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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 Book http://www.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 Foundation Electronic 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 still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, "The Who Live at Hyde Park" (Showtime 2015)

"I can't talk about my singing. I'm inside it. How can you describe something you're inside of?" Janis Joplin

"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

Here is the original post:
Law review article: The Effects of Legislation on Fourth ...

During the Obama years, the National Security Agency intentionally and routinely intercepted and reviewed communications of American citizens in violation of the Constitution and of court-ordered guidelines implemented pursuant to federal law.

The unlawful surveillance appears to have been a massive abuse of the governments foreign-intelligence-collection authority, carried out for the purpose of monitoring the communications of Americans in the United States. While aware that it was going on for an extensive period of time, the administration failed to disclose its unlawful surveillance of Americans until late October 2016, when the administration was winding down and the NSA needed to meet a court deadline in order to renew various surveillance authorities under the Foreign Intelligence Surveillance Act (FISA).

The administrations stonewalling about the scope of the violation induced an exasperated Foreign Intelligence Surveillance Court to accuse the NSA of an institutional lack of candor in connection with what the court described as a very serious Fourth Amendment issue. (The court is the federal tribunal created in 1978 by FISA; it is often referred to as a secret court because proceedings before it are classified and ex parte meaning only the Justice Department appears before the court.)

The FISA-court opinion is now public, available here. The unlawful surveillance was first exposed in a report at Circa by John Solomon and Sara Carter, who have also gotten access to internal, classified reports. The story was also covered extensively Wednesday evening by James Rosen and Bret Baier on Fox Newss Special Report.

According to the internal reports reviewed by Solomon and Carter, the illegal surveillance may involve more than 5 percent of NSA searches of databases derived from what is called upstream collection of Internet communications.

As the FISA court explains, upstream collection refers to the interception of communications as they transit the facilities of an Internet backbone carrier. These are the data routes between computer networks. The routes are hosted by government, academic, commercial, and similar high-capacity network centers, and they facilitate the global, international exchange of Internet traffic. Upstream collection from the Internets backbone, which accounts for about 9 percent of the NSAs collection haul (a massive amount of communications), is distinguished from interception of communications from more familiar Internet service providers.

Upstream collection is a vital tool for gathering intelligence against foreign threats to the United States. It is, of course, on foreign intelligence targets non-U.S. persons situated outside the U.S. that the NSA and CIA are supposed to focus. Foreign agents operating inside the U.S. are mainly the purview of the FBI, which conducts surveillance of their communications through warrants from the FISA court individualized warrants based on probable cause that a specific person is acting as an agent of a foreign power.

The NSA conducts vacuum intelligence-collection under a different section of FISA section 702. It is inevitable that these section 702 surveillance authorities will incidentally intercept the communications of Americans inside the United States if those Americans are communicating with the foreign target. This does not raise serious Fourth Amendment concerns; after all, non-targeted Americans are intercepted all the time in traditional criminal wiretaps because they call, or are called by, the target. But FISA surveillance is more controversial than criminal surveillance because the government does not have to show probable cause of a crime and when the targets are foreigners outside the U.S., the government does not have to make any showing; it may target if it has a legitimate foreign-intelligence purpose, which is really not much of a hurdle at all.

So, as noted in coverage of the Obama administrations monitoring of Trump-campaign officials, FISA section 702 provides some privacy protection for Americans: The FISA court orders minimization procedures, which require any incidentally intercepted Americans identity to be masked. That is, the NSA must sanitize the raw data by concealing the identity of the American. Only the masked version of the communication is provided to other U.S. intelligence agencies for purposes of generating reports and analyses. As I have previously explained, however, this system relies on the good faith of government officials in respecting privacy: There are gaping loopholes that permit American identities to be unmasked if, for example, the NSA or some other intelligence official decides doing so is necessary to understand the intelligence value of the communication.

While that kind of incidental collection raises the concerns of privacy advocates, it is a small problem compared to upstream collection, the technology of which poses profound Fourth Amendment challenges.

