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ABA Journal's Blawg 100 (2015-2016)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact / The Bookwww.johnwesleyhall.com

2003-17, online since Feb. 24, 2003

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Fourth Amendment cases, citations, and links

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Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General's site SCOTUSreport Briefs online (but no amicus briefs) Oyez Project (NWU) "On the Docket"Medill S.Ct. Monitor: Law.com S.Ct. Com't'ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org Federal Law Enforcement Training Center Resources FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf)Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: --Electronic Communications Privacy Act (2012) --Overview of the Electronic Communications Privacy Act (2012) --Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) --Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) --Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy FoundationElectronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't." Me

I am still learning.Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).

"Love work; hate mastery over others; and avoid intimacy with the government." Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."Mapp v. Ohio, 367 U.S. 643, 659 (1961).

"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property." Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth." Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for meand by that time there was nobody left to speak up." Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men!---Pep Le Pew

Read this article:
MA: Riley applies under state const. to digital cameras

The Fourth Amendment is in a sorry state. The constitutional provision intended to protect us and our property from unreasonable searches and seizures has been weakened over decadesa fact that ought to be of acute concern at a time when surveillance technology is increasingly intrusive and secretive. A modernization of Fourth Amendment doctrines is long overdue.

In his new book, The Fourth Amendment in an Age of Surveillance, David Gray, a professor at the University of Marylands Francis King Carey School of Law, attempts to outline what such a modernization might look like. To establish why reform is necessary, he offers a historical account. Gray traces the concepts embodied in the amendment back to mid-18th-century concerns in both England and the American colonies about overly broad permissions for executive agents. In England, the focus of the controversy was general warrants, which were vague in purpose and almost unlimited in scope.

In the colonies, the controversy focused on writs of assistance, a specialized kind of general warrant, ripe for abuse. In a five-hour-long speech before the Massachusetts Superior Court in 1761, the lawyer James Otis Jr. condemned writs of assistance, declaring them the worst instrument of arbitrary power, the most destructive of English liberty. John Adams, who witnessed Otiss oration, decades later described it as the moment when the Child Independence was born. A distaste for needless and indiscriminate intrusions into homes and other property is thus baked into Americas revolutionary DNA. It was eventually codified in the Fourth Amendment, with its prohibition of unreasonable searches and seizures and guarantee that 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.

The doctrines used in interpreting the amendment have evolved over time. The rise of modern police forces prompted the judiciary to develop the exclusionary rule (which ensures that evidence collected via Fourth Amendment violations is inadmissible), the Miranda warning (which, as anyone who has seen a TV cop show in the last four decades can tell you, holds that once youre in police custody officers must tell you that you have the right to remain silent and the right to an attorney), and the warrant requirement (which holds that searches are per se unreasonable if theyre conducted without prior approval from a judge or magistrate).

The interpretation of the Fourth Amendment has also evolved in response to technological development. Notably, the advent of eavesdropping devices gave rise to the reasonable expectation of privacy test, first formulated in Supreme Court Justice John Harlans concurrence in Katz v. United States (1967) and subsequently adopted by the Court. According to the test, government agents have conducted what the law considers a search if they have violated an individuals subjective expectation of privacy and if that expectation is one that society is prepared to accept as reasonable.

Unfortunately, Gray writes, the Katz test has proven inadequate to the task of regulating the means, methods, and technologies that have come to define our contemporary age of surveillance. Gray puts in his crosshairs three post-Katz doctrines that have had the effect of leaving some of the most intrusive surveillance technologies outside the purview of Fourth Amendment challenge.

First, thanks to the public observation doctrine, police do not necessarily need a warrant to peek into your backyard with a drone. (Some states have passed legislation mandating warrants for drone surveillance, but these requirements go beyond what is required by current Fourth Amendment interpretation.) Nor do police need a warrant to track your public activities for days at a time. As Gray points out, there wouldnt even seem to be a Fourth Amendment issue if the government were to install GPS trackers in every car or computer and then use those trackers to keep an eye on all citizens public movements. After all, as the Katz Court held, What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.

The third-party doctrine likewise offers little reassurance. According to this doctrine, you have no reasonable expectation of privacy in information you voluntarily surrender to third parties, such as Internet providers and banks.

