Speaking on Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015
27 March 2015 Speaking in Seanad Debate on Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015.
By: Mary Moran
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Speaking on Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015 - Video
The case is Grady v. North Carolina. Held: Forcing someone to wear an ankle bracelet to monitor location is a Fourth Amendment search. The new decision extends the Jones search doctrine to searches of persons, and it provides more opportunity to ponder what the Jones test means. Ill start with the history, then discuss the new decision, and then offer some thoughts on the new case.
I. A Brief History of Fourth Amendment Searches
First, some Fourth Amendment history. As I explained in this article, the Supreme Court had not identified a clear test for what counts as a Fourth Amendment search until Katz v. United States (1967). In Silverman v. United States (1961), the Court had indicated that a physical intrusion was enough to be a search but left open what beyond physical intrusion counted. In Katz, the government had taped a microphone to the top of a public phone booth and listened to the microphone feed from a listening station nearby when Katz placed a call. The Court in Katz announced that it could no longer follow earlier caselaw, which it claimed had imposed a trespass test. The Court held that the governments conduct triggered the Fourth Amendment:
The Governments activities in electronically listening to and recording the petitioners words violated the privacy upon which he justifiably relied while using the telephone booth, and thus constituted a search and seizure within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.
Justice Harlan concurred. According to Harlan, the key was that Katzs expectation of privacy in the phone booth was one society was prepared to recognize as reasonable. When Katz went into the phone booth, closed the door, and put a coin in the coin slot, the phone booth became a temporarily private place whose momentary occupants expectations of freedom from intrusion are recognized as reasonable. The full Court later adopted Justice Harlans concurring opinion, usually known as the reasonable expectation of privacy test, or just as short hand, the Katz test. (Im ignoring subjective expectations of privacy for reasons explained here.)
In United States v. Jones (2012) the Supreme Court held that the government conducted a search when it installed a GPS device to the underbody of a suspects car to monitor his location over time with intent to get information. The Court reasoned that the trespass test that Katz said existed before Katz still existed, and that because installing a GPS device on a car is trespassory, installing the GPS device was a trespass search without having to reach the issue of whether it violated a reasonable expectation of privacy under the Katz test. Because the trespass occurred with the intent to get information, it was a Fourth Amendment search.
As I detailed in this article and I have blogged about occasionally since then, this history leaves us unsure of what the Court thinks the Jones test is. Is the test physical intrusion as in Silverman, or is it trespass? If its trespass, which kind of trespass, given that trespass is an accordian-like term that has both broad and narrow meanings? And if attaching a GPS device to the underbody of a car was trespassory in Jones, why wasnt taping a microphone to the top of a phone booth trespassory in Katz?
II. Grady v. North Carolina
That brings us to the new case. In Grady, the defendant is a recidivist sex offender who was ordered to wear an ankle bracelet that determines his location using GPS. The bracelet was installed against his consent, and he was ordered to wear it for life.
The defendant argued that this violated his Fourth Amendment rights under the Jones case, but the North Carolina Court of Appeals disagreed. First, it relied on its own precedent that had earlier rejected the analogy to Jones for a bizarre reason: Because Jones arose in a motion to suppress rather than a civil case, it was inapplicable and using the ankle bracelet was not a search. Second, the earlier precedent had relied post-Jones on dicta in a pre-Jones North Carolina Supreme Court case, Bowditch, that had suggested that sex offenders have a lesser expectation of privacy against monitoring.
Read the rest here:
Volokh Conspiracy: Affixing ankle bracelet to monitor suspect is a search, Supreme Court holds
The Supreme Court raised constitutional doubts Monday about the lifelong monitoring of sex offenders and other criminals with the use of GPS devices.
In a unanimous decision, the justices ruled for a North Carolina man and said this monitoring is a search under the Fourth Amendment that must be justified as reasonable based on all the circumstances.
Since 2005, 40 states have adopted laws that provide for GPS monitoring of ex-offenders. California was said to have the first and largest monitoring program. The court was told 9,300 sex offenders in California were being tracked, along with some gang members.
