a threatening manner in any way.

On the contrary, Mr. Ennis at all times presented as an elderly man who appeared confused and disoriented, but attempting to comply with various commands in a disconcerting environment, the complaint continues. Mr. Ennis was completely sober at the time of the incident and the officer-issued breathalyzer test returned a result of 0.000.

Emergency medical services workers took Ennis to Warren Memorial Hospital for treatment at approximately 2:15 a.m. after he appeared to suffer from significant head trauma.

Hospital staff reported that Ennis appeared confused, could not provide his sons name nor could he recall the altercation, the complaint states.

Staff diagnosed Ennis with a traumatic brain injury caused by the fall, specifically a bleed in his brain known as a subarachnoid hemorrhage in the left parietal and occipital lobes, according to the complaint. EMS workers transferred Ennis to Winchester Medical Center due to the severity of his trauma and he arrived at the hospital at approximately 6:30 a.m. Staff at the Winchester hospital diagnosed Ennis with terminal intracerebral hemorrhage. Ennis health continued to decline at the Winchester hospital and his family decided to change his level of care to comfort or palliative care. Ennis then was transferred to Blue Ridge Hospice on April 14 for end-of-life care.

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Lawsuit claims deputies used excessive force | Nvdaily | nvdaily.com - Northern Virginia Daily

Left: attorney John Pierce, during an interview with Tucker Carlson; right, Lloyd Casimiro Cruz, Jr., inside the Capitol on Jan. 6.

A high-profile lawyer defending multiple people accused in the Jan. 6 attack on the U.S. Capitol says that the federal search warrants used to trace one of his clients to the building are unconstitutional and that the case against his client should be dismissed.

The motion falls days after a similar Fourth Amendment challenge failed in a separate case related to the attack on the U.S. Capitol.

John Pierce, in a motion filed Saturday on behalf of client Lloyd Casimiro Cruz, Jr., argues that any evidence obtained from the search warrants that the FBI obtained on the day of the attack is so-called fruit from the poisonous tree so poisonous, the legal theory goes, that it cannot constitutionally be used in a criminal prosecution.

Cruz, who is from Missouri, is accused of joining the mob of Donald Trump supporters at the Capitol on Jan. 6. Prosecutors say he drove with friends to Washington on Jan. 3 to attend Trumps so-called Stop the Steal rally, during which Trump exhorted the crowd to march to the Capitol as Congress certified Joe Bidens win in the 2020 presidential election, a constitutionally-mandated process that marks the peaceful transition of power from one U.S. presidential administration to the next. The riotous crowd ultimately overwhelmed police, grinding the certification to a temporary halt and forcing lawmakers and staff to either leave the building or shelter in place.

According to court documents, Cruz told federal investigators that he recorded some of the destruction and chaos at the Capitol that day using a GoPro camera, which he later shared with investigators. Cruz faces four trespassing and disorderly conduct charges that have come to be known as the standard misdemeanors in Jan. 6 cases. Penalties range from six months to one year in jail if convicted.

The FBI ultimately tracked Cruz down through location data obtained from AT&T and Google through search warrants obtained on Jan. 6.

Per the FBI statement of facts in support of the probable cause warrant for Cruz:

According to records obtained through a search warrant for records in the possession of Google, a mobile device associated with I**********@g****.com was present at the U.S. Capitol on January 6, 2021. Google estimates device location using sources including GPS data and information about nearby Wi-Fi access points and Bluetooth beacons. This location data varies in its accuracy, depending on the source(s) of the data. As a result, Google assigns a maps display radius for each location data point. Thus, where Google estimates that its location data is accurate to within 10 meters, Google assigns a maps display radius of 10 meters to the location data point. Finally, Google reports that its maps display radius reflects the actual location of the covered device approximately 68% of the time. In this case, Google location data showed that a device associated with l**********@g****.com was within the U.S. Capitol Crypt at 2:17:27 p.m. on January 6, 2021. Google records showed that the maps display radius for this location data was less than 100 feet, which encompasses an area that is partially within the U.S. Capitol building. Google reported a recovery telephone number ending in 5584 for l**********@g****.com.

According to records obtained through a search warrant for records in the possession of AT&T, on January 6, 2021, in and around the time of the incident, the cellphone associated with a telephone number ending in 5584 was identified as having utilized a cell site consistent with providing service to a geographic area that included the interior of the United States Capitol building.

Login Internet Protocol (IP) address information provided by Google, and research in public records, were used to identify LLOYD CASIMIRO CRUZ, JR., residing in Polo, Missouri, as the subscriber of telephone number ending in 5584. I was requested to conduct logical investigation to identify the individual in possession of the referenced device within the U.S. Capitol building, and to conduct investigation to identify potential criminal offenses that were committed, on January 6, 2021.

