Mediaboss Marketing

The Fourth Amendment is among the most sacred safeguards of individual liberty embedded in our Constitution.

The amendment reads:

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.

In just 54 words, the Fourth Amendment packs a lot of significance, and interpreting their meaning has kept judges and lawyers busy for centuries.

The basic premise of this amendment is to protect Americans from unreasonable searches and seizures of their property by the government. (Keep an eye on the word unreasonable, because its going to be important.)

It is for this reason that a police officer cannot stop you while youre walking down the street and arbitrarily search your purse or pockets.

These protections did not just come about spontaneously. Like all amendments included in the Bill of Rights, the Framers learned from their experience as royal subjects and added safeguards against the abuses they routinely endured by British agents.

To better understand why the ratification of the Fourth Amendment was so important to our Framers requires a deep dive into the historical context of 18th-century colonial America.

The colonists, still under the thumb of the British king, were subject to arbitrary and invasive searches under the Writs of Assistance, which allowed British troops and government officials to search homes and private property looking for goods that were imported illegally or on which a tax had not been paid. Needless to say, such abuses were a sore point for the aggrieved colonists.

A particularly notable figure of the colonial revolutionary era is James Otis, a Massachusetts lawyer and political activist who has been described as the Founding Father of the Fourth Amendment.

In a famed 1761 oration against the Writs of Assistance, Otis painted a vivid portrait of how unlimited government search powers were a threat to the liberty and tranquility of the people:

Now one of the most essential branches of English liberty is the freedom of ones house. A mans house is his castle; and while he is quiet, he is as well guarded as a prince in his castle.

This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient. This wanton exercise of this power is not a chimerical suggestion of a heated brain

In making the case against the wanton exercise of this power over the American colonists by agents of the British crown, Otis articulated the intellectual and moral principles that would later come to undergird the Fourth Amendment in the Bill of Rights. He thus laid the groundwork to ensure that such abuses of power would not be allowed to continue, should America earn its independence.

A young John Adams was in the audience when Otis gave this speech and later wrote then and there the child independence was born.

The principles passionately supported by Otis would come to serve as the foundation of individual liberty, private property protection, and privacy law.

So next time you see a television cop taking time to secure a search warrant from a judge to allow him to pursue an investigation against a criminal suspect, youre watching the Fourth Amendment in actionand you can thank James Otis for that.

Over the past century, the Fourth Amendment has grown in importance, owing to the expansion of government powers and the rapid pace of technological change. During that time, the courts have paid increasing attention to Fourth Amendment issues.

A particularly important landmark was the Supreme Courts decision in Weeks v. United States (1914), which established that evidence obtained through unconstitutional means was inadmissible in court. This is known as the exclusionary rule, which is important because it provides an incentive for law enforcement personnel and other government agents to be scrupulous in respecting Fourth Amendment protections.

Another seminal case in 20th-century Fourth Amendment jurisprudence was Katz v. United States (1967). Charles Katz was a sports gambler known for his skill at handicapping college basketball games. Unfortunately for Katz, his gifts brought him to the attention of federal investigators. Seeking to avoid law enforcement scrutiny, Katz often used a public phone booth near his Los Angeles apartment to conduct his less-than-legal business affairs. To build the case against him, the FBI tapped the phone booth, which resulted in criminal charges and a conviction against Katz.

Katz appealed his case, but the 9thCircuit upheld the search because it did not penetrate the telephone booths walls. However, the Supreme Court reversed the lower courts call, throwing out the FBIs wiretap evidence and overturning Katz conviction based on the new doctrine of a reasonable expectation of privacy.

This was a landmark moment for privacy law: by divorcing the FourthAmendment from concepts of property invasion, the Court fundamentally altered the jurisprudential landscape surrounding government searches and seizures.

While in some respects this decision expanded individual protections against government snooping, in other respects it weakened the protection against incursions on private property. Moreover, no one has ever been able to come up with a good explanation of exactly what a reasonable expectation of privacy is supposed to mean.

