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By Marianne Goodland

Journal-Advocate legislative reporter

A resolution to add "electronic data" to the Colorado constitution's equivalent of the Fourth Amendment to the U.S. Constitution got unanimous support this week from a Senate committee.

The Senate Judiciary Committee on Wednesday gave a 5-0 vote to Senate Concurrent Resolution 14-002, sponsored by Sen. Greg Brophy (R-Wray) and Senate President Morgan Carroll (D-Aurora). The resolution, which asks for voter approval in November, would add "electronic data" to the list of items protected from unreasonable search and seizure in Article 2, Section 7 of the Colorado constitution.

The resolution now goes to the full Senate. Two-thirds of the Senate, or 24 votes, are needed for the resolution to go on to the House.

While the committee was unanimous in its support of SCR 2, the legal community was not. Opposition came from the Colorado Attorney General, police chiefs, and the Colorado District Attorneys' Council. The Colorado County Sheriffs' Association, the Libertarian Party and the Colorado chapter of the American Civil Liberties Union (ACLU) all spoke in favor of SCR 2.

The courts are weighing this question now, said Brophy in introducing the resolution. "It's appropriate that the Legislature also weigh in." He noted that electronic data should be private, the same as if it were stored in a file cabinet in the home. But government agencies aren't treating it that way and are looking at this data without a warrant, he explained.

Papers and other effects are already protected in the state constitution, but electronic data is the modern equivalent, Carroll said. Law enforcement should interpret it that way, but they don't always do that. "There should be a reasonable expectation of privacy" for electronic data.

Carroll also noted that any data that is encrypted or password protected should be protected under the law, even when it is stored in cyberspace, or the Cloud. "I don't forego a reasonable expectation of privacy when I enter a physical public domain" such as Civic Center Park in Denver, she said. The same should apply to electronic data stored in the Cloud.

Deputy Attorney General Matthew Durkin said the resolution was unnecessary, since the state and federal constitutions already protect electronic data, even if it is not listed. Electronic data is not defined in the resolution, he said, and it could be interpreted in many different ways. Instead, citizens should rely on the judicial branch to make to make that determination, which they have done for more than 200 years.

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Protections for e-data clear Senate committee

Next week, the U.S. Supreme Court is expected to hear arguments over whether police can search a person's cellphone without a warrant upon arrest. That will give the justices a rare opportunity to draw a bright line about what police can do in the digital age.

The court should conclude that searching smartphones should require a warrant. That is what law enforcement needs in most cases to search a home.

More than 50 percent of Americans now carry smartphones, and those phones' search histories, photos, emails, chats and contacts offer not only a window on the owner's mind, but also can document their every step and communication.

Courts have given mixed rulings how the Fourth Amendment, which protects people from unreasonable search and seizure, applies to cellphones. The right to privacy in these cases conflicts with the important public interest in police solving and preventing crimes.

The high court will have to balance these two interests in a decision that makes sense not just for smartphones, but also for tablets, laptops and the new gadgets down the road.

"Some members of the court will certainly try to consider the place mobile devices play in modern life," said Jennifer Granick, director of civil liberties at the Stanford Center for Internet and Society.

The justices' ruling will involve two cases. In 2007, Massachusetts police searching a man's rudimentary flip phone noticed a phone number that led to the suspect's home where they found drugs, cash and guns. The 1st Circuit Court of Appeals agreed that the search violated his Fourth Amendment rights. The government is appealing the decision.

In 2009, San Diego police stopped David Riley for expired registration tags. A search of his smartphone revealed images tying him to a gang shooting and other evidence. Convicted of attempted murder and serving a 15-year sentence, Riley has challenged the evidence police found on his cellphone. In a 5-2 decision, the California Supreme Court upheld the cellphone search in the case.

In taking on the Riley case, the high court said it would decide the narrow question of whether evidence admitted at Riley's trial as part of the smartphone search violated the Fourth Amendment.

Legislative attempts to clarify the rules in California have not succeeded. In 2011, state Sen. Mark Leno, D-San Francisco, proposed a bill that would have required a warrant to search cellphones. Gov. Jerry Brown vetoed it.