In the probable cause affidavit, the FBI agent who interviewed Cruz said that the defendant shared a picture with him that apparently places him inside the Capitol building at the time of the riot.

Cruz stated he observed himself on surveillance footage from inside the U.S. Capitol building posted on One America News Networks website, the FBI affidavit says. Cruz took a screen shot of this image on this website with his cell phone. I took [a] photograph of this screen shot[.]

The AT&T and Google search warrants that led to the FBIs investigation and, ultimately, Cruzs arrest, Pierce argues, were illegal, and any evidence derived from those search warrants violates his clients constitutional rights.

[T]he entire complaint against the Defendant originated with an unlawful blanket general warrant of cellphone location data, which plainly lacked requisite specificity, Pierce writes in his motion, filed Saturday. Investigators then used such metadata to identify Cruz, rather than first having probable cause to identify Cruz and probable cause to believe Mr. Cruz had committed an offense, as required by the 4th amendment [sic].

Investigators then tracked down Cruz and obtained statements from him, as well as other evidence, Pierce continued. All of this evidence is fruit of the poisonous tree. Accordingly, this case must be dismissed en toto [emphasis in original, using the Latin phrase for in its entirety].

According to Pierce, the timeline of the FBIs investigation supports his claim:

1. The FBI began its investigation into (later to be identified) Cruz, without any probable cause to suspect Cruz of any crime;

2. The FBI used two blanket general warrants (of both Google and AT&T) to scour through cell phone and other digital metadata to then identify Cruz as a potential suspect crime (although what crimes, if any, the FBI did not know);

3. Even after identifying Cruz as a potential suspect via these general warrants, the FBI lacked probable cause to arrest him for any specific crime;

4. The FBI then flew to Missouri to question Cruz to determine if there was any probable cause to charge Cruz with a crime or crimes; and

5. Only upon questioning Cruz and getting Cruz to provide other evidence did the FBI have probable cause to charge Cruz with any crime (two misdemeanors).

Pierce, who is known for representing right-wing causes clbres including, before he was fired from the defense team, acquitted Kenosha protest gunman Kyle Rittenhouse and the very image of the riot Jacob Chansley describes the FBIs search warrant in dramatic fashion, implying that something significantly more nefarious is afoot.

The warrants in this case plainly lacked probable cause with any particularity regarding the person and things to be searched or even the crimes to be alleged, Pierce writes. Indeed, it is plain that this case was initiated by one of the worst general warrants in American history. Counsel suspects that there may be other January 6 defendants who were similarly identified by these general warrants and asks the Court to utilize its inherent powers to open a more wide-ranging inquiry into the FBIs use of these unconstitutional warrants.

Pierce also asks to put the agents involved in the warrants to answer questions under oath.

Cruz requests an evidentiary hearing in which all agents responsible for these warrants shall be made to appear, testify, and provide all supporting affidavits and/or documentation, Pierce writes, emphasizing this request in all-bold typeface.

Pierces motion comes days after a ruling from the Chief U.S. District Judge denying another Jan. 6 defendants request to suppress evidence on similar grounds. On Thursday, Beryl Howell, a Barack Obama appointee, denied Matthew Bledsoes motion to suppress evidence on Fourth Amendment grounds, finding that Bledsoe who prosecutors say live-streamed extensively from the Capitol that day did not have a reasonable expectation of privacy location data that Facebook ultimately provided to the FBI.

Cruzs case is before Senior U.S. District Judge Reggie B. Walton, a George W. Bush appointee. It is unclear when he will rule on the motion; a status conference in the case is set for Tuesday.

The recent filing of two motions seeking to either suppress or dismiss charges on Fourth Amendment search and seizure grounds may signal yet another coming fight in Jan. 6 cases in which judges could reach a variety of conclusions. Previously, several defense attorneys in Jan. 6 cases have filed motions to dismiss a particular federal obstruction charge levied against many accused rioters, and most but not all D.C. District judges have rejected these efforts.

The judges are less aligned when it comes to the issue of so-called split sentences efforts by federal prosecutors to have defendants convicted of certain Jan. 6 misdemeanors serve both jail time and probation. Some judges have said that such sentences are allowed, but others have disagreed, leaving a split on the bench.

The DOJ declined to comment about Pierces motion to Law&Crime.

Read the motion, below:

[Image of John Pierce via screengrab; image of Lloyd Casimiro Cruz, Jr., via FBI court filing.]

