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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

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Federal Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

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

View post:
WaPo: The Fourth Amendment at the border and beyond: A few ...

The case stemmed from a 2015 arrest in Grove City. CEE-VI Drug and Gang Task Force agents had an arrest warrant for Leona Rose deLottinville, then 27, of Grove City. It was alleged that she had violated court-ordered conditions of release.

With information that deLottinville was at her boyfriend's Grove City home, officers went there on March 24, 2015, where they allegedly saw deLottinville through a glass patio door.

One officer opened the unlocked door, went inside the home, and arrested deLottinville.

Marijuana and a bong were sitting in plain view on a countertop.

After deLottinville's arrest, officers obtained a search warrant for the home and allegedly found marijuana, meth, hydrocodone pills and drug paraphernalia. She was charged with two additional counts of fifth-degree drug possession, and possession of drug paraphernalia.

In Meeker County District Court, deLottinville submitted a motion to dismiss all of the charges on the grounds that police should not have been allowed to enter the home.

Judge Stephanie Beckman granted the motion, and dismissed all charges against deLottinville in August 2016. Even as a short-term guest, Beckman stated, deLottinville had an expectation of privacy in the home.

The Minnesota Court of Appeals reversed that ruling, arguing that a guest in a home does not have a right to more privacy than the homeowner.

That decision was appealed to, and upheld by, the Minnesota Supreme Court, which issued the ruling Wednesday.

Justice David L. Lillehaug authored the opinion filed with the ruling.

In the Payton v. New York ruling, he wrote, the U.S. Supreme Court determined that an arrest warrant was grounds to enter the home in which that individual lives to arrest them.

What was not determined, Lillehaug wrote, was "whether the same holds true when the subject of an arrest warrant is believed to be present in another person's home."

The U.S. Supreme Court also previously ruled that an arrest warrant for a guest in a home does not justify searching the home. In that case, a search warrant would be required.

The case ruled upon on Wednesday, then, involved a window that had not yet been defined: What are a guest's rights inside a home?

Lillehaug wrote that even though the home is traditionally where an individual has a right to privacy, police can still enter to execute an arrest warrant. That constitutional reasoning should not change when the individual is in a home other than their own, Lillehaug wrote.

"A guest should not receive any greater Fourth Amendment protection when outside her home than when inside it," he wrote.

Justice Margaret H. Chutich dissented from the ruling.

She disagreed with the Supreme Court's application of the Payton v. New York ruling in the current case.

"This unwarranted extension of Payton fails to apply later Fourth Amendment precedents," Chutich wrote, "and fails to protect the right of a host from unreasonable governmental intrusion into the sanctity of her home, a right at the 'very core' of the Fourth Amendment."

The Fourth Amendment to the U.S. Constitution prohibits unreasonable search and seizure.

In the opinion, Lillehaug had acknowledged that, with the ruling, there would be "potential for abuse." But he said that in this case, deLottinville was visible to the officer before he entered the home. There was no evidence of abuse, he said.

Chutich wrote that that potential for abuse "is not merely theoretical."

"Minnesotans would certainly be surprised to realize that the police can enter their homes at any time with nothing more than an arrest warrant for an overnight guest, or even a short-term social guest," she said.

See the rest here:
Minn. Supreme Court reverses Meeker County fourth amendment case - West Central Tribune

Imagine you are in the middle of your typical day-to-day activities. Maybe you are driving, spending time with family, or working. If you are like most people, your phone is at your side on a daily basis. Little do you know that, at any time, police and law enforcement could be looking at information stored on your phone. You havent done anything wrong. You havent been asked for permission. You arent suspected of any crime.

The StingRay

Police have the power to collect your location along with the numbers of your incoming and outgoing calls and intercept the content of call and text communication. They can do all of this without you ever knowing about it.

How? They use a shoebox-sized device called a StingRay. This device (also called an IMSI catcher) mimics cell phone towers, prompting all the phones in the area to connect to it even if the phones arent in use.

The police use StingRays to track down and implicate perpetrators of mainly domestic crimes. The devices can be mounted in vehicles, drones, helicopters, and airplanes, allowing police to gain highly specific information on the location of any particular phone, down to a particular apartment complex or hotel room.

Quietly, StingRay use is growing throughout local and federal law enforcement with little to no oversight. The ACLU has discovered that at least 68 agencies in 23 different states own StingRays, but says that this dramatically underrepresents the actual use of StingRays by law enforcement agencies nationwide.

The Violation

Information from potentially thousands of phones is being collected every time a StingRay is used. Signals are sent into the homes, bags, and pockets of innocent individuals. The Electronic Frontier Foundation likens this to the Pre-Revolutionary War practice of soldiers going door-to-door, searching without suspicion.

Richard Tynan, a technologist with Privacy International notes that, there really isnt any place for innocent people to hide from a device such as this.

The Fourth Amendment of the Constitution states that, 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 the persons or things to be seized.

