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As a lawyer for the past 40 years, it troubles me the way our freedoms are being slowly eroded by the actions of our government and agencies. The Fourth Amendment was set in place to protect people from the intrusion of government into their homes and lives without some serious oversight by the courts. Before we became independent from British rule, it was common for the agents of the King to storm into homes in search of subjects whose thoughts and actions may have been contrary to the best interests of the Crown. I thought the Constitution and the Bill of Rights solved that problem and gave us back the peace of mind to be free from the troublesome intrusion of law enforcement agents.

Recent events have shown how nave I had become in the comforting words of the Fourth Amendment, and its assurances that I would be free from unreasonable searches and seizures. How dare the FBI raid the home of our former commander in chief on only the affidavit of sworn law enforcement officers and the scrutiny of a federal judge! Does this set a precedent that means anyone who evades taxes, attempts to undermine an election, sexually assaults women, manipulates the value of their assets to reduce taxes, aides and abets the overthrow of our democracy and its election system, and illegally steals top secret documents, will be subject to investigation? Is that what we have become as a country? Who knows what could happen next if this form of police overreach is allowed to exist. Our courts and jails could be flooded with a glut of politicians and their cronies and enablers.

We could suddenly find ourselves in the cross-hairs of a search warrant after having stolen corporate secrets from our employers, or simply embezzled money. Who wants to be under the gun from police just because they keep their drug stash at home instead of in a warehouse. This opens the door to all kinds of unreasonable law enforcement actions for drug searches, espionage, illegal possession of firearms, tax evasion, harboring criminals, exploitation of illegal aliens the list goes on. Personally, I dont want to wake up some day and discover that I could be held accountable for keeping nuclear secrets in my locked gun cabinet. Wake up, America, and stand up for your rights!

Chuck McMurryCarp Lake

Read the original here:
Letter: Could any of us now be subjected to the 4th Amendment and all it entails? - Cheboygan Daily Tribune

Left: attorney John Pierce, during an interview with Tucker Carlson; right, Lloyd Casimiro Cruz, Jr., inside the Capitol on Jan. 6.

A high-profile lawyer defending multiple people accused in the Jan. 6 attack on the U.S. Capitol says that the federal search warrants used to trace one of his clients to the building are unconstitutional and that the case against his client should be dismissed.

The motion falls days after a similar Fourth Amendment challenge failed in a separate case related to the attack on the U.S. Capitol.

John Pierce, in a motion filed Saturday on behalf of client Lloyd Casimiro Cruz, Jr., argues that any evidence obtained from the search warrants that the FBI obtained on the day of the attack is so-called fruit from the poisonous tree so poisonous, the legal theory goes, that it cannot constitutionally be used in a criminal prosecution.

Cruz, who is from Missouri, is accused of joining the mob of Donald Trump supporters at the Capitol on Jan. 6. Prosecutors say he drove with friends to Washington on Jan. 3 to attend Trumps so-called Stop the Steal rally, during which Trump exhorted the crowd to march to the Capitol as Congress certified Joe Bidens win in the 2020 presidential election, a constitutionally-mandated process that marks the peaceful transition of power from one U.S. presidential administration to the next. The riotous crowd ultimately overwhelmed police, grinding the certification to a temporary halt and forcing lawmakers and staff to either leave the building or shelter in place.

According to court documents, Cruz told federal investigators that he recorded some of the destruction and chaos at the Capitol that day using a GoPro camera, which he later shared with investigators. Cruz faces four trespassing and disorderly conduct charges that have come to be known as the standard misdemeanors in Jan. 6 cases. Penalties range from six months to one year in jail if convicted.

The FBI ultimately tracked Cruz down through location data obtained from AT&T and Google through search warrants obtained on Jan. 6.

