Mediaboss Marketing

Legal Topics > Government > Constitutional Law > Constitutional Laws

The Fourth Amendment of the U.S. Constitution protects individual privacy interests by preventing unreasonable searches and seizures. An individual's privacy interests are referred to as a person's reasonable expectation of privacy. The Fourth Amendment protects this interest by limiting when and how police can conduct a search of a citizen's house, papers, effects, or physical person.

However, the Fourth Amendment only protects people against "unreasonable" searches. "Reasonable" searches can override a person's Fourth Amendment privacy concerns. Generally, the police need two things before they can invade a persons reasonable expectation of privacy:

Under certain circumstances however, the police can conduct searches without a warrant.

The Fourth Amendment only applies to searches that violate a person's reasonable expectation of privacy. If no reasonable expectation of privacy exists, then the Fourth Amendment cannot protect that search. Courts ask two questions when determining whether a person had a reasonable expectation of privacy:

A search warrant is an order authorizing police officers to search for specific objects or materials at a specific time and location. Police obtain these warrants by showing a judge that they have probable cause to believe that criminal activity is taking place and that illegal contraband will be found at the place to be searched.

The Fourth Amendment does not define probable cause; it is a term developed by judges and lawyers to assist in determining the reasonableness of a search. Probable cause occurs where the facts and circumstances of a situation combined with a police officer's knowledge and experience lead him to believe that criminal activity is occurring. Thus, probable cause is somewhere above a mere suspicion but less than beyond a reasonable doubt.

Generally, in cases where a police officer seeks a search warrant, and his probable cause is mistaken but made in good faith, the search can still be considered valid and reasonable.

A lawyer can help you navigate through the complex legal system and restore your privacy rights. If a search is unreasonable, the police cannot use any evidence obtained in the search. Therefore, it is important to discuss the search with a criminal defense attorney who can evaluate the search procedure.

Consult a Lawyer - Present Your Case Now! Last Modified: 10-03-2016 09:31 PM PDT

Find the Right Lawyer Now

Originally posted here:
Privacy Protection - 4th Amendment Legal Issues ...

"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 Fourth Amendment protection against "unreasonable searches and seizures" was adopted as a protection against the widespread invasions of privacy experienced by American colonists at the hands of the British Government. So-called "writs of assistance" gave royal officers broad discretion to conduct searches of the homes of private citizens, primarily as a way of discovering violations of strict British customs laws. This practice led to a unique awareness among our Founding Fathers of the threat to individual liberty and privacy that is created by unchecked government search powers.

Today, the Fourth Amendment has lost its preferred status among our cherished Bill of Rights Protections. In recent decades, growing concerns regarding crime and public safety in America have forced our Courts to balance the privacy rights contained in the Constitution with the ever-expanding needs of law-enforcement officers whose duty it is to investigate and arrest dangerous criminals. The Supreme Court's rulings in Fourth Amendment cases demonstrate the challenge involved in reconciling these competing ideals.

Ultimately, the Constitution's prohibition against unreasonable searches and seizures has been trimmed-down in recent years and tailored to suit the needs of modern law enforcement as we wage war against drugs and terrorism. For this reason, it is important for conscientious citizens to be familiar with the lawful parameters of police authority to conduct searches, as well as the legal doctrines by which that authority is limited.

The Fifth Amendment: Self-incrimination Clause

"...No person... shall be compelled in any criminal case to be a witness against himself or be deprived of life liberty or property without due process of law..."

* The Supreme Court has made a new ruling that you must tell the police officer that you will NOT talk to him, you request a lawyer and then keep your mouth shut.

The right against self-incrimination has ancient roots in common law dating back to biblical times. While most provisions of the Fifth Amendment, such as the right to a jury trial and the right against double jeopardy, impose restrictions upon our courthouses, the right against self-incrimination has a profound effect upon the behavior of law-enforcement officers as they investigate crimes. For this reason, the meaning of the self-incrimination clause has remained one of the most controversial issues in criminal procedure since the Supreme Court's ruling in Miranda v. Arizona.

At this time, it is required by the Supreme Court that police inform all criminal suspects of their right to remain silent prior to interrogation. This right extends from the point of arrest throughout the suspect's involvement in the criminal justice system. While many in the law-enforcement community feel that this restriction unfairly limits the ability of police and prosecutors to obtain convictions, studies have shown that conviction rates have not changed significantly since the Court first required police to inform those arrested of their right against self-incrimination.

The Sixth Amendment: Right to Counsel Clause

"In all criminal proceedings, the accused shall enjoy the right to have the assistance of counsel for his defense."

