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When President Bill Clinton tapped Stephen Breyer to fill a vacancy on the U.S. Supreme Court in 1994, he told the country that Breyer would be a justice who would "strike the right balance between the need for discipline and order, being firm on law enforcement issues but really sticking in there for the Bill of Rights."

The news of Breyer's impending retirement at the close of the Supreme Court's current term gives us an opportunity to weigh Clinton's words against Breyer's record. Alas, the former president proved to be only half right. Breyer was certainly "firm" in his deference toward law enforcement. But that same judicial deference often led Breyer to do the opposite of "sticking in there for the Bill of Rights" when major Fourth Amendment cases arrived at SCOTUS.

Take Navarette v. California (2014). At issue was an anonymous and uncorroborated 911 phone call about an allegedly dangerous driver which led the police to make a traffic stop that led to a drug bust. According to the 54 majority opinion of Justice Clarence Thomas, "the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated." Law enforcement won big and Breyer signed on.

The deficiencies of that judgment were spelled out in a forceful dissent by Justice Antonin Scalia. "The Court's opinion serves up a freedom-destroying cocktail," wrote Scalia, who was joined in dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. "All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police." That disturbing scenario, Scalia wrote, "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures." Breyer was apparently untroubled by that Fourth Amendmentshredding scenario.

Notably, this was not the first time that Scalia was more "liberal" than Breyer in a 54 Fourth Amendment case. One year earlier, in Maryland v. King (2013), Breyer joined Justice Anthony Kennedy's controversial majority opinion allowing police to conduct warrantless DNA swab tests incident to arrest.

"Make no mistake about it," Scalia protested in dissent, joined (again) by Ginsburg, Sotomayor, and Kagan. "As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason." Breyer was apparently untroubled by that disturbing scenario too.

Breyer's retirement will be good news for the Fourth Amendment as long as President Joe Biden picks a replacement who resembles Scalia more than Breyer in these sorts of cases.

See more here:
Stephen Breyer's Retirement Is Good News for the Fourth Amendment - Reason

Imagine youre driving a car, and a police officer spots you and pulls you over for speeding. He orders you out of the car. Maybe he wants to place you under arrest. Or maybe he wants to search your car for evidence of a crime. Can the officer do that?

The Fourth Amendment is the part of the Constitution that gives the answer. According to the Fourth Amendment, the people have a right to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. This right limits the power of the police to seize and search people, their property, and their homes.

The Fourth Amendment has been debated frequently during the last several years, as police and intelligence agencies in the United States have engaged in a number of controversial activities. The federal government has conducted bulk collection of Americans telephone and Internet connections as part of the War on Terror. Many municipal police forces have engaged in aggressive use of stop and frisk. There have been a number of highly-publicized police-citizen encounters in which the police ended up shooting a civilian. There is also concern about the use of aerial surveillance, whether by piloted aircraft or drones.

The application of the Fourth Amendment to all these activities would have surprised those who drafted it, and not only because they could not imagine the modern technologies like the Internet and drones. They also were not familiar with organized police forces like we have today. Policing in the eighteenth and early nineteenth centuries was a responsibility of the citizenry, which participated in night watches. Other than that, there was only a loose collection of sheriffs and constables, who lacked the tools to maintain order as the police do today.

The primary concerns of the generation that ratified the Fourth Amendment were general warrants and writs of assistance. Famous incidents on both sides of the Atlantic gave rise to placing the Fourth Amendment in the Constitution. In Britain, the Crown employed general warrants to go after political enemies, leading to the famous decisions in Wilkes v. Wood (1763) and Entick v. Carrington (1765). General warrants allowed the Crowns messengers to search without any cause to believe someone had committed an offense. In those cases the judges decided that such warrants violated English common law. In the colonies the Crown used the writs of assistancelike general warrants, but often unbounded by time restraintsto search for goods on which taxes had not been paid. James Otis challenged the writs in a Boston court; though he lost, some such as John Adams attribute this legal battle as the spark that led to the Revolution. Both controversies led to the famous notion that a persons home is their castle, not easily invaded by the government.

