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In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court added a second test for what government action counts as a Fourth Amendment search. Since the 1970s, the Supreme Court had held that the government commits a search when it violates a persons reasonable expectation of privacy. Jones added that the government also commits a search when it trespasses on to a persons persons, houses, papers, and effects. As I explained in an article responding to Jones, it is hardly clear what kind of trespass test Jones adopts. Although Jones purports to restore a preexisting trespass test, no trespass test existed that the court could restore. As a result, the significance of Jones hinges on just what kind of trespass test courts interpret Jones to have adopted.

In light of that uncertainty, I was fascinated by a new decision, Schmidt v. Stassi, from the Eastern District of Louisiana last week. Michael Schmidt is a suspect in the 1997 murder of Eugenie Boisfontaine. You may have heard of the case, as the investigation is the subject of the Discovery Channel TV show Killing Fields. Investigators wanted to get a DNA sample from Schmidt, so they followed his car. When Schmidt drove to a local strip mall, parked and went inside a store, an agent used a cotton swab to wipe the exterior door handle on Schmidts Hummer to collect a DNA sample. Schmidt sued the officers, claiming that swabbing his car door handle was an unlawful Fourth Amendment search.

In the new decision, Judge Lance M. Africk holds that collecting the DNA from the door handle using the cotton swab was a Fourth Amendment search because it trespassed on to the car. From the opinion:

Here, the search involved the physical touching of Schmidts Hummer in a public parking lot. The search, however, did not damage the Hummer in any way. Accordingly, this Court has to make two determinations when evaluating whether a Fourth Amendment search occurred:

Does the trespass-trigger for Fourth Amendment coverage extend to a trespass to chattels? If so, was the physical touching a trespass to chattels even though the touching did not harm or otherwise affect the Hummer?

Joneswhich addressed a trespass against a carsettles that a trespass to chattles can constitute a Fourth Amendment search regardless of whether there is a reasonable expectation of privacy. See 565 U.S. at 410 (observing that officers trespassorily inserted the GPS tracker on the Jeep); see also id. at 419 & n.2 (Alito, J., concurring) (implying Court was concluding that search was a trespass to chattles). Thus, just as a trespass to land can constitute a Fourth Amendment search, a trespass to chattles may as well. See, e.g., United States v. Ackerman, 831 F.3d 1292, 1307-08 (10th Cir. 2016). And there is no question that an automobileunlike an open fieldis protected by the Fourth Amendment: an automobile is an effect as that term is used in the Fourth Amendment. Jones, 565 U.S. at 404.4

But was this a trespass to chattles? That is a trickier issue. As Justice Alitos Jones concurrence explained, the elements of the tort have changed since the founding. At common law, a suit for trespass to chattels could be maintained if there was a violation of the dignitary interest in the inviolability of chattels. 565 U.S. at 419 & n.2 (Alito, J., concurring) (internal quotation marks omitted). Meanwhile, today there must be some actual damage to the chattel before the action can be maintained. Id. (internal quotation marks omitted). So the choice of a particular understanding of trespass can be outcome determinative when applying Jones if a search does not damage or otherwise affect a particular chattel.

The Court concludes that it should follow the view that an officer need not cause damage before committing a trespass to chattels. Not only is that the view of the Second Restatement of Torts, see Restatement (Second) of Torts 217,5 but it also has the added advantage of not making the scope of the Fourth Amendment turn on whether someone scratches the paint.

The officers argued that Schmidt had abandoned his DNA by leaving it out in public for anyone to collect, analogizing the DNA to the trash left by the side of the road in California v. Greenwood. The court reasoned that Greenwood is inapplicable because the facts here involved a trespass:

[W]hatever the constitutionality of searching Schmidts curbside garbage for his abandoned DNA (a question on which the Court expresses no opinion), the officers argument that they may trespass to acquire abandoned property is not viable post-Jardines. See 133 S. Ct. at 1417 (That the officers learned what they learned only by physically intruding on [defendants] property to gather evidence is enough to establish that a search occurred.).

The Court concludes that the undisputed facts of this case establish that the officers committed a trespass to chattels when they swabbed Schmidts Hummer. Under Jones that trespass also constituted a Fourth Amendment search. Thus, Schmidt is entitled to partial summary judgment in that the swabbing constituted a search under the Fourth Amendment.

The opinion then stresses that given the present procedural posturethe parties addressed only the threshold issue of whether the swabbing was a Fourth Amendment searchthe Court expresses no opinion on whether the search was reasonable. Instead, Africk concludes that qualified immunity applies either way because the law is unsettled:

[T]he law is simply too unsettled after Jones for the Court to conclude that it is beyond debate, Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011), that the officers performed a Fourth Amendment search. Neither Jones nor Jardines is precise as to the body of property law this Court is supposed to follow when applying Joness trespass test. That unanswered question at the time of the swabbing would permit a reasonable officer to conclude that the swabbing did not constitute a Fourth Amendment search.

