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OPINION:

Last week, FBI officials boasted that in 2022, their agents had spied on only 120,000 Americans without search warrants. Under the Constitution, that number should be zero.

This revelation is supposed to give members of Congress comfort that the people we have hired to preserve, protect and defend the Constitution are in fact doing so. In reality, the FBI and their cousins at the National Security Agency continue to assault and violate a core freedom protected by the Constitution the right to be left alone.

The reason for this revelation is the pending expiration of Section 702 of the Foreign Intelligence Surveillance Act and the bipartisan opposition to its extension.

Section 702 is unconstitutional on its face as it directly contradicts the core language of the Fourth Amendment. On its face, it permits the feds to conduct warrantless surveillance on foreigners who are either physically or digitally present in the United States and all with whom they communicate American or foreign who are here.

Thus, for example, if you call or text or email an art dealer in Florence, Italy, from your home in New Jersey, or your cousin in Switzerland calls or texts or emails you at your home in California, the FBI can monitor all those communications without a search warrant.

And then the feds can monitor the future calls you make and texts and emails you send. And then they can monitor all the communications of the people you reached and all the people they reach. As this expands on and on to the sixth degree, the numbers grow exponentially to hundreds of millions.

The reason for the search warrant requirement is to prevent a repeat of what British agents did to the American colonists before the Revolutionary War. Then, secret British courts in London issued general warrants to British agents in America, which authorized the bearer to search wherever he wished and seize whatever he found.

When the British used their general warrants to search Colonial homes ostensibly looking for tax stamps in compliance with the Stamp Act, they were really attempting to predict who among the colonists entertained revolutionary ideas that might lead to a revolt against the king.

The existence and the enforcement of the Stamp Act proved so unpopular that Parliament rescinded it after just one year. But the former bond between the colonists and their king had been irreparably breached and a sea change in Colonial thinking pervaded the land. The core of that sea change was not taxation without representation; it was freedom.

To the Colonial mindset, freedom had one universal meaning. It meant freedom from the government from king and Parliament.

The sea change in Colonial thinking resulted in an ideological welcome mat for the Declaration of Independence. When Thomas Jefferson was holed up in a Philadelphia rooming house for five days in June 1776 writing and revising the Declaration, he thought he was crafting the ideological fountainhead of a minority of landowners who despised the kings autocracy.

Yet within a year, farmers and laborers joined the popular and bloody revolt that ended in 1783 with freedom from England.

What about freedom from the new government here?

When the Constitution was ratified six years later, it had no amendments and made no mention of personal liberty. Five of the ratifying states had insisted upon the promise of the addition of a Bill of Rights as a precondition to ratification.

And so the first task of the new Congress was to comply with that promise and craft a Bill of Rights, lest these five states secede from the new union. What became the Fourth Amendment protected the quintessentially American right to be left alone.

It states that the right of the people to be secure in their persons, houses, papers, and effects shall be secure and may be violated by the government pursuant only to a search warrant issued by a neutral judge and based on probable cause of crime and the warrant must specifically describe the place to be searched or the people or things to be seized.

There is no exception in the amendment for foreign people, bad people, dangerous people, violent people, or people the government hates or fears. By the plain meaning of its English words, the amendment protects all people. There is no limitation in the amendment to government personnel engaged in law enforcement. The amendment restrains all government. The very purpose of the amendment is to present an obstacle to all government because the amendment protects the natural human right to privacy.

James Madison and his colleagues who drafted the amendment made a value judgment consistent with their Judeo-Christian morality namely, that natural rights trump governmental needs.

The violation of privacy is a form of government aggression. Madison knew the tendencies of government toward aggression. The Fourth Amendment was to be the bulwark against it. The people could protect themselves against private aggressors, but theyd need a clause in the supreme law of the land and independent judges to restrain government aggressors.

After 50 years of studying, teaching, judging, interpreting, writing about, and just plain explaining the Constitution, I am convinced that those in government dont believe its words or accept its values. They dont feel bound by the law of the land.

