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This article originally appeared on AlterNet.

Checkpoints occupy a unique position in the American justice system. Atthese roadside stations, where police question drivers in search of the inebriated or illegal, anyone can be stopped and questioned, regardless of probable cause, violating theFourth Amendments protection against general warrants that do not specify the who/what/where/why of a search or seizure. Though the Supreme Court agrees that checkpoints skirt the FourthAmendment, the Court has been clear that the special needs checkpoints serve, like traffic safety andimmigration enforcement, trump the slight intrusions on motorists rights.

We have checkpoints for bicycle safety, gathering witnesses, drug trafficking, illegal immigration and traffic safety.Many states,like California, require cops to abide by neutral mathematical formulas when choosing which drivers to pull over (like 1 in every 10 cars). In reality, these decisions are left to the discretion of individual police officers, which results in a type of vehicular stop and frisk.

Thats why people in Arizona havesuedthe Department of Homeland Security for its wantondeployment of immigration checkpoints in their state.Among their complaints are racial profiling, harassment, assault and unwarranted interrogation,and detention not related to the express special need of determining peoples immigration status.

A key legal detail about checkpoints is that they cannot be used for crime control, as that would require individualized probable cause. But legal scholarsarguethat non-criminally-minded checkpoints are also illegal. They point out that the FourthAmendment protected the colonists from being searched for non-criminal wrongdoing. Doing nothing wrong at all, they argue,is not grounds to be searched or haveyour property seized.

Regardless, unlike DUI checkpoints, these immigration checkpoints, expanded by the 2006Secure Fence Act, are only allowed within 100 miles of the continental United States border. But thats abig perimeter. Nine of the countrys 10 largest cities, entire states and some two thirds of the US population reside within this constitutionallyexempt zone.

At these checkpointssome of which have becomepermanentfixtures on the highwaypeople are forced to stop when flagged down, againregardless of probable cause. But the extent to which people are legally obliged to answer officers questions isunclearand seemingly arbitrary. Not surprisingly, the militarysimmigration checkpoints havegarneredoutspoken criticism from across the political spectrum.Legalized by the Supreme Court in1976, these checkpointsseem to have taken on a newmomentum in the post-9/11era. (Private militias have eventaken tosetting uptheir own versions.)

DUI checkpoints, on the other hand,deemedconstitutional in 1990, monitor roadwaysin38 states. But they have been outlawed by12 othersthat have invoked states rights to increase federal civil liberty protections.In the Courts 1990opinion, Chief JusticeWilliam Rehnquist wrote that states interest in eradicating drunk driving is indisputable and that this interest outweighed the measure of the intrusion on motorists stopped briefly at sobriety checkpoints, which he described as slight.

In the dissent, William Brennan reminded the Court that, some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action. In pulling people over at random, checkpoints remove this individualized component.

Today, the practice seems to be experiencing a renaissance of sorts. With the help of local police, private government contractors have used the tactic to collect anonymous breath, saliva and blood (DNA) samples of American motorists for the federally fundedNational Roadside Survey of Alcohol and Drugged Driving. Participation in the survey is voluntary, despite the confusion that may come with uniformed police asking for bodily fluids. Motorists are offered $10 for cheek swabs and $50 for blood samples. These practices have sparked considerable publicoutrage; law enforcement officials inSt. Louis, Missouriand Fort Worth, Texashavestatedtheir intent to limit their future participationin the study.

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The chilling loophole that lets police stop, question and search you for no good reason

From Berry v. Leslie (11th Cir. Sept. 16, 2014):

It was a scene right out of a Hollywood movie. On Aug. 21, 2010, after more than a month of planning, teams from the Orange County Sheriffs Office descended on multiple target locations. They blocked the entrances and exits to the parking lots so no one could leave and no one could enter. With some team members dressed in ballistic vests and masks, and with guns drawn, the deputies rushed into their target destinations, handcuffed the stunned occupants and demanded to see their barbers licenses. The Orange County Sheriffs Office was providing muscle for the Florida Department of Business and Professional Regulations administrative inspection of barbershops to discover licensing violations.

