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Georgia v. Randolph, 547 U.S. 103 (2006), is a case in which the U.S. Supreme Court held that without a search warrant, police had no constitutional right to search a house where one resident consents to the search while another resident objects. The Court distinguished this case from the "co-occupant consent rule" established in United States v. Matlock, 415 U.S. 164 (1974), which permitted one resident to consent in absence of the co-occupant.

Respondent Scott Randolph and his wife, Janet Randolph, separated in late May 2001, when she left the marital residence in Americus, Georgia, and went to stay with her parents in Canada, taking their son and some belongings. In July, she returned to the Americus house with the child; the record does not register her motive for returning.

On the morning of July 6, she complained to the police that, after a domestic dispute, her husband had taken their son from the marital residence, and when the police reached the Randolph house, she told them that her husband was a cocaine user whose drug use habit had caused the family financial troubles. She mentioned the marital problems, saying that she and their son had only recently returned after a several weeks' stay with her parents. Shortly after the policemen arrived, Scott Randolph returned, explaining to them that he had removed their son to a neighbor's house, worried that his wife might again take the boy out of the U.S.; Scott Randolph denied using cocaine, and countered that it was his wife, Janet, who used illegal drugs and abused alcohol.

One of the policemen, Sergeant Murray, went with Janet Randolph to reclaim the Randolph child from the neighbor; when they returned, she renewed her complaints about her husband's drug use and volunteered that there were items of drug evidence in the house. Sergeant Murray asked Scott Randolph for permission to search the house; he refused. The sergeant then asked Janet Randolph's consent to search the Randolph house, which she readily gave, and then led him to an upstairs bedroom she identified as Scott's, where the sergeant noticed a section of a drinking straw with a powder residue he suspected was cocaine. He then left the house to get an evidence bag from his patrol car, and to call the district attorney's office, which instructed him to stop the search and apply for a search warrant. When Sergeant Murray returned to the house, Janet Randolph withdrew her consent to searching the house. The police took the drinking straw to the police station, along with the arrested occupants. After obtaining a search warrant, they returned to the Randolph house and seized further evidence of illegal drug use, on the basis of which Scott Randolph was indicted for possession of cocaine.

At court, Scott Randolph moved to suppress the evidence, as products of a warrantless search of his house, unauthorized by his wife's consent over his express refusal. The trial court denied the motion, ruling that Janet Randolph had "common authority" to consent to the search.

In a 5-3 opinion written by Justice Souter, the Court held a co-resident could refuse consent to a police search, even if another resident consented.[1] Specifically:

The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent. We hold that, in the circumstances here at issue, a physically present co- occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.

The Court's decision distinguished its previous rulings in Illinois v. Rodriguez, 497 U.S. 177 (1990) and Matlock. In Rodriguez and Matlock the police obtained voluntary consent from a co-occupant at the residence and found evidence implicating another resident who was not present when the police obtained consent. The Court said that the present case was different from the previous two in that the co-resident was not present to refuse consent to the search. In Rodriguez the co-occupant who later objected to the search was asleep in a bedroom within the residence; in Matlock, the later-objecting co-occupant was located in a nearby police vehicle.

Justice Alito, who had yet to be confirmed when the case was argued, did not participate in the argument or decision of the case.

Justices Stevens and Breyer separately concurred with the Court majority opinion. Justice Stevens's concurrence attacked the "originalists" view of the Fourth Amendment, noting that the search would remain prohibited had the Court attempted to apply the law based upon the meaning intended by the Founding Fathers, noting that when the Fourth Amendment was written, the law of the time would have made the husband the "master of his house":

In the 18th century . . . given the then-prevailing dramatic differences between the property rights of the husband and the far lesser rights of the wife, only the consent of the husband would matter. Whether "the master of the house" consented or objected, his decision would control. Thus, if "original understanding" were to govern the outcome of this case, the search was clearly invalid because the husband did not consent. History, however, is not dispositive, because it is now clear, as a matter of constitutional law, that the male and the female are equal partners.

