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Category Archives: Fourth Amendment

Judge: No, feds can’t nab all Apple devices and try everyone’s … – Ars Technica

Posted: February 24, 2017 at 6:04 pm


This prosecution, nearly all of which remains sealed, is one of a small but growing number of criminal cases that pit modern smartphone encryption against both the Fourth Amendment protection against unreasonable search and seizure, and also the Fifth Amendment right to avoidself-incrimination. According to the judges opinion, quoting from a still-sealed government filing, “forced fingerprinting” is part of a broader government strategy, likely to combat the prevalence of encrypted devices.

Last year, federal investigators sought a similar permission to force residents of two houses in Southern California to fingerprint-unlock a seized phone in a case that also remains sealed. In those cases, and likely in the Illinois case as well, the prosecutors’ legal analysis states that there is no Fifth Amendment implication at play. Under the Constitution, defendants cannot be compelled to provide self-incriminating testimony (what you know). However, traditionally, giving a fingerprint (what you are) for the purposes of identification or matching to an unknown fingerprint found at a crime scene has been allowed. It wasnt until relatively recently, however, that fingerprints could be used to unlock a smartphone.

However, unlike the California warrant applications, this case doesnt involve one particular seized device to check to see if anyones fingerprint unlocks it. Rather, authorities seem to be using the particular fact that most modern Apple iPhones and iPads can be unlocked and decrypted if Touch ID is enabled. While some Android devices also have a similar fingerprint scanning function, the warrant application (which remains sealed) apparently only sought out Apple devices. (Under both operating systems, the fingerprint unlock stops working after your phone has been unlocked for 48 hours.)

As the judge, who is both a former federal prosecutor and a former FBI special agent,wrote:

The request is made without any specific facts as to who is involved in the criminal conduct linked to the subject premises, or specific facts as to what particular Apple-branded encrypted device is being employed (if any).

First, the Court finds that the warrant does not establish sufficient probable cause to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device.

This Court agrees that the context in which fingerprints are taken, and not the fingerprints themselves, can raise concerns under the Fourth Amendment. In the instant case, the government is seeking the authority to seize any individual at the subject premises and force the application of their fingerprints as directed by government agents. Based on the facts presented in the application, the Court does not believe such Fourth Amendment intrusions are justified based on the facts articulated.

Neither the Department of Justice nor the FBI immediately responded to Ars request for comment. Prosecutors could seek to appeal the opinion to a more senior judge.

“As I read the opinion, the government relies on old fingerprinting cases to argue that the Fourth and Fifth Amendments dont stand in the way of what they are seeking to do here,” Abraham Rein, a Philadelphia-based tech lawyer, told Ars by e-mail.

“But (as the court points out) there is a big difference between using a fingerprint to identify a person and using one to gain access to a potentially vast trove of data about them and possibly about innocent third parties, too. The old fingerprinting cases arent really good analogs for this new situation. Same is true with old cases about using keys to unlock lockshere, were not talking about a key but about part of a persons body.”

Orin Kerr, a well-known privacy and tech law expert and a professor at George Washington University, told Ars that the judge had largely reached the right result, but only on Fourth Amendment, and specifically not Fifth Amendment grounds.

“I just think that it’s really clear that [fingerprints are] not testimonialbecause youre not using your brain,” he said. “It cant be testimonial if you can cut their finger off.”

Similarly, Paul Rosenzweig, an attorney and former Homeland Security official, argued that its essentially impossible for a fingerprint, even a digital fingerprint, to have any Fifth Amendment implications.

“We could have gone down the road of saying that providing physical evidence is testimony against yourself,” he said. “But we long ago made the decision that the Fifth Amendment applied to testimony, and testimony meant only oral utterances or other things that conveyed a message. For this distinction lies at the core of Breathalyzer tests. If we roll that back, Breathalyzer tests go out the window. Blowing your air would be testifying against yourself.”

Riana Pfefferkorn, one of the lawyers who first found this judicial opinion and publicized it on Twitter, told Ars that part of the problem with these types of cases is that this cutting edge of judicial analysis is largely happening “outside the public eye.”

“In many instances, there may be little or no legal analysis by the court when it approves a request for a search warrant or other court order,” she wrote. “Examples like this may be the tip of an iceberg. I hope that more judges will join this Illinois judge in not only conducting a thorough legal analysis of novel requests for gathering electronic evidence, but also publishing those opinions publicly.”