Today the Fourth Amendment is understood as placing restraints on the government any time it detains (seizes) or searches a person or property. The Fourth Amendment also provides that 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 idea is that to avoid the evils of general warrants, each search or seizure should be cleared in advance by a judge, and that to get a warrant the government must show probable causea certain level of suspicion of criminal activityto justify the search or seizure.

To the extent that a warrant is required in theory before police can search, there are so many exceptions that in practice warrants rarely are obtained. Police can search automobiles without warrants, they can detain people on the street without them, and they can always search or seize in an emergency without going to a judge.

The way that the Fourth Amendment most commonly is put into practice is in criminal proceedings. The Supreme Court decided in the mid-twentieth century that if the police seize evidence as part of an illegal search, the evidence cannot be admitted into court. This is called the exclusionary rule. It is controversial because in most cases evidence is being tossed out even though it shows the person is guilty and, as a result of the police conduct, they might avoid conviction. The criminal is to go free because the constable has blundered, declared Benjamin Cardozo (a famous judge and ultimately Supreme Court justice). But, responded another Supreme Court justice, Louis Brandeis, If the government becomes the lawbreaker, it breeds contempt for the law.

One of the difficult questions today is what constitutes a search? If the police standing in Times Square in New York watched a person planting a bomb in plain daylight, we would not think they needed a warrant or any cause. But what about installing closed circuit TV cameras on poles, or flying drones over backyards, or gathering evidence that you have given to a third party such as an Internet provider or a banker?

Another hard question is when a search is acceptable when the government has no suspicion that a person has done something wrong. Lest the answer seem to be never, think of airport security. Surely it is okay for the government to screen people getting on airplanes, yet the idea is as much to deter people from bringing weapons as it is to catch themthere is no cause, probable or otherwise, to think anyone has done anything wrong. This is the same sort of issue with bulk data collection, and possibly with gathering biometric information.

What should be clear by now is that advancing technology and the many threats that face society add up to a brew in which the Fourth Amendment will continue to play a central role.

More:
Interpretation: The Fourth Amendment | The National ...

The U.S. Department of Labors (DOL) Office of Federal Contract Compliance Programs (OFCCP) recently reminded federal contractors that the government has broad authority to audit and investigate contractors equal employment practices and policies. It is critical that contractors take note of such authority because failure to comply with OFCCP rules and regulations can result in significant sanctions.

On December 30, 2021, a DOL administrative law judge ordered a federal contractor, Convergys Customer Management Group, Inc., to provide all information requested by the OFCCP upon penalty of debarment and cancellation of contract. The long-standing dispute arose in 2014 after the OFCCPs selection process chose 16 different Convergys establishments for affirmative action audits. The contractor refused to submit its affirmative action programs and other supporting documents to OFCCP, relying on several bases, including a challenge to OFCCPs constitutional authority to conduct the review and a contention that OFCCPs process was not neutral.

The administrative law judge rejected the contractors arguments. The judge determined that, because the OFCCP did not seek nonconsensual entry onto Convergys property and the requests were limited to the off-site review of documents, the less stringent Lone Steer standard applied. Under this standard, an inspection must be limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. In determining that the OFCCPs document requests did not violate the Fourth Amendment, the judge concluded that the requests satisfied the Lone Steer standard because they were limited to Convergys affirmative action plans and supporting data and directly related and relevant to the OFCCPs compliance responsibilities and authority under 41 C.F.R. Chapter 60.

In addition, the judge determined that Convergys arguments regarding the OFCCPs selection process were without merit because the neutrality of the initial selection process was not relevant. Rather, the judge looked to the agencys authority and determined that the Lone Steer standard focuses on the breadth of the subpoena rather than the motivation for its issuance. Therefore, Convergys was not excused from providing the requested documents based on any alleged lack of neutrality in the OFCCPs selection criteria. As a result, the judge ordered Convergys to provide the requested documentation and threatened termination of all existing contracts and debarment if Convergys fails to comply.

