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Although he had used an alias to hide from law enforcement and rent a condo, law enforcement did not have the right to search a suspected drug dealers residence with only his landlords consent, the 7th Circuit Court of Appeals has ruled.

Federal officials had suspected Michael Thomas of supplying large amounts of illegal drugs in Indiana. He was also wanted by state officials, and warrants had been issued for his arrest.

In order to keep a low profile, Thomas obtained fake identification documents, including one issued in North Carolina under the name Frieson Dewayne Alredius. Using that name, he was able to lease a condo in Atlanta.

From there, federal officials tracked Thomas and arrested him outside the condo building. With the landlords consent, they searched the condo and found drugs, drug paraphernalia and six cellphones.

After obtaining warrants to search the phones, federal officials found evidence that Thomas was trafficking methamphetamine. A grand jury subsequently indicted him for conspiracy to distribute meth.

Thomas filed a motion to suppress the evidence obtained from the search of the condo, arguing his landlord could not consent to the search of property he had leased. The government admitted the lease gave Thomas the expectation of privacy, but because he had used a fake identity to obtain the lease a crime in Georgia the expectation of privacy was unreasonable.

The Indiana Southern District Court agreed and denied the motion.

Thomas then pleaded guilty but reserved his right to appeal the suppression order. He was sentenced to 15 years in prison.

Thomas then appealed the denial of the suppression order, and the 7th Circuit reversed and remanded.

The warrantless search of his condo violated the Fourth Amendment if he had a subjective expectation that his landlord could not invite the police to search his residence and society is prepared to recognize that expectation as reasonable, Judge Frank Easterbrook wrote, citing Katz v. United States, 389 U.S. 347 (1967). That Thomas had a subjective expectation of privacy is not in dispute. The question, then, is whether deceiving ones landlord to obtain a lease alters societys understanding that a landlord may not consent to a search on the tenants behalf.

The appellate court then cited Chapman v. United States, 365 U.S. 610 (1961), which holds that a tenant can lawfully exclude others, including the police, even if the landlord consents to a search.

To be sure, some people may consent to a search even when they cannot evict a tenant, Easterbrook wrote. But Chapman holds that a landlord is not among them. Thomas landlord could not summarily terminate his protections without violating the Georgia Code, nor could she consent to a warrantless search of his condo.

Under the approach proposed by the United States, by contrast, a search may be deemed valid or invalid depending on facts discovered later, in the course of prosecution, Easterbrook continued. At the time of the search, law enforcement knew that Thomas was a fugitive but did not know whether he had shown a fake identity card to the landlord, whether the landlord ran background checks, and so on.

What the agents knew at the time of the search, the 7th Circuit concluded, was not enough to defeat Thomass expectation of privacy in the condo.

The case of United States of America v. Michael Thomas, 21-3169, was thus remanded for further proceedings.

Excerpt from:
Suspected drug dealer who used alias to rent condo wins reversal in ... - Indiana Lawyer

The right to privacy may sometimes be exaggerated, and it can certainly be abused. But that doesnt mean it is not real. Freedom from the constant, prying eyes of other people is essential to the development and maintenance of a sense of selfhood. If we do not recognize the claim other people have to be free of our scrutiny, then we treat them as objects for study, manipulation, and destructionnot as human beings equal in dignity to ourselves.

The sting distorts the relationship between the Catholics who fund and run it and the priests who fall within its ambitwhich was potentially all priests. The moral danger to the self-appointed members of the purity committee is substantial. How does it affect their own relationship to the Church to see its priests as guilty of sexual sin until proven innocent? How does it affect their relationship with Christ to see themselves not as fellow sinners in need of redemption (even if ones own sins are of a different sort), but as self-appointed police officers and judges?

There is also a moral danger to the priests, and to those who might wish to become priests. Will the fact that they live their lives in a context of pervasive suspicion and scrutiny, including electronic scrutiny, crush their spirits and erode their freedom in Christ? How will such priests interact with parishioners? Will they see them as fellow sinners in need of redemption, or as potential spies? How will they structure their lives? Will this lead them to avoid some sins (especially sexual ones) more than others (say, gluttony and waste)? Will an anxious obsession with not being suspected of committing sexual sin make them more likely to ignore sins of omission in their lives, including the duty to reach out to those at the margins?

The bishops need to act decisively. If they do not, their priests will become weapons and targets in the competing Panopticons of the culture wars. After all, if they put their minds to it, progressives can track and embarrass priests as easily as conservatives.

