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EUREKA SPRINGS -- If you're stopped for a moving traffic violation, does the officer have the right to search your vehicle without a warrant? Ask to look at your cell phone? Detain you for longer than 15 minutes?

Judge Kent Crow addressed those and other questions last week at a program on the Fourth Amendment to the Constitution, given to the local chapter of the Daughters of the American Revolution. What he finds fascinating about the amendment, which protects against unreasonable search and seizure:

"It's an absolute mess," he said. "It has created more litigation than any other amendment."

Crow, whose ancestors fought in the American Revolution, said the Fourth Amendment was a response to English writs of assistance, which gave the king's men the right to enter a home and search it any time they wanted.

"We are a nation of thieves," Crow said. "We were smugglers. We didn't want to pay the king's tax."

What the Fourth Amendment prevents: officers from crossing the threshold of your home without a search warrant specifying what (or who) they are looking for, and where it is likely to be found. If they have a warrant to search your computer, for example, they cannot go through your bedroom drawers or open the refrigerator, he said.

If, however, officers knock on your door and ask to come in and you admit them, then they are free to search the house, he said, something people may not be aware of. There is also a "knock and announce" law, meaning that with a search warrant, they can enter the house after waiting a reasonable time for someone to answer the door. They can also enter your home if there are exigent circumstances, meaning immediate concerns of an emergency nature, for example, for the safety of a person inside.

Once you are served with a search warrant, officers will proceed to the area specified and search while you peruse the warrant, Crow said. If the search is improperly conducted, you can challenge the evidence in court.

Fourth Amendment rulings have had a hard time keeping up with changing technology, Crow said, which have opened up more ways "the king's men" can cross your threshold. The general rule: If you are in a place where you have a reasonable expectation of privacy, for example, in a fenced backyard surrounded by shrubs, the Fourth Amendment protects you from government entry or surveillance.

"The right of privacy keeps expanding," he said.

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Judge expounds on privacy rights

Apple has announced that it has designed its new operating system, iOS8, to thwart lawful search warrants. Under Apples old operating system, if an iPhone is protected by a passcode that the government cant bypass, the government has to send the phone to Apple together with a search warrant. Apple will unlock at least some of the contents of the phone pursuant to the warrant. Under the new operating system, however, Apple has devised a way to defeat lawful search warrants. Unlike our competitors, Apples new privacy policy boasts, Apple cannot bypass your passcode and therefore cannot access this data. Warrants will go nowhere, as its not technically feasible for [Apple] to respond to government warrants for the extraction of this data from devices in their possession running iOS 8. Anyone with any iPhone can download the new warrant-thwarting operating system for free, and it comes automatically with the new iPhone 6.

I find Apples new design very troubling. In this post, Ill explain why Im troubled by Apples new approach coded into iOS8. Ill then turn to some important legal issues raised by Apples announcement, and conclude by thinking ahead to what Congress might do in response.

Lets begin with a really important point: In general, cryptography is an awesome thing. Cryptography protects our data from hackers, trespassers, and all sorts of wrongdoers. Thats hugely important. And under Apples old operating system, cryptography protects iPhones from rogue police officers, too. Thanks to the Supreme Courts recent decision in Riley v. California, the Fourth Amendment requires a warrant to search a cell phone. Apples old operating system effectively enforced the warrant requirement technologically by requiring the government to serve a warrant on Apple to decrypt the phone.

Up to that point, I think its all good. But the design of Apples new operating system does something really different.

If I understand how it works, the only time the new design matters is when the government has a search warrant, signed by a judge, based on a finding of probable cause. Under the old operating system, Apple could execute a lawful warrant and give law enforcement the data on the phone. Under the new operating system, that warrant is a nullity. Its just a nice piece of paper with a judges signature. Because Apple demands a warrant to decrypt a phone when it is capable of doing so, the only time Apples inability to do that makes a difference is when the government has a valid warrant. The policy switch doesnt stop hackers, trespassers, or rogue agents. It only stops lawful investigations with lawful warrants.

Apples design change one it is legally authorized to make, to be clear. Apple cant intentionally obstruct justice in a specific case, but it is generally up to Apple to design its operating system as it pleases. So its lawful on Apples part. But heres the question to consider: How is the public interest served by a policy that only thwarts lawful search warrants?