Have a tip we should know? [emailprotected]

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Conservative Lawyer Who Formerly Represented Kyle Rittenhouse Tees Up Potential Fourth Amendment Issue in Jan. 6 Case - Law & Crime

Students are abuzz about a federal court opinionlast week ruling that a remotely proctored university exam violated the Fourth Amendment when it captured a students sensitive tax documents.

The Northern District of Ohio ruling affirmed that Cleveland State University cant willy-nilly video a students bedroom just because that student is taking a remote exam. Given the abject disaster of remote proctoring the legal industry faced during the pandemic, folks are cautiously optimistic that this opinion will end to the tyranny of flagging cheating arbitrarily in the many remote testing opportunities throughout the legal education lifecycle.

Unfortunately, thats not going to happen.

CSU mounted a comically poor defense of its practice, defended its room-scanning practice by saying that it had become common during the pandemic and, therefore, more acceptable to society, according to Ars Technica. Judge J. Philip Calabrese did not concur:

Though schools may routinely employ remote technology to peer into houses without objection from some, most, or nearly all students, it does not follow that others might not object to the virtual intrusion into their homes or that the routine use of a practice such as room scans does not violate a privacy interest that society recognizes as reasonable, both factually and legally.

Yes, the bah, we break the law all the time so you shouldnt be surprised defense only works if youre a police officer.

But there are a few key facts missing in some of the chatter around this opinion. First of all, the Fourth Amendment applies to state actors, ensnaring schools like CSU, but wont trip up the privately administered LSAT or some private law school running a remote test like this.

Public law schools and bar exams dont have the luxury of getting out on that count though.

Secondly, CSU left it to individual professors to decide whether to conduct these room scans. In this case, the plaintiffs professor had opted into the policy originally, but backed out after the student raised a timely objection. Meaning the student had no expectation that this would happen during his test.

Additionally, the record here shows a variable policy enforced, unevenly, in the discretion of a combination of proctors and professorsof using remote scans that make a students home visible, including to other students, with uncertain consequences.

Make no mistake: every public school or hypothetical future remote bar exam will absolutely get that waiver from you. There will be no opt out. Consenting to the scan will be a condition of taking the test.

Which is probably the right answer. If were going to have tests at home theres going to be some manner of proctoring and its entirely reasonable for them to require that.

But they cant just drop it on you without you consenting to it first.

Scanning students homes during remote testing is unconstitutional, judge says [Ars Technica]

Joe Patriceis a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free toemail any tips, questions, or comments. Follow him onTwitterif youre interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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Fourth Amendment Decision Isn't Going To Stop LSAT Or Law Schools From Scanning Your Room - Above the Law

Since Bill and Hillary Clintons joint presidency, we have been using the Department of Justice as the legal counsel for the Democratic Party. AG Janet Reno abused the position and turned it into the Clinton Gestapo, and she was responsible for the unnecessary deaths of 76 Branch Davidians and four people at Ruby Ridge.

Barack Obama was a close second with the misdeeds of AG Eric Holder who doubled down on abuse of power, and referred to himself as Obamas wing man. They jointly had a scheme to sell illegal weapons at the southern border dubbed Fast and Furious. Many innocent people and one U.S. Border Patrol officer were killed from the stratagem gone wrong. Hillary Clinton tried to exercise executive privilege with many of the 33,000 classified emails she deleted from her private server in her home. She got away with it without harm or penalty due to insubordinate FBI Director James Comey. None of the preceding paid any retribution for the actions.

The Biden administration has surpassed both Clinton and Obama by unabashedly giving AG Merrick Garland free rein to pick and choose their political enemies without discretion, but that forgotten and dusty document called the U.S. Constitution will get in the way of the devious and dishonorable plans of the DOJ and FBI. The Fourth Amendment states: 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 seized.

The one thing they have overlooked is that the privilege pertaining to Presidential Records has only been exclusive to 45 presidents (Grover Cleveland was Nos. 22 and 24). The Presidential Records Act, under the law, the president can designate certain records as presidential records, and certain records as personal records. The president has Supreme Power of those records and he can take them with him after his term, he can classify or declassify them. The President is the executive branch of government!

In past legal tests, the DOJ stated that the records that former presidents maintained were personal, and are presumed not classified, and are not governed by the Presidential Records Act, and are not subject to confiscation by the DOJ, FBI or National Archives. The DOJ and FBI only changed the rules in Florida, out of desperation to find something to accuse and link Trump to the ongoing January 6 Commission banana republic shenanigans.