In reaction to the imprecision of the reasonableness standard, lawyers and scholars with an interest in property law have sought to rejuvenate Fourth Amendment jurisprudence with a renewed focus on incursions on private property rights. Along those lines, key Fourth Amendment cases from the past couple of decades include the following:

As noted above, the growth of governments enforcement powers and the proliferation of technological changes have opened up new frontiers for potential Fourth Amendment violations that challenge traditional understandings of search and seizure.

For example, PLFs has written about the questions surrounding digital privacy with regard to potentially intrusive technologies like surveillance and digital tracking, urging greater protections for individuals against potential violations of privacy.

Many digital privacy cases working their way through the courts now are incredibly important in defining what types of digital privacy the Fourth Amendment protects, Woislaw notes. The Fourth Amendment is our best line of defense against the pervasive surveillance stateso now is the time for judges to clarify with greater precision how the Constitution protects digital privacy.

Likewise, there are also issues dealing with administrative searches that permit government to search the physical sites of highly regulated industries with minimal warrant protections. These include gun shops, liquor stores, bars, industrial facilities, and the like. Its another area where courts should look to rein in potential government abuses of Fourth Amendment rights.

Such challenges only underscore the fact that protection of private property from government search is a key to securing individual liberty for all Americans.

The Fourth Amendment is much more than a matter of criminal procedureby limiting the power of government to target citizens through unreasonable searches and seizures, its one of our most important bulwarks in defense of privacy and individual liberty. It is essential, therefore, that the protections to private property granted by the Constitutions Fourth Amendment (and its close neighbor, the Fifth Amendment) be zealously guarded.

Read the original post:
The Fourth Amendment to the Constitution: A Primer ...

In the wake of the George Floyd protests, a police shooting case on the Supreme Courts docket has taken on a new sense of urgency and relevance. On Wednesday, the Supreme Court will hold oral argument in Torres v. Madrid, which centers on whether a woman who was shot in the back by police but managed to escape was seized under the Fourth Amendment, and could sue the officers responsible.

Although the question presented to the court is rather arcane, Torres could create a loophole that would make police effectively immune in certain excessive force cases. As the NAACP Legal Defense and Educational Fund warned in a February amicus brief, a decision siding with the officers risks eviscerating the primary vehicles for ensuring accountability for egregious police misconduct. Even worse, such a ruling could open the door to countless more unjustified shootings against innocent people, a burden that will disproportionately affect African-American communities.

The Supreme Court is seen in Washington, Wednesday morning, Oct. 7, 2020. (AP Photo/J. Scott ... [+] Applewhite)

Early one morning in July 2014, Roxanne Torres was dropping off a friend at an apartment complex in Albuquerque. As she was sitting in her car, Torres saw two armed individuals wearing dark clothing and tactical vests approach. One of them even tried to open the drivers side door. Panicked, Torres thought she was being carjacked and began to drive forward. Suddenly, Torres heard gunfire: 13 shots were fired at Torres, with two striking her in the back.

Torres escaped her assailants but quickly lost control of her car. She asked a bystander to call for help. No response. Seeing a car that was left running, Torres decided to steal it and drove herself 75 miles to a hospital in Grants, New Mexico. Her wounds were so severe, she was airlifted to a larger hospital back in Albuquerque.

Police arrested Torres the following day for stealing the car as well as for aggravated fleeing from law enforcement and assaulting a police officer; she ultimately pled no contest to all charges.

The people Torres mistook for carjackers were actually officers from the New Mexico State Police. The very same morning Torres dropped off her friend, the NMSP officers arrived at the same complex in unmarked vehicles in order to arrest a woman who was involved with an organized crime ring. Other than being in the wrong place at the wrong time, Torres had no connection with the woman the NMSP was there to arrest.

The officers contend that they were clearly identified when they approached Torres, and only fired after Torres revved her car engine and sped out of the parking space, placing the officers in fear for their lives.

But according to Torres, the officers never said who they were, nor could she read the markings on their clothes. She also claimed that neither officer was in front of her car, which had barely inched forward when the officers started firing.

Two years later, Torres filed a civil rights lawsuit against the officers in federal court, alleging that they used excessive force in violation of her constitutional rights. More specifically the Fourth Amendment, which famously protects the right of the people to be secure in their persons...against unreasonable searches and seizures.