Per the FBI statement of facts in support of the probable cause warrant for Cruz:

According to records obtained through a search warrant for records in the possession of Google, a mobile device associated with I**********@g****.com was present at the U.S. Capitol on January 6, 2021. Google estimates device location using sources including GPS data and information about nearby Wi-Fi access points and Bluetooth beacons. This location data varies in its accuracy, depending on the source(s) of the data. As a result, Google assigns a maps display radius for each location data point. Thus, where Google estimates that its location data is accurate to within 10 meters, Google assigns a maps display radius of 10 meters to the location data point. Finally, Google reports that its maps display radius reflects the actual location of the covered device approximately 68% of the time. In this case, Google location data showed that a device associated with l**********@g****.com was within the U.S. Capitol Crypt at 2:17:27 p.m. on January 6, 2021. Google records showed that the maps display radius for this location data was less than 100 feet, which encompasses an area that is partially within the U.S. Capitol building. Google reported a recovery telephone number ending in 5584 for l**********@g****.com.

According to records obtained through a search warrant for records in the possession of AT&T, on January 6, 2021, in and around the time of the incident, the cellphone associated with a telephone number ending in 5584 was identified as having utilized a cell site consistent with providing service to a geographic area that included the interior of the United States Capitol building.

Login Internet Protocol (IP) address information provided by Google, and research in public records, were used to identify LLOYD CASIMIRO CRUZ, JR., residing in Polo, Missouri, as the subscriber of telephone number ending in 5584. I was requested to conduct logical investigation to identify the individual in possession of the referenced device within the U.S. Capitol building, and to conduct investigation to identify potential criminal offenses that were committed, on January 6, 2021.

In the probable cause affidavit, the FBI agent who interviewed Cruz said that the defendant shared a picture with him that apparently places him inside the Capitol building at the time of the riot.

Cruz stated he observed himself on surveillance footage from inside the U.S. Capitol building posted on One America News Networks website, the FBI affidavit says. Cruz took a screen shot of this image on this website with his cell phone. I took [a] photograph of this screen shot[.]

The AT&T and Google search warrants that led to the FBIs investigation and, ultimately, Cruzs arrest, Pierce argues, were illegal, and any evidence derived from those search warrants violates his clients constitutional rights.

[T]he entire complaint against the Defendant originated with an unlawful blanket general warrant of cellphone location data, which plainly lacked requisite specificity, Pierce writes in his motion, filed Saturday. Investigators then used such metadata to identify Cruz, rather than first having probable cause to identify Cruz and probable cause to believe Mr. Cruz had committed an offense, as required by the 4th amendment [sic].

Investigators then tracked down Cruz and obtained statements from him, as well as other evidence, Pierce continued. All of this evidence is fruit of the poisonous tree. Accordingly, this case must be dismissed en toto [emphasis in original, using the Latin phrase for in its entirety].

According to Pierce, the timeline of the FBIs investigation supports his claim:

1. The FBI began its investigation into (later to be identified) Cruz, without any probable cause to suspect Cruz of any crime;

2. The FBI used two blanket general warrants (of both Google and AT&T) to scour through cell phone and other digital metadata to then identify Cruz as a potential suspect crime (although what crimes, if any, the FBI did not know);

3. Even after identifying Cruz as a potential suspect via these general warrants, the FBI lacked probable cause to arrest him for any specific crime;

4. The FBI then flew to Missouri to question Cruz to determine if there was any probable cause to charge Cruz with a crime or crimes; and

5. Only upon questioning Cruz and getting Cruz to provide other evidence did the FBI have probable cause to charge Cruz with any crime (two misdemeanors).

Pierce, who is known for representing right-wing causes clbres including, before he was fired from the defense team, acquitted Kenosha protest gunman Kyle Rittenhouse and the very image of the riot Jacob Chansley describes the FBIs search warrant in dramatic fashion, implying that something significantly more nefarious is afoot.