Justice Breyer's concurrence stressed that the majority opinion was rather specific, writing "the circumstances here include the following":

The search at issue was a search solely for evidence. The objecting party was present and made his objection known clearly and directly to the officers seeking to enter the house. The officers did not justify their search on grounds of possible evidence destruction. Cf. Thornton v. United States, 541 U.S. 615, 620622 (2004); Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 623 (1989); Schmerber v. California, 384 U.S. 757, 770771 (1966). And, as far as the record reveals, the officers might easily have secured the premises and sought a warrant permitting them to enter. See Illinois v. McArthur, 531 U.S. 326 (2001). Thus, the "totality of the circumstances" present here do not suffice to justify abandoning the Fourth Amendment's traditional hostility to police entry into a home without a warrant. I stress the totality of the circumstances, however, because, were the circumstances to change significantly, so should the result.

Chief Justice Roberts feared the Court's ruling would limit the ability of police to combat domestic violence. Chief Justice Roberts also noted that the purpose of the Fourth Amendment was to protect individual privacy, but any person who shares a dwelling (or, as Chief Justice Roberts points out, a locker or a hard drive) with another person may anticipate that the other person sharing access to their belongings might turn them over to authorities. In short, to share a home with someone is to surrender privacy as to that person, who might then consent to an invasion of it. Roberts also asserted that the majority opinion was arbitrary, as previous case law had held an objecting resident who was being held in the police car, as opposed to in the house, could be ignored with respect to the search.

Justice Antonin Scalia wrote a short dissent as a response to Justice Stevens's concurrence:

The issue of who could give such consent generally depended, in turn, on historical and legal refinements of property law. As property law developed, individuals who previously could not authorize a search might become able to do so, and those who once could grant such consent might no longer have that power . . . There is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change . . . Finally, I must express grave doubt that todays decision deserves Justice Stevens celebration as part of the forward march of womens equality. Given the usual patterns of domestic violence, how often can police be expected to encounter the situation in which a man urges them to enter the home while a woman simultaneously demands that they stay out?

In August 2006, a California trial court suppressed evidence after police acquired an absent residents permission to enter a dwelling, but failed to knock-and-announce before entering to discover another resident using drugs.[2] In Fernandez v. California (2014), the Supreme Court held that, when the resident who objects to the search of the dwelling is removed for objectively reasonable purposes (such as lawful arrest), the remaining resident may validly consent to search.

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Enlarge / Supreme Court nominee Judge Brett Kavanaugh testifies before the Senate Judiciary Committee on the third day of his Supreme Court confirmation hearing on Capitol Hill September 6, 2018 in Washington, DC.

On Thursday, during the second-to-last day of hearings before the Senate Judiciary Committee, Sen. Patrick Leahy (D-Vt.) had an interesting exchange over recent privacy cases with the Supreme Court judicial nominee, Judge Brett Kavanaugh.

"I've talked repeatedly in this hearing about how technology will be one of the huge issues with the Fourth Amendment going forward," said Kavanaugh, who serves on theUnited States Court of Appeals for the District of Columbia Circuit.

Opening their six-minute tte--tte, Leahy began by asking the appellate court judge about what Kavanaugh wrote in November 2015 in a case known as Klayman v. Obama. In that case, a well-known conservative activist attorney, Larry Klayman, sued the then-president on June 7, 2013the day after the Snowden revelations became public. The complaint argued that the National Security Agency's telephone metadata program ("Section 215"), which gathered records of all incoming and outgoing calls for years on end, was unconstitutional.

US District Judge Richard Leon ruled in favor of plaintiff and attorney Larry Klayman in December 2013 and ordered that the NSA's program be immediately halted. But he stayed his order pending the government appeal, which reversed Judge Leon in August 2015.

Klayman asked the appeals court to re-hear the case with all of the District of Columbia appellate judges, in whats known as an en banc appeal. This was denied, and Kavanaugh separately agreed with that decision in a November 2015 concurrence.

"I do so because, in my view, the Government's metadata collection program is entirely consistent with the Fourth Amendment," Kavanaugh wrote. "Therefore, plaintiffs cannot show a likelihood of success on the merits of their claim, and this Court was right to stay the District Court's injunction against the Governments program. The Governments collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court's decision in Smith v. Maryland, 442 U.S. 735 (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis."

Kavanaugh went further, saying that even if the Section 215 metadata program was a search, it should be considered "reasonable" in the name of national security.