The DOJ and FBI had a legal subpoena, narrowly tailored to comply with the Fourth Amendment, and they served and executed it lawfully weeks before the Mar-a-Lago fiasco. Trumps attorneys were present, and congenial, but it did not yield any low-hanging fruit. The DOJ is balking on releasing the original affidavit without redactions, and Trump and his legal staff want the entire affidavit released unredacted revealing probable cause just to keep the DOJ and FBI honest. That would be a very prudent idea!

For the DOJ to continue with this charade is a mockery of our U.S. Constitution, Rule of Law and a slap in the face of every person who fought, died and defended this great nation. The FBI, the former premier law enforcement agency on the planet, has been co-opted by a few bad actors to be the enforcement arm of the Leftist Socialists.

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Fourth Amendment | Letters to the Editor | thecourierexpress.com - The Courier-Express

from the recording-evidence-of-your-own-crimes-is-always-a-bad-idea dept

While this ruling [PDF] is likely correct under current Fourth Amendment case law, it does raise questions about the propriety of mass data grabs that arent particularized to suspected criminals or investigation targets. (h/t Orin Kerr)

Tennessee resident Matthew Bledsoe was recently convicted during a jury trial for his participation in the January 6, 2021 raid of the US Capitol building. Heres what the Justice Department has to say about Bledsoes actions that day:

According to the governments evidence, in the days immediately following the Nov. 3, 2020, election, Bledsoe began posting to social media about the presidential election. On Jan. 6, 2021, he attended a rally near the Ellipse. Bledsoe then headed to the Capitol, and illegally entered the Capitol grounds shortly after 2:13 p.m. He then moved to the Capitol Building itself. He scaled a wall at the Upper Northwest Terrace and entered through a fire door at the Senate Wing. Among other things, he yelled, In the Capitol. This is our house. We pay for this s. Wheres those pieces of sat? He climbed a statue and was outside the corridor to the House Chamber and hallways near the Speakers Lobby. He left the building about 2:47 p.m., after approximately 22 minutes inside.

Whats not mentioned here is how the FBI began its search for Bledsoe and others like him. The FBI cast a very wide net first, using geofence warrants to obtain information on everyone in the area of the capitol building and working backwards from that haystack to open investigations on suspected insurrectionists.

Facebook received one of these requests. Thats the request that was challenged by Bledsoe a challenge that ultimately failed. It appears the initial request did not involve a warrant. This is from Judge Beryl Howells decision:

As part of that investigation, and in the context of the emergency situation at the Capitol, the Federal Bureau of Investigation (FBI) requested from Facebook identification information for accounts using its platform to broadcast videos of this highly public event that were live-streamed or uploaded to Facebook while the account user was physically in the U.S. Capitol during the time period when the mob was storming and occupying the Capitol building. Armed with the account identifiers, in the days that followed, the FBI then sought search warrants requiring Facebook to disclose various records and content associated with the accounts that would constitute evidence of specific federal criminal law violations.

Thats exactly where it gets problematic. It was an emergency request, which allowed FBI to sidestep warrant requirements. And it obviously swept up plenty of people who werent actually committing criminal acts. Some may have just been documenting the mayhem. Others may have been near the building but not actually in it.

The FBI then worked backwards from this data haul to identify suspects. Bledsoe challenged both the initial request and the subsequent warrants, but had both challenges denied. Judge Howells conclusion is a single sentence, albeit one proceeding a much longer explanation of the issues. While the court does see this as a novel Fourth Amendment issue, it says the Fourth Amendment simply wasnt implicated in the first request made by the FBI.

[D]efendant has not established that he had a reasonable expectation of privacy in the non-content account information disclosed by Facebook

The FBI made three requests, using the emergency disclosure provision of the Stored Communications Act. Facebook provided three responses to this request, all of them voluntary.

In response to the FBIs request, Facebook made three separate disclosures, on January 6, January 13, and January 22, 2021, voluntarily identifying Facebook and Instagram accounts that fell within the scope of the FBIs request. For each qualifying account responsible for streaming or uploading a video to Facebook from within the U.S. Capitol building during the January 6, 2021 attack, Facebook disclosed both an Object ID, which is a unique, numeric code assigned to any video uploaded to Facebook or Instagram Live, and an associated User ID, which is a unique numeric code assigned to each Facebook or Instagram account, identifying the account that posted content indicative of being inside the U.S. Capitol building during the January 6 breach.

The FBI searched Facebook and Instagram using these identifiers but found no publicly available content associated with these accounts. Actual warrants followed, compelling Facebook to turn over private content associated with these accounts.

The courts focus is on the initial data requests, though. If thats constitutional, it makes the subsequent searches that obtained content constitutional. Applying the Supreme Courts Carpenter decision one creating a warrant requirement for obtaining long-term cell site location info the court says this is a different thing entirely, even if it also deals with third-party location records collected by Facebook.