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Quinn: Supreme Court should clarify Fourth Amendment rights in the digital age

Fourth Amendment:Searches and SeizuresWhat is the Fourth Amendment?The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.The Fourth Amendment Defined:Like the majority of fields within American law, the Fourth Amendment is heavily rooted in the English legal doctrine. In a general sense, the Fourth Amendment was created to limit the power of the government and their ability to enforce legal actions on individuals. The Fourth Amendment was adopted as a direct response to the abuse of the writ of assistance, which was a type of general search warrant used by the government during the American Revolution. The Amendment was created to limit the powers of the law enforcement agency who is conducting a search of an individuals personal property.The Fourth Amendment is a part of the Bill of Rights, which are the first 10 Amendments to the United States Constitution and the framework to elucidate upon the freedoms of the individual. The Bill of Rights were proposed and sent to the states by the first session of the First Congress. They were later ratified on December 15, 1791.The first 10 Amendments to the United States Constitution were introduced by James Madison as a series of legislative articles and came into effect as Constitutional Amendments following the process of ratification by three-fourths of the States on December 15, 1791.Stipulations of the 4th AmendmentThe Fourth Amendment guards against the governments ability to conduct unreasonable search and seizures when the individual party being searched has a reasonable exception of privacy.The Fourth Amendment specifically requires a law enforcement agency to possess judicially sanctioned search and arrest warrants, which are supported by probable clause, to be administered before a persons property can be inspected.The Fourth Amendment ties in numerous limitations whereby an individual may be searched without a warrant given the presence of certain circumstances. The individuals property may be searched and seized if: The individual is on parole or in a tax hearing, faces deportation, the evidence is seized from a common carrier, the evidence is collected by U.S. customs agents, the evidence is seized by probation officers, the evidence is seized outside of the United States, or probable cause is evident.Court Cases tied into the 4th AmendmentIn Mapp v. Ohio, the Supreme Court ruled that the Fourth Amendment is enforceable and should be applied to all states in the Union by way of the Due Process Clause of the Fourteenth Amendment. Additionally, the Supreme Court ruled that certain searches and seizures were in direct violation of the Fourth Amendment even when a warrant was properly issued to the coordinating law enforcement agencies.State Timeline for Ratification of the Bill of RightsNew Jersey:November 20, 1789; rejected article IIMaryland:December 19, 1789; approved allNorth Carolina:December 22, 1789; approved allSouth Carolina: January 19, 1790; approved allNew Hampshire: January 25, 1790; rejected article IIDelaware: January 28, 1790; rejected article INew York: February 27, 1790; rejected article IIPennsylvania: March 10, 1790; rejected article IIRhode Island: June 7, 1790; rejected article IIVermont: November 3, 1791; approved allVirginia: December 15, 1791; approved all

Fourth Amendment:Searches and Seizures

What is the Fourth Amendment? The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment Defined: Like the majority of fields within American law, the Fourth Amendment is heavily rooted in the English legal doctrine. In a general sense, the Fourth Amendment was created to limit the power of the government and their ability to enforce legal actions on individuals. The Fourth Amendment was adopted as a direct response to the abuse of the writ of assistance, which was a type of general search warrant used by the government during the American Revolution. The Amendment was created to limit the powers of the law enforcement agency who is conducting a search of an individuals personal property.

The Fourth Amendment is a part of the Bill of Rights, which are the first 10 Amendments to the United States Constitution and the framework to elucidate upon the freedoms of the individual. The Bill of Rights were proposed and sent to the states by the first session of the First Congress. They were later ratified on December 15, 1791.

The first 10 Amendments to the United States Constitution were introduced by James Madison as a series of legislative articles and came into effect as Constitutional Amendments following the process of ratification by three-fourths of the States on December 15, 1791.

Stipulations of the 4th Amendment The Fourth Amendment guards against the governments ability to conduct unreasonable search and seizures when the individual party being searched has a reasonable exception of privacy.

The Fourth Amendment specifically requires a law enforcement agency to possess judicially sanctioned search and arrest warrants, which are supported by probable clause, to be administered before a persons property can be inspected.