For example, a reasonable officer could have concludedjust as the Supreme Court has in the Fifth Amendment contextthat Jones-triggering trespasses are determined by reference to existing rules or understandings that stem from an independent source such as state law. Georgia v. Randolph, 547 U.S. 103, 144 (2006) (Scalia, J., dissenting). A reasonable officer could then pivot from that understanding of the Fourth Amendment, and conclude that because the brief, harmless, nearly imperceptible touching would not constitute an actionable trespass under certain understandings of modern tort law, see 565 U.S. at 419 & n.2 (Alito, J., concurring), it did not constitute a Jones-triggering trespass. Therefore qualified immunity is proper: an officer should not be denied qualified immunity simply because he or she looked to what an actionable trespass was as opposed to the more technical definition of a trespass.

Notably, the idea here is that collecting the DNA was a search because it interfered with Schmidts rights in the car, not in the DNA itself. Thats different from the reasonable-expectation-of-privacy cases on collecting DNA, which generally focus on the potential privacy invasion in the testing of the DNA sample to reveal sensitive information.

For related issues, see the petition for certiorari I filed in Arzola v. Massachusetts in 2015, together with the states brief in opposition and our reply brief. The Supreme Court denied the petition in Arzola, but I think its a useful starting point to see how the trespass framework may change Fourth Amendment rights in the context of DNA collection and analysis.

Continued here:
Swabbing a car door handle in a public lot to collect DNA is a Fourth Amendment trespass search - Washington Post

LISTEN TO TLRS LATEST PODCAST:

by Micah J. Fleck

Yes, you read that right. A new type of undergarment that still shows up under TSA body scanning technology has been developed and it dons the text of that precious thing called the 4th Amendment to the U.S. Constitution.

According to Red Alert Politics:

Are you tired of TSA agents conducting invasive screenings and X-ray scans on you before traveling on a United Airlines flight thats run out of Pepsi?

Well, 4th Amendment Wear may not be able to help with the last two, but they can certainly aid you in telling off the TSA with a new garment you can wear when youfly.

Using metallic ink, 4th Amendment Wear literally prints the FourthAmendment of the United States Constitution onto t-shirts, underwear for men and women, and perverts kids underclothes for when the TSA agent goes too far with your children.

For those who are unaware, the Fourth Amendment ensures ones right to privacy and protects them from illegal searches and seizures from government entities.

The free market is grand, indeed.

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Special Underwear Reciting the 4th Amendment Developed to Block ... - The Libertarian Republic

April 24 Emmis Communications Corp:

* Emmis Communications Corp says on April 18, co, units entered into a fourth amendment to 2014 credit agreement- SEC filing

* Emmis Communications Corp - fourth amendment eliminated maximum total leverage ratio covenant through May 31, 2018

* Emmis Communications Corp - fourth amendment and replaced maximum total leverage ratio covenant with a minimum consolidated EBITDA covenant of $20 million

* Emmis Communications - amendment required co to enter into definitive agreements by Jan 18, 2018 to sell assets generate at least $80 million of sale proceeds

* Emmis Communications Corp - fourth amendment accelerated maturity of term loans to April 18, 2019 and revolving loans to August 31, 2018 Source text: (bit.ly/2q6fNyK) Further company coverage:

April 24 Minneapolis Federal Reserve Bank President Neel Kashkari said Monday he does not believe that spending more to build roads and airports would necessarily result in faster U.S. economic growth.

* Allianz's El-Erian on CNBC - Most now assume Macron will be President ; Anti-establishment wave may not be over

Original post:
BRIEF-Emmis Communications, units enter into fourth amendment to 2014 credit agreement - Reuters

ST. PAUL A Wabasha police officer had no right to stop a man he saw driving down a narrow dirt road a stop that led to a DWI charge and the revocation of his driver's license.

The Minnesota Court of Appeals handed down the decision Monday, ruling in favor of David Kenneth Schlicher, 41, of Elk River. It reversed a May 2016 ruling by Wabasha County District Court Judge Terrance Walters.

Monday's ruling sends the case back to district court.

The case began early March 3, 2016, when Wabasha officer spotted Schlicher turn onto a narrow dirt road. The officer knew the private road led only to a commercial business, which was closed at that hour, so he followed Schlicher's vehicle.

As the officer drove down the dirt road, he saw Schlicher's vehicle coming toward him. The officer put his squad car in reverse because the road was too narrow for them both to fit, and he "didn't want to approach the vehicle from the front," the complaint says.

The officer stopped his squad near the end of the dirt road and got out; another squad car arrived about then. Schlicher's car was still moving when the first officer got out of his car Schlicher testified that he only stopped his vehicle because he couldn't fit past the squad car.

After an investigation at the scene, the officer arrested Schlicher for DWI. He refused to take a breath test, and his license was revoked.

