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The 4th Amendment, fundamentally, is concerned with privacy. A persons space either in terms of possessions or body cannot be intruded upon without justification. As stated in the amendment, a search or seizure must not be unreasonable.For example, in Weeks v. United States (1914) the Supreme Court unanimously asserted that a persons possessions could not be seized from a private residence unless the police had a warrant. A warrant is a document issued by a court after evidence is put forward that shows that there is probable cause to perform the search. The probable cause standard is considered to be something more than a reasonable suspicion. But, obviously, even probable cause is still not enough to confirm guilt. It is often vague and unclear as to when probable cause exists. As such, the law surrounding the 4th Amendment has continued to shift over the decades, as definitions have changed and exceptions have been carved out.Indeed, even the definition of a search has seen modifications over the years. In Olmstead v. United States (1928), for example, the Supreme Court rejected the notion that electronic surveillance by wiretapping phones constituted a search. But in Katz v. United States (1967), the Court reversed this precedent. Recalling the purpose of the 4th Amendment to assure citizens of their expected privacy wiretapping was brought under the umbrella of a search. A warrant is now required for these actions as well (though, today, the federal government does engage in warrant-less wiretaps within the United States for the purpose of combating terrorism though the Supreme Court has yet to weight in on the constitutionality of these potential searches).4th Amendment analysis often is involved in issues of police brutality and excessive force as well. An arrest of a person can be considered a seizure or intrusion upon that persons body. The Court dealt with exactly this kind of analysis in the 1989 case Graham v. Connor. Police officers detained and arrested a man they saw running out of a convenience store while they questioned the store clerks to make sure nothing had been stolen. The man claimed he was diabetic and having an insulin reaction, and that he was hurrying to return to a friends house to get the necessary means to stop his reaction. The police ignored his repeated requests regarding his condition, and he suffered injuries as a result while waiting to determine nothing illegal had happened in the store. The man brought a lawsuit alleging that this violated his 4th and 14th amendment rights. The lower courts applied a test that analyzed the intent of the police officers, and dismissed the plaintiffs claims when they decided that the police did not have a sadistic or malicious intent in keeping him detained.The Supreme Court disagreed and vacated the lower courts decisions. In cases involving excessive force violations of the 4th amendment, the Court determined that a reasonableness standard should be used rather than subjective intent test. This standard is easier for plaintiffs to prove. Additionally, this test must be applied through the 4th Amendment itself, rather than the Due Process Clause or other amendments. However, the Court also made sure to mention that this analysis must take into account the fact that police officers are frequently required to make fast decisions regarding their safety, and therefore this reasonableness must be viewed from the perspective of a reasonable officer at the scene.The modernization of 4th Amendment protections has continued in the 2014 decision Riley v. California. The Supreme Court ruled unanimously that police need a warrant in order to search the contents of a cellphone. The government argued that cell phones could be searched upon the arrest of an individual, comparing this to the legally acceptable search of a prisoners pockets. The Court acknowledged that given the immense amount of data stored about a person on a cell phone, searching a phone was instead far more similar to (and perhaps even worse than) searching a persons house.Still, not all searches require warrants or even probable cause. First, police officers routinely pull individuals over without warrants. Often, the facts surrounding the pull-over or the arrest constitute probable cause. If a police officer actually sees a person using drugs, for example, there is obviously probable cause for an arrest and the officer need not wait for a warrant to do his or her job. However, there are instances when police may perform searches even without probable cause at all, and with the lesser (though still somewhat vague) standard of reasonable suspicion. For example, in Terry v. Ohio (1968), the Supreme Court considered a search that police officers had conducted. The officers had patted down individuals walking on the street that they felt were exhibiting suspicious behavior. It turned out that the individuals were, in fact, carrying illegal weapons. But the defendants claimed that those weapons were found through an unconstitutional search: the officers did not have probable cause to think that the men were carrying weapons, and the defendants sought to suppress whatever the officers may have found through that search. The Court, however, rejected this argument and acknowledged that on-the-job police officers need to be permitted some amount of leeway in order to properly do their jobs. The facts of the case made the search sufficiently reasonable. As long as the search was not merely conducted on a hunch, it did not violate the 4th Amendment.