They have crafted mechanisms of all sorts like Section 702 to evade and avoid it. They will claim that it impairs their duties. Yes, it does intentionally so, and in the name of personal liberty. Today, liberty is impaired for foreign people, an immutable characteristic. Tomorrow it could be impaired for any other immutable trait. Of what value is a Constitution with congressionally crafted, politically based exceptions? None.

Channeling Justice George Sutherland, if the provisions of the Constitution are not upheld when they pinch as well as when they comfort, they may as well be abandoned.

Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.

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Constitution might as well be abandoned if amendments are not ... - Washington Times

Petitions of the week ByKalvis Golde on May 6, 2023 at 1:49 pm

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions were watching is available here.

A police officer who opens a car door and looks inside, without permission, probable cause, or a search warrant, violates the Fourth Amendments ban on unreasonable searches. This week, we highlight cert petitions that ask the court to consider, among other things, whether two officers likewise commit a search when one opens the door to a car and another looks inside.

Jackie Jackson, a Black man, was driving in Cincinnati, Ohio, when he was pulled over by police. The officers told Jackson he had been stopped because his windows were too dark and asked him to produce his drivers license and insurance. As six more officers arrived on the scene, Jackson questioned their motive. (None of the officers, it turned out, had a window tint meter, the tool used to measure legal levels of window tint.)

Jackson turned off the car, leaving the key in the ignition, and took out his phone to pull up his proof of insurance. When he began filming the encounter, an officer opened the door and ordered Jackson to exit the car, then leaned in to remove the key from the ignition. The officer left the car door open.

While Jackson stood at the back of the car, a second officer walked up to the drivers side of the car and peered in the open door using a flashlight. He saw a marijuana cigarette on the floor under the drivers seat. The officers then searched the rest of Jacksons car, finding a pistol in a basket of laundry in the back seat. Jackson was charged with three counts related to unlawful possession of a handgun.

Jackson sought to suppress the discovery of the pistol. After the police found the marijuana cigarette, Jackson conceded, they had probable cause to search the rest of his vehicle. However, he argued that the first police officer violated the Fourth Amendment when he ordered him to get out of the car, and the pistol was only discovered as a result of that constitutional violation. After the trial court denied Jacksons motion to suppress, Jackson pleaded no contest to the charges against him.

By a divided vote, the Ohio Supreme Court affirmed. It ruled that because neither officer conducted an illegal search of Jacksons car, the pistol could be admitted as evidence. The first officer, who ordered Jackson to step out of the car and opened the car door, did not conduct a search because his only intent was to secure Jackson and the vehicle not to obtain information, the court explained. And although the second officer who later looked inside the car was seeking to obtain information, the court reasoned, he too did not conduct a search when he saw the cigarette because the door was already open and the cigarette lay in plain view.

In Jackson v. Ohio, Jackson asks the justices to grant review and reverse the Ohio Supreme Courts decision. Until the state supreme courts decision, Jackson contends, no American court had ever held that the police can shield their searches from constitutional scrutiny by dividing their work between two officers. The state courts decision also created a conflict among the lower courts, he told the justices, which until now had followed a uniform bright-line rule: A search occurs whenever a police officer opens the door and the police find contraband inside, regardless of the officers motives in opening the door.

Hester v. Gentry22-835Issue: Whether the 14th Amendments due process clause protects a fundamental right to pretrial liberty that prevents states from depriving a presumptively innocent person of physical liberty pending a criminal trial unless a court finds that the deprivation is necessary to protect public safety and/or reasonably assure the persons appearance at future court proceedings.

National Rifle Association of America v. Vullo22-842Issue: Whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the governments own hostility to the speakers viewpoint or (b) a perceived general backlash against the speakers advocacy.

Dermody v. Massachusetts Executive Office of Health and Human Services22-957Issue: Whether an annuity that satisfies the condition in42 U.S.C. 1396p(c)(2)(B)(i) determining the Medicaid eligibility of a married institutionalized person must name the state as the first remainder beneficiary in order to avoid Section 1396p(c)(1)s transfer penalty.