While cell site location info (CSLI) is created involuntarily simply by having a cell phone turned on, the records generated by Bledsoe while in the US Capitol building were far more voluntary: i.e., he opened an app and began recording, affirmatively generating a wealth of data (and evidence). Had Facebook collected any location data from Bledsoes device while the app was inactive, it would have put him in the initial disclosures to the FBI, but the subsequent warrants would not have produced any evidence from his account.

Thus, unlike the CSLI data at issue in Carpenter, the only way that Facebook was able to determine when and where a user engaged in account activity on January 6, 2021, is by virtue of the user making an affirmative and voluntary choice to download the Facebook or Instagram application onto an electronic device, create an account on the Facebook or Instagram platform and, critically, take no available steps to avoid disclosing his location, before purposefully initiating the activity of live-streaming or uploading a video of a highly public event, in a manner that occurs during the normal course of using Facebook as intended. Defendant has not identified a single instance where Facebook logs information concerning his account activity of posting any photo or video content on the Facebook platform without user action.

That last sentence is key. So is the fact that theres no judicial precedent that deems Facebook to be an essential part of everyday life, unlike cell phones themselves, which provide communications, internet access, and other key components of modern life.

This suppression denial will likely be appealed. As the court observed, its a novel Fourth Amendment issue. And, as such, it probably needs a second pass. Whether or not it changes anything, it will at least give the next level of judiciary system something to contemplate not just for this case, but its implications moving forward.

Filed Under: 3rd party doctrine, 4th amendment, data, doj, fbi, matthew bledsoe, social media, warrantsCompanies: facebook

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Judge: No Expectation Of Privacy In User Info Voluntarily Shared With Facebook, OKs FBI's User Data Grab - Techdirt

The long-awaited release of the affidavit of probable cause in support of the Trump raid is finally here. Oh, there are plenty of redactions; more than 20 out of 38 pages are full or partial redactions. Even the list of reasons for the redactions is completely redacted except for a couple of Agent Safety references.

A heavy redaction is not surprising. What is surprising is what we are left with in the unredacted portions, which does nothing to support the justification for the warrant nor the manner in which the warrant was executed. We can now see more clearly why the DOJ did not want to release the affidavit.

Plain and simply, the affidavit appears to have forgotten to include the legal and factual basis to establish probable cause that President Trump illegally removed or possessed highly classified documents in his home. For the warrant to withstand constitutional scrutiny, the redacted portions have a lot of work to do to articulate a very dark and sinister set of facts describing how Trump took top secrets of the United States that he did not declassify and that he did so with the intent to harm the United States or profit on the sensitive information. Otherwise, it is hard to fathom the decision to pursue a former president of the United States and current leader of the opposing political party in the manner that the DOJ and FBI have in this case.

Without more, the unredacted portions leave objective Americans with a stronger concern that this case is more about the DOJ and FBI disagreeing with Trumps lawyers on what the former president could legally keep and subsequently taking matters into their own hands.

First, lets address the apparent shortcomings of the affidavit in terms of establishing the necessary probable cause to secure a warrant. The Fourth Amendment of the United States Constitution protects citizens against the unreasonable search of their person or property, as well as their seizure (arrest). To comply with the Fourth Amendment, the government must establish probable cause that a crime has been committed and that the location to be searched contains specific evidence of that crime. The search can be determined unreasonable when the law does not clearly articulate an applicable crime, the facts do not justify the search, or the scope of the search exceeds the basis upon which the search warrant was granted.

To this end, conjecture does not probable cause make, and yet, from the unredacted portion, conjecture appears to be what scored the FBI a warrant to search Trumps home.

The FBIs affidavit does not establish probable cause to find that Trump was complicit in the removal of classified materials from the White House, or the subsequent improper storage of the same in his home at Mar-a-Lago. This bald assertion is based on allegations that 15 boxes were presented to the National Archives from Mar-a-Lago earlier this year pursuant to the Presidential Records Act, and that some of the documents therein were classified. The FBIs request for a warrant to search Trumps residence was predicated on their assumption that Trump probably sent these documents from Mar-a-Lago, and that this means there is probable cause that there are more classified documents at this location, that Trump is in possession of these documents, and that illegal actions have been taken around these documents.

Nowhere in the redacted affidavit is there a presentation of facts to establish that probable cause exists that classified documents remained at Mar-a-Lago nor that Trump was aware or personally in possession of the documents.

Moreover, the FBIs affidavit presents no facts to suggest that the alleged classified documents were possessed illegally or otherwise subject to illegal activity. The affidavit glossed over credible legal defenses supporting the legality of Trumps alleged possession and failed to address whether it possessed the authority to pursue the charges identified in the affidavit against a former U.S. president. The magistrate judge who authorized the warrant seemingly did the same.