The civil libertarian tradition of American privacy law, enshrined in the Fourth Amendment, has been to see the warrant protection as the Gold Standard of privacy protections. The government cant invade our private spaces without a showing that the invasion is justified by the expectation that the search will recover evidence. And the government must go to a neutral magistrate and make that case before it conducts the search. When the government cant make the showing to a neutral judge, the thinking runs, the public interest in privacy outweighs the public interest in solving crime. But when the government does make that showing, on the other hand, the public interest in solving crime outweighs the privacy interest. Thats the basic balance of the Fourth Amendment, most recently found in the stirring civil libertarian language in Riley just a few months ago.

Apples new policy seems to thumb its nose at that great tradition. It stops the government from being able to access the phone precisely when it has a lawful warrant signed by a judge. Whats the public interest in that?

One counterargument I have heard is that there are other ways the government can access the data at least some of the time. With the warrant required under Riley, agents could take a stab at guessing the passcode. Perhaps the phones owner used one of the popular passwords; according to one study, the top 10 most often-used passcodes will unlock about 15% of phones. Alternatively, if the phones owner has backed up his files using iCloud, Apple will turn over whatever has been backed up pursuant to a lawful warrant.

These possibilities may somewhat limit the impact of Apples new policy. But I dont see how they answer the key question of whats the public interest in thwarting valid warrants. After all, these options also exist under the old operating system when Apple can comply with a warrant to unlock the phone. And while the alternatives may work in some cases, they wont work in other cases. And that brings us back to how its in the public interest to thwart search warrants in those cases when the alternatives wont work. Id be very interested in the answer to that question from defenders of Apples policy. And Id especially like to hear an answer from Apples General Counsel, Bruce Sewell.

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Volokh Conspiracy: Apples dangerous game

NEARLY everyone lives by their smartphone these days, including U.S. Supreme Court justices. In Riley v. California, the nations highest court recently acknowledged this, finding all citizens have a Fourth Amendment right of privacy in their cellphones. The often-divided court was unanimous.

Before the Riley decision, lower courts were split on whether it was necessary to obtain a warrant before searching a suspects cellphone. Justice John Roberts definitively settled the dispute: Get a warrant.

The federal and Washington state constitutions are often tested in the context of criminal activity, but the ramifications of this ruling are weighty and will send ripples well beyond criminal suspects. The Riley decision speaks to the privacy rights of all in the digital age, including public employees.

Washington states Constitution provides citizens broader privacy rights than the Fourth Amendment, and the state Supreme Court has been ahead of the U.S. Supreme Court on this issue.

The Riley ruling will help decrease harassment of public employees by prison inmates and others who attempt to use Washington states Public Records Act to violate the privacy rights of teachers, firefighters, police officers, prosecutors and other public servants.

Pierce County and other government entities have been sued by requesters who wrongly claim the Public Records Act is a license to search the personal phones of public servants to determine if there have been work-related conversations or if personal phones were used during work hours. This far-fetched and shortsighted theory violates the privacy of public servants, their families, friends, and everyone who contacts them.

Such lawsuits against Pierce County have been twice dismissed by Superior Court judges, though the issues are continuing to wind through the courts. The Superior Court agreed that personal phone records and text messages are not public records and are protected by both the Washington and U.S. constitutions.

Public servants and other law-abiding citizens do not have fewer rights than criminals.

Some argue public servants could hide behind the state or federal constitution and somehow create shadow governments, and therefore they should give up their constitutional rights. Imagine, teachers could be forced to turn over their personal phones to be searched for public records because they might have talked or texted with a students parent. This is a good premise for a dystopian movie, but a bad law for a free society, and fortunately this is not the law in the United States or in Washington state.

Our federal Supreme Court has specifically held that public employees do not give up their constitutional rights by working for the public. Public employees make sacrifices to serve our communities, but they do not sacrifice their constitutional rights. Like private-sector employees, public-sector employees have a free-speech right to talk about their work and a constitutional right to privacy as well. Private landlines, which do not create public records, did not result in shadow governments and neither will personal cellphones.

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Guest: Why the privacy of a public employees cellphone matters

Like my co-blogger Will Baude, I was very interested in the Ninth Circuits recent case, United States v. Dreyer, suppressing evidence as a violation of the Posse Comitatus Act. I think the case is interesting because it demonstrates a view of the exclusionary rule that I havent seen in a while.