Doe v. Securities and Exchange Commission22-963Issues: (1) Whether theDodd-Frank Wall Street Reform and Consumer Protection Act of 2010swhistleblower award program excludes whistleblowers whose criminal conduct is only tangentially connected to a Securities and Exchange Commission enforcement action (and related actions) and who have pleaded guilty but have not been sentenced; and (2) whether the SECs heavily redacted Orders Determining Whistleblower Award Claims and sealed Whistleblower Award Proceedings are entitled toChevron,Skidmore, or some other level of deference.

Jackson v. Ohio22-978Issue: Whether, when one police officer opens the door of a car and another officer looks through the open door for contraband, the police have conducted a search of the car within the meaning of the Fourth Amendment.

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One police officer opens a car door, and another looks inside. Did ... - SCOTUSblog

President Joe Biden while speaking in an interview with MSNBC aired on May 6, 2023. YouTube/MSNBC

As the fears of default loom large on the world's largest economy, US President Joe Biden has said that the circumstances are not at the point where the 14th Amendment needed to be invoked to avoid the country defaulting on its loans.

It is implied from his comments that the Biden Administration has retained the option to invoke the amendment were the country to go into default on June 1.

Joe Biden while talking in an interview with MSNBC said: "I've not gotten there yet."

There is not much time left for the polarized Congress to raise the debt ceiling of $31.4 trillion with the warning coming from the Treasury Department that it could not be able to pay its loans back as soon as June 1.

If Congress fails to act, some legal experts say, Biden, 80, has another option to avert a crisis: "Invoke the 14th Amendment to the US Constitution to ensure the United States can continue to pay its bills."

The Fourth Amendment of the US Constitution adopted after the 1861-1865 Civil War, notes that the "validity of the public debt of the United States ... shall not be questioned."

But the clause has been largely unaddressed by the courts.

Experts have recommended that Biden could invoke this amendment to raise the debt ceiling on his own if Congress does not act. That would almost certainly lead to prolonged legal wrangling, which could unsettle financial markets

A person briefed on those discussions was quoted by Reuters as saying: White House and other administration officials have examined the possibility but many have dismissed it as a last-ditch solution unlikely to survive a court challenge.

Top Republicans and Biden alongside other Democrats from Congress will discuss Tuesday next week to try to put an end to the three-month standoff over the federal debt ceiling and prevent a crippling default before the end of the month.

The positions maintained by both sides are: Biden is calling on lawmakers to raise the federal government's self-imposed borrowing limit without conditions, and Republican House Speaker Kevin McCarthy says his chamber will not approve any deal that doesn't cut spending to address the nation's growing budget deficit.

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Biden retains option of invoking 14th Amendment to avoid default - Geo News

from the time-to-update-Carpenter dept

Never mind the Supreme Court. Never mind the case law finding warrantless phone tracking not quite constitutional. Never mind the self-imposed restrictions enacted by federal law enforcement agencies that place warrant requirements on real-time location tracking or the federal court decisions codifying these voluntary efforts.

Forget all of that. North Carolina is going to go its own way, following the mandate laid out by 70s coke icons Fleetwood Mac back in the day when getting a wiretap warrant meant someone actually had to do something beyond click ACCEPT on the law enforcement end user license agreement.

Police could track peoples cell phones in real time without a warrant under a bill that passed a state House committee Wednesday.

The bill is intended to help law enforcement more quickly to find kidnapping victims or runaway children.

Ah. THE CHILDREN. The non-voters who always seem to play a part in government expansions of power. Too young to voice their opinion but young enough to be exploited by adults for their own ends. You know, adults like this child exploitation expert:

This just gives the SBI another tool in the toolbox, said Republican Rep. Dudley Greene, the retired sheriff of McDowell County who is leading the push for the bill. But its not just a tool. Its an emergency tool, in very limited circumstances.

SBI is the State Bureau of Investigation. The ex-cop points to a single state agency, insinuating the law is limited to a single law enforcement entity when it actually isnt. And if you think this will be limited to only the most serious of crimes, well, then you probably helped Rep. Greene get elected. Mission creep is a thing. So is the natural tendency to abuse power that demands we, the governed, throw our voting wrenches into the government machinery every couple of years.

As both proponents and opponents note, the bill would not allow for warrantless wiretaps. What it would do is allow cops to track cell phones in real time, as well as obtain information about cell phones their targets interact with.