In an era of Big Data and ubiquitous electronic communication, the implications of the third-party doctrine are significant. For example, police today can deploy devices called stingrays that mimic cellular towers. Each cell phone is constantly playing a game of Marco Polo with nearby cell towers, seeking a connection. A stingray emits a boosted signal, forcing all nearby phones to connect to it. This allows police to monitor the location of a targets cell phone. Using a stingray, law enforcement can also uncover information about a targets communications, such as the number of texts sent, the recipients of texts, the phone numbers dialed, and the duration of calls. But stingrays can also collect all of this information about the communications of innocent people. Thanks to the third-party doctrine, there is no clear Fourth Amendment remedy to this invasion of privacy.

Finally, the rules about legal standing in Fourth Amendment cases have, according to Gray, also weakened the remedies available to citizens. Under the rules that emerged after Katz, plaintiffs must demonstrate that they have suffered a violation of their reasonable expectation of privacy. So, for example, citizens outraged about the National Security Agencys metadata collection program lack the standing to file their own Fourth Amendment suits; they have to be able to explain how the program violated their reasonable expectations of privacy. Or, in another instance, when Amnesty International challenged the FISA Amendments Act of 2008, a law giving the federal government broad power to snoop on U.S. citizens international communications, the Supreme Court ruled in 2013 that the organization lacked standing to challenge the law, even though Amnesty works with many international partners. As Justice Samuel Alito wrote for the Court, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.

With its citations from old dictionaries and other contemporary texts, Grays exhaustive word-by-word and clause-by-clause dissection of the Fourth Amendment should appeal to originalists. His take on standing may raise a few eyebrows, but he does a noble job of defending his claim that an original public understanding of the Fourth Amendment reveals that it protects a collective right to prospective relief, not just relief for past individual harms. The amendment does protect individuals, Gray believes, but its individual protections are derived from the collective right.

Gray proposes several ways to improve Fourth Amendment protections in light of the high-tech surveillance techniques that are now available to authorities. Surveillance conducted by drones and stingrays could, he argues, be curtailed via a remedy modeled on the Wiretap Act. Under that 1968 legislation, passed in the wake of the Katz ruling, officers seeking a wiretap order must establish probable cause, exhaust other investigative methods, and ensure that the wiretap is time-limited. The act also requires that officers regularly report back to the court that issued the wiretap warrant.

When it comes to Big Data, Gray proposes a range of constraints governing the aggregation, collection, analysis, and storage of data.

Perhaps Grays most interesting proposal flows from his collective-right theory of the Fourth Amendment. He would allow individuals and organizations to have standing to challenge programs that threaten the people as a whole. This would allow, say, the American Civil Liberties Union to challenge the legality of New York Citys stop-and-frisk program. Such other programs and technologies as persistent aerial surveillance, metadata surveillance, and license-plate readers would be open to challenge under Grays understanding of the Fourth Amendment.

Not everyone will be convinced by Grays analysis. Some critics will undoubtedly dispute his collective-right theory of the Fourth Amendment and quibble with his Wiretap Act-like remedies. However, these disagreements will not detract from the fact that his book is a welcome and informative contribution to the public debate about surveillancea debate that will lastingly shape how we live together and how we understand privacy and liberty.

Matthew Feeney is a policy analyst at the Cato Institute.

The rest is here:
Protecting Privacy - The Weekly Standard

In New Jersey, yet another bill amending the animal cruelty statute (S1640) was recently passed into law. The amendments [e]stablish . . . requirements concerning necessary care of dogs, domestic companion animals, and service animals, and for tethering of dogs.

Many of the other provisions requiring necessary care to a companion animal are reasonable if the laws are appropriately enforced by professional law officers, who have sought guidance from individuals with expertise in animal health, care, and handling. Unfortunately this is not the case in New Jersey, where the animal cruelty statute is improperly enforced.

This makes the following provision extremely problematic and of concern to companion animal owners and their attorneys in the State:

any humane law enforcement officer or agent of the New Jersey Society for the Prevention of Cruelty to Animals or county society for the prevention of cruelty to animals, certified animal control officer, or other State or local law enforcement officer may immediately enter onto private property where a dog, domestic companion animal, or service animal is located and take physical custody of the animal, if the officer or agent has reasonable suspicion to believe that the animal is at risk of imminent harm due to a violation of this act.

While an earlier provision requires a showing of probable cause before a court of competent jurisdiction could issue a subpoena permitting law enforcement to enter private property and seize an animal, this latter provision impermissibly violates the Fourth Amendment of the Constitution.