The StingRay clearly violates these standards. The drafters of the Constitution recognized that restricting the government from violating privacy is essential for a free society. Thats why the Fourth Amendment exists. The StingRay is creating a dangerous precedent that tells the government that its okay for them to violate our rights. Because of this, freedom is quietly slipping out the window.

Little Regulation

Law Enforcement is using StingRays without a warrant in most cases. For example, the San Bernardino Police Department used their StingRay 300 times without a warrant in a little over a year.

A handful of states have passed laws requiring police and federal agents to get a warrant before using a StingRay. They must show probable cause for one of the thousands of phones that they are actually searching. This is far from enough.

Additionally, there are many concerns that agents are withholding information from federal judges to monitor subjects without approval bypassing the probable cause standard laid out in the Constitution. They even go as far as to let criminals go to avoid disclosing information about these devices to the courts.

If the public doesnt become aware of this issue, the police will continue to use StingRays to infringe on our rights in secret and with impunity.

Olivia Donaldson is a recent high school graduate that is currently opting out of college and participating in an entrepreneurial program called Praxis. Originally published at fee.org.

http://yourdailyjournal.com/wp-content/uploads/2017/02/web1_oliviadonaldsonjpg.jpg

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Visit link:
StingRay is why the 4th Amendment was written - Richmond County Daily Journal

Imagine you are in the middle of your typical day-to-day activities. Maybe you are driving, spending time with family, or working. If you are like most people, your phone is at your side on a daily basis. Little do you know that, at any time, police and law enforcement could be looking at information stored on your phone. You havent done anything wrong. You havent been asked for permission. You arent suspected of any crime.

The StingRay

Police have the power to collect your location along with the numbers of your incoming and outgoing calls and intercept the content of call and text communication. They can do all of this without you ever knowing about it.

How? They use a shoebox-sized device called a StingRay. This device (also called an IMSI catcher) mimics cell phone towers, prompting all the phones in the area to connect to it even if the phones arent in use.

The police use StingRays to track down and implicate perpetrators of mainly domestic crimes. The devices can be mounted in vehicles, drones, helicopters, and airplanes, allowing police to gain highly specific information on the location of any particular phone, down to a particular apartment complex or hotel room.

Quietly, StingRay use is growing throughout local and federal law enforcement with little to no oversight. The ACLU has discovered that at least 68 agencies in 23 different states own StingRays, but says that this dramatically underrepresents the actual use of StingRays by law enforcement agencies nationwide.

The Violation

Information from potentially thousands of phones is being collected every time a StingRay is used. Signals are sent into the homes, bags, and pockets of innocent individuals. The Electronic Frontier Foundation likens this to the Pre-Revolutionary War practice of soldiers going door-to-door, searching without suspicion.

Richard Tynan, a technologist with Privacy International notes that, there really isnt any place for innocent people to hide from a device such as this.

The Fourth Amendment of the Constitution states that, 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 the persons or things to be seized.

The StingRay clearly violates these standards. The drafters of the Constitution recognized that restricting the government from violating privacy is essential for a free society. Thats why the Fourth Amendment exists. The StingRay is creating a dangerous precedent that tells the government that its okay for them to violate our rights. Because of this, freedom is quietly slipping out the window.

Little Regulation

Law Enforcement is using StingRays without a warrant in most cases. For example, the San Bernardino Police Department used their StingRay 300 times without a warrant in a little over a year.

A handful of states have passed laws requiring police and federal agents to get a warrant before using a StingRay. They must show probable cause for one of the thousands of phones that they are actually searching. This is far from enough.

Additionally, there are many concerns that agents are withholding information from federal judges to monitor subjects without approval bypassing the probable cause standard laid out in the Constitution. They even go as far as to let criminals go to avoid disclosing information about these devices to the courts.

If the public doesnt become aware of this issue, the police will continue to use StingRays to infringe on our rights in secret and with impunity.

Olivia Donaldson is a recent high school graduate that is currently opting out of college and participating in an entrepreneurial program called Praxis. Originally published at fee.org.

http://yourdailyjournal.com/wp-content/uploads/2017/02/web1_oliviadonaldsonjpg.jpg

.

See the article here:
Richmond County Daily Journal | StingRay is why the 4th ... - Richmond County Daily Journal

The Supreme Court will hear arguments next week in a Fourth Amendment case, Hernandez v. Mesa. The facts of the case are simple. At the border that separates El Paso, Tex., from Ciudad Jurez, Mexico, a U.S. border patrol agent named Mesa shot and killed a Mexican citizen named Hernandez. The bullet itself crossed the border, as Mesa was on U.S. land and Hernandez was on Mexican land. A subsequent lawsuit was filed by Hernandezs parents, as successors-in-interest to his estate, alleging excessive force under the Fourth Amendment.

The cert petitionarticulated two questions to be decided:

Does a formalist or functionalist analysis govern the extraterritorial application of the Fourth Amendments prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States?

May qualified immunity be granted or denied based on factssuch as the victims legal status unknown to the officer at the time of the incident?