As an aside, other exceptions to needing a warrant for a search have been established as well. For example, in New Jersey v. T.L.O. (1985), the Court upheld a search performed in a school by an administrator without a warrant. Students can be searched provided there is at least reasonable suspicion.

Olmstead v. United States (1928)

Mapp v. Ohio (1961)

Katz v. United States (1967)

Terry v. Ohio (1968)

New Jersey v. T.L.O. (1985)

Graham v. Connor (1989)

County of Riverside v. McLaughlin (1991)

U.S. v. Jones (2012)

Florida v. Harris (2013)

Missouri v. McNeely (2013)

Maryland v. King (2013)

Fernandez v. California (2013)

Riley v. California (2014)

Heien v. North Carolina (2014)Florida v. Harris(2013)Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC(2012)

Smith V. Maryland(1979)

Harper v. Virginia State Board of Elections(1966)

Harman v. Forssenius(1965)

Breedlove v. Suttles(1937)

Fernandez v. California(2014)

Scott v. Harris(2007)

Brady v. Heien(2014)

Delaware v. Prouse(1979)

Heien v. North Carolina(2014)

King v. Burwell(2014)

Rodriguez v. United States(2015)

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The Fourth Amendment - Text | Transaltion | Key Cases

Letter to the editor: Fourth Amendment for Americans Post Register Regarding Security is a human right by Pastor Regina Herman, Feb. 16: Pastor Herman states, in part, that They [Sanctuary cities, also called Fourth Amendment Cities] are not set up to defy the government, the Constitution, or the laws on which this ...

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Letter to the editor: Fourth Amendment for Americans - Post Register

A federal magistrate judge in Chicago has rejected a request by the government for a provision in a search warrant that would authorize agents to compel people present to unlock seized phones using biometric readers. I think the judge was right to reject the provision, although I disagree with substantial parts of the reasoning.

I. The New Opinion

In the case, an Internet connection (presumably at a home) is being used to traffic in images of child pornography. The government wants the authority to search the place and seize any computers located there. The magistrate judge allows that. The government also wants a provision in the warrant authorizing the police to compel any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device. The magistrate judge rejects that provision, issuing the warrant without it.

The magistrate judge offers two reasons for rejecting the fingerprint provision. First, the opinion suggests that making a person give a fingerprint raises case-by-case questions of reasonableness under the Fourth Amendment that cannot be addressed with a blanket authorization. According to the court, the warrant does not establish sufficient probable cause to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device. Lots of people might be present on the premises at the time of the search, but there is no way to know ahead of time whether there will be sufficient cause to seize each person needed to make then unlock a particular phone.

Second, the judge suggests that obtaining thumbprints will violate the Fifth Amendment because cellphones contain very sensitive information. The common wisdom is that an order to place a particular thumb on a thumbprint reader doesnt violate the Fifth Amendment because it isnt testimonial. It doesnt reveal what is going on in the persons mind, so its not the persons testimony. But the magistrate judge disagrees:

[T]he connection of the fingerprint to the electronic source that may hold contraband (in this case, suspected child pornography) does explicitly or implicitly relate a factual assertion or disclose information. Doe, 670 F.3d at 1342. The connection between the fingerprint and Apples biometric security system, shows a connection with the suspected contraband. By using a finger to unlock a phones contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.

The government cites United States v. Wade, for the proposition that the Fifth Amendment privilege against self-incrimination offers no protection against compulsion to submit to fingerprinting. (Gvt. Mem. at2) (citing Wade,388 U.S. 218,223). This case, however, was decided in 1967, prior to the existence of cell phones, and in the context of utilizing fingerprinting solely for identification purposes. In the context of the Fifth Amendment, this Court finds these two starkly different scenarios: using a finger print to place someone at a particular location, or using a fingerprint to access a database of someones most private information. The Wade court could not have anticipated the creation of the iPhone nor could it have anticipated that its holding would be applied in such a far-reaching manner.