A district court case provides clarity of rights under the Fourth Amendment:

In Badillo v. Amato, Case No. 13-1553, slip op. (D.N.J. Jan. 28, 2014) the Court denied then Monmouth County SPCA Chief Amatos motion to dismiss, in relevant part, Badillos allegation that Amato violated his right to be free from illegal search and seizure under the Fourth Amendment. In this case, Badillo, a priest of the Santeria religion was issued nine municipal court summons for animal animal abuse and neglect after Amato went around to the back of . . . [Badillos house, opened the gate and let himself in the fenced backyard without permission or a warrant and began taking pictures . . . Case No. 13-1553, slip op., at p. 3 (D.N.J. Jan. 28, 2014).

As the Court explained, finding that the Complaint sufficiently pleaded Fourth Amendment violations by Amato to survive a motion to dismiss, the Fourth Amendment provides:

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 persons or things to be seized. Id., at p. 8 (quoting U.S. Const. amend. IV.)

The Court reaffirmed that not only is the home sacrosanct but that protections afforded by the Fourth Amendment extend not only to a persons home, but also to the curtilage surrounding the property. Id., at p. 8-9 (citing Estate of Smith v. Maraso, 318 F.3d 497, 518-519 (3d Cir. 2003).

It appears that the foregoing provision of the newly amended animal cruelty statute, permitting entry to private property based on merely reasonable suspicion and in the absence of a court order would violate the Fourth Amendment.

Additional concerns about these amendments, previously discussed, remain included in the final adopted law.

For example, a person may not keep a dog (or other domestic companion animal) in an animal crate or carrier for transport, exhibition, show, contest, training or similar event if the top of the head of the dog touches the ceiling of the animal carrier or crate when the dog is in a normal standing position. There are many acceptable, safe dog carriers that permit dogs to stand, turn around and lie down comfortably, but the top of their head would touch the ceiling of the crate.

The public must be adequately informed about this new requirementthat does nothing to provide for the welfare of dogs transported in dog carriersso they are not victims of animal cruelty citations issued by over zealous agents and officers of the NJ or County SPCAs. As noted in the State of New Jersey Commission of Investigation 2000 report on Societies for the Prevention of Cruelty to Animals, at least one County society (Warren) routinely stopped vehicles with horse trailers for proof that a Coggins test certificate was available as required by the NJ Department of Agriculture. As the report concluded:

Not only is the absence of a certificate not cruelty, but SPCA personnel lack the expertise to know whether the horse described in the certificate, such as a Bay or Chestnut [which are specific horse colors and patterns], is in fact the horse being transported.

It would not be unprecedented if humane officers decided to target people traveling with dogs throughout the state, and started pulling over and issuing summons related to the size the their dog carriers.

Dog owners beware!

[View source.]

Read the original post:
Violations Of The Fourth Amendment And Other Concerns About Amendments To New Jersey's Animal Cruelty Statute - JD Supra (press release)

Aug 22 FEATURE MAIN, Live Local, NEWS & VIEWS No Comments on LIVE LOCAL, LIVE SMALL: What freedoms and liberties do we stand to lose?

The Guardian reported:

The warrant covers the people who own and operate the site, but also seeks to get the IP addresses of 1.3 million people who visited it, as well as the date and time of their visit, and information about what browser or operating system they used.

There are a variety of concerning aspects to this set of events. First, and most obviously, are those related to the First Amendment (freedom of speech and assembly) and the Fourth Amendment (protection from unreasonable search and seizure). The Department of Justice wants the IP addresses of every visitor to the siteand from that information the physical location of each visitor can be ascertained. It makes identification not all that difficult. Besides freedom of speech, there are questions about the scope of the warrant. The Fourth Amendment makes it clear a warrant must specify locations to be searched and probable cause. Orin Kerr noted in the Washington Post:

Courts have allowed the government to get a suspects entire email account, which the government can then search through for evidence. But is the collective set of records concerning a website itself so extensive that it goes beyond what the Fourth Amendment allows? In the physical world, the government can search only one apartment in an apartment building with a single warrant; it cant search the entire apartment building.

Additionally, one has to be concerned that one branch of government would use their power to collect private information about citizens it feels threatened by. It looks like a personal score to settle. People who disagree with the executive branch are to be identifiedand to what end specifically? Over 200 people have already been charged with felony rioting at the inauguration. Why does the Department of Justice need to identify 1.3 million people who might disagree with the executive branch? It is frightening not only for civil liberties but for what it can mean on the slippery slope of settling political scores with citizens. Ask the Mothers of the Disappeared in Argentina: This is dangerous.