Mondays decision stops well short of striking down such monitoring, but it opens the door for ex-offenders to argue for limits.
A North Carolina lawyer who appealed the case praised the court for putting some restrictions on monitoring.
This is a significant case. North Carolina and other states have basically taken the position that they can strap a GPS monitoring device to whomever they choose. The court here is basically saying, no, any such search must be reasonable. In many cases, thats going to be impossible to demonstrate, said Luke Everett, a lawyer in Durham.
After a 20-minute hearing in 2013, Torrey Grady was ordered to enter a GPS monitoring program that would require him to wear an ankle bracelet for the remainder of his natural life. He was not on probation, but he had been convicted of a sex offense when he was a teenager in 1997 and of taking indecent liberties with a child in 2006.
North Carolinas law calls for monitoring of repeat offenders. He appealed the order, arguing it was an unreasonable search under the Fourth Amendment. A North Carolina court ruled that monitoring was not a search at all, and the North Carolina Supreme Court refused to hear his claim.
The Supreme Court issued a summary reversal Monday in Grady v. North Carolina and said the monitoring was governed by the Fourth Amendment. A state conducts a search when it attaches a device to a persons body, without consent, for the purpose of tracking that individuals movement, the justices said.
But they note the Fourth Amendment forbids only unreasonable searches, and they sent the case back to North Carolina for judges there to consider whether the lifelong monitoring of Grady was reasonable.
Read this article:
Supreme Court questions lifelong monitoring of sex offenders
This nation's founders were so concerned about the overreach of law enforcement that they enshrined in the Constitution a protection for citizens. The police couldn't just invade your space cavalierly or without a warrant. The people were not to be subjected to "unreasonable searches and seizures."
But in the 20th Century, this country came up with a regrettable idea called the Drug War, and had to make a choice. Do we maintain the integrity of the Fourth Amendment, or do we fight this unnecessary and unwinnable war? You know the answer. We've decided to fight. Bye, Fourth Amendment.
Radley Balko, the author of "Rise of the Warrior Cop: The Militarization of America's Police Forces" says in a blog post at The Washington Post that the Fourth Amendment has little meaning in the era of the Drug War. In a way, he writes, the colonists who complained about the aggressive law enforcement practices of England, had more protections than today's American citizen.
"For example," the Balko writes, "British soldiers could serve warrants only during the day. And they were always required to knock, announce themselves, announce their purpose and give the resident time and opportunity to come to the door to let them in peacefully. This was all in observance of the Castle Doctrine, or the idea that the home should be a place of peace and sanctuary, and that it should be violated only in the most extreme circumstances.
"Today, of course, authorities can break into homes without knocking. They can conduct raids at night.... [I]f the Fourth Amendment is due to the Founders' offense atBritish soldiers forcibly entering homes in daylight hours after knocking and announcing to search for contraband, it seems safe to say that the Founders would be appalled by the fact that today, dozens of times each day, heavily armed government officials break into homes, often at night,without first knocking and announcing, in order to conduct searches for contraband."
Balko is appropriately incensed at a 2-1 Fourth Circuit ruling this month that overturns a jury award of $250,000 to the survivors of Andrew Cornish. He was shot and killed in May 2005 after a SWAT team from the Cambridge, Md., police force barged into his house at 4:30 a.m. without knocking. An anonymous tipster had reported "drug activity" at the apartment where Cornish lived, and investigators had secured a warrant after digging through the trash outdoors and finding two plastic bags with marijuana residue.
At the sound of a break-in, Cornish walked out of his bedroom with a knife. It was still in its sheath. The police shot him in the face and the forehead. In that Fourth Circuit ruling, the two judges writing for the majority say Cornish caused his own death because he should have known that the people who had invaded his house were the police.
