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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

A newly released court opinion from the secretive Foreign Intelligence Surveillance Court (FISC) shows that for years the NSA improperly and perhaps illegally surveilled Americans. The court order triggered the surprise announcement two weeks ago that the agency would be severely scaling back its domestic surveillance and destroying previously collected data on Americans.

Thursday, the Department of Justice released the 99-page court opinion from last month that ordered the National Security Agency to delete much of its surveillance on American people, which was collected improperly and in potential violation of the Fourth Amendment. The DOJ released the opinion as part of a 2015 plan to be more transparent.

The NSA collected data about Americans if they even mentioned a foreign target.

The opinion is a rebuke of many of the NSA's surveillance collection practices under Section 702 of the Foreign Intelligence Surveillance Act, the powers of which were expanded under the US Patriot Act. According to the opinionparts of which are redactedthe NSA improperly collected untold numbers of "multi-communications transactions" (MCTs) as they were in transit around the internet. The NSA is intentionally vague about what MCTs are, but they are believed to be groups of emails, metadata, screenshots of your inbox, and still-classified types of digital information (here's the best primer explaining MCTs).

Under Section 702, the NSA is allowed to collect domestic communication if Americans are communicating directly with a "foreign intelligence target" as approved by the FISC court. According to the opinion, the NSA had been collecting information if a foreign target was merely mentioned in the communication.

"Upstream collection could acquire an entire MCT for which the active user was a nontarget and that mostly pertained to non-targets, merely because a single discrete communication within the MCT was to, from or contained a reference to a tasked selector," Judge Rosemary Collyer wrote. "Such acquisitions could take place even if the non-target active user was a U.S. person in the United States and the MCT contained a large number of domestic communications that did not pertain to the foreign intelligence target."

Collyer's opinionwhich is worth reading in full if you're at all interested in privacycontains a number of other important details:

Earlier this month, the NSA announced that it would stop this type of collection and would delete data that was collected improperly. Now we know that at least part of that announcement was made because the FISC court ordered the agency to, because the NSA could not prove that the surveillance was legal under the Fourth Amendment. The court order says that the NSA must delete this information within one year.

'Compliance problems' also led to collection of data about Americans.

According to the order, in 2016, the FISC asked the NSA to prove that Section 702 collection involving Americans was legal under the Fourth Amendment. It also asked the US government for internal reviews about the program, which it did not initially disclose: "The Court ascribed the government's failure to disclose those reviews at the October 4, 2016 hearing to an institutional 'lack of candor' on NSA's part and emphasized that 'this is a very serious Fourth Amendment issue,' Collyer wrote.

Finally, the court gave the US government a January 31, 2017 deadline to prove the constitutionality of its program; the government asked for an extension to May 26. The court granted a shorter extension to April 28. Rather than prove the constitutionality of the program, the court opinion noted that the NSA instead had "chosen a new course:" The destruction of improperly collected data and the narrowing of its collection practices.

The NSA will continue collecting data under Section 702 of the Patriot Act, but the FISC court ordered that the NSA must "limit all acquisitions to communications to or from an authorized 702 target" in order to comply with the Fourth Amendment. The NSA will also no longer be able to share 702 surveillance with the FBI, CIA, or other intelligence agencies unless they follow specific data minimization procedures.

The court order gives us more background and specifics on what we already knew: Much of the NSA's surveillance of Americans was unconstitutional, and the agency regularly collected things it wasn't supposed to.

See the original post here:
This Is the Secret Court Order That Forced the NSA to Delete the Data It Collected About You - Motherboard

In this excerpt from our new Digital Privacy initiative, Jim Harper from the Competitive Enterprise Institute critiques current Fourth Amendment doctrine and calls on courts to adopt a new approach that hews closely to the Fourth Amendments text.

You can read the full text of Harpers white paper at our special section, A Twenty-First Century Framework for Digital Privacy, at https://constitutioncenter.org/digital-privacy

Stare decisis is the valued judicial practice of extracting the underlying principle from precedent, the ratio decidendi, and applying it to present cases. But what happens to the principle behind a prescient dissentthe ratio dissensi, if you willwhen a majoritys decision later proves wrong? Almost ninety years ago, an understated Supreme Court Justice left crumbs of insight in a dissent that may help solve the riddle of applying the Fourth Amendment, particularly to modern communications and data. His thinking can help construct a more complete, reliable, and truly juridical method for administering the Fourth Amendment. Advocates and courts should look to his prescient ratio dissensi.