The warrants in this case plainly lacked probable cause with any particularity regarding the person and things to be searched or even the crimes to be alleged, Pierce writes. Indeed, it is plain that this case was initiated by one of the worst general warrants in American history. Counsel suspects that there may be other January 6 defendants who were similarly identified by these general warrants and asks the Court to utilize its inherent powers to open a more wide-ranging inquiry into the FBIs use of these unconstitutional warrants.

Pierce also asks to put the agents involved in the warrants to answer questions under oath.

Cruz requests an evidentiary hearing in which all agents responsible for these warrants shall be made to appear, testify, and provide all supporting affidavits and/or documentation, Pierce writes, emphasizing this request in all-bold typeface.

Pierces motion comes days after a ruling from the Chief U.S. District Judge denying another Jan. 6 defendants request to suppress evidence on similar grounds. On Thursday, Beryl Howell, a Barack Obama appointee, denied Matthew Bledsoes motion to suppress evidence on Fourth Amendment grounds, finding that Bledsoe who prosecutors say live-streamed extensively from the Capitol that day did not have a reasonable expectation of privacy location data that Facebook ultimately provided to the FBI.

Cruzs case is before Senior U.S. District Judge Reggie B. Walton, a George W. Bush appointee. It is unclear when he will rule on the motion; a status conference in the case is set for Tuesday.

The recent filing of two motions seeking to either suppress or dismiss charges on Fourth Amendment search and seizure grounds may signal yet another coming fight in Jan. 6 cases in which judges could reach a variety of conclusions. Previously, several defense attorneys in Jan. 6 cases have filed motions to dismiss a particular federal obstruction charge levied against many accused rioters, and most but not all D.C. District judges have rejected these efforts.

The judges are less aligned when it comes to the issue of so-called split sentences efforts by federal prosecutors to have defendants convicted of certain Jan. 6 misdemeanors serve both jail time and probation. Some judges have said that such sentences are allowed, but others have disagreed, leaving a split on the bench.

The DOJ declined to comment about Pierces motion to Law&Crime.

Read the motion, below:

[Image of John Pierce via screengrab; image of Lloyd Casimiro Cruz, Jr., via FBI court filing.]

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Here is the original post:
Conservative Lawyer Who Formerly Represented Kyle Rittenhouse Tees Up Potential Fourth Amendment Issue in Jan. 6 Case - Law & Crime

Former President Donald Trumps lawyer said Tuesday that the 45th president will attempt to challenge the legality of the FBI raid on Mar-a-Lago based on his Fourth Amendment rights.

In terms of what we do in the future, you know, theres this Fourth Amendment like you brought up, theres a fourth amendment issue here; the warrant was way too broad, Trump attorney Alina Habba told Fox News on Tuesday night.

Habba then pointed to the judge in the case,U.S. District Judge Aileen Cannon, who was appointed by Trump in 2020. Cannon is not the same judgeU.S. magistrate Judge Bruce Reinhartwho signed off on the FBI warrant.

Last week, Cannon signaled in a court filing that she will likely sign off on appointing a special master to review documents that were taken from Mar-a-Lago. Department of Justice (DOJ) lawyers said this week that a filter team has already looked into the documents and added that what appears to be attorney-client privileged information was taken.

We do have judge Cannon, whos the federal judge thats taken up this case, Habba said. Theres a hearing on Thursday. I think that that will be giving us some judicial oversight that is much needed at this point.

So at this point, I think the best thing weve done is weve gotten a judge in place who does look like theyre going to be active, Habba said, adding that soon, we do need to move forward with filing to invalidate the warrants due to Fourth Amendment issues.

The Fourth Amendment guarantees a right to privacy and protectsindividuals from unreasonable searches and seizures by the government.

But we dont have all the information yet. We still dont even have a completely unredacted affidavit. They wont share it with the legal team, let alone the public seems to know more than we do, Habba added. So its a problem. And I think that the FBI is going to have major problems.