II. My Analysis the Fourth Amendment Issues

I think the judge was correct to reject this provision, although not quite for the reasons stated. The proper reason to reject this provision is that warrants cannot and should not regulate how a warrant is to be executed. The warrant has to state where the police can search and what they can seize there. But what else happens when the warrant is executed is a matter of case-by-case reasonableness, and magistrates shouldnt try to insert themselves into that by imposing blanket reasonableness determination ex ante when they have no idea what the facts will turn out to be.

This principle most often comes up when judges want to impose ex ante restrictions on computer warrants. Those restrictions might be search protocols or restrictions on when seized computers have to be returned. I argued in a 2010 article that these limits are improper. The reasonableness of the search has to be determined ex post, I argued, not answered by a magistrate judge ahead of time when the warrant is issued.

A warrant provision providing authorization to get thumbprints is the mirror image of ex ante restrictions. Now the government wants ex ante approval of steps in the execution of the warrant rather than judges wanting ex ante disapproval of steps. But the principle is the same. Just as a magistrate judge cant gauge at the time of the warrant application what limits on the execution of the search would be proper, neither can a magistrate judge gauge what added government steps would be proper. We have to wait for the execution of the search and for reasonableness determinations to be made on the scene by the officers and then reviewed ex post by courts.

This point is true even if courts in future ex post litigation rule that a particular thumbprinting practice complies with the Fourth Amendment. If courts later issue those rulings, then magistrates still shouldnt include provisions about them in warrants. Instead, they will become part of background Fourth Amendment principles that apply to every warrant. And notably, the Fourth Amendment cases the court discusses on detention and fingerprinting are all about what was deemed reasonable ex post. None of them are about provisions included in a warrant ex ante.

If Im right that this fingerprint provision is categorically improper, one question is why is the government seeking it. Whats the perceived advantage? I suspect there are two reasons. First, prosecutors and agents are probably thinking that magistrate preapproval will help trigger the good-faith exception of United States v. Leon. If a particular fingerprinting is later questioned in court, and a judge rules that it was improper, agents can fall back on the preapproval of the process in the warrant to avoid suppression. If thats what they are thinking, its all the more reason to reject the provision: It makes no sense for magistrate preapproval of something they have no authority to preapprove to change whether the exclusionary rule applies.

Second, prosecutors and agents may be thinking that including the provision in the warrant will encourage people not to resist giving their thumbprints. Agents wont want to force people to put their thumbs on the phones; they would rather those present do so without force. With a warrant in hand saying that a judge has ordered it already, people are probably more likely to submit. But if thats the concern, I think the same objective could be met with an appellate court ruling saying that the thumbprints are permitted as a matter of Fourth Amendment law. Agents could show people a summary of the law on the issue, printed up on government letterhead, and I think that would have equivalent persuasive force. And of course that assumes that the courts would issue such a blanket ruling. Whether that is true would have to be litigated first, obviously.

I interpret the judges Fourth Amendment analysis to be at least somewhat in sync with the argument I have made here. On that basis I think the judge was correct to reject the provision, although I would have expressed the Fourth Amendment argument somewhat differently.

II. My Analysis the Fifth Amendment Issues

On to the Fifth Amendment issues. I wrote a long blog post last year on why I think compelling fingerprints to unlock phones can but usually wont raise Fifth Amendment issues: The Fifth Amendment and Touch ID.That post largely explains why I disagree with much of the magistrate judges Fifth Amendment analysis. The judge seems to think that using a persons body to reveal really private information somehow makes it testimonial; it is using the body to produce evidence, after all. But the Fifth Amendment is solely concerned with compelling use of the mind, not compelling use of the body.

There are ways that compelling someone to place fingers on biometric readers can require use of the mind, as I argued back in October. Imagine the police walk up to a person present at the scene and say this: Here are 10 phones, and you have to pick out your phone and unlock it with Touch ID. Complying will be testimonial as to which phone belongs to that person and will amount to testimony that they know which part of their body unlocks it. On the other hand, if the police walk up to a suspect and say, place your right thumb on this phone, complying wont amount to testimony about anything.