"The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient 'special need'that is, a need beyond the normal need for law enforcementthat outweighs the intrusion on individual liberty," he wrote. "Examples include drug testing of students, roadblocks to detect drunk drivers, border checkpoints, and security screening at airports."

So Sen. Leahy wanted to know why Kavanaugh went out of his way to say this months after Leahy himself had authored a revision in the law, known as the USA Freedom Act, and when two government watchdogs had called for Section 215 to end. (An outside analysis also found in January 2014 that Section 215 was ineffective.)

"I was trying to articulate what I thought based on precedent at the time, when your information went to a third party and when the government went to a third party, the existing privacy Supreme Court precedent was that your privacy interest was essentially zero," Kavanaugh said Thursday. "The opinion by Chief Justice Roberts this past spring in the Carpenter case is a game changer."

Carpenter v. United States involved a suspect, Timothy Carpenter, who was accused of leading an armed robbery gang that hit Radio Shack and other cell phone stores in Michigan and Ohio in 2010 and 2011. The government was able to warrantlessly obtain 127 days' worth of his CSLI from his mobile provider, which detailed precisely where Carpenter had been during that time. The Supreme Court ultimately ruled earlier this year that, when the government seeks to obtain such a large volume of intimate information, it needs to get a warrant first in most cases.

The impact of Carpenter is starting to be felt in cases around the country.

"Do you think if Carpenter had been decided you would have written the concurrence you did in Klayman?" Leahy asked.

"I don't see how I could have," Kavanaugh said.

"Thank you, I agree with that," the Vermont senator replied.

Sen. Leahy then moved on to a 2012 Supreme Court case, United States v. Jones, which in retrospect has become one of a string of three major pro-privacy decisions that the high court has made within the last decade.

That case began in federal court in Washington, DC, and moved on to the appellate court on which Kavanaugh now sits, the United States Court of Appeals for the District of Columbia Circuit.

Before the Supreme Court agreed to hear Jones, the government, which lost at the appellate level, asked the DC Circuit to reconsider en banc. It declined to do so, but Kavanaugh wrote a dissent in November 2010 even though he was not on the original panel of three appellate judges.

Kavanaugh and three other Circuit judges wrote that Jones, which involved the warrantless placement of a GPS tracker on a suspected drug dealer's car, was very similar to a 1983 decision known as United States v. Knotts.

In that case, the Supreme Court found that there was no "reasonable expectation of privacy" when traveling on a public road. Therefore, a majority concluded, it was OK for the police to put a short-range FM transmitter on a drug suspect's car as it drove 100 miles from Minnesota to Wisconsin.

"The reasonable expectation of privacy as to a person's movements on the highway is, as concluded in Knotts, zero," Kavanaugh wrote in 2010. "The sum of an infinite number of zero-value parts is also zero."

Quoting from this very line during the Friday hearing, Leahy compared Kavanaugh's analysis to a statement as being closer to "the Chinese government than what we'd get from James Madison, had he known about what we can do."

Then, he brought his question home to the present day: "So, because of Carpenter, do you believe there comes a point at which collection of data about a person becomes so pervasive that a warrant would be required even if one collection of one bit of the data would not?"

While he didn't come right out and say it, Leahy seemed to be probing whether Kavanaugh ascribes to what many legal scholars call the "mosaic theory." This is the notion that, while a series of discrete surveillance or near-surveillance actions in and of themselves may be legal, there comes a point when those are aggregated over a long enough period of time that they become an unreasonable search in violation of the Fourth Amendment.

Both men undoubtedly knew that the DC appeals court ultimately ruled in favor of the mosaic theory in August 2010 when it handed an intermediate win to Antoine Jones and his co-defendant, Lawrence Maynard.

Kavanaugh reminded the hearing that, in this same dissent, he pointed out that there was a Fourth Amendment violation in the physical attachment of the GPS on Jones' Jeep Grand Cherokee. (This line of reasoning was what was ultimately seized upon by Justice Antonin Scalia and the conservative wing of the Supreme Court.)

But when Kavanaugh addressed whether or not he agreed with the mosaic theory, he was measured in his answer. Kavanaugh seemed to suggest that he disagreed with his DC appeals court colleagues on this point.