Given the unprecedented nature of the case where the law routinely treats presidents and former presidents differently than the average citizen, the absence of any legal analysis on whether the DOJ could even pursue such a case against Trump is staggering. DOJ has an army of lawyers in the Office of Legal Counsel who pump out legal memos on such issues. If such a memo exists, any analysis contained therein does not appear to have made it into the affidavit or the warrant. The absence of legal analysis alone should have justified a denial of the search warrant, and the fact that it did not should give Americans, regardless of their opinion of Trump, some serious pause.

As far as factual basis or legal analysis goes, the only thing we can take from the unredacted affidavit is that the FBI simply alleged there were probably documents at Mar-a-Lago someone probably was not allowed to have, that someone was probably Trump, and this is illegal. Upon this conjecture, a warrant was granted for an unprecedented search of a former presidents residence.

Secondly, concerns around the ease with which the government was able to raid a home despite an alarmingly deficient basis to support the intrusion are not relieved because the home belonged to Donald Trump. Trumps detractors, even the most ardent civil liberties activists, seem willing to turn a shortsighted blind eye to civil liberty violations when the target is named Trump. But we challenge those who celebrate this warrant as satisfying your continued hostilities to read the affidavit again. This time, substitute your own name for that of Trump.

This challenge is not to chasten Trump opponents for their view of the man or his politics, but to remind those who purport to care about the rights and liberties of all Americans that they themselves are not immune. If the FBI can so easily obtain the right to raid Trumps home based on nothing but a presumption, if not a personal or political agenda, what is left to protect you, your home, or your privacy?

Fourth Amendment protections are fundamental, but whether this remains true will turn on every American demanding that the same extend to every American. If the rights of my enemy are ignored, then I should expect no less for myself and those I care about.

Brett L. Tolman is the executive director of Right on Crime and a former United States Attorney. Julie Warren is the deputy director of Right on Crime.

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FBI's Trump Raid Should Concern Everyone, Including His Critics - The Federalist

Finally climate legislation supported by our Sens. Stabenow and Peters has been signed into law. There is plenty in it that will benefit ordinary Americans.

Overall, the provisions in the law will reduce emissions by 40% ( from 2005 levels) by 2030 and it will lower energy costs. As we all have experienced over the decades, the price of oil and gas fluctuates widely. But according to the data, electricity prices have been more stable than gas and oil prices. So the plan is to move us to clean electric energy production. Some of the provisions include incentives for electric vehicles.

EV tax credits will be $7,500 for new and $4,000 for used. The maximum income for new is $150,000 and used $75,000. This will help low- and middle-income families obtain EVs. There are also home energy rebate and tax incentive programs including heat pumps, water and space heaters, clothes dryers, electric stoves and insulation. Modeling projects that our household energy costs will go down by $1,000.

There is much more in this bill to like. If you would like to know all that is included please go to cclusa.org/inflation-reduction-act-slides. This Citizens' climate Lobby training video authored by Dana Nuccitelli is well researched and thorough.

Ann ScottPetoskey

Our Petoskey library is exemplary

I know I am not alone when I say that the Petoskey District Library helped sustain me during the worst parts of the COVID-19 outbreak. Thanks to the entryway 24-hour-locker pickup system, I was able to pick up my books anytime of the day or night, and not risk contact with others. Were it not for the risk-free checkout system and the multitude of books, DVDs and magazines I checked out, being homebound would have been even more difficult.

As a retired school and public librarian, I have witnessed the democratizing principal at work in the open and accepting environment of the childrens reading room. When children hear a story about someone like them maybe someone who lives in a trailer with their grandma, or has a dad in prison, or who has an unconventional family they suddenly realize they are not alone. When they hear a fable from their ancestors country, they feel like they too belong and are part of the broader community.

Remember the saying that one must walk in someone elses shoes to really understand their perspective? Books can help us gain compassion and understanding about others peoples or places we may never have the opportunity to visit.

When I was a school librarian, our mission was to provide a framework to help address the emotional, educational and recreational needs of students. Our Petoskey Public Library is exceptional in providing a safe, nurturing environment that can make everyone feel valued no matter what their background. Our library is exemplary in providing resources and much needed services for young people in our community.

Mary OlmstedPetoskey

Could any of us now be subjected to the 4th Amendment and all it entails?