The fact that iPhones didnt exist in 1967 is irrelevant, as is the fact that the police are ultimately able to get lots of personal information by unlocking a phone. Those are relevant to the Fourth Amendment analysis, as the Riley case shows. But theyre not relevant to the Fifth Amendment standard.

Ill conclude with a procedural point. Im skeptical that possible Fifth Amendment issues that might arise in the execution of the warrant are properly before the court. For the Fifth Amendment to apply,the person must first expressly invoke the privilege. Given that people may or may not invoke their Fifth Amendment rights, Im skeptical that there is a ripe dispute now that can allow a court to adjudicate the Fifth Amendment issue. This concern would be solved by removing the provision from the warrant, as I think the Fourth Amendment requires.

Continue reading here:
Judge rejects warrant provision allowing compelled thumbprints to ... - Washington Post

The Supreme Court struggled Tuesday to define limits to the Constitutions Fourth Amendment in a tragic case in which a U.S. Border Patrol agent fired his weapon and killed a 15-year-old boy on the Mexican side of the line.

Some of the justices feared that if they went too far, they could open the U.S. military to claims from victims of drone attacks in foreign countries. But the courts liberal wing worried that unless they gave the family its day in court, it had no recourse to punish rogue agents.

You have a very sympathetic case, Justice Stephen G. Breyer told the attorneys for the family of Sergio Hernandez, the boy killed in 2010 by the shot fired by agent Jesus Mesa Jr.

Mr. Mesa was cleared after a probe by the U.S. government, which said it could not establish that he violated Border Patrol policies.

The family says it wants justice in the courts. The only problem: Lower courts have ruled that since the boy was in Mexico, the Fourth Amendment protections dont apply in this case.

Robert C. Hilliard, the attorney for the Hernandez family, cast his case as a defense for other Mexicans who might find themselves in the same situation. He said there is an ongoing domestic routine law enforcement issue that needs to be solved.

Were here because the interaction of the Border Patrol in this area, the government has taken the position that on the border, the Constitution turns off if the deadly force goes across the border, he said.

He said there have been 10 instances in which the Border Patrol has fired from the U.S. into Mexico and killed someone.

Ahead of Tuesdays oral argument, some analysts said the case could give an indication of how the justices might rule on the extreme vetting executive order issued by President Trump. That order has been mostly blocked by federal courts, which ruled that potential visitors outside the U.S. and foreigners inside the U.S. illegally have constitutional rights that must be respected.

But the justices didnt stray far afield Tuesday. Instead, they debated whether they could draw a line that would allow the family to sue in this case but wouldnt open a whole category of lawsuits against U.S. troops who create collateral damage.

How do you analyze the case of a drone strike in Iraq where the plane is piloted from Nevada? Chief Justice John G. Roberts Jr. asked Mr. Hilliard.

Justice Ruth Bader Ginsburg waved aside those concerns, saying thats a military operation that could be distinguished from a border encounter involving a federal law enforcement officer.

The chief justice did not seem swayed by the distinction, particularly in a tort claim against a federal employee.

The case could turn on the exact spot where the slaying occurred. The boy was shot in a culvert that is maintained by both the U.S. and Mexico though the ground where he fell is clearly on the Mexican side, the attorneys said.

Some of the courts liberal justices said that if the U.S. government has some authority over the territory, that could be a zone where Fourth Amendment protections against searches and seizures and in this case unlawful death would apply.

But Randolph J. Ortega, Mr. Mesas attorney, said the matter of the border cant be minimized.

Wars have been fought to establish borders. The border is very real, he said.

Mexico had asked for Mr. Mesa to be extradited to face charges there, but the U.S. government refused. The Mexican government then backed the familys lawsuit in court.

The rest is here:
Supreme Court considers parents' rights after boy killed by agent across Mexican border - Washington Times

If a police agency gets a search warrant and seizes a targets iPhone, can the agency share a copy of all of the phones data with other government agencies in the spirit of collaborative law enforcement among different agencies? Not without the Fourth Amendment coming into play, a federal court ruled last week in United States v. Hulscher, 2017 WL 657436 (D.S.D. February 17, 2017). Heres a summary of the new case, together with my reactions.