"I think the Supreme Court case law in the Riley case, written by Chief Justice Roberts, and the Carpenter case, written by Chief Justice Robertsboth majority opinionsshow his and the court's recognition of the issue that you're describing in that technology," Kavanaugh said.

"It's made things different, and we need to understand those differences for purposes of applying Fourth Amendment law now, and I do think those two decisions are quite important. Someone sitting in this chair 10 years from nowthe question of technology on Fourth Amendment, First Amendment, [and] War Powers [are] going to be of central importance. I appreciate your question, but I think the Supreme Court case law is developing in a way consistent with your concern."

"Do you think it's consistent with the fact that there will be areas so pervasive that you will need warrants?" Leahy asked.

"The Supreme Court case law is certainly suggesting as much in the Riley and Carpenter case and the Jones GPS case, which I had written the opinion in."

In short, Kavanaugh, in deferring to the government, seemed to acknowledge that he may be in the minority on this point.

The Senate Judiciary Committee is expected to vote on his nomination on September 17, with a full floor vote set to come at the end of the month. With no substantive objection from the Republican majority, Kavanaugh is all but set to be confirmed, in which case he will replace retired Justice Anthony Kennedy, for whom he clerked.

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NSA metadata program consistent with Fourth Amendment ...

'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.

The Supreme Court has noted repeatedly that the drawing of blood constitutes only a minimally intrusive search. Skinner, 489 U.S. at 625 (blood tests do not 'infringe significant privacy interests'); Winston v. Lee, 470 U.S. 753, 62 ('85) (not 'an unduly extensive imposition'); Schmerber, 384 U.S. at 771 ('commonplace'); Breithaupt v. Abram, 352 U.S. 432, 36 ('57) ('routine' and 'would not be considered offensive by even the most delicate').

'An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.' Skinner, 489 U.S. at 421-2 (holding that a warrant was not required in part because 'in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate'). The Supreme Court recently reaffirmed and expanded the principle first enunciated in Skinner, stating that, in some contexts, 'testing based on `suspicion' of [wrongful activity] would not be better, but worse' than suspicionless testing. Acton, 1995 WL 373274, at *8. In Acton, the Supreme Court upheld as constitutional a school district's practice of conducting random, suspicionless urine testing of school athletes for drug use. The Court rejected the proposition that the school district could conduct such testing only if school officials had suspicion that a specific athlete was using drugs, holding that this alternative 'entails substantial difficulties -- if it is indeed practicable at all.' Id. Accusatory drug testing would 'transform[] the process into a badge of shame' and would increase the risk that school officials would impose testing arbitrarily upon disfavored, but not drug-using, students. Id.

Except in certain narrowly limited cases, the Court repeatedly has stated its 'insist[ence] upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.' Chambers v. Moreny, 399 U.S. 42, 51 ('70). Because '[t]he integrity of an individual's person is a cherished value in our society,' searches that invade bodily integrity cannot be executed as mere fishing expeditions to acquire useful evidence: 'The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.' Schmerber, 384 U.S. at 772, 769-70.

Only when law enforcement faces an exigent circumstance, such as a need to preserve evanescent blood alcohol evidence, and has probable cause to link the sought-after information to a crime under investigation is it constitutional to conduct nonconsensual blood testing without a warrant. Id. at 770-71. Therefore, forced extraction of blood not only 'implicates the Fourth Amendment,' as the majority notes, but also falls squarely within the area of privacy interests for which the traditional probable cause requirement determines reasonableness in the law enforcement context. Forced blood extraction intrudes on the private personal sphere and infringes upon an individual's 'most personal and deep-rooted expectations of privacy.' Winston v. Lee, 470 U.S. 753, 60 ('85).

Searches Involving Intrusions Beyond The Body's Surface.

Schmerber v. California, 384 U.S. 757, 69 ('66). The Schmerber Court posed two questions: (1) whether the police were justified in imposing a nonconsensual blood test and (2) whether the procedures themselves were reasonable. Id. at 768. In answering the first question, the Court recognized that it was 'writ[ing] on a clean slate' regarding the treatment of searches that involve intrusions into the human body. Id. at 767-8. It concluded that such searches require probable cause. Id. at 770-1.