"Itis an utterly absurd ruling," Balko writes. "Police don't raid homes at 4:30 a.m, with battering rams in order to let suspects know that they're the police. They raid homes at 4:30 a.m. with battering ramsfor the verypurposeof disorienting and confusing suspects so that they can take them by surprise. You can't simultaneously argue that confusing and disorienting a suspect is necessary to protect the safety of police officers,and that the same suspect you're trying to confuse and disorient should be able to wake from a sleep, process what's going on around him, immediately discern that the armed men who have just broken into his home are police serving a warrant and not criminals there to do him harm, and that should he make an error in judgment, he alone is responsible for the consequences-- whether it's the end of his own life, or his killing, or the injuring of one of the police officers."
You can't? So how come that's what the Fourth Circuit ruled?
Cornish wasn't some high-powered king pin. Police found a "small amount of marijuana" in his apartment, which suggests that maybe he liked to smoke a little weed. Was it necessary for the police to break into his house for small amounts of marijuana? Would it even have been right if they had found larger amounts of the drug?
Read the original here:
Our Fourth Amendment rights have been eroded by Drug War: Jarvis DeBerry
The Fourth Amendment of the US Constitution protects Americans against unreasonable searches and seizures of either self or property by government officials. When the government oversteps its authority, those responsible must be held accountable for their actions. With few exceptions, however, government surveillance focuses on protecting life, property and the American way. Private surveillance, on the other hand, is governed by no laws, and is conducted for self-interest and profit. In volume, stealth and intrusiveness, the private sector far surpasses anything the government has attempted or even contemplated doing. Yet, while Americans regularly read or hear about the National Security Agency (NSA) and Central Intelligence Agencys (CIA) intrusion into their lives, not many seem to be accusing private companies like Walmart or the Ford Motor Company of spying on people. It comes down to whether Americans trust companies like Verizon, Target, and Google to respect their privacy more than they trust the US government. The intelligence communitys focus is on foreign threats and activities overseas. The CIA and NSA operate under strict rules and regulations, including a ban against collecting information on Americans. The current policy states that signals intelligence shall be collected exclusively where there is a foreign intelligence or counterintelligence purpose to support national and departmental missions and not for any other purposes. The private sector, on the other hand, focuses on the bottom line and operates unfettered. Google a resort in Mexico, and see how ads for that destination continue to pop up every time you open your Internet browser. And that is only the tip of the iceberg. You cant imagine all the things going on behind the scenes that you arent able to see. Government surveillance, of course, increases when a known terrorist or other enemy of the United States contacts an American citizen. Following 9/11, NSA analysts were given limited access to the bad guys communication links to the United States. Even then, however, the privacy of American citizens remained a top priority. Going forward, if a known terrorist communicates with an American citizen, I suspect most Americans would feel more comfortable knowing someone is watching their back. Having spent more than 40 years as an intelligence officer, I know first-hand that the US intelligence community has made its share of mistakes (being dead wrong about weapons of mass destruction in Iraq and condoning torture spring readily to mind). And I continue to believe in the necessity of strict congressional oversight and restrictions, which separate the US intelligence community from other intelligence organizations like the KGB. This oversight is critical for an intelligence community serving a democratic country. It is true that the US intelligence community has at times been overzealous in protecting against terrorist threats and others who could do the United States harm, but not because it was seeking to pry into the private affairs of American citizens. For me, the NSA and Drug Enforcement Administrations (DEA) bulk collection and storage programs fall into the overzealous category. I am aware of the argument that more is better, but when weighed against privacy rights and the questionable predictive value of these materials, these arguments dont make sense. As in other areas, the Intelligence Community tends to overstate its capability to predict future events. I suspect the efforts to stop or disrupt terrorist attacks are on par with law enforcements (rather poor) record on stopping premeditated murders, kidnappings, and the spread of illegal drugs. For me, the larger problem is the massive effort by private companies to collect every bit of data they can about me: my health, what I buy, what I eat, where I shop, who I talk to, and on and on. All of this is done not only without my permission, but also without my knowledge and it is legal. Of course, I dont want the government snooping around in my private affairs any more than you do. Yet, if it is in the nations security interest and my privacy remains protected, access to my metadata doesnt seem like too much for my government to ask of me. The writer is the former head of the Bureau of Intelligence and Research (INR), US State Department. (In partnership with The Mark News)
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Worrying about online privacy