First, some history. Back in the the middle of the 20th Century, the federal courts often found ways to impose an exclusionary rule for statutory violations in federal court. For example, in Nardone v. United States, 302 U. S. 379 (1937) (Nardone I) and Nardone v. United States, 308 U.S. 338 (1939) (Nardone II), the Supreme Court adopted an exclusionary rule for violations of the Communications Act. In McNabb v. United States, 318 U.S. 332 (1943), the Court adopted an exclusionary rule for violations of Rule 5 of the Federal Rules of Criminal Procedure. The Court had a rather free-form approach to the exclusionary rule at the time, in part because suppression was seen as the judiciarys domain. The federal courts had an inherent power to control evidence in their own cases, so the Court could be creative in fashioning what evidence could come in to deter bad conduct. If the government did something really bad, the federal courts had the power to keep the evidence out to deter violations and maintain the integrity of the courts.

By the 1980s, after Warren Court revolution, the Supreme Court had a different view of the exclusionary rule. The scope of the rule had expanded dramatically when it was incorporated and applied to the states. But as a kind of tradeoff for that expansion, the Court cut back on the free-form approach outside core constitutional violations. The Burger and Rehnquist Courts saw suppression as a doctrine that had to be rooted in deterrence of constitutional violations and not just something that courts didnt like or found offensive.

In his post, Will points out a passage from Sanchez-Llamas v. Oregon to that effect. And I would add the earlier case of United States v. Payner, 447 U.S. 727 (1980), in which investigators had intentionally violated one persons Fourth Amendment rights to get evidence they were holding of the suspects crimes. The Sixth Circuit had suppressed the evidence on the basis of the federal courts supervisory power to punish the blatant abuse even though the suspect did not have Fourth Amendment standing to object to the violation. The Supreme Court reversed, blocking courts from using the supervisory power as an end-run around the limits of Fourth Amendment doctrine.

The new Ninth Circuit case, Dreyer, strikes me as a vestige of the mid-20th century free-form view of the exclusionary rule. The lower courts in the 1960s and 1970s had a few areas where they rejected suppression outside of constitutional law but recognized the hypothetical possibility that they might suppress evidence if the facts were particularly egregious. For example, a bunch of circuits held that the Fourth Amendment does not regulate evidence collection by foreign governments not acting in coordination with the U.S., but that they would suppress evidence if the foreign government conduct shocked the conscience. See, e.g., Birdsell v. United States, 346 F.2d 775, 782 n. 10 (5th Cir. 1965); United States v. Cotroni, 527 F.2d 708, 712 n. 10 (2d Cir. 1975). But see United States v. Mount, 757 F.2d 1315, 1320 (D.C. Cir. 1985) (Bork, J., concurring) (arguing based on Payner that lower courts lack supervisory powers to impose an exclusionary rule for searches by foreign governments). The caselaw was never reviewed in the Supreme Court, however, perhaps because those egregious circumstances were not found and the evidence wasnt actually suppressed.

Violations of the Posse Comitatus Act, the issue in the new decision, provides another example. The history seems to run like this. First, in the 1970s, a few courts applied the free-form approach to the exclusionary rule and left open the possibility that violations of the Posse Comitatus Act could lead to exclusion if it were necessary to deter violations. See, e.g.,United States v. Walden, 490 F.2d 372, 37677 (4th Cir. 1974); State v. Danko, 219 Kan. 490 (1976). When the Ninth Circuit reached the issue in 1986, the panel did not focus on the Supreme Courts then-new more skeptical approach to the exclusionary rule. Instead, the Ninth Circuit expanded on the 1970s lower-court cases, indicating that the exclusionary rule would be necessary for violations of the Act if a need to deter future violations is demonstrated. United States v. Roberts, 779 F.2d 565, 568 (9th Cir. 1986). Again, though, this was just a possibility, and the issue was never reviewed.

Dreyer picks up that 28-year-old invitation and concludes that the need has finally been demonstrated and that the exclusionary rule therefore must be applied. Dreyer cites Roberts, which in turn cited Walden. So on its face, the court is at least drawing on precedent.

But it seems to me that Dreyer is very vulnerable if DOJ thinks it is worth challenging in the Supreme Court. Dreyer appears to rely on a line of thinking about the exclusionary rule that the Supreme Court has long ago rejected. Of course, we can debate the normative question of how the Justices should approach the exclusionary rule, either in the context of constitutional violations or statutory violations. But just as a predictive matter, I suspect that todays Court would have a different view of the question than the circuit court cases from the 1970s on which the Ninth Circuits Dreyer decision ultimately relies.

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: The posse comitatus case and changing views of the exclusionary rule

Law Talk - Obamacare Rollout; Fourth Amendment, NSA Spying Stop Frisk DUI Check Points lta041
This program was aired on KMVT15 Community Media.

By: KMVT

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Law Talk - Obamacare Rollout; Fourth Amendment, NSA Spying Stop & Frisk DUI Check Points lta041 - Video