The bishops first task is to distinguish morally legitimate from morally illegitimate ways of obtaining compromising information. Stumbling upon a priest on Grindr is different from de-anonymizing data. Their second task will be deciding how to handle illegitimately obtained information, Here, in my view, is where the Church might helpfully borrow from the state. The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. It recognizes that unreasonable searches affect everyonenot just the guilty. But without enforcement, such a prohibition is no more than a paper tiger. Consequently, the provision is interpreted as preventing the government from introducing evidence obtained directly or indirectly from such a search into a criminal trial. The government is thereby dis-incentivized from conducting searches without a warrant, except in certain extreme circumstances. The bishops should adopt similar disincentives for lay sleuths. They should strongly condemn any violation of priestly privacy, and they should declare that they will not allow priests whose activities were discovered in an unethical manner to be targeted or punished. The only exception, in my view, should be activities involving minors.

Some might say that this approach goes too easy on priests who break their promises of celibacy. I disagreejust as I disagree with those who say the Fourth Amendment goes too easy on those who commit crimes. The point of the Fourth Amendment is not to say that committing crimes is okay. It is to say that in using its considerable power to chase criminals, the government must observe reasonable limits. If that is what members of a state bound together by earthy ties owe one another, consider how much stronger the obligations are among members of the body of Christ.

The rest is here:
Do Priests Have a Right to Privacy? - Commonweal

Theres a knock at your door. Its the police. They say they are investigating a crime and would like to ask a few questions. Its alarming, but you want to help, so you let them in.

But what if these officers are not who they say they are?

For years, agents of Immigration and Customs Enforcement (ICE) have impersonated the police and used other deceptive tactics to gain warrantless entry into peoples homes, or lure them out a practice that the ACLU, in collaboration with others, has challenged in court as a violation of the Fourth Amendment.

ICEs goal is to arrest and deport undocumented immigrants going about their daily lives working, commuting, and spending time at home with family. In pursuit of this goal, ICE has used racial profiling and intimidation tactics that instill fear and confusion in communities and stoke mistrust in the police.

Examples of ICEs ruses include:

The ACLU and co-counsel partners have filed lawsuits to challenge these practices in California and Illinois. Below, two of the clients share their experience being trapped by ICE, and the repercussions that continue today.

Alyssa

ICE knocked on Alyssas door at 8 a.m. and pretended to be inquiring about her car registration.

Tara Pixley

ICE ruses often take place early in the morning, when they can catch people as they are waking up or getting ready for work. They wear shirts or vests with the word POLICE emblazoned across, and often announce that they are police at the front door, without informing community members that they are ICE. Thats what happened to Alyssa Lazo,a prior DACA recipient who lives in Los Angeles. Alyssa spent 21 days in immigrant detention after ICE tricked her into thinking they were inquiring about her car registration. The effects of the incident last to this day, impacting decisions about who to trust and when to call for help.

Below, Alyssa describes what happened when ICE came to her door, and how its still impacting daily life.

Alyssas experience with ICE still impacts her decisions about who to trust and when to call for help.

Tara Pixley

But the fear stays with me. I feel like Im being watched and as if ICE could show up at any moment, disguised as the police again.

One morning, I woke up to the sound of banging on my front door. I was alarmed it was only 8 a.m. Through the peephole, I could see three people in dark clothing on the other side of the door. They said they were the police, and they were looking for me.

Are you Alyssa Lazo? they asked.

I had no idea how they knew my name or why they would be looking for me, but when they said it was about my car, I thought there might have been some issue with my registration. I had just been to the DMV a couple of weeks prior. Maybe I had done something wrong with the paperwork. They asked to see my car registration, and I indicated it was in my car. When I stepped outside my home to get my car registration documents, they stopped me and told me they were ICE not the police that I was here illegally, and that I was now in federal custody.

I was shocked, scared, and confused, because I was a DACA recipient. My lawyer never mentioned that this could be a possibility. Id seen it on TV people getting handcuffed and taken away but I never thought it could be a possibility for me because I was taking care of my paperwork. But they didnt care about that.

At that point, we were on the landing of my apartment building, and I could see my neighbor listening from inside his apartment while the ICE agents handcuffed me and took me away to the detention center. I was called an alien, a threat to society, and ended up spending 21 days in custody.

Ever since that day, Ive been afraid of talking to the police for anything. Not even when I really need help. Even if I was being abused, stalked, or just terrified, I still wouldnt call the police. I would call my sister instead.

But the fear stays with me. I feel like Im being watched and as if ICE could show up at any moment, disguised as the police again. That fear has slightly decreased under the Biden administration. But theres always the possibility that it could happen again. ICE should not be disguising themselves as the police. Now, every time I see the police, I wonder if they are undercover. But until the Biden administration does something to stop ICE from doing that, all we can do is be aware, be prepared, and know our rights. No one should have to face what I faced that day, and the fear that continues.