As a lawyer for the past 40 years, it troubles me the way our freedoms are being slowly eroded by the actions of our government and agencies. The Fourth Amendment was set in place to protect people from the intrusion of government into their homes and lives without some serious oversight by the courts. Before we became independent from British rule, it was common for the agents of the King to storm into homes in search of subjects whose thoughts and actions may have been contrary to the best interests of the Crown. I thought the Constitution and the Bill of Rights solved that problem and gave us back the peace of mind to be free from the troublesome intrusion of law enforcement agents.

Recent events have shown how nave I had become in the comforting words of the Fourth Amendment, and its assurances that I would be free from unreasonable searches and seizures. How dare the FBI raid the home of our former commander in chief on only the affidavit of sworn law enforcement officers and the scrutiny of a federal judge! Does this set a precedent that means anyone who evades taxes, attempts to undermine an election, sexually assaults women, manipulates the value of their assets to reduce taxes, aides and abets the overthrow of our democracy and its election system, and illegally steals top secret documents, will be subject to investigation? Is that what we have become as a country? Who knows what could happen next if this form of police overreach is allowed to exist. Our courts and jails could be flooded with a glut of politicians and their cronies and enablers.

We could suddenly find ourselves in the cross-hairs of a search warrant after having stolen corporate secrets from our employers, or simply embezzled money. Who wants to be under the gun from police just because they keep their drug stash at home instead of in a warehouse. This opens the door to all kinds of unreasonable law enforcement actions for drug searches, espionage, illegal possession of firearms, tax evasion, harboring criminals, exploitation of illegal aliens the list goes on. Personally, I dont want to wake up some day and discover that I could be held accountable for keeping nuclear secrets in my locked gun cabinet. Wake up, America, and stand up for your rights!

Chuck McMurryCarp Lake

Booing at football games terrible conduct for students

Last night, Aug. 25, the Harbor Springs Varsity football team hosted Elk Rapids. It was a beautiful evening with warm temperatures and excitement in the air for what would be the first game of the season for both teams. The game started off beautifully, and then quickly took an unfortunate and very ugly turn.

The Harbor Springs band and students started to boo very loudly every time the Elks cheerleaders tried to perform a cheer. It was mostly led by their band students, with their band director standing by and doing nothing to put a stop to the rude, unsportsmanlike behavior. The booing then spread around to more in the stands. The fans got louder with every cheer the girls tried to give, mocked them, and even shouted "drop her!" when the girls were raised in stunting positions. It was the most disgusting behavior I've ever witnessed at a high school football game, and the Harbor Springs community should be ashamed.

I am writing to make the Harbor Springs community aware of how sickening everyone behaved that night. They didn't have their own cheerleaders, but that doesn't make it OK to yell and be rude to our girls who have worked hard all summer to cheer for our fans. Maybe it's time to sit your kids down and have a chat about sportsmanship and respect. Do better.

Lori LemmienPetoskey

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Letters to the Editor: Celebrate that climate legislation will benefit us now, in the future - Petoskey News-Review

NEWYou can now listen to Fox News articles!

Sean Hannity discussed how the FBI relied on "speculative news articles" to justify their raid on former President Trump and how they "accidentally seized privileged documents from the president's home" on "Hannity."

GREGG JARRETT: MERRICK GARLAND MUZZLED HIS VOICE WITH BLACK INK

SEAN HANNITY: Despite heavy redactions from the DOJ in the affidavit, we can now see that the FBI relied on speculative news articles to justify their raid. This is insanity. This is what the FBI has now been reduced to, quoting America's abusively corrupt and biased news media and remember, which was a raid in search of documents requested by bureaucrats at the National Archives. As the Wall Street Journal put it, quote, the Mar a Lago affidavit. That's all there is. The redacted 38 pages. Add to the evidence that the FBI search was really all about a dispute over documents.

In an op-ed, Brock declared that the DOJ has no case against President Trump. And now we're learning the FBI, quote, "accidentally seized privileged documents from the president's home" during their fishing expedition, including attorney-client material that law enforcement is prohibited from ever viewing. In other words, a very clear violation of the Fourth Amendment. That's why you don't have broad, sweeping warrants like this one are signed off by a magistrate that hates Trump, loves Obama, and already once recused himself from a case involving Donald Trump.

WASHINGTON, DC - APRIL 26: US Attorney General Merrick Garland delivers a statement at the Department of Justice on April 26, 2021 in Washington, DC. Garland announced that the Justice Department will begin an investigation into the policing practices of the Louisville Police Department in Kentucky. A report of any constitutional and unlawful violations will be published. (Photo by Mandel Ngan-Pool/Getty Images)

But the DOJ, the FBI, they don't want a special master to review this case as requested by President Trump's attorneys. Instead, they simply want us to trust them. They already read it all anyway. They've had enough time, including material of President Trump's that was an attorney-client privilege.