In a nutshell, it is not possible to capture a single e-mail related to a single target as it transits the backbone routes (or switches) that connect networks. The NSA must instead capture packets of e-mail data which include lots of e-mails beside the targeted e-mail. It sifts through these packets, finds and assembles the components of the email it was looking for, and then discards the rest. (A New York Times report by Charlie Savage earlier this week, in connection with a different FISA issue, provides a good explanation of this process. By contrast, the relevant discussion in the FISA court opinion of multiple communications transactions, or MCTs, is brief and heavily redacted see the opinion at 1516.) Even if the NSA does exactly what it is supposed to do (i.e., sift and discard), this means American communications are being seized and subjected to an inspection however cursory in the absence of any warrant, probable cause, or foreign-intelligence relevance.

Now, couple this problem with the way the NSA targets. The upstream communications it collects end up in databases. When the NSA has a target about whom it seeks intelligence, it runs a search through the databases using what is variously called an identifier, a selection term, or a selector some e-mail address, phone number, or other identifying information related to the target. For years, U.S. intelligence agencies have not just sought any communications to or from this target; they have also sought any communications about this target e.g., when the target merely appears to have been referred to. This means the communications of people, including Americans inside the United States, are far more likely to be accessed and analyzed even though, again, there is no warrant or probable cause, there may be no direct communication with a proper intelligence target, and the Americans communications may be of no foreign-intelligence value.

So, to summarize, we have the communications of Americans inside the United States being incidentally intercepted, stored, sifted through, and in some instances analyzed, even though those Americans are not targets of foreign-intelligence collection. The minimization procedures are supposed to prevent the worst potential abuses, particularly, the pretextual use of foreign-intelligence-collection authority in order to conduct domestic spying. But even when complied with, there is a colorable argument that the minimization procedures do not eliminate the Fourth Amendment problem i.e., they permit seizure and search without adequate cause.

Now we know the minimization procedures have not been complied with. The new scandal involves their flouting.

In 2011, it became clear to the FISA court that the minimization procedures were providing insufficient protection to Americans. Of special concern was the use of identifiers of American citizens as selection terms for database searches. While the activities of these Americans might have made them worthy foreign-intelligence targets, there are other ways to monitor them under FISA. Targeting them for section 702 searches increased the likelihood that wholly domestic communications between Americans would be collected.

Thus, the minimization procedures were ratcheted up. The most significant change, as the FISA court opinion relates, was that the revised procedures categorically prohibited NSA analysts from using U.S.-person identifiers to query the results of upstream Internet collection (emphasis added).

This meant the NSA was not supposed to use an Americans phone number, e-mail address, or other identifier in running searches through its upstream database.

It is this prohibition that the NSA routinely and extensively violated. Evidently, there was widespread use of American identifiers throughout the years after the 2011 revision of the minimization procedures. The violation was so broad that, at the time the Obama administration ended, its scope had still not been determined.

The Trump Justice Department proposed new procedures in late March, which the FISA court has approved. These include the elimination of searches about a target henceforth, searches are limited to communications in which the target is presumptively a participant (i.e., to or from). The new procedures redouble efforts to assure that the database collects only foreign communications (i.e., at least one end of the communication is outside the U.S.).

We should note that section 702 is due to lapse unless reauthorized later this year, so the new rules will obviously be subjected to close scrutiny. A salient question will be whether this new scandal is mainly a case of technology outpacing the capacity to formulate rules that bring its use into constitutional compliance.

Im sure there is a good deal of that going on; that means the system is inadvertently inputting communications that should not be collected and stored. Plainly, though, something more insidious has also gone on. Even if the inputting has been inadvertently flawed, the outputs what is actually accessed from the database and analyzed would be less likely to violate American privacy if the minimization procedures were followed. The rules from 2011 forward were simple: Do not use American identifiers. Yet NSA used them not once or twice because some new technician didnt know better. This violation of law was routine and extensive, known and concealed.

Clearly, this new scandal must be considered in context.

The NSA says it does not share raw upstream collection data with any other intelligence agency. But that data is refined into reports. To the extent the data collected has increased the number of Americans whose activities make it into reports, it has simultaneously increased the opportunities for unmasking American identities. Other reporting indicates that there was a significant uptick in unmasking incidents in the latter years of the Obama administration. More officials were given unmasking authority. At the same time, President Obama loosened restrictions to allow wider access to raw intelligence collection and wider dissemination of intelligence reports.

This geometrically increased the likelihood that classified information would be leaked as did the Obama administrations encouragement to Congress to demand disclosure of intelligence related to the Trump campaign (the purported TrumpRussia connection). And of course, there has been a stunning amount of leaking of classified information to the media.