We first held 19 years ago that conducting a run-of-the-mill administrative inspection as though it is a criminal raid, when no indication exists that safety will be threatened by the inspection, violates clearly established Fourth Amendment rights. See Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995). We reaffirmed that principle in 2007 when we held that other deputies of the very same Orange County Sheriffs Office who participated in a similar warrantless criminal raid under the guise of executing an administrative inspection were not entitled to qualified immunity. See Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007). Today, we repeat that same message once again. We hope that the third time will be the charm.

The Fourth Amendment guarantees [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Its protections apply to commercial premises, as well as to private homes. In general, the Fourth Amendment requires a warrant supported by probable cause to effectuate a constitutional search. Indeed, this Court has explained, The basic premise of search and seizure doctrine is that searches undertaken without a warrant issued upon probable cause are `per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well-delineated exceptions.

One of those limited exceptions involves administrative inspections of closely regulated industries. Because an owner or operator of commercial property has a reduced expectation of privacy in this context, the standard for what may be reasonable under the Fourth Amendment is correspondingly broader.

To fall within this exception, a warrantless inspection must satisfy three criteria: (1) a `substantial government interest [must] inform[] the regulatory scheme pursuant to which the inspection is made; (2) the inspection must be necessary to further [the] regulatory scheme; and (3) the statutes inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant. The regulatory statute must [also] be sufficiently comprehensive and defined such that it limits the discretion of inspecting officers. Where a statute authorizes the inspection but makes no rules governing the procedures that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.

But even when the criteria set forth above are met, to satisfy the Fourth Amendment, an administrative inspection must be appropriately limited in both scope and execution and may not serve as a backdoor for undertaking a warrantless search unsupported by probable cause. Above all, such inspections may never circumvent the Fourth Amendments requirement for reasonableness. In this regard, an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.

As detailed earlier, the regulatory framework for barbershop inspections in Florida is embodied in Fla. Stat. 476.184 and its implementing rules. In particular, 476.184 requires all barbershops to have a license issued by the DBPR and directs the Florida Barbers Board to adopt rules governing the operation and periodic inspection of barbershops licensed in Florida. Rule 61G3-19.015(1), Fla. Admin. Code, in turn, provides that the DBPR may conduct inspections biennially on a random, unannounced basis. The regulatory framework, which sets forth who may conduct such inspections, notifies barbers that only the DBPR is so authorized. In this case, no one disputes that the DBPR possesses statutory authority to conduct warrantless inspections of barbershops, nor do the parties assert that the statute authorizing such inspections is constitutionally impermissible.

Instead, the plaintiffs contend that the search of Strictly Skillz, which they allege was undertaken with an inordinate display of force, failed to conform to the Fourth Amendments requirement for reasonableness. Because we have twice held, on facts disturbingly similar to those presented here, that a criminal raid executed under the guise of an administrative inspection is constitutionally unreasonable, we agree.

Unlike previous inspections of Strictly Skillz, which were all conducted by a single DBPR inspector without the aid of law enforcement, the August 21 search was executed with a tremendous and disproportionate show of force, and no evidence exists that such force was justified. Despite the fact that neither OCSO nor the DBPR had any reason to believe that the inspection of Strictly Skillz posed a threat to officer safety, the record indicates that several OCSO officers entered the barbershop wearing masks and bulletproof vests, and with guns drawn; surrounded the building and blocked all of the exits; forced all of the children and other customers to leave; announced that the business was closed down indefinitely; and handcuffed and conducted pat-down searches of the employees while the officers searched the premises. Such a search, which bears no resemblance to a routine inspection for barbering licenses, is certainly not reasonable in scope and execution. Rather, [i]t is the conduct of officers conducting a raid.

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Volokh Conspiracy: When administrative inspections of businesses turn into massive armed police raids

The Fourth Amendment By Maison Erdman
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By: Monkey5EM

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The Fourth Amendment By Maison Erdman - Video

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