The Sixth Amendment right to counsel is a critical component of the Bill of Rights in that it provides the accused with an advocate who is trained in the legal process and can provide a safeguard against violations of the suspect's other Bill of Rights protections. Interestingly, it was not until 1963 that the Supreme Court held that states must provide a lawyer for all felony suspects, ending disparities in legal representation based on economic class.

Today, all person charged with a serious crime in the United States enjoy the assistance of a defense attorney regardless of economic status. State-employed public defenders represent clients who cannot afford their own attorneys, and contrary to popular belief, achieve roughly equal outcomes for their clients as do the more expensive privately-hired lawyers.

The Relationship Between Self-incrimination and the Right to Counsel

Many Americans, particularly young people, have become cynical about police practices and our legal system. It is not uncommon to lose hope when arrested or even become angry at the officer or the law he is enforcing. It is an important reality however, that our legal system does provide services for the accused. It cannot be overstated how important it is to wait for legal advice before attempting to discuss a criminal charge with police. The subtleties of the legal process require careful decisions about what to say and how to say it. A lawyer will help you prepare for tough questions and can emphasize your positive qualities to the judge, including qualities you didn't know you had.

The constitution includes protections for criminal suspects because the legal system is incredibly complex, involving rules and regulations that everyday people would not understand. If you are charged with a crime, take advantage of the protections the constitution gives you. Don't talk to police about what happened until you have spoken with a lawyer and discussed how to present your side of the story.

PoliceCrimes.com

This Site Has Been Online Since 2004

fourth amendment, constitution, miranda rights, 4th amendment, searches, fourth amendment, dont talk rights constitution, miranda rights, 4th amendment, searches, rights, civil rights, self incrimination, unreasonable searches, right counsel, bill rights, searches, fourth. Silent, dont talk rights, Jury, cop, Jury trial, police, fourth amendment, constitution, miranda rights, 4th amendment, searches, fourth amendment, dont talk rights constitution, miranda rights, 4th amendment, searches, rights, civil rights, self incrimination, unreasonable searches, right counsel, bill rights, searches, fourth. Silent, dont talk rights, Jury, cop, Jury trial, fourth amendment, constitution, 4th amendment, search, american, rights, body search, civil rights, self incrimination, unreasonable searches, right counsel, bill rights, searches, fourth, Silent, police, courts, Judge, the Fifth, Sixth, police, Supreme Court, courts, Judge, Fifth Amendment, Sixth Amendment. Americans, lawyer, Supreme Court, fifth amendment, silent, dont talk rights, civil rights, self incrimination, unreasonable searches, right counsel, bill rights, searches, fourth. dont talk rights Supreme Court, courts, Judge, Fifth Amendment, Sixth Amendment. Americans, lawyer, Supreme Court, fifth amendment, silent, dont talk rights, civil rights, self incrimination, unreasonable searches, right counsel, bill rights, searches, fourth. dont talk rights.

Follow this link:
Fourth Amendment Body Search Home Search You rights Constitution

In a dangerously flawed decision unsealed today, a federal district court in Virginia ruled that a criminal defendant has no reasonable expectation of privacy in his personal computer, located inside his home. According to the court, the federal government does not need a warrant to hack into an individual's computer.

This decision is the latest in, and perhaps the culmination of, a series of troubling decisions in prosecutions stemming from the FBIs investigation of Playpena Tor hidden services site hosting child pornography. The FBI seized the server hosting the site in 2014, but continued to operate the site and serve malware to thousands of visitors that logged into the site. The malware located certain identifying information (e.g., MAC address, operating system, the computers Host name; etc) on the attacked computer and sent that information back to the FBI. There are hundreds of prosecutions, pending across the country, stemming from this investigation.

Courts overseeing these cases have struggled to apply traditional rules of criminal procedure and constitutional law to the technology at issue. Recognizing this, we've been participating as amicus to educate judges on the significant legal issues these cases present. In fact, EFF filed an amicus brief in this very case, arguing that the FBIs investigation ran afoul of the Fourth Amendment. The brief, unfortunately, did not have the intended effect.

The implications for the decision, if upheld, are staggering: law enforcement would be free to remotely search and seize information from your computer, without a warrant, without probable cause, or without any suspicion at all. Tosay the least, the decision is bad news for privacy. But it's also incorrect as a matter of law, and we expect there is little chance it would hold up on appeal. (It also was not the central component of the judge's decision, which also diminishes the likelihood that it will become reliable precedent.)