Pity Justice Butler. Next to contemporaries such as Oliver Wendell Holmes, Jr., Louis D. Brandeis, and Benjamin Cardozo, Pierce Butler occupies second-tier status in historys assessment of Supreme Court justices. A conservative Democrat put forward by a Republican president, Butler was a controversial nominee for the Court. One of his Minnesota home-state senators opposed him, as did progressive lion Robert LaFollette, Sr., a Republican from Wisconsin. The opposite end of the ideological spectrum did Butler no favors: the Ku Klux Klan opposed his nomination because he was a Catholic.

Justice Butler wrote more than 300 opinions in his sixteen years of Supreme Court service, but few stand out today. He is best remembered as one of the four horsemen who lost their constitutional stand against President Franklin Delano Roosevelts expansive New Deal programs. But time has vindicated some of Justice Butlers work on the Court, including notable dissents.

Butler alone rejected Oliver Wendell Holmes, Jr.s now notorious reasoning in Buck v. Bell, for example. Allowing forced sterilization of a woman, Holmes wrote coldly for the majority: Three generations of imbeciles are enough. The Nazis use of eugenics the next decade cast more than a little pall over the practice, and Skinner v. Oklahoma effectively ended forced sterilization in 1942. Score one for the conscience of Justice Butler.

Likewise, in Palko v. Connecticut, Butler alone disagreed with Justice Cardozos ruling that the Constitutions protection against double jeopardy did not apply to the states. The Court reversed itself on this question three decades later. Score another.

Butler was a legal technician, and his areas of focus were not what generally capture public and scholarly attention. His approach to opinion writing stressed simplicity and minimalism, according to a history by David R. Stras, now a Minnesota Supreme Court justice himself, and it was rare indeed when he used rhetorical flourishes to argue a point. So it is not surprising that Justice Butlers dissent in Olmstead v. United States has remained obscure behind the fanfare of his brother Louis Brandeiss dissent. But time may yet vindicate Justice Butlers reasoning, especially given its usefulness for applying the Fourth Amendment to the digital world.

Olmstead, of course, was the 1928 case in which the Court found that a Fourth Amendment search had not occurred when government agents wiretapped the telephones of suspected bootleggers. Justice Brandeis, co-author of a Harvard Law Review article called The Right to Privacy forty years earlier, inveighed against the ruling using powerful and persuasive language. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness, he wrote:

They recognized the significance of mans spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alonethe most comprehensive of rights and the right most valued by civilized men.

Posterity has favored Brandeiss passion. Commentators and scholars today still quote and muse over his formulation of the right to be let alone. They explore how that notion might be implemented to preserve the values that the Framers held dear.

But Brandeiss words did not found a sustaining rationale for Fourth Amendment protection. The proof is in the eating of the pudding: Modern Fourth Amendment jurisprudence is a muddle, and it is sorely challenged by advances in information technology. This is particularly poignant because Brandeis foresaw the surveillance capabilities enabled by todays information and communications technologies. Ways may someday be developed, he wrote, by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.

The case that reversed Olmstead, of course, was Katz v. United States. In Katz, thirty-nine years later, Justice Harlan shared his sense of how the Constitution controls government access to private communications in his solo concurrence: My understanding, he wrote, is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable.

Since then, courts have analyzed whether defendants have had a reasonable expectation of privacy in information or things. Under Justice Harlans concurrence, if not the Katz majoritys rationale, the defeat of a reasonable expectation of privacy signals a constitutional search generally requiring a warrant.

That doctrine has not worked. Courts rarely follow the full analysis Justice Harlans formulation suggests. They rarely inquire into a defendants actual (subjective) expectation of privacy, for example, or how it was exhibited. The second half of the test requires judges to use their own views on privacy as a proxy for objectivity, though they are neither public opinion researchers nor sociologists. Against litigants importuning about privacy, courts after Katz have found as often as not that the Fourth Amendment does not protect the security of sensitive and revealing information.

In Smith v. Maryland, for example, one of the leading communications privacy cases, the Supreme Court found that placement of a pen register on a suspects phone line without a warrant did not violate the Fourth Amendment. [W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial, Justice Blackmun wrote. Walking through the influences that would suppress expectations of privacy in phone-dialing, and none that would support it, he said, It is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

A Court without Justice Brandeiss passion for privacy is evidently quite free to undercut it. So in United States v. Karo, government agents had arranged with an informant to surreptitiously install a radio beeper in a container. They used the presence of the beeper in the container over a period of several days to locate it at three different residences and in the driveway of a fourth, to locate the container in a pair of self-service storage facilities, and also to locate it in transitall the while unable to suffer the inconvenience of getting a warrant. The Court did not examine whether all this warrantless beeper-tracking was reasonable. It gave the once-over to Karos expectation of privacy and found his (presumed) feelings unreasonable.