Her lawsuit, however, was first dismissed in the district court, and then by the Tenth Circuit U.S. Court of Appeals. With only eight justices currently on the Supreme Court, a tie vote would affirm the Tenth Circuits decision.

Heres where the Fourth Amendment loophole comes into play. In the eyes of the Tenth Circuit, Torres failed to show she was seized by the officers use of force, since despite being shot, Torres did not stop or otherwise submit to the officers authority.

An officers intentional shooting of a suspect does not effect a seizure, the court declared, unless the bullets terminate [the suspects] movement or otherwise cause the government to have physical control over [her].

In other words, because she was able to get away, Torres actually hadnt been seized. And under the Fourth Amendment, without a seizure, Torres excessive-force claims...fail as a matter of law, the court concluded.

WASHINGTON, DC - OCTOBER 12: The US Supreme Court. (Photo by Samuel Corum/Getty Images)

Urging the Supreme Court to uphold the Tenth Circuit's decision, attorneys for the officers adopted a similar line of argument. There was no sign that [Torres] freedom of movement was restrained as she fled, without pause, from the scene, their brief asserted, and because Torres didnt stop after she was shot, gunshots did not stop or seize her.

Yet nearly 30 years ago, the Supreme Court declared that under the Fourth Amendment, a seizure includes any laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. Notably, at the time of the Founding, a seizure of a person was often synonymous with a common-law arrest.

There is no doubt that by the reference to the seizure of persons, attorneys for Torres argued, the Fourth Amendment was intended to apply to arrests. Thats a striking contrast to the Tenth Circuit, where Fourth Amendment scrutiny hinges not on officer intent, but on the reaction to an officers use of force.

According to a joint amicus brief by the ACLU, the Institute for Justice, the Center for Constitutional Rights, the Leadership Conference, and the National Police Accountability Project, this standard from the Tenth Circuit creates a disturbing gap in accountability with wholly arbitrary results.

For instance, so long as the person he shoots does not halt, an officer could execute lethal force and not be bound by the Fourth Amendment, even if the officer has no reason to believe his target poses a danger, has no probable cause to arrest the person, and indeed has no reason whatsoever for singling out this particular individual, the joint brief explained.

In a similar vein, wielding other forms of physical force that dont necessarily stop people from moving, like billy clubs, batons, or Tasers, would also be immune and left unregulated by the Fourth Amendment. Simply put, the Tenth Circuit test does not make sense and, as the joint brief phrased it, would be akin to letting police repeatedly smash a battering ram into a houses front gate without a warrant or any inquiry into the reasonableness of the ramming, so long as the gate does not fall down.

Our Constitution permits police officers to use reasonable measures, including physical force, to stop a person who is fleeing a justified arrest, noted the joint brief. That we grant them this power, however, does not mean they should be free to use it without limits or without constitutional scrutiny.

View post:
Supreme Court Could Create New Fourth Amendment Loophole ...

Opinion Analysis ByJeffrey Bellin on Mar 25, 2021 at 5:15 pm

Against a backdrop of increasing national attention to police violence, the Supreme Court on Thursday issued an opinion in a closely watched criminal-procedure case that clarifies the meaning of the term seizure.

The Fourth Amendment provides important constitutional limits on abusive policing. These protections take shape in two ways: limits on the introduction of evidence obtained unconstitutionally, and civil suits against police who violate constitutional rights. But the Fourth Amendment does not regulate policing generally. It only prohibits unreasonable searches and seizures. Thats why the courts ruling in Torres v. Madrid preserving a broad understanding of the term seizure has important implications for regulating use of force by police.

The case concerned an attempt by two New Mexico police officers to stop a car driven by Roxanne Torres. The officers, who were trying to execute an arrest warrant for another person, approached Torres and her parked car. When they attempted to speak with her, Torres began driving away. Claiming to fear for their safety, the officers shot at the car, injuring Torres, who then drove off. The question the justices resolved on Thursday was whether this unsuccessful effort to stop Torres was a seizure. The officers claimed that people are seized only when they are stopped, while Torres kept going. The U.S. Court of Appeals for the 10th Circuit agreed, dismissing Torres civil rights claim against the officers for violating her Fourth Amendment rights.