But the decision underscores a broader trend in these cases: courts across the country, faced with unfamiliar technology and unsympathetic defendants, are issuing decisions that threaten everyone's rights. As hundreds of these cases work their way through the federal court system, we'll be keeping a careful eye on these decisions, developing resources to help educate the defense bar, and doing all we can to ensure that the Fourth Amendment's protections for our electronic devices aren't eroded further. We'll be writing more about these cases in the upcoming days, too, so be sure to check back in for an in-depth look at the of the legal issues in these cases, and the problems with the way the FBI handled its investigation.

See more here:
Federal Court: The Fourth Amendment Does Not Protect Your ...

The Fourth Amendment to the United States Constitution

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.

My original interest in this subject was personal. I wanted to know the basis or rational used by the Supreme Court in the dismantling of the Fourth Amendment. This is documented on many web sites and the case for the demise of the Fourth Amendment is compelling.

In visiting these websites and reading cases and other's opinions on the subject, I found the material, while plentiful, was not generally arranged in a manner that easily allowed a layperson to find the material they were looking for or that the site owner thought might interest them.

I wanted a simple description of the facts of a case with a clear and abbreviated summary of the United States Supreme Court's opinion. I was able to find this on quite a few sites but the cases weren't arranged in a way to facilitate a simple understanding. Instead, there seemed to be one case to a page with advertisements lining the pertinent information or, in the case of some of the more famous case law sites, one case to a page and a search button.

So, I decided to create this site. There are no ads. Cases are arranged by decade and displayed chronologically by date of the decision. A basic case citation is provided for each case for those wishing to read the full opinions.

For those of you who have so openly shared your personal experiences in matters related to the Fourth Amendment, I must make this disclaimer. I am not an attorney nor do I offer legal advice in any form.

I'll continue to update the site as time permits. The subject is fascinating.

In researching the cases presented on this web site, I used the following sources as a tool for gaining a better understanding of the issues presented and as a source for the text of the decisions as rendered by the Supreme Court. I thank them all.

Read more:
Fourth Amendment Summaries - Summaries of 4th Amendment Cases

FBI Director James B. Comey recently announced that the FBI had discovered new emails that might be relevant to the investigation of Hillary Clintons email server. The emails were discovered in an unrelated case, and the FBI now plans to search through the emails as part of the Clinton server investigation.

Comeys announcement raises an important legal question: Does expanding the FBIs investigation from the unrelated case to the Clinton case violate the Fourth Amendment?

We dont know all the facts yet, so its somewhat hard to say. But heres why the expansion of the investigation might be constitutionally problematic. Consider this a tentative analysis unless and until more facts emerge.

From what I can patch together, the FBI was investigating former congressman Anthony Weiner for potential crimes involving sexting with an underage girl. As part of the investigation, the FBI seized Weiners laptop to search it for evidence of the sexting crimes. I would guess, although I havent yet been able to confirm, that the FBI obtained a warrant to search Weiners computer. The Fourth Amendment would generally require a warrant to search a suspects personal computer unless there are special circumstances such as consent that havent been mentioned in press reports.

The case connects to Clinton because the laptop happens to have been shared by Weiner and his now-estranged wife, Huma Abedin, who is an important adviser to Hillary Clinton. [UDPATE: Abedin has since stated that the computer only belonged to Weiner, and that she did not use it.] In the course of searching Weiners laptop, the FBI came across emails in Abedins email account that appeared to the agents to be relevant to the Clinton email server case. According to news reports, the FBI now is planning to get a warrant to search the laptop for emails related to the Clinton server case. They havent obtained that warrant yet, however, so the Weiner computer has not yet been subject to a comprehensive search.

Former Rep. Anthony Weiner (D-N.Y.) has repeatedly been exposed for sending lewd messages and photos to women online. Here's a definitive guide to his sexting scandal. (Peter Stevenson/The Washington Post)

If these facts so far are accurate, the FBI may have violated the Fourth Amendment in expanding the investigation from Weiner to Clinton. Heres the problem. If the FBI was searching Weiners computer, it presumably had a warrant authorizing the search of the computer only for Weiners communications with underage girls. If that is correct, going from that narrow search to a broader search of Clintons emails raises two potential problems for the FBI.

The first issue is whether the FBI was permitted to search through Abedins email account for records of Weiners illegal messages with underage girls. In People v. Herrera, 357 P.3d 1227 (Colo. 2015), the Colorado Supreme Court provided some reason to think that the answer may be no. In Herrera, the government had a warrant authorizing the search of a cellphone for messages between the defendant and an undercover officer who had posed as a underage girl. When the police executed the warrant, the officers also searched a folder that contained messages between the defendant and a different (real) underage girl. The court held that searching the folder violated the Fourth Amendment because the only evidence authorized to be seized in the warrant the messages between the defendant and the undercover officer werent likely to be in the folder containing messages between the defendant and the other girl. I have criticized that reasoning, but it raises questions about whether the FBI could look through Abedins account for Weiners illegal emails.