This dispute harkens back to several decisions that challenged OFCCPs authority to conduct off-site and on-site review of documents. See United Space All., LLC v. Solis, 824 F. Supp. 2d 68 (D.D.C. 2011) (upholding OFCCPs authority to obtain records for desk audit). The decisions squarely cemented OFCCPs authority to utilize its selection process to select and review federal contractors for compliance audits. While Convergys argued that contractors should have more information on how OFCCP selects contractors, the judge followed established precedent that OFCCPs process satisfied the Fourth Amendment.

The clear win for OFCCP and the timing of the decision is a crucial reminder for federal contractors and subcontractors of the governments broad audit authority with regard to affirmative action plans. As we recently reported, OFCCP is actively enforcing affirmative action compliance by requiring contractors to verify through the System for Award Management (SAM) database that they have developed and maintain their affirmative action plans.

The system will include a SAM declarations page where contractors will affirm that they have developed and maintained affirmative action programs at each establishment, as applicable. On December 2, 2021, OFCCP announced registration for the Affirmative Action Program (AAP) verification portal. Beginning March 31, 2022, contractors will be able to access the portal to certify their AAP compliance and, by June 30, 2022, contractors must certify whether they have developed and maintained an affirmative action program for each establishment and/or functional unit, as applicable.

If OFCCP selects a contactor for audit through its neutral selection process, contractors will submit their AAPs through the portal. Two user guides govern the process (Admin Guide; Federal Contractor User Guide). Notably, it remains the case that the government is not requiring federal contractors to submit AAPs unless OFCCP selects the contractor for audit.

The OFCCP is becoming more aggressive in ensuring that contractors meet their affirmative action compliance obligations. In addition, once selected for review, the agency has plans to step up its evaluation of nondiscrimination practices such as compensation discrimination and the use of artificial intelligence in hiring. Deep evaluation of a contractors pay practices and hiring systems by experienced counsel are central to knowing where contractors stand and prepare of any potential compliance audits Indeed, as seen in the Convergys decision, the DOL is willing to recommend suspension and debarment of contractors for noncompliance. Contractors who are unclear about their coverage, compliance requirements should consult with experienced counsel.

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Federal Contractor Threatened With Suspension and Debarment for Not Submitting Affirmative Action Plans - JD Supra

Elites helping elites

Laura Ingraham: For the Great Reset cheerleaders, there will always be a new variant to justify more lockdowns and mandates

Laura Ingraham said she believes "the elite," especially those who gained prominence during the novel coronavirus pandemic, do not want to return to a pre-COVID-19 world on "Ingraham Angle" Tuesday.

Ingraham believes they are afraid if COVID-19 becomes less relevant then they would as well. "The elites are afraid that the House of COVID, which they built on sand, is about to be washed away for good," she said. "They're going to cling to [power] with a white-knuckle fury."

Dr. Anthony Fauci (AP Photo/J. Scott Applewhite, Pool)

"The Great Reset cheerleaders" will always look for ways to implement restrictions, according to Ingraham. "There's always going to be a new variant to justify more lockdowns, mandates, [and] more controls."

The Fox News host believes the elites hate the freedoms in America, especially the Constitution, which was designed to prevent tyranny. "Our entire constitution, its principles properly upheld, is a huge obstacle for the one-world crowd. The First Amendment, the Second, the Fourth Amendment, the Fourteenth Amendment they all guarantee protection to individuals against the oppressive actions of the state."

INGRAHAM: HERE'S HOW REPUBLICANS CAN DEFEAT BIDEN AND RADICAL LEFT

Centers for Disease Control and Prevention (iStock)

"It's obvious that most of our elites prefer China's system of government, where dissenters are easily silenced. No exceptions made. Population control, lockdowns, mass surveillance, propaganda in the schools the elites really aren't bothered by any of that. As long as they keep their professional perches and money flowing," Ingraham said.