More recently, the reasonable expectation of privacy test produced a ruling that government agents examination of a stopped vehicle with a drug-sniffing dog is not a Fourth Amendment search. It is hard to think of a word better than search for such highly focused analysis of whether certain particulates exist in the air. Some cases certainly have maintained the protection the people have from inquisitive government agents, but the right to be let alone has not fared all that well when privacy and expectations thereof have been the locus of the Courts decision-making.

If Justice Brandeiss passion did not lay the groundwork for sound administration of a strong Fourth Amendment right, perhaps Justice Butlers Olmstead dissent could. His challenge to the majority decision eschewed feelings, instead examining the legal status of telephone conversations:

The contracts between telephone companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass. During their transmission, the exclusive use of the wire belongs to the persons served by it. Wiretapping involves interference with the wire while being used. Tapping the wires and listening in by the officers literally constituted a search for evidence.

The communications belong to the parties between whom they pass. It is a fascinatingand very differentway of thinking about what happened in Olmstead. Justice Butler would have protected Olmsteads calls from warrantless wiretapping not because it is part of human essence to have communications remain private, as Justice Brandeis said, but because peoples conversations are not the governments to listen to.

Justice Butlers formulation holds the seeds of an alternative way to administer the Fourth Amendment. It is technical and value-free, but it offers the hope of better Fourth Amendment administration because it is more susceptible to sound application than current Fourth Amendment doctrine. Its use would provide consistent and reliable protection for Americans liberties and a stable rule for law enforcement in a time of technological change.

Courts in Fourth Amendment cases should decline to invoke doctrine that requires them to make broad social pronouncements. Rather, they should apply the text of the Amendment and general legal principles as literally as possible to the facts of cases. That is not always easy, and it requires new and deeper analysis of what it means to search and to seize. It also requires fuller awareness of property and contract rights as they apply to communications and data. But it is a more methodical judicial exercise than applying reasonable expectations doctrine, and it would achieve the current Courts goal of preserving that degree of privacy against government that existed when the Fourth Amendment was adopted.Applying the law to the facts is the better way to administer the Fourth Amendment.

Read more at: https://constitutioncenter.org/digital-privacy/The-Fourth-Amendment-in-the-Digital-Age

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Originally posted here:
The Fourth Amendment in the Digital Age - Constitution Daily (blog)

The federal government thinks it should be able to use one warrant to hack into an untold number of computers located anywhere in the world. But EFF and others continue to make the case that the Fourth Amendment prohibits this type of blanket warrant. And courts are starting to listen.

Last week, EFF pressed its case against these broad and unconstitutional warrants in arguments before a federal court of appeals in Boston, Massachusetts. As we spelled out in a brief filed earlier this year, these warrants fail to satisfy the Fourth Amendments basic safeguards.

The case, U.S. v. Levin, is one of hundreds of prosecutions resulting from the FBIs 2015 seizure and operation of a child pornography site Playpen. While running the site, the FBI used malwareor a Network Investigative Technique (NIT), as they euphemistically call itto infect computers used to visit the site and then identify those visitors. Based on a single warrant, the FBI ended up hacking into nearly 9,000 computers, located in at least 26 different states, and over 100 countries around the world.

But thats unconstitutional. One warrant cannot allow law enforcement to hack into thousands of computers wherever they are in the world. As law enforcement defended these blanket hacking warrants and pushed for federal rule changes to allow themand as Congress stood by and idly let this rule change go into effectweve been fighting in court to make sure that the Fourth Amendments protections dont disappear as law enforcement begins to rely on hacking more and more.

And there are signs that courts are beginning to recognize the threats to privacy these warrants pose. Earlier this year, a federal magistrate judge in Minnesota found [PDF] that the warrant the FBI relied on in the Playpen casethe same warrant we were arguing against in Levinviolated the Fourth Amendment.

In the February report, Magistrate Judge Franklin Noel described how the governments NIT fails the Fourth Amendments requirement that warrants describe a particular place to be searched, agreeing with arguments weve made to courts in other Playpen prosecutions. The warrant in this case fails to satisfy that requirement because, at the time the warrant was issued, it is not possible to identify, with an specificity, which computers, out of all of the computers on earth, might be searched pursuant to this warrant, Noel wrote.

He also explained how the warrant essentially flips the Fourth Amendments particularity requirement on its head, searching and then identifying specific computers instead of identifying specific computers and then searching them. Only with [information gathered through the use of malware] could the Government begin to describe with any particularity the computers to be searched; however, at that point, the computer had already been searched.

Its encouraging that courts are beginning to agree with arguments from us and others that these warrants far exceed the Fourth Amendments limits on government searches.

As the Playpen prosecutions begin to work their way up to the courts of appeals, the stakes become higher. The decisions these courts reach will likely shape the contours of our constitutional protections for years to come. Weve filed briefs in every appeal so far, and well continue to make the case that unfamiliar technology and unsavory crimes cant justify dispensing with the Fourth Amendments requirements altogether.