In 2020, the ACLU of Southern California, UC Irvine School of Law Immigrant Rights Clinic, and the law firm Munger, Tolles & Olson LLP filed a class action lawsuit on behalf of Osny Sorto-Vasquez Kid, the Inland Coalition for Immigrant Justice, and the Coalition for Humane Immigrant Rights. ICE tried to get the case dismissed, but the court denied the motion in April 2021. Early this year, a federal court granted class certification recognizing that many people in Southern California share a similar claim against the deceptive practices by ICE.

Margarito

Margarito wants to share his story to help others who may find themselves targeted by ICE.

Alex Garcia

Within just six days in May 2018, ICE arrested and detained more than 100 people across the Chicago area in Operation Keep Safe. As part of the operation, ICE agents saturated known Hispanic areas of the city of Chicago and surrounding communities accosting anybody who looked undocumented, and used unmarked vehicles to feign routine traffic stops. The ACLU has received reports from across the country of ICE agents barricading cars with their vehicles, approaching people with rifles pointed, and threatening to shoot.

Margarito Castaon Nava is among those who were unlawfully apprehended by ICE under the guise of a traffic stop, and was detained for 44 days before being released on bond.

Margarito looks out of a window in his home.

Alex Garcia

The whole time I was in custody, I had very little information about when I would see a judge or what was going to happen to me. They never showed me an arrest warrant.

Margarito Castaon Nava

On my way home from work one evening, I noticed a black SUV behind me. It seemed to be following me. There were no lights and no siren, but its tinted windows made me think of the police.

Suddenly the SUV barricaded my truck on the side of the road, and three people stepped out. It seemed I was right: they were wearing vests that said POLICE in large letters across the front.

The officers were speaking mostly in English, so I couldnt understand what they were saying. My boss, who was with me in the passenger seat, translated for me. But there wasnt much information to translate, because they never gave a reason why we were pulled over. All they did was ask us where we worked, to see our drivers licenses, and to take our photos.

When I handed them my drivers license, they threw it on the dashboard, handcuffed me to the steering wheel, and took my thumbprints and my photo. I watched them return to the SUV through the rearview mirror. When they returned, they put me in their car and drove us away. The agents never said who they were or where they were taking us, or why. It was only when we arrived at the detention center that I found out they were not the police, but ICE.

The whole time I was in custody, I had very little information about when I would see a judge or what was going to happen to me. They never showed me an arrest warrant. I tried to call my wife, but she didnt pick up since she didnt recognize the number. I was worried that they were going to send me back to Mexico and I wouldnt be able to see my family again.

In the end, I was detained for about a month and a half. I missed my daughters quinceaera and my other two childrens last days of school. I still cant believe government agents are pretending to be the police and locking people in detention for no good reason. But thats what happened to me. The only reason I could think of is because my coworker and I appear Hispanic. ICE shouldnt be catching people just because of the color of their skin.

I think things are changing now that there is a new president. If President Biden really cares about immigrants, I would ask him to help us get our papers so we can be able to visit our families. I have a work permit now, but I havent seen my family in Mexico in 23 years. If we could get our legal documents, I would be very, very happy.

In 2018, Margarito joined a class action lawsuit brought by the ACLU and the National Immigrant Justice Center, along with other individuals swept up in Operation Keep Safe the immigrant rights organizations Organized Communities Against Deportation and Illinois Coalition for Immigrant and Refugee Rights. In 2022, the court approved a final settlement between the plaintiffs and DHS. Among other terms, the 3-year settlement requires ICE to adopt a nationwide policy barring many traffic stops and warrantless arrests, and allows ICE detainees to challenge detentions that violate the agreement in Illinois, Wisconsin, Indiana, Missouri, Kansas, and Kentucky.

After achieving this victory, Margarito wanted to share his story to help others who may find themselves in similar situations.

Immigration arrests rose under the Trump administration, as did ICEs use of ruses and its collaboration with police through the 287(g) program. The latter, while predating Trump, put more people under the threat of deportation by allowing local law enforcement to carry out duties normally reserved for federal ICE agents. That ICE itself is impersonating the police only foments confusion and fear of law enforcement in immigrant communities. As a result, many immigrants and their friends and family members are less likely to come forward as witnesses, provide crime tips, or seek police protection, even in emergencies.

Before taking office, President Biden pledged to roll back harmful immigration practices and hold law enforcement accountable for unlawful behavior. But ICE is still impersonating the police and misrepresenting its purpose and getting away with it. By allowing this practice to continue, the Biden administration is undermining its own efforts to repair Trump-era abuses.