There might be similar problems because the alleged Weiner texting crimes apparently occurred in 2016. I gather that the Clinton emails were from her time as secretary of state, which was several years earlier from 2009 to 2013. If Im right that there was a several-year gap between the warrant crime and the second investigation, its not clear the government could search through older emails for evidence of such a recent crime. See Wheeler v. State, 135 A.3d 282 (Del. 2016) (holding that the Fourth Amendment was violated when a warrant to search computers for witness tampering that occurred in 2013 did not include a date restriction on how far back the search could extend; evidence of crime from a computer not used since 2012 suppressed as a result).

A second issue is whether the FBI was permitted to seize the Abedin emails, which were outside the scope of the warrant, and to use them to reopen the investigation into Clintons email server. I think this is the bigger legal issue for the FBI. Most courts have treated this as a matter of the plain view exception. If the government is searching a computer, and it comes across files that are outside its warrant but are clear evidence of second unrelated crime, the usual government practice is to take those files and use them to get a second warrant to search the computer for the second crime. Thats what the FBI appears to be doing here. They are getting a second warrant after discovering Abedins emails because what was likely a first warrant for Weiners emails wouldnt justify the second and broader search. See, e.g., United States v. Carey, 172 F.3d 1268 (10th Cir. 1999).

But if thats true, theres a problem: The plain view exception does not allow evidence to be seized outside a warrant unless it is immediately apparent upon viewing it that it is evidence of another crime. Just looking quickly at the new evidence, there needs to be probable cause that it is evidence of a second crime to justify its seizure, which would presumably be necessary to apply for the second warrant. See Arizona v. Hicks, 480 U.S. 321 (1987); United States v. Williams, 592 F. 3d 511, 522 (4th Cir. 2010).

Democratic candidate Hillary Clinton's private email server was once again pushed into the lime light when FBI Director James B. Comey announced that he would resume looking into the case with less than two weeks before the election. The development has left the campaign scrambling to head off the potentially game-changing damage. (Alice Li/The Washington Post)

But its not clear how that would be the case here. Comeys letter to Congress is really tentative. It says that the FBI has discovered emails that appear to be pertinent to the Clinton investigation. Comey then says that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation. One report says that the FBI has no idea about the content of the emails.

The Fourth Amendment plain view standard doesnt allow a seizure of emails based on a mere we-hope-to-later-determine standard. The government cant seize the emails just because the Clinton investigation is extra important and any possible evidence is worth considering. Rather, the Fourth Amendment requires the initial look at the emails to generate immediate probable cause that they are evidence of a crime first, before their seizure is permitted and used to get a second warrant.

Was the plain view discovery sufficiently clear and illuminating that it gave the FBI that probable cause? We dont yet know.

I should add that the scope of the plain view doctrine for computer searches is very much in flux, which adds some uncertainty to this issue. For example, the FBI might argue that using the discovery of the Clinton emails to apply for a second warrant was permitted by the first warrant and is not an additional seizure and therefore does not need to be justified. By that reasoning, the FBI is free to scour Weiners laptop for evidence of any other crimes for as long as it wants, and to take its time to see if there is enough evidence to justify a second warrant.

I think thats a somewhat hard argument to make in light of the plain view cases such as Carey and Williams, but its at least possible. I should also add that some courts and scholars, myself included, have suggested that the plain view doctrine should be narrowed or even eliminated in computer search cases. Under that reasoning, expanding the search becomes more clearly problematic. See this recent article for more on my views.

I should also flag the question of whose rights are at issue, which determined who would have standing to enforce their rights. The computer was used by Weiner and Abedin, which means that its only their Fourth Amendment rights, not Clintons or other staffers, that are potentially at stake. Hypothetically, if the FBI violated the Fourth Amendment in the course of getting to the Clinton emails, and the emails end up revealing crimes involving Clinton staffers and Clinton, the only Clinton person who could move to suppress the evidence would be Abedin.

As I noted at the beginning, this a tentative analysis unless and until more facts emerge. My apologies if I missed some relevant facts that have already been disclosed. I looked around, but in my haste to get out a post I very well might have missed something. Ill probably be pretty busy Sunday, but Ill try to update the post if necessary if I missed something big thanks in advance for your patience.

See the original post here:
FBI may have violated the Fourth Amendment in expanding the ...