The affidavit, which DOJ officials sought to block from being released, was ordered unsealed by Reinhart last week, although it was significantly redacted. Few new details were provided, although it stated the DOJ has probable cause to believe that allegedly classified documents and materials were being kept at Mar-a-Lago.

Trump, meanwhile, has said he declassified the materials at Mar-a-Lago, pointing to an executive order and statements he made in late 2020 and early 2021 when he was still in office. A day before departing the White House, Trump signed an order to declassify some FBI Crossfire Hurricane materials.

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Jack Phillips is a breaking news reporter at The Epoch Times based in New York.

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Trump Lawyer Reveals What Argument Former President Will Make in Court - The Epoch Times

This is my second venture this year into review of law reviews. For the first on another of my favorite subjects, artificial intelligence, see the May 2022 blogs, Robophobia: Great New Law Review Article Part 1, Part 2 and Part 3 and Professor Woods article, Robophobia. Woods, Andrew K., Robophobia, 93 U. Colo. L. Rev. 51 (Winter, 2022). These highly intelligent, engaging law professor attorneys, Woods and Stuart, give me renewed hope for the profession in general and, especially, for the key areas of technology law.

About Professor Allyson Hynes Stuart

Professor Stuart has written many other articles of interest to readers, including:

Allyson Stuart has also served as Of Counsel for the Crystal law firm, since 2015. The firm has an intriguing slogan: Lawyers for Lawyers and International Matters. The firm says that it is primarily a transactional law firm that offers some litigation services.

To conclude the personal introduction, Allyson, like me, has her own YouTube Channel, focusing on legal instruction. Professor Stuarts videos, made in 2013, are on what she calls flipping the classroom. They address most first semester Contracts issues as well as some difficult aspects of Evidence.

Introduction to Professor Stuarts Article

Privacy in discovery has been largely ignored in rules of civil procedure and left to the courts and lawyers to come up with their own solutions. The result is a hodge-podge of case law and local rules. This area of the law is, as Professor Stuart aptly describes, buried in surprising obscurity. Her article is a much needed unearthing and organization of the law. As Professor Stuart explains in her introduction after discussion of federal civil procedure rule changes:

Amid all these changes, little attention has been paid to privacy as opposed to time and expense.10 The Rules do not provide for explicit protection against discovery based on privacy,11 with the exception of redaction of personal information under Rule 5.2.12 There has long been the idea that privacy protection exists against government searches and seizures, but that there is no such concept in civil discovery.13 However, close analysis of cases reaching back to the adoption of the Rules shows that federal courts have in fact used privacy rationales to protect against discovery in many areas. District courts in particular have developed an interpretation of the Rules that protects litigants and non-litigants from discovery; courts have developed certain categories of protected information based on a balancing of the right to privacy against the need for the information in the context of the litigation.14 This law derives from Supreme Court precedent, from public policy represented in federal and state statutes, and from discretionary judicial application of the Rules. This Article unearths this body of law from its surprising obscurity. With a firm grounding in the foundations and justifications for federal protection of privacy in discovery, and in light of recent Supreme Court doctrine, the Article describes how privacy arguments can address increasingly intrusive discovery demands.

Overview of Professor Stuarts article, A Right to Privacy for Modern Discovery

After an Introduction, A Right to Privacy for Modern Discovery begins with a historical overview of privacy in civil discovery, including the landmark case of Hickman v. Taylor, 329 U.S. 495 (1947). Professor Stuart observes that discovery protections can be divided into two broad categories. One is protection for information or communications deemed confidential, including attorney-client, trade-secret, business records, tax returns. The other is protection for personal privacy reasons, which professor Stuart explains:

is based on Supreme Court interpretation of the constitutional right to privacy in intimate or otherwise highly personal matters, including marriage, contraception, sexual activity, medical information, family relations, and other personal information. In addition, the Constitution protects against compelled disclosure of information that would violate a persons First Amendment rights, such as freedom of association.