Similarly, the Supreme Court in Winston v. Lee, 470 U.S. 753 ('85), recognized that Schmerber's threshold standard was a requirement of probable cause 'where intrusions into the human body are concerned,' which implicate 'deep-rooted expectations of privacy.' Id. at 761, 760. The Winston Court then acknowledged `other factors'' [b]eyond these standards' that must be considered in determining whether a particular intrusion is reasonable: whether 'the procedure threatens the safety or health of the individual' and 'the extent of the intrusion upon the individual's dignitary interests.' Id. at 761 (emphasis added). In regard to the additional 'dignitary' factor (beyond the threshold inquiry of invasion of bodily integrity), the Winston Court noted Schmerber's recognition that blood extraction is not 'an unduly extensive imposition.' Id. at 762. The Court contrasted this lesser bodily invasion, which the Schmerber Court had upheld upon demonstration of probable cause, with the more drastic measure of dangerous surgery to recoup criminal evidence, which the Winston Court concluded would violate the individual's Fourth Amendment rights even when supported by probable cause. Thus again, the context of the quotation demonstrates that the Court places blood extraction squarely within the probable cause requirement because it is an invasion of bodily integrity, while at the same time acknowledging that it is a less extensive imposition on dignitary interests than surgical removal of a bullet.

Investigatory Stops Of Motorists At Sobriety Checkpoints.

The unique situation in which the Supreme Court has approved suspicionless searches in the traditional law enforcement context. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444 ('90). The Sitz Court relied on well-settled law that motorists have a lessened expectation of privacy regarding stops and visual searches of automobiles on the nation's roadways. Id. at 450 (explaining the importance of the context of 'police stops of motorists on public highways'). At these sobriety checkpoints, which motorists may choose to avoid, only the initial brief stop and preliminary questioning may take place without individualized suspicion: 'more extensive field sobriety testing' requires justification. Id. at 450-2.

Like the highway sobriety checkpoints, the 'special needs beyond normal law enforcement' rationale supports searches on lesser grounds than probable cause only in a very few, carefully tailored regulatory contexts that do not involve apprehension of criminal perpetrators. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 65-66 ('89) (applying the special needs exception to suspicionless quasi-consensual drug testing of Customs Service employees seeking transfer to positions having a direct involvement in drug interdiction).

The special needs exception covers testing which 'is not designed to serve the ordinary needs of law enforcement [because] . . . results may not be used in criminal prosecution.' Von Raab, 489 U.S. at 666 (emphases added). Even so, a search in the special needs context almost always requires individualized suspicion. See, e.g., Portillo v. U.S. Dist. Court, 15 F.3d 819, 823 (9th Cir.'94) (requiring individualized suspicion for urinalysis testing under the probationer special needs exception). The rare special needs cases which do not require individualized suspicion involve persons who voluntarily participate in a highly regulated context. See, e.g., Von Raab, at 671, 677 (noting that 'certain forms of employment may diminish privacy expectations' for the 'employees who seek to be promoted' to certain positions); Vernonia School Dist. v. Acton, 1995 WL 373274, *6-*7 (U.S. June 26, '95) (noting that schools are highly regulated and 'like adults who choose to participate in a `closely regulated industry,' students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy').

Nonetheless, routine searches that intrude into prisoners' bodies without probable cause may be upheld only when the search is undertaken pursuant to a valid prison regulation that is reasonably related to a legitimate penological objective. Turner v. Safley, 482 U.S. 78, 87-91 ('87); see, e.g., Walker v. Sumner, 917 F.2d 382, 387 (9th Cir.'90) (remanding for evidence of a specific penological objective because 'general protestations of concern for the welfare of the citizens of Nevada and the prison community are simply insufficient to render the involuntary seizure of blood specimens, even from prison inmates, constitutionally reasonable').

Individuals have a categorically different and lesser expectation of privacy in their fingerprints, visual images, or voice prints

- even when their production is compelled -- because they are personal attributes that are routinely exposed to the public at large in daily life. Katz v. U.S., 389 U.S. 347, 51 ('67) (finding a lesser expectation of privacy in personal effects that 'a person knowingly exposes to the public, even in his own home or office').

The Fourth Amendment provides no protection for what 'a person knowingly exposes to the public'. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.

