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While alleged Silk Road mastermind Ross Ulbrichts trial wont start for another month, the legal battle is already heating up in court filings, centered around two questions: How did the Feds locate the Silk Road servers, and were Ulbrichts Fourth Amendment rights violated in the process? In its latest response, the government says it doesnt matter if the FBI hacked the Silk Road servers last OctoberUlbrichts rights still wouldnt have been violated.

Back in October 2013 when the Silk Road servers were seized by the feds in Iceland, no one knew exactly how the government had located the websites servers. Soon after, the feds arrested Ulbricht in San Francisco, claiming he was the Dread Pirate Roberts and the mastermind behind the online drug bazaar. Since then, Ulbricht has been charged with seven drug trafficking, narcotics, and ID theft charges.

But the details about how the government found the servers remained a mystery until last month. At the beginning of August, Ulbrichts defense filed a motion claiming that Ulbrichts Fourth Amendment rights had been violated by the government, and that by the fruit of a poisonous tree, all evidence stemming from the seizure of the Silk Road servers should be suppressed.

In order to respond to the motion, the government was forced to reveal for the first time how it discovered the Silk Road. According to a response filed last month with a declaration by FBI agent Chris Tarbell, the Silk Road servers were discovered by the FBI because of leaky code coming from the Silk Road website. When the leaking IP addresses were plugged into a non-Tor browser, part of the Silk Roads login page appeared. The feds then contacted Icelandic authorities, asking for imaging of the servers. The entire process was legal and not in violation of Ulbrichts rights, according to the FBI.

The defense was not convinced by the FBIs facile explanation and filed a response last week with a declaration by defense lawyer Joshua Horowitz, who specializes in technology and computer software. His analysis of six terabytes of discovery data presented to the defense poked holes in Tarbells account and likened the FBIs actions to hacking.

In his declaration, Horowitz claimed that the FBIs description of how the Silk Road servers were discovered was implausible. He notes that the governments account of how the servers were discovered varies from the description the FBI gave to Icelandic authorities, and that many modifications were made to the Silk Road servers before the FBI claims to have reached out to the Icelandic authorities. Horowitz argues that Tarbell failed to follow even the most rudimentary standards of computer forensic analysis. Highlighting a number of inconsistencies he found, Horowitz asked for more information from the government.

In a response filed on Monday, the government steered away from addressing any of Horowitz claims or questions. Instead, the prosecution argued thattrue or notHorowitzs claims are irrelevant because they dont prove that Ulbrichts rights were violated.

The Horowitz Declaration nowhere alleges that the SR Server was either located or searched in a manner that violated the Fourth Amendment. It merely critiques certain aspects of the Tarbell Declaration concerning how the SR Server was location, the governments response reads.

In any event, even if the FBI had somehow hacked into the SR Server in order to identify its IP address, such an investigative measure would not have run afoul of the Fourth Amendment, the response continues.

The government also questioned why Ulbricht did not submit a personal affidavit explaining how his privacy was violated. In response, the judge gave the defense until Tuesday night to submit a personal affidavit from Ulbricht. The defense has asked for an extension until October 9, because of the short notice and because Ulbrichts lawyer Joshua Dratel is in the midst of another trial.

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Feds Say That Even If FBI Hacked The Silk Road, Ulbricht's Rights Weren't Violated

Washington, DC - infoZine - Scripps Howard Foundation Wire - Nicholas Heien was arrested in 2009 after being stopped for a broken brake light. During the traffic stop, he consented to a search of his car that yielded a bag of cocaine. He pleaded guilty and was sentenced to 10 to 12 months in jail.

Why isnt the consent the end of this case? Justice Ruth Bader Ginsburg asked.

The simple answer, according to Jeffrey Fisher, who represented Heien, is the fruit of the poisonous tree doctrine, which says evidence discovered through an illegal search must be excluded in a trial.

But Robert Montgomery, who argued on behalf of North Carolina, pointed out the states laws can easily be misinterpreted, and officers need to be able to use their discretion when they are out on as call or at a traffic stop.

Because of the conflicting laws, Montgomery argued, offices need to be able to exercise their judgment.

Still, Fisher said the search was illegal under the most relevant law, and therefore Heiens consent was irrelevant.