As to the Constitution based privacy protection provided to discovery in civil proceedings (criminal proceedings are not discussed directly in this article), Professor Stuart notes three broad areas:

Next the article considers the public policy of privacy in discovery and identifies three basic grounds:

As to the balancing used to provide privacy to litigants, four factors are considered:

The next section is Privacy in Modern Discovery, discussed in detail below, followed by the Conclusion. The Privacy in Modern Discovery section, which is the real meat of the article, is divided into three main parts:

Discovery Today

Professor Stuarts Privacy in Modern Discovery section begins, as noted, with the Discovery Today overview (II.A.). Most readers here will already be familiar with these topics and discussion, so I will not go into them in depth. One important insight she provides pertains to the omission of privacy as an express factor for proportionality consideration under the Rule 26(b), FRCP.

While the Rules revisions generally addressed the tremendous rise in ESI volume and costs with emphasis on judicial intervention, cooperation, and reduction in scope, they did not give specific attention to issues of privacy.219 However, as discoverys intrusiveness has pervaded not just vast storage databases and email but chronicles of individuals personal lives, privacy has received more attention. Commentators have advocated for privacy to be a factor in the proportionality equation,220 and courts have followed suit.221 Privacy has also featured prominently in recent Fourth Amendment case law, which has in turn influenced discovery decisions.

In a recent email exchange with Allyson Stuart on the interesting point of Rule 26(B), I pressed her on whether she thinks the Rule should be changed again. Here is her response, which, I should add, she gave me permission to include in this blog post:

I have mixed feelings about yet another revision to the Frankenstein that is Rule 26. As it is, many practitioners fail to pay attention to the revisions, treating the scope as still including anything that would lead to the discovery of relevant evidence and failing to recognize that proportionality is nothing new. I think instead the culture needs to be curbed, and attorneys should not try to obtain a vast amount of e-discovery simply because it is accessible. The casual nature of email, text and some social media content make them catnip for attorneys, but I really believe there is a chilling effect on litigation because of it. In particular, if the only relevance for certain discovery is impeachment value, it should be weighed less strongly against competing privacy interests. All that said, I would love it if the word privacy were included in the proportionality factors.

Authors Correspondence 8//9/22 with Professor Stuart

I love how she describes Rule 26 as a Frankenstein. The question remains should privacy be added as another body part to the proportionality considerations. In a video conference with Professor Stuart on August 23, 2022, she expanded on this point. Here is the relevant excerpt, which, I should again add, Allyson Stuart gave me permission to record and publish.

See video here.

Video Credit: Ralph Losey

Aside from Rule 26(b) and including privacy factors as part of a proportionality analysis, another hot issue today practitioners is cell-phone discovery. It is found at II.A.2.a. Professor Stuarts article and case citations and discussion on this point are a helpful starting point for your research. Be sure to look at the article itself for the all-important footnotes.

As the Supreme Court has recognized, cell phones are ubiquitous.222 Courts find a strong privacy interest in the content of those devices, particular when a party seeks a forensic examination of the phone.223 Like inspection of litigants hard drives and other computer systems,224 inspection of cell phones implicates privacy rights, privileged communications, and non-relevant information.225 Courts are therefore reluctant to order litigants to submit their cell phones to their opponent for purposes of forensic examination absent necessity for purposes of finding highly relevant evidence, or proof of spoliation.226 Courts also find a strong privacy interest in cell phone records.227 Courts have been strongly persuaded by recent Supreme Court Fourth Amendment doctrine in finding privacy rights in this data.228

Professor Stuarts discussion of case law is also very interesting in the Fitbit and Internet of Things sub-sections of Discovery Today (II.A.2.c.&d.). She points out that:

All of these subjects of modern discovery push the boundaries of privacy. Technology enables the gathering and storage of vast amounts of information that create digital chronicles of individuals personal lives. This phenomenon has been the focus of recent Supreme Court decisions in the Fourth Amendment context.