The required disclosure of a person's voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber . . . . Rather, this is like the fingerprinting in Davis, . . . [which] 'involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.' U.S. v. Dionisio, 410 U.S. 1, 14-15 ('73) (quoting Katz v. U.S., 389 U.S. 347, 51 ('67), and Davis v. Mississippi, 394 U.S. 721, 27 ('69)) (emphases added).

'Fingerprinting' - like the compelled production of other aspects of an individual's identification that are routinely exposed to and superficially observable by the public at large, such as voice prints, handwriting exemplars, and photographs - simply belongs to a different category of search that 'represents a much less serious intrusion upon personal security than other types of searches and detentions.' Hayes v. Florida, 470 U.S. 811, 14 ('85).*fn10 The majority's analysis obliterates this critical constitutional distinction between coerced fingerprinting and blood extraction for DNA genetic pattern analysis.

Blanket Searches.

Blanket searches are unreasonable, however 'evenhanded' they may be, in the traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91-2, 92 n.4 ('79) (invalidating a blanket patdown search of all patrons in a tavern, even though there was probable cause to search the bartender and the premises). The ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but 'evenhanded' general police searches.

In Zurcher, the Supreme Court held that a search of the offices of a university newspaper, which was not involved in any criminal activity, for photographs of demonstrators who had assaulted police officers did not offend the Fourth Amendment's ban against unreasonable searches and seizures. The court concluded: '[T]he Amendment has not been a barrier to warrants to search property on which there is probable cause to believe that fruits, instrumentalities, or evidence of crime is located, whether or not the owner or possessor of the premises to be searched is himself reasonably suspected of complicity in the crime being investigated.' Zurcher v. Stanford Daily ('78) 436 U.S. 547, 549-50.

Fourth Amendment protects the 'right of the people to be secure in their persons . . . against unreasonable searches and seizures.' The essence of that protection is a prohibition against some modes of law enforcement because the cost of police intrusion into personal liberty is too high, even though the intrusion undoubtedly would result in an enormous boon to the public if the efficient apprehension of criminals were the sole criterion to be considered. 'The easiest course for [law enforcement] officials is not always one that our Constitution allows them to take.' Wolfish, 441 U.S. at 595 (Stevens, dissenting).

A permanent resident alien is entitled to constitutional protection. See Landon v. Plasencia, 459 U.S. 21, 32-4 ('82) ('[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.'). In particular, to Fourth Amendment protection against unlawful seizures. See Benitez-Mendez v. INS, 760 F.2d 907, 09-10 (9th Cir.'85) (finding that INS seizure of alien violated Fourth Amendment); see also INS v. Delgado, 466 U.S. 210, 213 n.1, 215-21 ('84) (considering whether questioning of resident aliens by INS agents amounted to seizure for purposes of Fourth Amendment); Martinez v. Nygaard, 831 F.2d 822, 824, 826-28 (9th Cir.'87) (analyzing whether seizures of three resident aliens complied with Fourth Amendment).

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This story first appeared on the TomDispatch website.

Heres a bit of history from another America: the Bill of Rights was designed to protect the people from their government. If the First Amendments right to speak out publicly was the peoples wall of security, then the Fourth Amendments right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now in Post-Constitutional America.

The Fourth Amendment

A response to British King Georges excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches: 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.

In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as unreasonable in our old constitutional world, but no more.

Here, then, are four ways that, in the name of American security and according to our government, the Fourth Amendment no longer really applies to our lives.

The Constitutional Borderline

Begin at Americas borders. Most people believe they are in the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.

Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the border search. The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally reasonable simply by virtue of where they take place. Its a concept with a long history, enumerated by the First Congress in 1789.

Heres the twist in the present era: the definition of border has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.

Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast Constitution-free zone. The border is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the US population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitraswhose work focuses on national security issues in general and Edward Snowden in the particularknows firsthand. Since 2006, almost every time Poitras has returned to the US, her plane has been met by government agents and her laptop and phone examined.

There are multiple similar high-profile cases (including those of a Wikileaks researcher and a Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the US and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them US citizens, were subjected to electronic device searches at the border.

Still, reminding us that its possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent pun at its website: It is not the intent of CBP to subject travelers to unwarranted scrutiny. (emphasis added)

Making It All Constitutional In-House

Heres another example of how definitions have been readjusted to serve the national security states overriding needs: the Department of Justice (DOJ) created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants.