In a 5-3 opinion written by Chief Justice John Roberts, the majority reversed, concluding that the officers seized Torres even though she subsequently fled. The outcome fits neatly into the closest precedent, the 1991 case California v. Hodari D. In that case, the court explained that [t]he word seizure readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. (Emphasis added.) Pointing to this and other language in that case, the chief justice notes in the Torres opinion that [w]e largely covered this ground in California v. Hodari D.

Roberts takes pains, however, to set the opinion on its own feet. Over a strident dissent, he explains that whether or not the court is bound by stare decisis (the justices on-again-off-again efforts to follow precedent), the justices independently reach the same conclusions here. The majority opinion does so on two primary grounds: history and text.

History often comes up short in Fourth Amendment cases because policing as we know it was almost non-existent in the 18th century. The majority insists, however, that this time, the cases and commentary speak with virtual unanimity on the question before us today. But the majoritys certainty rings hollow when it identifies the closest decision as the 1605 Countess of Rutlands Case. In that case, the serjeants-at-mace were executing a debt-collection judgment against Isabel Holcroft, an English noblewoman. The sergeants touched Holcroft with (you guessed it) a mace, while exclaiming we arrest you, madam. The majority explains that since an arrest is undoubtedly a seizure and getting touched with a mace is like getting hit with a bullet, this history points the way toward todays holding.

To be fair, the majority cites other old cases and treatise excerpts. But the dissent by Justice Neil Gorsuch, which is joined by Justices Clarence Thomas and Samuel Alito, points out that many cases of the era involved esoteric debt-collection practices. For example, debt collectors could only break into debtors homes if they touched them first, often accomplishing this by reaching in through a window! And all the cases involve the laying on of hands (or maces), not guns or projectiles. Gorsuch scores rhetorical points when he scolds the majority for wandering about the vast legal library of the common law, randomly grabbing volumes off the shelf, plucking out passages, scratching out bits and crafting a new pastiche. But Gorsuchs argument is really a critique of the limits of originalism in this context, not the particular rule announced in this case.

The majoritys textual interpretation is more straightforward. It recognizes that seizures most obviously occur when a person is stopped. But the majority points out that it is not ruling that Torres was seized from the point of the shooting onward. Instead, Roberts writes that the officers seized Torres for the instant that the bullets struck her. (Emphasis added.) Quoting Justice Antonin Scalia in Hodari D., the majority explains that a seizure is a single act, and not a continuous fact. Thus, at the time the Constitution was adopted, as now, an ordinary user of the English language could remark: She seized the purse-snatcher, but he broke out of her grasp. In prior cases, the court similarly explained that a seizure is the application of physical force that in some way restrain[s] the liberty of a person. Here, considering that Torres was shot twice in the back and suffered physical injuries, it seems reasonable to conclude that a restraint on her liberty, and thus a seizure, occurred.

The opinion offers two surprises. The most important is the majoritys broad holding. The majority goes out of its way to craft a clear line that reaches beyond the facts of this case. Both at the beginning and end of the opinion, the court announces: We hold that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. Notice that this captures not just significant restraints on liberty, but any touching at all. This is no oversight. Roberts downplays the implications of this breadth by explaining:

While a mere touch can be enough for a seizure, the amount of force remains pertinent in assessing the objective intent to restrain. A tap on the shoulder to get ones attention will rarely exhibit such an intent.

The majority is right that the intent requirement eliminates some minor touching from the seizure definition. But not all. Small intrusions, such as taps on the shoulder, will constitute seizures under the majoritys reasoning if they are intended as a prelude to restraint, even when the tap-ee flees into a crowd. The dissent hints at other scenarios that may come within the broad rule: laser beams that damage the retina, pepper spray that irritates the lungs, and loud noises that damage a suspects ear drums. Those are harder cases than the one presented here, and the court appears to (at least arguably) resolve them all with its broadly worded holding.