The constitutional problem is the admission of this evidence, Justice Antonin Scalia said. And it seems to me whether its properly admitted because the Fourth Amendment wasnt violated or whether its properly admitted because the remedy for that violation is not exclusion of the evidence; you lose either way, dont you?

The question came down to a definition what is unreasonable, which Justice Sonia Sotomayor asked.

Well, it would be unreasonable if there was plain language of the statute that no one could reach a different interpretation about at all if it was plain, Montgomery said, or if there was a definite decision by an appellate court, it would be unreasonable for an officer to interpret it in his own way.

Roberts called the definition broad, and he said giving officers such a scope would be troubling.

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Supreme Court Starts Term with Fourth Amendment Case

I attended the oral argument this morning in the Supreme Courts first case of the new Term, Heien v. North Carolina. I had a long preview of Heien here. He are some impressions of the argument.

On the whole, I thought the argument was puzzling. A large chunk of the argument time was spent on Justice Scalias insistence that the Court could not render a decision on the rights question alone without also ruling on whether the exclusionary rule was available. I found this odd for two reasons. First, the state had never argued the exclusionary rule. The states Brief in Opposition had argued that it would be better to review a different case in which the exclusionary rule issue was also part of the case, a position the Justices presumably weighed before granting cert on just the rights question.

Second, the logic of Davis v. United States is that the Court is free to rule on substantive Fourth Amendment issues even when there is no remedy. Its fine to consider rights when there are no remedies, Davis concluded, because the two are conceptually distinct questions. More broadly, the Court often rules on one issue and remands for other issues that need to be resolved before we know which side will win. Given that, it was puzzling that so much argument time was spent in Heien considering whether they could decide the rights issue without also deciding the remedy in the same case.

Perhaps the Court will dismiss Heien as improvidently granted and later take a different case in which the exclusionary rule issue is presented? Its a possibility. But that path would seem pretty puzzling in light of cases like Davis.

In the time not spent considering whether the Court could decide the case, there was a lot of discussion of how a reasonable mistake of law standard would be different from the good faith exception to the exclusionary rule or qualified immunity. Is the proposed standard any different, and if so, how? Both the state and the U.S. suggested that the reasonable mistake of law standard is similar to qualified immunity but doesnt go as far. The state suggested that there could be a difference if a prosecutor tells the agent that the search is legal, presumably when the prosecutor is relatively straightforwardly wrong. There would be no reasonable mistake of law, as the prosecutor was clearly wrong, but prosecutorial approval could trigger qualified immunity. The U.S. suggested that the reasonable mistake of law standard should be for close calls, unlike qualified immunity that applies unless the error was clear.

How might the Court rule? Im not at all sure. Justice Kennedy suggested that he would say that the good faith exception applies to the facts of Heien, and that he wanted to reach that issue. Justice Kagan seemed sympathetic to the defenses argument on the rights issue. Justice Breyer seemed open to allowing a reasonable mistake of law claim if it could be narrow. And a lot of Justices didnt give any sign one way or the other, perhaps in part there was so much focus on the remedies issue. Given the close connection between rights and remedies in the case, it may not matter which side in Heien wins on the only briefed issue, that of rights. The rights issue isnt really where the action is, and its hard to predict if that means the Justices will give the rights issue to the defense and wait for another case on the exclusionary rule, or, alternatively, import exclusionary rule concepts into the rights issue to resolve the ultimate disposition of such cases now even though the remedies issue isnt before them.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

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Volokh Conspiracy: Oral argument in Heien v. North Carolina

Ap Government Fourth Amendment Project
My fourth amendment project for Mrs. King #39;s Ap gov class I do not own, and do not claim to own, the rights of any of the images in this video.

By: RJ Wynn

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Ap Government Fourth Amendment Project - Video

Lubbock Liberty Workshop With Arnold Loewy On The Fourth Amendment
The Lubbock Liberty Workshop held on Saturday, September 27, 2014 History, Purpose, and Present State of the Fourth Amendment Lubbock Liberty and the Constit...

By: EmbersOfLiberty

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Lubbock Liberty Workshop With Arnold Loewy On The Fourth Amendment - Video