The ACLU is urging Biden to reform ICE particularly to prevent a future anti-immigrant administration from resuming Trump administration efforts to make the United States a hostile, dangerous place for our immigrant neighbors and loved ones. Necessary reforms include strict limits on any street arrests, dismantling programs that use local law enforcement to help deport immigrants, like 287(g), and prohibiting federal agents from impersonating local police.

Necessary reforms include strict limits on any street arrests, prohibiting federal agents from impersonating local police, and stopping ICE from tapping local police to do its bidding, including through the 287(g) program.

In the meantime, people in immigrant communities can defend themselves by knowing their rights. Anybody confronted by law enforcement whether undocumented or not can and should do their best to verify the officers identity and purpose, document the encounter, and report what happened. More information in English and Spanish can be found here.

Continued here:
This Deceptive ICE Tactic Violates the Fourth Amendment - ACLU

Read a PDF of our statement here.

Today, the Legal Defense Fund (LDF), along with co-counsel Shania King, filed an appellate brief in Gilmore v. Milton, a case before the United States Court of Appeals for the Eleventh Circuit. The case concerns an invasive and retaliatory strip search of Clarissa Gilmore by correctional officers during her visit to a Georgia state prison.

Ms. Gilmore filed a lawsuit alleging that her Fourth Amendment rights were violated when officers strip-searched her without cause during a visit to her then-husband. Despite already subjecting Ms. Gilmore to a rigorous pre-entry screening and finding no evidence of contraband, two correctional officers instructed Ms. Gilmore to remove all her clothing, including underwear, and conducted an extreme search that included extensive grabbing and manipulation of her buttocks, breasts, and genitals. After leaving the prison, Ms. Gilmore felt traumatized and humiliated and broke down crying. And a supervisor who reviewed video footage of the encounter agreed that Ms. Gilmore did nothing to deserve such treatment. However, a district court in the Southern District of Georgia dismissed Ms. Gilmores suit, ruling that the doctrine of qualified immunity shielded the correctional officials in question from accountability in the events.

The appellate brief filed by LDF and co-counsel argues that the district court erred in granting qualified immunity to the prison officials who conducted the search of Ms. Gilmore. The brief highlights that the strip search was both unjustified at its inception and excessive in scope. Established law requires prison officials to have at least reasonable suspicion that a civilian possesses contraband or weapons in order to conduct a strip search. Official documentation of the incident made no reference to any reason for suspecting Ms. Gilmore of possessing contraband. And similarly, established law is clear that making physical contact with an individuals buttocks or genitals during a strip search heightens the intrusiveness and embarrassment of the search. The brief also argues that the correctional officers acted outside the scope of their expressly defined authority under Georgia state law, and therefore are ineligible for qualified immunity.

The Supreme Court and other courts of appeals have made it clear that reasonable suspicion is required for strip searches of prison visitors, said LDF Assistant Counsel Ashok Chandran. People should not have to risk this kind of categorically extreme humiliation during a routine visit to a family member. The district courts ruling creates the possibility that anyone a child visiting a parent, a lawyer meeting with a client, or a minister providing religious services at a prison could be strip searched by prison officials at any time, with no accountability. This decision must not be allowed to stand.

Clarissa Gilmore was subjected to humiliating, traumatizing, and unlawful treatment, said attorney Shania King. Any correctional official should know that they cannot strip search a civilian for no reason at all. These officials violated the Georgia Department of Corrections internal regulations, and they violated Clarissa Gilmores constitutional rights.

###

Founded in 1940, the Legal Defense Fund (LDF) is the nations first civil rights law organization. LDFs Thurgood Marshall Institute is a multi-disciplinary and collaborative hub within LDF that launches targeted campaigns and undertakes innovative research to shape the civil rights narrative. In media attributions, please refer to us as the Legal Defense Fund or LDF. Please note that LDF has been completely separate from the National Association for the Advancement of Colored People (NAACP) since 1957although LDF was originally founded by the NAACP and shares its commitment to equal rights.

View original post here:
LDF Appeals Grant of Qualified Immunity in Case Involving Invasive ... - NAACP Legal Defense and Educational Fund

By Jason Boleman

A federal court declared a towns ban on livestreaming certain interactions may not survive First Amendment scrutiny, and that a plaintiff who was barred from livestreaming an interaction due to the policy plausibly alleged a constitutional violation.

Defendants have thus far failed to establish that the alleged livestreaming policy is sufficiently grounded in, and tailored to, strong governmental interests to survive First Amendment scrutiny, Judge Julius N. Richardson of the 4th U.S. Circuit Court of Appeals wrote.

