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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

Portland police officers approach protesters on May 30, 2020. MATHIEU LEWIS-ROLLAND

The Portland Police Bureau (PPB) estimated that, in 2020, its officers used force more than 6,000 times against members of the public participating in racial justice protests. This force came in the form of tear gas canisters shot into crowds of people, baton strikes, stun grenades filled with rubber bullets shot from an officer's gun, and forceful shoves. These actions resulted in countless injuries amongst members of the public, several lawsuits, one officer arrest, and more than one hundred public complaints filed against the bureau.

Yet, according to the Independent Police Review (IPR), the city department that investigates officer misconduct complaints, none of those forceful incidents violated city policy. In a recent deposition interview with lawyers involved in one protest-related lawsuit against the city, IPR Director Ross Caldwell explained how PPB's directives make it impossible for the city to hold individual officers accountable for using riot control weapons against the public.

"...The directives make it really challenging for us to find something out of policy for the use of tear gas on unintended people," Caldwell said in the deposition by Ashlee Albies, one of several attorneys representing plaintiffs in the Don't Shoot Portland v City of Portland case.

The lawsuit accuses the city of indiscriminately using tear gas and munitions against members of the public during Portland's 2020 protests. On Wednesday, plaintiffs' attorneys filed a motion asking that a federal judge grant them permission to treat the lawsuit as a class action case. The 83-page document relied on interviews with Caldwell and others to explain how there are a sufficient number of people with common legal claims against the city to qualify for class action certification. Attorneys used the faults of the IPR process to illustrate how the city has a pattern of failing to hold officers accountable for misconduct.

Caldwell points to PPB's crowd control directive as reason his office can't hold individual officers accountable for their forceful actions during protests.

According to that directive, riot control agents can only be used by officers if they get authorization to do so by their manager, or "incident commander." This distinction effectively removes all responsibility from the officer who fired a munition. Even if city policy allowed IPR to hold an individual officer responsible for shooting a tear gas canister into a crowd, Caldwell said that it would be difficult to identify which particular officer fired the canisterlet alone expect the person who made the complaint to know the officer's name.

The court motion mentions that the "vast majority" of cases that were closed by IPR shortly after being submitted by the public were closed because IPR could not identify which officer was responsible for the conduct, based on the information that was provided.

Caldwell also points out that some specific complaints aren't addressed by PPB policy. In his deposition interview, Caldwell mentions people who reported being impacted by tear gas despite not being involved in any protest actions.

"[The directive] doesn't say anything about making sure this doesn't leak into people's houses that live near the PPB headquarters or anything like that," said Caldwell. "And... it doesn't spell out that the kind of innocent bystander being exposed to tear gas is a violation."

IPR went as far as green-lighting several incidents that a federal judge had already determined to be unlawful.

Shortly after the Don't Shoot case was filed, District Court Chief Judge Marco Hernandez ordered Portland police to limit their use of tear gas and other crowd control munitions to instances in which the lives and safety of the police or the public were at risk. Hernandez also prohibited officers from using force against people engaged in "passive resistance." This order was already in alignment with PPB policy, yet Hernandez later found officers had violated the order during a protest in late June 2020.

Yet an IPR investigation into those officers' use of force against protesters was found to be in alignment with city policy. This contradiction didn't seem to bother the city.

"The City has little concern about making findings in direct contradiction to a federal court judge," the motion reads. "In fact, the City affirms that... if the same incident happened today, the City would find the same conduct to be within policy."

The legal filing outlines some of the use of force incidents that were unquestioned by city investigators. Lawyers found that, from a sampling of 41 reports officers must file after using force (called Force Data Collection Reports), there were 45 uses of force documented that appeared to violate the Fourth Amendment, which prohibits an officer's search and seizure of a person without probable cause.

For example, the motion explains that one officer justified pepper spraying someone because the person had yelled "Don't fucking touch me" from at least five feet away. Another officer reportedly shot someone with a less-lethal munition because that person was behind a tree taunting the officers by jumping out from behind the tree and then ducking back behind it." A third officer pepper sprayed someone who was walking towards a police car, claiming that the person was going to kick the car. None of these examples show evidence, or probably cause, that suggest a person was going to commit a crime.

PPB officers' heavy-handed use of force during the 2020 protests has been under close scrutiny from the US Department of Justice (DOJ). In 2014, the city entered a settlement agreement with the DOJ after federal investigators found PPB officers to have a "pattern and practice" of using force against people with a mental illness. While the city had made significant moves to adhere to the fed's agreement in recent years, the actions of police during the 2020 protests reversed much of that work.

In July, the DOJ demanded that PPB improve its crowd control tactics with several new measures, including a directive to hold responsible incident commanders who granted officers permission to use force during 2020 protests. The city has reportedly agreed to these new requirements.

Juan Chavez, another attorney representing Don't Shoot plaintiffs, said his legal team's findings show how Portland's past decade of police reformsranging from additional officer trainings to new paperwork to track officers' use of forcehave neglected to improve its police force.

"A lot of people have been demanding this kind of accountability for long before the uprising of 2020, but all weve gotten is pats on the head and reassurances that things are fine, that [the city] has all these processes in place to deal with misconduct," said Chavez. "That all dissolved within a week in May 2020."

He continued: "The public now has proof that an abundance of uses of force were not reviewed in any way that would have passed normal scrutiny if, in fact, the city was wanting to hold someone accountable."

Continue reading here:
Most Officers Who Used Force During 2020 Protests Have Been Cleared By the City of Misconduct. Here's Why. - The Portland Mercury