Enabling of domestic spying, contemptuous disregard of court-ordered minimization procedures (procedures the Obama administration itself proposed, then violated), and unlawful disclosure of classified intelligence to feed a media campaign against political adversaries. Quite the Obama legacy.

Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.

View original post here:
Explosive Revelation of Obama Administration Illegal Surveillance of Americans - National Review

Attorney says judge violated Murfreesboro dad's 4th Amendment rights and took kids away. PHOTO: WZTV FOX 17 Nashville

Murfreesboro's Daniel Russell has two kids with his wife Kimberly and three from a previous marriage. Those three kids lived in Wayne county.

Out of the blue one day, he gets a phone call from DCS saying they are taking his kids from his ex-wife and going into state custody. Russell says he was told "if you want them, you have two hours."

I left work and got them, said Russell.

This wasn't easy. His family of four became a family of seven. His 16-year-old daughter was pregnant, and his son has a learning disability.

Nevertheless , Russell never hesitated. He got a bigger apartment and rolled up his sleeves. He and his wife joyfully accepted their new big family.

We keep a tight ship," Russell said. "We keep a calendar on the wall and have dinners planned out for a week. The kids came from a totally different environment, and the DCS workers saw that when they came to my house."

Truth was, Daniel Russell and his wife were loving it and his kids were too.

I got a permanent parenting plan in the mail, and they said they were closing the case, Russell said.

Russell went down to Waynesboro to close the case. Out of the blue, Russell says Juvenile Court Judge James Ross ordered him to take a drug test.

Keep in mind, Russell has no drug history. There is no order anywhere requiring drug screening during the process.

The judge was like 'you ain't gonna take a drug test?' and I said hold stop right there I think I need to consult an attorney, Russell said. "That's not what I said, that's not what is happening."

Russell said he would go to a commercial lab and take a drug test right then and there. The court said not good enough and dismissed the motion the close the case.

Judge Ross then rules there is probable cause that the children are neglected or abused and takes the kids from Daniel.

"All of a sudden, boom, I am under the bus, said Russell.

After that shocking hearing, Russell hired well-known family law attorney Connie Reguli.

Look at this objectively," Reguli said. "He came in and saved the day; took kids who were in a bad situation, got them re-stabilized in his home, in school, his daughter medical care, and he had to change his life with two hours notice, and then he thinks it's over and he goes to court and the next thing you know before the sun sets that day he is turning his kids over to DCS custody."

Daniel says Mikayla, Christopher and Hannah are heartbroken, ripped away from a dad who was showing how much he cared.

Judge Ross gives two kids to Daniel's brother and his daughter to his ex-wife's grandmother. They are not even living in the same county anymore.

Connie Reguli says this is a violation of Fourth Amendment rights, the right against illegal search and seizure without probable cause.

When you have someone walk in and there has never been an allegation , never a positive screen, no referral, no complaint there has never been anything that would even suggest this is a parent who abused drugs, this is a Fourth Amendment violation," Reguli said. "There is no loophole."

This man, who has already spent thousands of dollars to make a real home for his kids, is spending thousands getting them back.

Russell did take that drug test at a private lab, and it was negative. Now five weeks later, he still doesn't even have a court date to get his kids back.

Read the original:
Attorney says judge violated Murfreesboro dad's 4th Amendment rights and took kids away - WZTV

Ive been silent on the blog for a while Ive been tweeting my way through current events rather than blogging about them but I wanted to flag the publication of my latest article, The Effect of Legislation on Fourth Amendment Protection, 115 Michigan Law Review 1117 (2017). The abstract:

When judges interpret the Fourth Amendment, and privacy legislation regulates the governments conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislatures handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect.

This Article argues that courts should favor interpreting the Fourth Amendment independently of legislation. At first blush, linking the Fourth Amendment to legislation seems like a pragmatic way to harness the experience and skills of the legislature to help implement constitutional values. A closer look reveals a different picture. Investigative legislation offers a surprisingly weak indicator of constitutional values. Linking the Fourth Amendment and statutes raises novel and complex questions of what links to draw and how to draw them. Linkage also threatens to weaken statutory privacy laws by turning the legislative process into a proxy battle for Fourth Amendment protection. Interpreting the Fourth Amendment independently of legislation avoids these problems. Independence limits arbitrary decisionmaking, provides a clear standard, and helps to protect the benefits of legislation.