When the court granted cert, the court added a third question drafted by the court itself: Whether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).

Here are a few thoughts about the case.

One of the most important questions for the future of the Fourth Amendment is whether non-U.S. persons get Fourth Amendment rights abroad. As I explained in my recent article, The Fourth Amendment and the Global Internet, 67 Stan. L. Rev. 28 (2015), the basic structure of what kind of Internet surveillance is permitted hinges on the question.

Under the rule of the majority opinion in Verdugo-Urquidez the so-called formalist approach you get one framework with some significant uncertainties but a lot of results settled. On the other hand, under Justice Anthony Kennedys impracticable and anomalous test the so-called functional approach no one really knows what the Fourth Amendment would look like in the context of global network surveillance. And because those cases come up for litigation so rarely, it would take many years for courts to figure out the answers (by which time the technology may have changed anyway).

From that perspective, the odd part about Hernandez v. Mesa is that it asks the court to decide between the formalist and functionalist approaches in a setting that appears to implicate almost none of the real stakes of the answer. The facts of a shooting across the border are like a law school exam. They raise interesting questions, but the context seems pretty idiosyncratic. In contrast, the application of the functionalist or formalist approach has a massive day-to-day impact on global Internet surveillance. Its there, not in the context of a cross-border shooting, that the Fourth Amendment question in Hernandez seems to matter most.

Hernandezs brief argues that the court can and should apply or not apply individual parts of Fourth Amendment doctrine to non-citizens abroad depending on whether doing so would be impracticable or anomalous. But I dont see how this is at all workable. As I explain in a forthcoming article, Fourth Amendment rules are deeply path-dependent. The rules on what is a search impact the rules on what is reasonable, and vice versa; and they together impact the available remedies, and the remedies have an impact on them. In an area of law that is as exquisitely fact-sensitive as the Fourth Amendment, I dont know how you could tell whether a particular doctrines application would be impracticable or anomalous. Assuming you had an empirical way to answer that in the abstract, the answer would depend on what the other doctrines are, and without knowing if their application to non-citizens abroad would be impractical and anomalous, I dont know how you could tell.

Hernandez tries to avoid these problems by suggesting a very narrow holding. The reply brief advocates the following narrow rule: [T]he prohibition on unjustified deadly force applies at (and just across) the border, at least when a law-enforcement officer on U.S. soil fires his weapon at close range. But this attempted narrowing just makes the problem much worse. Its bad enough to figure out how the impracticable or anomalous framework should apply doctrine by doctrine. Hernandez seems to want to apply it fact pattern by fact pattern, imposing some essentially arbitrary definition of the relevant set of facts.

Think closely about Hernandezs proposed rule. In his far narrower view, the rule of extraterritorial liability advocated for in this case would apparently apply notto all excessive-force claims brought by non-citizens, but only to claims of unjustified deadly force brought by them; not outside the United States generally, but only at the specific location of at (and just across) the border; and maybe (although maybe not!) only to the narrower circumstance when the U.S. officer fires his weapon at close range. The phrasing of the question presented in the cert petition suggests another possible limitation: Maybe it applies only to shooting a person who is an unarmed Mexican citizen. As to the rule that would apply to any other facts, well, hey, courts will have to figure those out over time.

That seems kind of nuts to me. If any court can pick the set of facts over which aproposed rule of extraterritorial applicationcontrols, the result will be that any Ninth Circuit lower-court judge can just pick the result he or she wants in any case. If Judge Reinhardthas a case and wants to hold the defendants liable, he can drawthe category of facts in a stylized way so that application of the Fourth Amendment doesnt seemimpracticable. If another judge wants to rule against the plaintiffs, she can draw the category of facts differentlyso that it does. That strikes me as really problematic.

All of which is to say that I hope the court sticks with the majority opinion in Verdugo-Urquidez. Not only is itrelatively clear, but alsoI personally tend to think it isbased on apersuasive social contract approach to rights.

The Fourth Amendment issue in Hernandez is made more interesting by a practical point: Its not clear whether other members of the courtbeyond Kennedy agree with using theimpracticable or anomalous test in the Fourth Amendment context. It sometimes happens that other justices are willing to sign on to a Kennedy opinion with reasoning that they dont particularly agree with, if its needed to get to a five-justice majority. But that doesnt always happen, and it could happen either way in this case (with Kennedy applying the impractical or anomalous test in favor of either the petitioners or respondents). If the court reaches the merits, it will be really interesting to see where the votes will come out on that issue.

Finally, its not at all obvious that the court will reach the Fourth Amendment merits. The court added the Bivens question on its own, and the Solicitor Generals Office brief took the hint and made that the lead argument in its brief. The Bivens issue takes up fully 20 pages of the argument section in the governments brief, as compared with 15 pages for the Fourth Amendment merits and eight pages for the qualified-immunity issue. Well have to wait and see which issue draws the justices attention.

As always, stay tuned.

See the original post here:
The Fourth Amendment at the border and beyond: A few thoughts on Hernandez v. Mesa - Washington Post