At the end of June, the executive branch asked the states to turn over voter registration information for the voter fraud commission. The information requested voter rolls, dates of birth and the last four digits of social security numbers. North Carolinas bipartisan State Board of Elections and Ethics Enforcement announced it would turn over publicly available information to the commission, but not social security numbers and dates of birth. Some states have refused to comply. I have to admit: The possibility of finding oneself purged from the voter rolls is a scary idea.

About 10 years ago, I found myself dropped from the voter registration rolls. It was a bit of a surprise; I showed up on election day and was informed I was not registered to vote in New Hanover County. The poll worker asked if I had registered to vote?

Yes, I answered. I have voted at this precinct location for the past six years. I usually come in with one of my parents and we would take turns standing with the dog outside, because a family that votes together stays together.

After much hemming and hawing with the poll workers, I was given a provisional ballot. I sorted out my registration and, thankfully (fingers crossed), have not had a problem since.

I come from a family that makes voting a priority. I am comfortable advocating for that right with people in positions of authority.

Recently, my household went through the citizenship process and one of the recurring themes in the process was voting is one of the most important ways to participate in a democracy and preform a civic duty. At the Naturalization Ceremony, the League of Women Voters were standing by with voter registration forms for each of the newly sworn-in citizens.

It doesnt take a giant leap of imagination to see those two lists overlap: Who visited a website the executive branch dislikes and who voted against the candidate in the last election? Where there is a match, how hard would it be to drop a name from the rolls? As far-fetched as this would have sounded 18 months ago, it is just not hard to imagine right now. If they control who can vote, they can control who wins an election. The timing of demanding these two sets of data is startling and frightening.

Dreamhost is challenging in the warrant and a hearing is scheduled on August 18. What is possibly more frightening than the above scenario is the possibility this is just a litmus test. If successful, where does it stop? What speech and assembly freedoms could we lose?

In the wake of the events at Charlottesville and escalating concern regarding North Koreawhich strike a primal and emotional chordit is hard to focus on something as dry as a justice department warrant. But that is exactly why it is important. The events surrounding the warrant and what happens with the information gathered will directly impact the publics ability to talk back to power and speak freely.

Allowing one branch of the government to target citizens who disagree is dangerous The possibilities of the internet are a fascinating double-edged sword. Never before in history have we had the ability to share information, opinions and ideas with such immediacy. Social media and web tools can allow for assemblies with short notice on a scale not previously imaginedand the documentation of the assemblies can be shared and made available around the world as they unfold. But the footprint and trackability of online activity is the other side of the coin. Potentially targeting someones voting rights based upon political opinions is not what the constitution intends.

Its important: protecting citizens rights to vote, speak and participate in democracy. It is essential to our future.

CharlottesvilleDepartment of Justiceencore magazineFourth AmendmentGwenyfar RohlerLeague of Women VotersMothers of the Disappeared in ArgentinaNaturalization Ceremonynew hanover countyNorth KoreaOrin KerrState Board of Elections and Ethics EnforcementUnited States ConstitutionWashington PostWilmington NC

FUZZY FOLK: Stray Owls pick up a drummer, drop a record and head to ILM NEWS OF THE WEIRD

Read the original:
LIVE LOCAL, LIVE SMALL: What freedoms and liberties do we stand to lose? - encore Online

Immigration Law

Posted August 21, 2017, 11:44 am CDT

By Debra Cassens Weiss

Several sheriffs told the New York Times about the legal maneuver in which sheriffs would become ICE contractors, and the jails would be paid a daily fee to hold immigrants believed to be in the country illegally until ICE takes custody.

ICE spokeswoman Sarah Rodriguez told the Times that the agency was exploring a number of options to address sheriffs concerns, and no final decision has been made.

The Times explains the Fourth Amendment issue. Sheriffs enforce criminal law, and they cant make immigration arrests because they are civil in nature. Because of that difference, judges have found that holding immigrants who have paid bail or served their sentence is an unlawful seizure under the Fourth Amendment.

Sheriff Bob Gualtieri of Pinellas County, Florida, told the newspaper that he came up with the reasoning supporting the idea and presented it to ICE. Its a seamless transition, said Gualtieri, who is also a lawyer.

Gualtieri said he was told that the plan would be rolled out through a pilot program in Florida before it is expanded nationwide.

Omar Jadwat, the director of the American Civil Liberties Unions immigrants rights project, didnt think the plan would satisfy judges. Its a kind of window dressing on the same practice, he told the Times. It doesnt really change the legal analysis.

Read the original post:
Plan would designate sheriffs as ICE contractors in bid to bypass Fourth Amendment court decisions - ABA Journal