Some background: a warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter Thomas Andersons home and look for hacked software. Warrants can only be issued on probable cause. The Supreme Court defined probable cause as requiring a high standard of proof, or to quote its words, a fair probability that contraband or evidence of a crime will be found in a particular place.

A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.

The Department of Justice now claims that, under the Fourth Amendment, it can simply subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: the DOJ isnt doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We dont know, as sources of data like Facebook and Google are prohibited from disclosing much about the information they hand over to the NSA or other government outfits about you.

Its easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message youve ever sent without a warrant and it wont constitute a search. The DOJ has continued this practice even though in 2010 a federal appeals court ruled that bulk warrantless access to email violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureaus agents dont need warrants to access email in bulk when its pulled directly from Google, Yahoo, Microsoft, or other service providers.

How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a subpoenano court involveddemanding that the Project On Government Oversight (POGO) turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.

Rather than seek to break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.

Technology and the Fourth Amendment

Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoovers low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureaus counterintelligence program (COINTELPRO).

But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the US by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.

To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now onlinefrom banking to travel to social media. Where the NSA was once limited to traditional notions of communicationthe written and spoken wordnew possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to facial recognition technology that can increasingly put a name to a face. Such technology, employed today at casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.

An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own trade association in Washington.) One of the worlds largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.

With ever more data available, the NSA and other agencies are creating ever more robust ways to store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage warehouses.

The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11 sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as license plate readers, wiretaps, and records of library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single file.

Once you have the whole haystack, theres still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBMs Non-Obvious Relationship Awareness software (NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.

Tools like NORA and its more sophisticated classified cousins are NSAs solution to one of the last hurdles to knowing nearly everything: the need for human analysts to connect the dots. Skilled analysts take time to train, are prone to human error, andgiven the quickly expanding supply of datawill always be in demand. Automated analysis also offers the NSA other advantages. Software doesnt have a conscience and it cant blow the whistle.

What does all this mean in terms of the Fourth Amendment? Its simple: the technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these advances, even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.

On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this weeks ;unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a ruling determining that the procedures for challenging ones inclusion on the governments no-fly list are unconstitutional, another hopeful sign.)

Prior to the cell phone decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phonecall lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers.

In its new decision, however, the court acknowledged that cell phones represent far more than a physical object. The information they hold is a portrait of someones life like whats in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.

Does this matter when talking about the NSAs technological dragnet? Maybe. While the Supreme Courts decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.

National Security Disclosures Under HIPPA

While the NSAs electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, heres a violation that sits in broad daylight: since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.

Congress passed the Health Information Portability and Accountability Act (HIPPA) in 1996 to assure that individuals health information is properly protected. You likely signed a HIPPA agreement at your doctors office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this privacy law states: We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities. The text is embedded deep in your health care providers documentation. Look for it.

How does this work? We dont know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.

The Snowden revelations are often dismissed by people who wonder what they have to hide. (Who cares if the NSA sees my cute cat videos?) Thats why health-care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your lifesomething, by the way, that couldnt have less to do with American security or combating terrorism.

Our health-care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. Youre right to be afraid, but for goodness sake, dont discuss your fears with your doctor.

How the Unreasonable Becomes Reasonable

At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole books have been written just about Edward Snowden and more information about government spying regularly becomes available. We dont lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to spin the debate into false discussions about how to balance freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to nothing to hide, nothing to fear line.

In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.

Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You wont hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the kings thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark ends, largely without protest and often while still celebrating a land that no longer exists.

Peter Van Buren blew the whistle on State Department waste and mismanagement during the Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A Tom Dispatch regular, he writes about current events at his blog, We Meant Well. His new book, Ghosts of Tom Joad: A Story of the #99Percent, is available now. This is the second in a three-part series on the shredding of the Bill of Rights. To stay on top of important articles like these, sign up to receive the latest updates from TomDispatch.com here.

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4 Ways the Fourth Amendment Wont Protect You Anymore ...

Hidden beneath the controversy stirred up last week by the publication of a book called Fire and Fury, a highly critical insiders view of the Trump White House that the president has not only denounced on national television but also tried to prevent from being published and distributed, are the efforts of the Trump administration and congressional leadership to bypass the Fourth Amendment to the Constitution.