See the article here:
The Fight Against General Warrants to Hack Rages On - EFF

PostedMay 1, 2017 10:04 AM

UpdatedMay 1, 2017 11:29 AM

ByTimothy P. ONeill

Pretend you are taking the SAT exam. Here is a fill-in-blank question from the verbal section:

A man is walking alone on a sidewalk in a high-crime neighborhood. Two police officers are in a car approaching from the opposite direction. The car stops. One officer rolls down the window and begins to speak to the man: Come here, the officer _______.

Which word best completes the sentence?

A. commands

B. orders

C. asks

If you answered either A or B, you are still in the running for that college scholarship you are after.

If you answered C, you have probably just blown your chance for a perfect score on the verbal section. But you may have just secured yourself a seat on the Illinois Appellate Court. To understand why, take a look at People v. Ramsey Qurash, 2017 IL App (1st) 143412 (decided March 16, 2017).

The facts of the case match our SAT question above. Chicago police officer Stephen Gregory testified that after he said Come here, Qurash dropped a large white bottle into the snow. Gregory got out of the car, picked up the bottle and saw it contained a leafy substance that appeared to be marijuana. He arrested Qurash and found more contraband on his person. Qurash was charged with several drug offenses.

The majority opinion characterizes the issue in the case as [D]eceptively simple: [A]s a matter of law, do the words come here, uttered by a police officer to a citizen, result in a seizure. If it does result in a seizure, then the drugs must all be suppressed since Officer Gregory lacked either probable cause or reasonable suspicion at the moment he said those two words. The [1]st District decided the issue by characterizing Come here as a mere request that did not result in a seizure, and thus affirmed the conviction.

However, Justice David Ellis filed a dissent contending that no reasonable person would have interpreted Come here as a mere offer he could refuse. Qurash did not consent to an officers request; rather, he acquiesced to the officers command. And because the officer lacked any suspicion whatsoever when he issued that command, the seizure violated the Fourth Amendment and the conviction must be reversed.

Preliminarily, both the majority and the dissent agree that the trial courts holding that the officers words did not constitute a seizure was a question of fact deserving deferential review.

I am not so sure. True, the trial courts finding that the officer said Come here is a question of historical fact that deserves deferential review. And whether or not a defendant has voluntarily consented to an officers request for a search or seizure is an issue reviewed deferentially in Illinois. People v. West, 2017 ILL. App. (3d) 130802.

But the issue of whether a seizure has occurred is a question of law that merits de novo review. In fact, as noted above, the majority even began its analysis by describing the issue in the case as a matter of law. (Slip, 5) A seizure occurs when a reasonable person would believe he is not free to leave. U.S. v Mendenhall, 446 U.S. 544 (1980) (opinion of Stewart, J.).

Deciding how a reasonable person would react to Come here is an objective test resulting in a finding of law that merits de novo review.

Yet even under a deferential standard, I believe the dissent is correct that a seizure occurred when the officer said Come here and that the trial court was clearly erroneous in holding otherwise.

It is worth quoting Ellis at length: Those two words, alone, are not a request. Nor could they plausibly be construed as a question (Come here?) To a man walking down the street, alone at night, in a high-crime neighborhood, when two officers stopped their car in the middle of the street and one of them said, Come here, any reasonable person would believe that he was required to comply with that directive that he was not free to leave.

The dissent does something else worth noting. It exhibits an awareness that an appellate court decision is not a one-off; it does not exist in a vacuum. An appellate decision in a common-law system must of necessity be Janus-faced: It must decide the case that has already occurred in the past with the realization that its decision will have impact on people in the future.

This leads Ellis to say I fear that the majoritys holding will have the unintended effect of encouraging individuals not to comply with a police officers request, or order, to come here. Under the majoritys reasoning, the best way for citizens to protect their [F]ourth [A]mendment rights is to ignore the police in that context because if they complied even though not required to do so, they would be consenting to police questioning without any [F]ourth [A]mendment protections at all.

And Ellis goes on to note the dilemma the court has created for a pedestrian in the future. For if she refuses to comply and simply continues walking and if the officer continues to say Come here a person could find herself accused of resisting or obstructing a lawful order of the police. Ellis cites People v Synnott for the proposition that merely refusing a police officers lawful order to move can constitute interference with the officer in the discharge of his or her duty. 349 Ill. App. 3d 223, 229 (2004).

Elliss dissent makes this case worth a second look. For, as he notes, Come here is not a question. Come here is not a request. Come here is an order.

Read more here:
Fourth Amendment trouble brewing - Chicago Daily Law Bulletin