The second surprise is the amount of disagreement. Since the case followed directly from Hodari D., a 7-2 textualist/originalist opinion penned by Scalia, some observers expected the court to come to greater agreement. Instead, the dissent spends 26 pages (nine more than the majority opinion) explaining why Scalia and the court were wrong in 1991 and Roberts and the majority are wrong in 2021. The dissent not only scoffs at the chief justices arguments but accuses the majority of outcome-determinative reasoning: an impulse that individuals like Ms. Torres should be able to sue for damages. Roberts offers a pained response: There is no call for such surmise. [W]e simply agree with the analysis set forth thirty years ago by Justice Scalia, joined by six of his colleagues, rather than the competing view urged by the dissent today.

The bright-line rule announced by the court signals that remaining questions will now be the responsibility of the lower courts. For Torres, her civil rights claims against the officers can continue, although, as the majority notes, she will still need to overcome several other obstacles such as showing that the seizure was unreasonable and that the officers are not entitled to qualified immunity in order to ultimately prevail.

Read the original post:
Divided court issues bright-line ruling on Fourth Amendment seizures - SCOTUSblog

UI Law alumni use their class Street Law to teach high school students about their Fourth Amendment rights.

Crystal Pound and Alex Lodge, both University of Iowa alum, have built on their efforts to inform the community on their rights protected by the Fourth Amendment which prohibits unreasonable searches and seizures by bringing that education into classrooms across the state.

Pound and Lodge recently earned a nonprofit status for their organization, Justice101, which partners with Iowa schools to teach young people about the Fourth Amendment. The curriculum educates young people on their rights when interacting with police, and what law enforcement legally can and cant do. Its goal is to alleviate anxieties of young people when interacting with the police, especially for students of color.

Justice101 is an extension of the Iowa chapter of Street Law, a class on Fourth Amendment rights that Pound and Lodge brought to Iowa following the killing of Michael Brown in Ferguson, Missouri. The first class was taught at City High in March 2016.

Pound, a co-collaborator of Justice101, practices law in Cedar Rapids. Pound helped found Street Law and Justice101 during her time at UI Law School, which she graduated from in 2016.

Pound said that Justice101 aims to create an equal interaction between police and citizens by informing the community of their rights when they encounter police.

I think games are only fair when everyone knows what the rules are, Pound said. One goal is to educate the students so that when they come into contact with law enforcement, they know whats allowed and whats not allowed and if something happens that isnt allowed, they know how to advocate for themselves later with their legal counsel.

A 2016 graduate and current patent attorney, Lodge said he goal of Justice101 is to educate the community, especially Black residents, on how complicated the law is and how to be protected during police interactions, Lodge said.

It was apparent that we were experiencing a disproportionate amount of police contact particularly with not only Black students at UI but Black residents in the city of Iowa City, Lodge said. Justice101 is continuing that effort and continuing to provide a resource to the community with respect to educating our community about Fourth Amendment rights.

RELATED: In Focus | Iowa police body camera video sometimes revealing if the public is allowed to see it

In Iowa, Black residents are much more likely than white residents to face use of force by state police officers. Although Black residents make up about 4 percent of Iowas population, 24 percent of use of force incidents were reported against Black people by officers in the Iowa Department of Public Safety in 2018 and 2019.

Lodge said the best way to support Justice101 is to donate through the organizations website and spread the word about the program.

If you are in the education system or you work with vulnerable populations, particularly those who might be at risk of having a Fourth Amendment rights violation, please feel free to contact Justice101 to get the program to come out to talk to your community members, he said.

Prior to the COVID-19 pandemic, Justice101 presented its Street Law class to students at City High School in Iowa City, and Metro High School in Cedar Rapids, Iowa. Now, the founders are working to create virtual classes to continue their work in an online format.

Alex Lodge is a patent attorney who graduated from the College of Law in 2016. Lodge is a co-founder of the Street Law program and a co-collaborator of Justice101. The goal of Justice101 is to educate the community, especially Black residents, on how complicated the law is and how to be protected during police interactions, Lodge said.