Hulscher was being investigated by two different agencies for two unrelated crimes. The local police were investigating Hulscher for counterfeiting crimes. Meanwhile, the federal Bureau of Alcohol, Tobacco and Firearms (ATF) was investigating Hulscher on firearms-related charges.

The local police obtained a search warrant for the defendants iPhone to search it for evidence of counterfeiting. (The warrant was really broad, but I gather from the opinion that it was a particular warrant in context and that it limited the search to evidence of counterfeiting.) In the course of executing the warrant, agents made a complete copy of the data on the phone and searched the copy for evidence. Hulscher was later convicted of counterfeiting based in part on the evidence from the phone.

Meanwhile, federal agents were preparing for trial against Hulscher on federal firearms charges. The ATF agents reviewing Hulschers criminal record noticed his recent arrest by the local police. When the ATF agents contacted the local police, the local police told the ATF agents that they had a complete copy of Hulschers iPhone that might be helpful for the firearms case. The ATF agents obtained a digital copy of the files from the local police and searched through it without obtaining a second warrant. The agents found evidence that is relevant to the still-pending federal firearms charges. Hulscher then moved to suppress the evidence.

The district court, per Judge Karen Schreier, granted the motion to suppress. Heres the full analysis of why the second search violated the Fourth Amendment:

[T]he issue before the court is whether a subsequent viewing of a copy of electronic data from a cell phone constitutes a search when the data was collected under a valid search warrant and was unresponsive to that warrant.

This specific fact scenario is relatively new to Fourth Amendment analysis, and as noted by Professor Orin Kerr, [e]xisting precedents dealing with the treatment of copies of seized property are surprisingly difficult to find. Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 562 (2005). Despite the lack of precedent on how courts should treat digital copies of electronic information, [t]here are two obvious choices: courts can treat searches of copies just like searches of originals or else treat copies merely as data stored on government-owned property. Id. Here, the government argues for the latter. The government argues that cell phone data can be shared among law enforcement agencies like a box of physical evidence.

As the Supreme Court explained in Riley, however, cell phone data is not the same as physical evidence. In Riley, the issue before the Supreme Court was whether cell phones could be searched incident to arrest like other physical objects found on arrestees. Riley v. California, 134 S. Ct. 2473, 2482 (2014). The court held that because cell phones contain immense amounts of personal information about peoples lives, they are unique, and law enforcement officers must generally secure a warrant before conducting such a search. Id. at 2485. This court reaches a similar conclusion. As explained by Magistrate Judge Duffy, [t]he chief evil [that] the Fourth Amendment was intended to address was the hated general warrant of the British crown. Docket 251 at 10 (citing Payton v. New York, 445 U.S. 573, 58384 (1980)). If the scope of the Beadle County warrant was not limited to the Hurron Police Departments counterfeiting investigation, the search warrant would have been an invalid general warrant. Id. at 16 (citations omitted). As explained by Magistrate Judge Duffy, [t]he conclusion is inescapable: Agent Fair should have applied for and obtained a second warrant [that] would have authorized him to search Mr. Hulschers cell phone data for evidence of firearms offenses. Id. at 32 (citations omitted).

The government argues that this conclusion is impractical and is contrary to the nature of police investigations and collaborative law enforcement among different agencies. Docket 255 at 12. The governments position, however, overlooks the ultimate touchstone of the Fourth Amendment: reasonableness. Riley, 134 S. Ct. at 2482. According to the government, law enforcement agencies can permanently save all unresponsive data collected from a cell phone after a search for future prosecutions on unrelated charges. If the governments argument is taken to its natural conclusion, then this opens the door to pretextual searches of a persons cell phone for evidence of other crimes. Under the governments view, law enforcement officers could get a warrant to search an individuals cell phone for minor infractions and then use the data to prosecute felony crimes. No limit would be placed on the governments use or retention of unresponsive cell phone data collected under a valid warrant.