Here is the back story.

After the excesses of the Watergate era, during which the Nixon administration used the FBI and the CIA unlawfully to spy without warrants on the presidents real and imagined domestic political opponents, Congress passed the Foreign Intelligence Surveillance Act. FISA prohibited all domestic surveillance except that which is pursuant to warrants signed by federal judges.

The Fourth Amendment -- which guarantees privacy in our persons, houses, papers and effects -- permits the government to invade that privacy only when a judge has signed a warrant that authorizes surveillance, a search or a seizure. And judges may only issue warrants when they have found probable cause to believe that the government surveillance or invasion of the targets privacy will produce evidence of criminal behavior. The Fourth Amendment further requires that the judicial warrant describe specifically the place to be searched or the person or thing to be seized.

All these requirements are in the amendment so as to prevent any court from issuing general warrants. Before the Constitution, general warrants were issued by British courts that met in secret in London. They were not issued based on probable cause of crime but issued based on the governments wish to invade the privacy of all Americans living in the Colonies to find the more rebellious among them. This was the king and Parliaments version of protecting national security.

General warrants did not describe the place to be searched or the person or thing to be seized. They authorized the bearer -- usually a British soldier physically located in the Colonies -- to search where he wished and seize whatever he found.

FISA did not interfere with the standard understanding or use of the Fourth Amendment by the government and the courts. But it did add another way for the government to invade privacy when its wish is to surveil people for national security purposes -- a return to general warrants -- as opposed to solely gathering evidence of crimes.

The FISA-created procedure, enacted in defiance of the Fourth Amendment -- which makes no distinction between government evidence gathering and government intelligence gathering -- permits a secret court in Washington to issue general warrants based on the governments need to gather intelligence about national security from foreigners among us. It pretends that the standard is probable cause of foreign agency, but this has now morphed into the issuance of general warrants whenever the government wants them.

Since 1977, the Foreign Intelligence Surveillance Court has issued well over 99 percent of the warrants that the government has requested. And these warrants do not specifically describe the place to be searched or the person or thing to be seized. A typical FISC-issued warrant authorizes government surveillance on all landlines, mobile devices and desktop computers in a given area or ZIP code. One infamous FISC-issued search warrant permitted the feds to surveil all Verizon customers in the U.S. -- in excess of 115 million people -- without any evidence of crime or even suspicion about any of them.

Now back to the Trump administrations work below the radar. Even in the fresh aftermath of 9/11, when the governments respect for constitutional norms was at a lamentably low point, the government interpreted the Fourth Amendment as requiring the government to separate its intelligence functions from its law enforcement work. The government recognized that its trigger for mass surveillance -- namely, looking for a foreign agent among the populace -- was a far lower standard than probable cause of crime, which is what the Fourth Amendment requires.

Today, the federal governments computers are permanently connected to the mainframes of all telecoms and computer service providers in America, so the spying is in real time. Today, the federal government employs more than 60,000 domestic spies -- one spy for every 5,500 Americans. Today, if any of them come across evidence of crimes while listening to your telephone calls or reading your texts or emails ostensibly for intelligence purposes, there is little they can do about it.

Until now.

Now, hidden beneath the Fire and Fury controversy is the muffled sound of the Trump administration and Republican congressional leaders plotting the enactment of an addition to FISA that would permit the use of evidence of crimes in federal court even when it is discovered during mass surveillance authorized by general warrants.

If enacted, this radical, unconstitutional hole in the Fourth Amendment would bring the country full circle back to the governments use of general warrants to harass and prosecute -- general warrants so odious to our forebears that they took up arms against the kings soldiers to be rid of them.

I am surprised that President Donald Trump supports this. He has himself been the target of unlawful foreign surveillance and unconstitutional FISC-authorized domestic surveillance. Fire and Fury even quotes former British Prime Minister Tony Blair warning a newly elected Trump about this. And now he wants to unleash upon us all the voracious appetite for surveillance that was unleashed upon him and prosecute us for what is found, the Constitution be damned.

Whatever happened to the public promise to preserve, protect and defend the Constitution as it is written? Thats in the oath all in government have taken. That is the oath that the president and his Republican allies reject.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.

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Judge Andrew Napolitano: Congress plotting to cut a hole in ...