This issue will come up soon at the Supreme Court if the justices agree to review the still-pending petitions on Fourth Amendment protection for cell-site data. As always, stay tuned.

See original here:
Final version of 'The Effect of Legislation on Fourth Amendment Protection' - Washington Post

Special to the Daily Mail

The week four session of the Nevada Police Departments Citizens Police Academy on April 26 featured guest speakers Assistant Prosecuting Attorney Lynn Ewing and Nevadas Animal Control Officer Ben Douglas.

Ewing went over the requirements of our police officers training in criminal procedure and the extent to which they had to comply when making an arrest or obtaining a warrant.

He explained how police officers are like lawyers on the street. Making split second decisions as to what can and cant be done according to criminal law and our Fourth Amendment rights. The Fourth Amendment is the linchpin in making an arrest. He went on to tell us when a warrant is necessary and that they can only be issued by a judge.

We learned that if a report is made by a witness or citizen and too much time passes before a warrant is requested that it is not usable information anymore because many things may have changed since the report was made. So time is of the essence in reporting a crime.

Ewing explained probable cause and the degree of probability.

We were told where and when an officer is allowed by law to search or seize a person or property.

He explained that a stop and frisk is not an arrest, but can escalate into one.

Ewing told us how inspections and regulatory searches could result in evidence being passed on to police for a warrant. If the inspector or person supervising a group of children or persons sees something suspicious or harmful to the group that they can be considered mandatory reporters.

He talked about consent searches and what is allowed in this type of search.

We learned about wiretaps and the exclusionary rule of the Fourth Amendment. This takes a warrant by a federal judge.

He covered the interrogation and confession, when it is allowed and the privilege against self-incrimination as well as a waiver of rights.

We were told the difference between a person working for the police or someone volunteering information in a specific incident, referred to as Color of Law.

He went over the Miranda rights and when it is necessary. First, a person has to be in custody and second, is being questioned by the police. Voluntary information is admissible without the Miranda being read.

City, county, state, and federal officers are all governed by the same Constitutional rights and laws.

We all have a right to due process of the law.

The second speaker was Ben Douglas, the animal control officer for the city of Nevada. He has been Nevadas Animal Control Officer for nine years.

You should know that he doesnt like being called the Dog Catcher.

Officer Douglas qualifications and training are extensive. Animal control association, Certified Humane Investigator/ACO, member of the National Animal Control Association, chemical immobilization certified, collapsible baton certified, euthanasia certified, Taser qualified, OC (pepper spray) certified. He is a member of Missouri Animal ASPCA training in blood sports investigation and cruelty investigation.

The position of Animal Control Officer is a division of the police department. He has a variety of duties:

Handling all animal calls .

Pick up large animals.

Trap nuisance animals.

Issue citations.

Assist vets in euthanizing animals.

Ensure compliance state and federal.

Provide mutual aid to county if requested.

Supervise city animal shelter and employees.

Adoptions.

Reclaims.

Surrenders.

Administer and en-force chapter five of the city code.

License, stray, livestock in town, animal noise.

In addition to his regular duties, Douglas procures supplies for and maintains the animal shelter and oversees the employees and the budget.

The animal shelter is considered a kill shelter. After 15 days it is OK to euthanize an animal. But here they try to keep them healthy if they can and pass them on either to homes or facilities that can care for them.

In the state of Missouri, animals are considered property, therefore, it is difficult to do more than fine offenders. There is a leash law in Nevada and owners are responsible for the animals actions when not on a leash.

Every animal bite (which breaks the skin) has to be reported to the state.

The biggest problems they deal with are neglect, abandonment, and abuse. The second is puppy mills. We found out that you only have to be licensed if there are three breedable females and you are breeding them and selling the babies.

Four hundred forty two animals were brought into the shelter in 2016. The live release rate for that same year was 84 percent.

All animals over six months old are spayed or neutered, treated and given shots and exercise.

In 2016 there were, 945 calls for service, 25 of which were for animal bites.

So far in 2017 there are only 14 bites.

If you are interested in finding out about the animals at the shelter, you can go by and visit or you can go to http://www.petfinder.com or Facebook.

Here is the original post:
Citizens Police Academy, week four - Nevada Herald