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Fox News and other right-wing media outlets have claimed that the FBI and the Justice Department violated former President Donald Trump's Fourth Amendment rights during the August 8 search of his Mar-a-Lago residence, but legal experts dispute this claim.

On August 8, the FBI executed a judge-approved search warrant as part of ongoing investigations into Trumps possible mishandling of classified documents and presidential records. Earlier this year, reports surfaced that the National Archives and Records Administration had retrieved 15 boxes of White House records from Mar-a-Lago in January, some of which contained classified materials. After months of back and forth between the FBI and Trump which includedFBI and DOJ investigators visiting Mar-a-Lago and the issuance of a subpoena to Trump in pursuit of documents that federal investigators believed he had failed to turn over earlier in the year the agency finally got a search warrant approved by a Florida judge, which led to the August 8 search.

In response to these events, right-wing media have downplayed the seriousness of Trumps potential wrongdoing, pushed false claims and baseless conspiracy theories, fearmongered that the Justice Department and the FBI have been weaponized against Trump, and now are claiming that law enforcement violated the former presidents Fourth Amendment rights against unreasonable search and seizure, despite the fact that the FBI had a warrant for the search.

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Right-wing media claim Trump's Fourth Amendment rights were violated in Mar-a-Lago search - Media Matters for America

(Photo by Mark Wilson/Getty Images)

Two weeks ago, the FBI executed a search warrant at the former presidents private club to retrieve government property wrongfully retained after American voters sent Donald Trump packing. Since then, weve seen conservative group Judicial Watch sue to gain access to the search documents, followed by every major media outlet in the country piling on to successfully kick loose the warrant, inventory, and soon a redacted version of the underlying affidavit.

What we havent seen is Donald Trumps lawyers do anything at all besides yell on TV and make wild accusations that the FBI planted evidence. But last week Fox Newss Laura Ingraham seems to have lit a fire under Team Trump, so now were getting a major motion pertaining to the Fourth Amendment.

As usual, the former president is vague on exactly which statutes the scammers supposedly violated. Nor is he clear how this grievous wrong will be vindicated. But hes sure that his rights, together with the rights of all Americans, have been violated at a level rarely seen before in our Country. And hes not going to put up with it!

Trumps lawyer Lindsey Halligan, whose primary practice area appears to be landlord-tenant disputes, promised that Trumps illustrious legal team was taking the matter seriously if not expeditiously but said she was not going to talk about it until its actually filed.

Dr. Gina has neither a medical degree nor a degree in psychology, and shes not a licensed therapist. She does have a PhD in human and organization systems from an online university, though, and she did write a book claiming Trump was the most sound-minded person to ever occupy the White House. So you know this conversation was on the highest level all ways round.

James Trusty, a former federal prosecutor and one of Trumps only attorneys with relevant experience, was more specific on Fox this weekend.

The Fourth Amendment requires particularity. It requires narrowness to the intrusion on the persons home, he said, going on to describe the warrant as authorizing the functional equivalent of a general search.

How fun for Fox viewers to discover that civil liberties are good, actually!

Were going to come out swinging and say, look, you know, this cannot be just with a wink and a nod from DOJ that we are supposed to trust them, he went on. Under these circumstances, were going to have to get court involved, judicial intervention at the District Court level, to get somebody in the mix here that can help vindicate the Fourth Amendment rights of the president.

Simply as a matter of linear time, it is already too late for the former presidents legal team to come out swinging. But if he wants to file a Rule 41 motion for the return of property, as his former lawyer John Eastman did recently, he may have a bit of a bit of a problem since the FBI went in there to seize government property wrongly retained, and most of the stuff taken doesnt belong to him.

In fact, as Politico notes, while Trump threw a massive online tantrum about agents seizing his three passports, he appears to have been unaware that they were even taken and only alerted to the fact when the FBIs filter team flagged them as improperly seized and returned them.

In later comments to conservative host Mark Levin, Trusty elaborated on his theme of government overreach and promised to seek a special master to intervene to protect documents which are attorney-client privileged, although it appears that the Department is already employing its own filter team. The irony of a lawyer going on television to broadcast Trumps legal strategy while complaining that the government is illegally prying into his Trumps legal strategies appears to be lost on Trusty. But his client appears to be far more concerned with what goes on in front of the camera than in the actual courtroom.

And PS, while Trusty promised Levin that he would be filing within hours, as of this writing, nothing has hit the docket.

United States v. Sealed Search Warrant [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

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Trump Lawyers Promise To 'Come Out Swinging' And It Only Took Them Two Short Weeks! - Above the Law