Schlicher challenged the revocation in Wabasha County District Court; he disputed, among other issues, that the officer had a "reasonable, articulable suspicion of criminal activity to stop" Schlicher's car. It was, he said, a violation of his Fourth Amendment rights.

The district court ruled the officer's stop was constitutional, and upheld the license revocation.

Schlicher then appealed to the state court.

The judges agreed that the "seizure" occurred when the officer parked his car, exited and began walking toward Schlicher's car, which was still moving.

The officer didn't reverse his squad car out onto the main road, which would have allowed Schlicher complete access to the main road, the document says.

"Considering the positioning of the officer's squad car on the narrow road; the fact that the officer exited his vehicle while (Schlicher) was still driving; and the fact that another squad car had arrived on the scene, we conclude that the officer's actions constituted a seizure because no reasonable person in appellant's position would have felt free to leave," the judges wrote.

Nor did the officer have a reasonable suspicion of criminal activity, they continued; "in fact, the officer testified that his actions were motivated by his curiosity."

The area wasn't known for, or vulnerable to, criminal activity, the ruling says, and the officer didn't suspect some wrongdoing was occurring.

"The only factors to which the officer testified that would suggest criminal activity were the time of night, that he had never before seen anyone driving on that private narrow road, and that the narrow road led to a closed business.

"These factors are insufficient," the justices wrote, "and the stop and seizure were unlawful."

See the original post here:
Appeals Court: Area case violated Fourth Amendment rights - Post-Bulletin

On Monday, the Colorado Senate is expected to consider a bill to prohibit cities and counties from limiting their role in enforcing federal immigration law. Senate Bill 281, the Colorado Citizen Protection Against Sanctuary Policies Act, relies on two fallacies perpetuated by the Trump administration in its campaign against so-called sanctuary cities.

First, President Trump claims sanctuary jurisdictions endanger the public. SB 281 likewise claims that sanctuary policies are contrary to the safety of Coloradans. This assertion is demonstrably false. Study after study has shown that noncitizens regardless of their immigration status commit less crime than citizens. As Michael Tonry noted, high levels of both legal and illegal Hispanic immigration has been credited with a decline in American crime rates.

Other studies demonstrate that adopting sanctuary policies does not endanger the public. Recently, Tom K. Wong concluded that not only is crime lower in sanctuary counties, their economic indicators including median household income, poverty rate, and unemployment are stronger than in non-sanctuary counties. Aware of these facts, many law enforcement officials oppose involving the local police in federal immigration matters. In Colorado, the County Sheriffs of Colorado, Colorado Association of Chiefs of Police, and Colorado Counties, Inc., a nonpartisan organization that assists county commissioners, all oppose SB 281.

Proposals like SB 281 suggest that law enforcement voices should be overridden. Instead of local officials making decisions about policing, SB 281 would hand that power to state legislators. That would put police chiefs and sheriffs in the unfortunate position of having to follow politicians dictates over sound policing practices.

SB 281s second faulty assumption is that sanctuary policies are prohibited by federal law. This is a common claim of the Trump administration. There are more than 600 sanctuary policies in place across the country. Not one has been found to violate federal law. In fact, most sanctuary policies were adopted to comply with federal law specifically, the Fourth Amendment. Numerous federal courts have concluded that requests made by immigration officials for the prolonged detention in local jails of persons otherwise entitled to release, called immigration detainers, are rife with Fourth Amendment problems. After two of the most significant judicial decisions in 2014, every Colorado sheriff stopped the illegal practice.

The legal principles that led all Colorado sheriffs to stop accepting detainers are straightforward. The federal government cannot force local sheriffs to hold prisoners on its behalf at Colorado expense. If sheriffs do hold someone voluntarily at the federal governments request, they are financially liable if the detention turns out illegal. Since the detentions requested by federal immigration officers are the constitutional equivalent of new arrests, they must be supported by evidence that would justify a local police officer or sheriff in making an arrest, such as probable cause of a crime, or a judicially issued warrant. Neither is standard practice for the federal Immigration and Customs Enforcement agency. Though a new ICE policy requires detainers to be accompanied by immigration warrants, the policy specifically states that these warrants will be issued by ICE officers, as they always have been. They do not involve review by a neutral judge, like the warrants police in every city and county request daily to pursue criminal investigations, and do not satisfy the Fourth Amendment.

Colorado sheriffs rightly concluded that neither immigration detainers nor immigration warrants withstand legal scrutiny. Colorado legislators should respect their decision to abide by the Fourth Amendment and protect the communities they serve. Sanctuary policies do not threaten public safety, and they do not violate federal law. Coloradans should reject SB 281.

Christopher N. Lasch is an associate professor of law at the University of Denver and co-teaches the schools Criminal Defense Clinic. Csar Cuauhtmoc Garca Hernndez is an assistant professor of law at the University of Denver and publisher of the crimmigration.com blog.

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See the original post:
Colorado sanctuary city bill relies on fallacies - The Denver Post