The Fourth Amendment ties in numerous limitations whereby an individual may be searched without a warrant given the presence of certain circumstances. The individuals property may be searched and seized if: The individual is on parole or in a tax hearing, faces deportation, the evidence is seized from a common carrier, the evidence is collected by U.S. customs agents, the evidence is seized by probation officers, the evidence is seized outside of the United States, or probable cause is evident.Court Cases tied into the 4th Amendment In Mapp v. Ohio, the Supreme Court ruled that the Fourth Amendment is enforceable and should be applied to all states in the Union by way of the Due Process Clause of the Fourteenth Amendment. Additionally, the Supreme Court ruled that certain searches and seizures were in direct violation of the Fourth Amendment even when a warrant was properly issued to the coordinating law enforcement agencies.State Timeline for Ratification of the Bill of Rights New Jersey:November 20, 1789; rejected article II

Maryland:December 19, 1789; approved all

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4th Amendment - Laws

PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

To pass muster under the Fourth Amendment, detention must be 'reasonable. ' See U.S. v. Montoya de Hernandez, 473 U.S. 531, 542-44 ('85) (analyzing constitutionality of length of traveler's border detention under Fourth Amendment reasonableness standard); Caban, 728 F.2d at 75 (considering whether duration of border detention without a hearing was reasonable).

In the context of a criminal arrest, a detention of longer than 48 hours without a probable cause determination violates the Fourth Amendment as a matter of law in the absence of a demonstrated emergency or other extraordinary circumstance. See County of Riverside v. McLaughlin, 111 S.Ct. 1661, 670 ('91). However, the Supreme Court arrived at this rule by considering the time it takes to complete administrative steps typically incident to arrest. See id.

Unreasonable Searches And Seizures.

Non-consensual extraction of blood implicates Fourth Amendment privacy rights. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 16 ('89) ('this physical intrusion, penetrating beneath the skin, infringes [a reasonable] expectation of privacy'); Schmerber v. California, 384 U.S. 757, 67 ('66) (compulsory blood test 'plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment').' '[f]or the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.' Skinner, 489 U.S. at 619; accord Vernonia School Dist. 47J v. Acton, No. 95-590, 1995 WL 373274, at *3 (June 26,'95) ('the ultimate measure of the constitutionality of a governmental search is `reasonableness''). A search's reasonableness under the Fourth Amendment generally depends on whether the search was made pursuant to a warrant issued upon probable cause. U.S. v. Place, 462 U.S. 696, 701 ('83).

Even in the law enforcement context, the State may interfere with an individual's Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. E.g., Michigan State Police Dept v. Sitz, 496 U.S. 444, 450 ('90); Terry v. Ohio, 392 U.S. 1, 20 ('68).

The gathering of fingerprint evidence from 'free persons' constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person's connection to the offense. See Hayes v. Florida, 470 U.S. 811, 813-18 ('85); Davis v. Mississippi, 394 U.S. 721, 726-28 ('69).

Nevertheless, everyday 'booking' procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. See Smith v. U.S., 324 F.2d 879, 882 (D.C. Cir.'63) (Burger, J.) ('it is elementary that a person in lawful custody may be required to submit to . . . fingerprinting . . . as part of the routine identification processes'); Napolitano v. U.S., 340 F.2d 313, 314 (1st Cir.'65) ('Taking fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights.'). Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.

Although the drawing of blood from free persons generally requires a warrant supported by probable cause to believe that a person has committed a criminal offense and that his blood will reveal evidence relevant to that offense, see Schmerber, 384 U.S. at 768-71; U.S. v. Chapel, ___ F.3d ___, slip op. at 5753-54 (9th Cir.'95) (en banc), the absence of such a warrant does not a fortiori establish a violation of the plaintiffs' Fourth Amendment rights.

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Fourth Amendment Defined & Explained - Law

The Fourth Amendment is destroyed by the Roberts led Supreme Court.
In May of 2011 the SCOTUS ruled on a lower state courts decision to throw out a case of drug possession because there was no valid search warrant for the search to be legal. This all took place...

By: Paul La Bonte

Originally posted here:
The Fourth Amendment is destroyed by the Roberts led Supreme Court. - Video