The next section of the article, II.B., is entitled Supreme Court Case Law on Privacy and Technology. This is very interesting, especially considering the Supreme Court bombshell case on abortion that came down after her article. Dobbs v. Jackson Womens Health Organization, 597 U.S. _ (2022). I will go into all of this, along with criminal law considerations, and another video interview, in Part Two of this blog. Professor Stuart has some very insightful analysis of the Dobbs opinion and privacy, so stay tuned.

See the article here:
The Right to Privacy in Modern Discovery: a review of another great law review article Part 1 - JD Supra

A civil lawsuit against a school resource officer who threw a 13-year-old student to the floor after a minor disciplinary incident has been revived by a federal appeals courta rare denial of qualified immunity, a legal doctrine that often shields police from being sued over accusations of misconduct.

A panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, voted 2-1 to revive a civil claim for excessive force on behalf of the 7th grader at a Kissimmee, Fla., middle school. The SRO at Kissimmee Middle School in the Osceola County school district, was Mario J. Badia, who pleaded guilty to a charge of battery after the incident.

The 11th Circuits Aug. 22 decision in Richmond v. Badia was a relatively rare denial of qualified immunity to a school resource officer. Courts grant qualified immunity to certain government officials, including police officers, school resource officers, and educators, as long as their challenged conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. As Education Week has reported, the issue has gained attention in recent years amid high-profile cases of police use of force and because of critiques from U.S. Supreme Court justices and scholars.

The 2015 Florida incident involves a student who had arrived at school late one morning with his mother, and they went to the school office to check in, court papers say. The student was wearing a hoodie to conceal a haircut he didnt like, and his mother told him to remove it because hoodies violated the school dress code. The student appeared to push his mother in response, and a front-desk assistant radioed for the resource officer.

Badia confronted the student, cursing at him and pointing his finger, court papers say. When the student would not look Badia in the eye, the SRO grabbed the student by the face. The student reacted by trying to block Badias arm and stepping back, and the SRO then shoved the student in the chest and used an armbar technique to lift him off the ground, twist him around, and slam him to the ground.

Badia released the student after about three minutes. The officer was fired and he pleaded guilty to a charge of battery. He reportedly was sentenced to probation.

The student sued Badia on claims of false arrest and excessive force. A federal district court held that Badia was entitled to qualified immunity.

In the new decision, the 11th Circuit court panel reversed the district court on the excessive-force claim, though not on the false arrest claim.

We conclude that Badia used excessive force under the Fourth Amendment for three reasons, Judge Andrew L. Brasher wrote for the majority.

First, the officer had no law-enforcement justification for grabbing the students face and slamming him to the ground, the court said, adding that a video of the incident undermined the officers claim that the student had been explosive and aggressive. Second, the students potential crime of battery on his mother was at most a misdemeanor, and the student did not pose a threat or attempt to flee the officer, the majority said, and third, the student did not disobey any lawful commands from the officer.

The student remained passive throughout the entire encounter, never attempted to flee, never refused any lawful commands, and did not pose a threat to Badia or others, the court said.

Brasher said it was well-established that an officer violates the Fourth Amendment if he or she uses gratuitous or excessive force on a suspect who is under control, is not resisting, and is obeying commands. Thus, Badia did not merit qualified immunity, the court said.

Writing in dissent, Judge Elizabeth L. Branch said Badias grabbing of the students face was unnecessary and even degrading, but it was a de minimis use of force that did not violate the Constitution.

She characterized the student as having slapped away the officers arm. The students resistance allowed Badia to escalate his use of force against him, Branch said.

The force used against [the student] during the execution of a lawful investigation into a potential crime both before and after he hit Officer Badias hand away was minor, not egregious, the dissenting judge said.

Read more here:
New Court Ruling Allows Former School Resource Officer to Be Sued for Excessive Force - Education Week