As the Supreme Court noted in Riley, cell phone data can include immense amounts of information such as thousands of photos, months of correspondence, or every bank statement from the last five years. Id. at 2493. The search of a cell phone can provide far more information than the most exhaustive search of a house. Id. at 2491. This is especially true because cell phones collect many different kinds of data in one place such as an address, a note, a prescription, a bank statement, a video . Id. at 2489. The sum of an individuals private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions . Id. The governments position, which would allow for mass retention of unresponsive cell phone data, is simply inconsistent with the protections of the Fourth Amendment. The governments objection on this point is overruled.

The government objects to Magistrate Judge Duffys conclusion that Agent Fair cannot be said to have acted pursuant to a search warrant . Docket 255 at 2; Docket 251 at 15. The government, however, introduced no evidence that Agent Fair knew about the warrant. But even if Agent Fair was aware of the Beadle County warrant, the warrant was limited to a search for evidence relating to the counterfeiting charges, and a reasonable officer who read the search warrant would have known that. Docket 251 at 20. Thus, at best, the governments position is that Agent Fair knew about the Beadle County search warrant and disregarded its parameters. Under either fact scenario Agent Fair knew about the warrant or did not know about the warrant a reasonably well-trained officer would have known that the search was illegal despite the issuing judges authorization. Docket 251 at 1920 (citing United States v. Hudspeth, 525 F.3d 667, 676 (8th Cir. 2008).

The government objects to the conclusion that the plain view exception is not applicable [to this case]. Docket 255 at 3. In Horton v. California, 496 U.S. 128, 135 (1990), the United States Supreme Court explained that the plain view doctrine applies when law enforcement has a prior justification for a search and inadvertently comes across a piece of incriminating evidence. As explained above, Agent Fairs search of the complete, unsegregated iPhone data lacked a sufficient justification. Thus, the plain view doctrine does not apply. The governments objection on this point is overruled.

The government also objects to the conclusion that the plain view doctrine does not apply to digital searches generally. Because this court can rule on the suppression motion based solely on the facts of this case, the governments objection is sustained on this point.

Ill offer four reactions to the decision.

1) The ruling is correct, in my view. The first warrant didnt allow the second search, and the nonresponsive files were still protected by the Fourth Amendment after the first warrant had been executed. If the second search was permitted, a second warrant was required for it.

2) The facts of the case resemble those of the 2nd Circuits ultimately inconclusive litigation in United States v. Ganias. But theres an important difference. In Ganias, the government obtained a second warrant before conducting the second search. The Ganias panel decision ruled that the second search was unconstitutional even with a second warrant, although the en banc court left that issue undecided.

By contrast, in Hulscher, the court seems to agree that the second search would have been permitted if a second warrant had been obtained. Thats a big difference. If a second warrant can be obtained, the only limit of the restriction is that nonresponsive files from the first warrant cant be searched without a second warrant. If the second warrant is unlawful, as Ganias held, then the nonresponse files from the first warrant are entirely off-limits in later investigations.

3) I gather from the remedies section of Hulscher that the government isnt likely to appeal this ruling. In discussing the costs and benefits of suppression, the court says:

Here, the cost of applying the exclusionary rule is minimized because the evidence is peripheral in nature and not directly related to the firearms offense. The governments actions also suggest the evidence is not necessary for a conviction. Prior to Agent Fairs search of the iPhone data, the government was ready to proceed with trial on January 3, 2017. Minutes before voir dire, the parties addressed a late discovery issue, and the court granted a continuance. If the issue had not come before the court, the government would have tried its case, and the iPhone data would not have been used.

As I have written before, I dont think it works to do this kind of case-by-case cost/benefit balancing when applying exclusionary rule precedents. But if the evidence isnt important, the government isnt going to file an appeal of the decision granting the motion to suppress. This decision is likely the end of the road in terms of judicial review of the Fourth Amendment issue.

4) Ill selfishly score this as another case moving in the direction of use restrictions on nonresponsive data in computer warrant cases. For more on my views, see my article Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Texas Tech Law Review 1 (2015).

The rest is here:
The police can't just share the contents of a seized iPhone with other agencies, court rules - Washington Post