It was apparent that we were experiencing a disproportionate amount of police contact particularly with not only Black students at UI but Black residents in the city of Iowa City, Lodge said. Justice 101 is continuing that effort and continuing to provide a resource to the community with respect to educating our community about Fourth Amendment rights.

Lodge said the best way to support Justice101 is to donate through the organizations website and spread the word about the program.

If you are in the education system or you work with vulnerable populations, particularly those who might be at risk of having a Fourth Amendment rights violation, please feel free to contact Justice101 to get the program to come out to talk to your community members, he said.

Brian Farrell, a UI College of Law lecturer, and Justice101 board member, said that the pandemic has brought forth the biggest challenges for the organization.

I think the pandemic has thrown a wrench into the efforts to take the curriculum and the model that had already been developed and re-establish and expand it, Farrell said. The idea of virtual delivery creates opportunities to allow it to not be geographically restricted, but at the same time potentially create some initial barriers, just in terms of the resources to get up and going.

Farrell said that Justice101 is valuable because it teaches students about the Fourth Amendment in an interactive and informal way that creates meaningful connections in the community.

Justice101 provides students with an in-depth explanation of their rights when interacting with law enforcement that is often not taught elsewhere, Farrell said.

I dont think our civic education gets into practical aspects, Farrell said. Im guessing that in most cases they havent ever thought about or talked about how that plays out in a practical sense until perhaps theyre in a situation where they are confronted with some restriction or a challenge to their rights.

Read more here:
UI Law alumni create nonprofit to educate the community on Fourth Amendment rights - UI The Daily Iowan

After a three-year battle in lower courts, a constitutional question stemming from a drunk driving citation will be heard by the Ohio Supreme Court.

A woman argues she was wrongfully stopped by an Ohio State Highway Patrol sergeant after someone shouted, "You need to stop that vehicle. That lady is drunk."

According to court documents, it turns out Sherry Tidwell was drunk as she was pulling out of a parking stop at a Symmes Township Speedway on Nov. 11, 2017.

However, she has successfully argued that the person whoshouted to the officer was an anonymous tipster. The law states police are requiredto furtherinvestigate anonymous complaints before they can stop and search someone, according to Northern Kentucky University constitutional law professor Jennifer Kinsley.

"He could have followed her. He could have radioed for backup and had someone else follow her," Kinsley said.

She said the protocols are in place so people don't use police reports as a spiteful way to get revenge on people.

In court, the sergeant said the man who shouted at him had been told to do so by the Speedway clerk who had sold Tidwell alcohol. The man who shouted has never been identified, according to court records.

Prosecutors say the tip came from an "informed citizen." Former Hamilton County prosecutor and judge Mike Allen explained informed citizens are presumed to be telling the truth because they could face charges if they make false allegations.

This is the issue the Ohio Supreme Court will focus on: who did this tip come from?

The Ohio Public Defender's Office and Attorney General's Office have weighed in on the debate filing opposing briefs in the case.

The public defender argues that allowing stops prompted by anonymous tips does not meet the threshold for probable cause.

"(It) not only eviscerates the protections provided by the Fourth Amendment, it defies reason," the public defender's office wrote.

Attorney General Dave Yost's office disagrees.

"Neither the federal Constitution nor the Ohio Constitution requires an officer credibly tipped off about a drunk driver to let that driver violate a lawpotentially killing someone in the process,"Yost's brief states.

From an outside perspective, it may seem Tidwell couldget off on a technicality, but both Allen and Kinsley said cases like these are important.

"There are a set of rules. Police officers have to follow those rules," Allen said."They can say it was a technicality, but when you're talking about search and seizure it's more than a technicality. It really goes to the person's fundamental rights."

The Ohio Supreme Court will hear oral arguments in this case on March 30.

"Courts have always said it's better to let a guilty person go free than to put an innocent person in person," Kinsley said."It's in cases like these that we get to play those values out."

Read or Share this story: https://www.cincinnati.com/story/news/2021/03/25/that-lady-drunk-ohio-supreme-court-hear-sherry-tidwell-case/6976229002/

Continued here:
Is it constitutional for an officer to stop a driver if someone shouts 'that lady is drunk'? - The Cincinnati Enquirer