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"They prefer the Chinese way. No need to explain. Just do what you're told or else. Again, the elites like it that way. But the truth is, even with all their money and all their power, the elites are running into reality. Their ideas just don't work. Their solutions for mass control fail."

China's President Xi Jinping speaks during a bilateral meeting with U.S. President Donald Trump at Trump's Mar-a-Lago estate in Palm Beach, Florida, U.S., April 7, 2017. (REUTERS/Carlos Barria)

The only solution to the conundrum posed by the elite's greed is "to take their power away and there will need to be consequences for the decisions that were made that harmed our kids, caused needless suffering and death, and turned our economy upside down," Ingraham said.

Ingraham added that the elites must be replaced with new ones. "We'll have to elevate our own elites. Like some of the voices we featured on this show over the past two years, they've been consistently right yet vilified for their courage and tenacity."

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Ingraham on politicization of COVID: Don't expect the elites to give up power easily - Fox News

K-9 units faced some competition from human crime sniffers in Des Moines, Iowa, after three officers claimed olfactory prowess during a traffic stop on October 5, 2019. Court documents from the U.S. Court of Appeals for the 8th Circuit revealed that the officers claimed to detect marijuana while driving behind the defendant, Vernon Shumaker.

The officers testified that they detected less than one gram of marijuana in a closed container coming from a moving car, a football field's length away, while a hefty breeze cut across traffic. They supposedly picked up the scent of burning marijuana through the open windows of their patrol car and pinpointed the source to a specific vehicle, two cars ahead of them.

Officers insisted "without a shadow of a doubt" that the whiff gave them probable cause to stop the car. They discovered a few unlit marijuana blunts stashed in a covered ashtray. They also found a gun, leading to Shumakers' arrest for being a felon and drug user in possession of a firearm.

Prosecutors had what they needed for conviction, though they faced one small hurdle, the Fourth Amendment. Officers must have probable cause before they conduct searches and seizures. Yet when Shumaker filed a motion to suppress evidencebased on the limits of human nosesthe district court sided with the officers. The 8th Circuit upheld the ruling on December 29, 2021.

Courts are the bulwark of civil rights. Citizens need an engaged judiciary that puts the government to its burden. Yet too often, courts bend over backward to justify officers' testimony, no matter how implausibleeven when government officials have clear conflicts of interest.

Iowa law enforcement agencies routinely use traffic enforcement to generate revenue through a money making scheme called civil forfeiture. When officers seize cash and other valuables, civil forfeiture forces property owners to file affidavits and pay legal fees to recover their assetseven when they are innocent of wrongdoing.

Costs often outweigh the value of seized items, prompting many property owners to walk away. Despite reforms that the Iowa Legislature passed in 2017, some motorists permanently lose assets without ever being arrested or charged with a crime. Police and prosecutors keep 100 percent of those assets.

"Policing for Profit," a 2020 report from the Institute for Justice, shows that civil forfeiture generated more than $100 million for Iowa law enforcement agencies in the last two decades.

That's a strong financial incentive for aggressive traffic patrols. The Special Enforcement Team within the Des Moines Police Department, which picked up Shumaker, specializes in seizures, and one team member even testified that they make "as many stops as possible."

It's no surprise that an entire cottage industry has sprung up around this practice. The director of the Smell and Taste Center at the University of Pennsylvania Medical Center testified on Shumaker's behalf, stating that the government's case reeked of misconduct. The prosecution followed up with their own expert witness from Desert Snow, a multi-million dollar company that trains cops on civil forfeiture proceedings, who claimed that humans can do amazing things with their noses so long as they have the proper "training and experience." And this assertion was good enough to pass judicial review.

Passive judges who accept government arguments without rigorous scrutiny are corrosive to the Constitution. Clearly something is rotten in law enforcement and the courts can't seem to smell it.

Excerpt from:
Cops With Super Sniffers Fool No One Except the Judge - Reason