The court further found that because the law was unclear at the time of the traffic stop in question, the officers actions were protected by qualified immunity, affirming the decision of the lower court.

Richardson authored the opinion in Sharpe v. Winterville Police Department (VLW 023-2-032) and was joined by U.S. District Judge Michael S. Nachmanoff from the Eastern District of Virginia, who sat by designation on the case.

Fourth Circuit Judge Paul V. Niemeyer authored an eight-page concurring opinion, noting that the majority opinion hardly acknowledges the role of the Fourth Amendment in the relevant analysis and the relationship of the Fourth Amendment to other constitutionally protected rights.

Background

Shortly after the vehicle he was in was pulled over, Dijon Sharpe started streaming to Facebook Live, a livestreaming video platform. Upon noticing this, Myers Helms of the Winterville Police Department in North Carolina attempted to take Sharpes phone, reaching through Sharpes open car window.

Helms and his partner informed Sharpe that he was allowed to record the stop but could not stream to Facebook Live because of concerns surrounding officer safety. The officers further stated that Sharpe could be arrested or have his phone taken away if he livestreamed a future encounter with police.

Sharpe sued the officers in their official capacities, effectively suing the Town of Winterville, alleging the policy prohibiting livestreaming police encounters violates the First Amendment of the U.S. Constitution. Sharpe further sued Helms in his individual capacity.

At trial, the district court found the policy did not violate the First Amendment and awarded the defendants judgment on the pleadings. The court further found the suit against Helms in his individual capacity was barred by qualified immunity.

First Amendment claim

Richardson said Sharpe plausibly alleged the town of Winterville has a policy barring livestreaming of traffic stops, a policy which he stated reaches protected speech.

[T]o survive First Amendment scrutiny, the Town needs to justify the alleged policy by proving it is tailored to weighty enough interests. The Town has not yet met that burden, the judge wrote.

Richardson noted that for Sharpes claim to survive, he only needs to plausibly allege that the policy preventing livestreaming exists and that the policy violates the First Amendment. The mere facts of the case, including that the officers attempted to seize his phone upon learning Sharpe was livestreaming, were sufficient to meet the first prong, the judge explained.

As to the second point, creating and disseminating information is protected speech under the First Amendment, Richardson pointed out.

[O]ther courts have routinely recognized these principles extend the First Amendment to recording particularly when the information involves matters of public interest like police encounters, he wrote.

The judge said recording police encounters contributes to discussions on government affairs, with livestreaming being one way to disseminate that information.

The town of Winterville claimed that livestreaming a traffic stop endangers officers because viewers can locate the officers and intervene in the encounter, and represents a weighty enough interest to justify the policy.

But Richardson said that, at this stage, the court cannot yet tell if the interest is enough to sustain the policy.

[E]ven though the Town has a strong interest in protecting its officers, Defendants have not done enough to show that this policy furthers or is tailored to that interest. Nor is that gap filled here by common sense or caselaw, he wrote.

Qualified immunity

After determining the first claim survived, Richardson turned to the individual-capacity claim against Helms, which the lower court barred due to qualified immunity.

Richardson agreed with that holding from the lower court.

Qualified immunity protects Officer Helms unless it was clearly established at the time of the traffic stop that forbidding a passenger from livestreaming their own traffic stop violated the First Amendment. Here, no precedent in this Circuit nor consensus of authority from the other Circuits established that Officer Helmss actions were unconstitutional, he wrote.

After making that determination, Richardson vacated the lower court ruling on the official-capacity claim, affirmed the ruling on the individual-capacity claim and remanded the case for further proceedings.

Concurring opinion

Niemeyer agreed that the officer was entitled to qualified immunity.

However, he noted that the issues here arise in the context of a lawful Fourth Amendment seizure a traffic stop.

During this stop, Sharpe refused to obey police orders to stop using his cell phone to communicate with others.

The judge explained that the restriction on using a cell-phone was thus an aspect of the seizure. As the Fourth Amendment regulates the legality of that restriction, officers, when conducting traffic stops, may intrude on the liberty interests of those who have been stopped as long as it is reasonable.

The issue therefore should be restated, I submit, to whether, during a lawful traffic stop, law enforcement officers may lawfully prohibit the person detained from conducting electronic communications with others, Niemeyer wrote. This is a nuanced, but meaningful, adjustment to the issue addressed in the majority opinion . While the two analyses might, but need not, lead to the same conclusion, I believe that we should apply the reasonableness test of the Fourth Amendment because the restrictions about which the plaintiff complains were imposed as a part of a lawful Fourth Amendment seizure.

Read more from the original source:
Livestreaming police stop constitutionally protected - North Carolina Lawyers Weekly