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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.

Read the original post:
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.

Read more from the original source:
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

The Minnesota Supreme Court has ruled a narcotics officer didn't violate Fourth Amendment search and seizure rules when he opened a package containing cocaine and methamphetamine at an airport.

The St. Cloud Times reports (http://on.sctimes.com/Yz3Ggd) the court upheld a county court decision Wednesday that the removal of the package from a conveyor belt wasn't a seizure and sniffing by a police dog wasn't a search in the 2011 incident.

Twenty-three-year-old Corey Eichers of Avon later received the package and was convicted of first-degree controlled substance crime. He was sentenced to 7 1/2 years in prison.

Eichers argued in the lawsuit that the officer didn't have authority to remove and open the package at the Minneapolis-St. Paul International Airport.

It was sent via UPS air mail and a police dog indicated it contained drugs.

Read more:
Minnesota Supreme Court upholds airport drug case decision

SAN MATEO COUNTY, Calif.

The family of a mentally ill woman filed a federal civil rights lawsuit against San Mateo County Sheriffs Office Tuesday after a deputy shot and killed the 18-year-old last June. The suit alleges that the deputy violated Fourth Amendment limits on police authority.

In late August, San Mateo County Yanira Serrano-Garcia's mother broke down as she announced the suit.

With her attorney acting as translator Carmen Serrano-Garcia said, They not only killed Yanira they killed the entire family and the goal is to prevent any other family from suffering this kind of pain."

Serrano-Garcia battled mental illness and on June 3rd her brother, Tony Serrano, called 911 because she refused to take her medication and was fighting with their parents.

In addition to filing suit the family released 911 recordings from the incident. Tony Serrano asked for medical help.

"This is not really an emergency. I'm calling because my sister she has the schizophrenia, he can be heard saying in the 911 recording.

According to the familys attorney Yanira was diagnosed with schizophrenia at 15 years old.

"The Sheriff's Department was aware of that, they had visited her on three prior occasions without incident, said Arnoldo Casillas, family attorney.

In the time it took Deputy Menh Trieu to reach the San Mateo County home, the family says Yanira had taken her medicine and was in the house.

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Family of a mentally ill woman files lawsuit against San Mateo Co. after deadly shooting