The latter is usually covered by pen register orders, which require less probable cause than warrants because the Third Party Doctrine leaves information voluntarily shared with third parties (read: telcos, cell service providers) unprotected. But location data is something else entirely, seeing as it gives the government the power these legislators want to codify: the ability to track anyone at any time in real time without a warrant.

The states court system already appears to be completely wrong about this:

As for cell phone tracking, North Carolinas appellate courts have already signed off on police getting peoples historical location data from phone companies without a warrant. But real-time warrantless tracking has not been included.

The Supreme Courts Carpenter decision explicitly forbade long-term tracking of individuals via historical cell site location data. And its reading of the Third Party Doctrine and the Fourth Amendment suggested real-time acquisition of location data might run afoul of the Fourth Amendment if this tracking went on for long enough.

According to this reporting, the states courts have decided the Carpenter decision doesnt apply to North Carolina law enforcement. And it has yet to arrive at a decision one way or the other about real-time tracking. An absence of contrary case law is a permission slip for law enforcement. Hell, even precedential decisions are rarely enough to deter law enforcement from engaging in rights violations. This law, which has sailed through the state House with almost zero opposition, encourages further abuses of tech that has yet to be fully addressed by courts covering this jurisdiction.

And the mission creep has already begun. The state rep quoted above claimed the law would help cops track down the worst of the worst criminals: those targeting children for nefarious means. But the revamped law which at least now requires law enforcement to make a warrant sales pitch to a judge within 48 hours of engaging in real-time location tracking has already been rewritten to ensure cops can use it whenever, wherever. Its not just pedophiles and kidnappers. Its the proverbial fast food thief (NOT A HYPOTHETICAL!) that can expect to be tracked in real time by cops with plenty of tech but no probable and no warrants.

It would allow a judge to find probable cause or reasonable suspicion that the suspect had committed any felony, or more minor crimes like a class 1 or A1 misdemeanor.

So, if passed intact, this law would allow cops to engage in real-time tracking of anyone suspected of almost any crime. Within 48 hours, they might need to make a probable cause showing in front of a judge. But even then, a judge could decide the pervasive surveillance is justified by assertions made after the fact by cops with a two-day head start. And if an arrest is effected before the clock runs out on the warrantless surveillance, theres no need to ask the court for a second opinion on this codified interpretation of the Third Party Doctrine. No harm (that will be recognized by a NC court), no foul.

Hopefully this bill will die the death it deserves. But if legislators and the states courts have deluded themselves into thinking location info wants to be free (of warrant requirements), it seems unlikely this proposal will get kicked to the curb by the governor. After all, the rest of the government thinks its a good idea. And they know whats best for everybody, even if the everybody theyre supposed to represent disagrees with them.

Filed Under: 4th amendment, cell site location info, north carolina, real time tracking, warrantless surveillance

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North Carolina Legislature Pushing Bill That Would Allow Cops To ... - Techdirt

Threat to our freedom

Buddy Bankhead, from Carthage, expressed truthfully what needed to be said (letter, April 16). The biggest threat to freedom has always been the federal government. Look at what is happening right now!

Do you even remember when we had law and order? Do you remember what it was like to have secure borders? Criminals were held accountable and children were excelling in education?

Trump does not want to make our country a socialist and Marxist third-world country. Trump is fighting for us every day, every hour. If he wasnt, we would be under attack ourselves! Dont talk about socialism. Talk about our loss of freedom.

Dont give immigrants the right to vote. Dont give immigrants everything free when you dont take care of our veterans and homeless. What really has Biden done for you?

People in foreign countries are laughing at Biden. They did not laugh when Trump was president.

When you dont have capitalism, free markets, liberty, freedom, fundamental rights protected, bad things will happen.

Our Founding Fathers put in the Fourth Amendment to protect us from unwarranted searches of our private homes, but look at the illegal raid on Trumps home.

God bless America. Fellow Americans, stand and fight! Freedom is not free!

June Strohsahl, Longview

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Letter: Threat to our freedom | Opinion | news-journal.com - Longview News-Journal