Yet another lawyer suggested that cases like this would push companies like Apple to harden their devices even further: rather than allow a simple fingerprint to unlock a phone, future versions of its software will likely require a fingerprint or other biometric in combination with a traditional passcode.

“I think we will see authentication systems evolve with these kinds of mass searches (not to mention border searches and the like) as a new part of the threat model of unauthorized access,” Blake Reid, a law professor at the University of Colorado, told Ars. “An additional risk of what the government is doing here is creating incentives for manufacturers to design authentication systems that are less susceptible from a technical and architectural perspective to these types of searches.”

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Letter to the editor: Fourth Amendment for Americans – Post Register

Posted: February 23, 2017 at 12:54 pm

Letter to the editor: Fourth Amendment for Americans
Post Register
Regarding Security is a human right by Pastor Regina Herman, Feb. 16: Pastor Herman states, in part, that They [Sanctuary cities, also called Fourth Amendment Cities] are not set up to defy the government, the Constitution, or the laws on which this

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Judge rejects warrant provision allowing compelled thumbprints to … – Washington Post

Posted: at 12:54 pm

A federal magistrate judge in Chicago has rejected a request by the government for a provision in a search warrant that would authorize agents to compel people present to unlock seized phones using biometric readers. I think the judge was right to reject the provision, although I disagree with substantial parts of the reasoning.

I. The New Opinion

In the case, an Internet connection (presumably at a home) is being used to traffic in images of child pornography. The government wants the authority to search the place and seize any computers located there. The magistrate judge allows that. The government also wants a provision in the warrant authorizing the police to compel any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device. The magistrate judge rejects that provision, issuing the warrant without it.

The magistrate judge offers two reasons for rejecting the fingerprint provision. First, the opinion suggests that making a person give a fingerprint raises case-by-case questions of reasonableness under the Fourth Amendment that cannot be addressed with a blanket authorization. According to the court, the warrant does not establish sufficient probable cause to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device. Lots of people might be present on the premises at the time of the search, but there is no way to know ahead of time whether there will be sufficient cause to seize each person needed to make then unlock a particular phone.

Second, the judge suggests that obtaining thumbprints will violate the Fifth Amendment because cellphones contain very sensitive information. The common wisdom is that an order to place a particular thumb on a thumbprint reader doesnt violate the Fifth Amendment because it isnt testimonial. It doesnt reveal what is going on in the persons mind, so its not the persons testimony. But the magistrate judge disagrees:

[T]he connection of the fingerprint to the electronic source that may hold contraband (in this case, suspected child pornography) does explicitly or implicitly relate a factual assertion or disclose information. Doe, 670 F.3d at 1342. The connection between the fingerprint and Apples biometric security system, shows a connection with the suspected contraband. By using a finger to unlock a phones contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.

The government cites United States v. Wade, for the proposition that the Fifth Amendment privilege against self-incrimination offers no protection against compulsion to submit to fingerprinting. (Gvt. Mem. at2) (citing Wade,388 U.S. 218,223). This case, however, was decided in 1967, prior to the existence of cell phones, and in the context of utilizing fingerprinting solely for identification purposes. In the context of the Fifth Amendment, this Court finds these two starkly different scenarios: using a finger print to place someone at a particular location, or using a fingerprint to access a database of someones most private information. The Wade court could not have anticipated the creation of the iPhone nor could it have anticipated that its holding would be applied in such a far-reaching manner.

II. My Analysis the Fourth Amendment Issues

I think the judge was correct to reject this provision, although not quite for the reasons stated. The proper reason to reject this provision is that warrants cannot and should not regulate how a warrant is to be executed. The warrant has to state where the police can search and what they can seize there. But what else happens when the warrant is executed is a matter of case-by-case reasonableness, and magistrates shouldnt try to insert themselves into that by imposing blanket reasonableness determination ex ante when they have no idea what the facts will turn out to be.

This principle most often comes up when judges want to impose ex ante restrictions on computer warrants. Those restrictions might be search protocols or restrictions on when seized computers have to be returned. I argued in a 2010 article that these limits are improper. The reasonableness of the search has to be determined ex post, I argued, not answered by a magistrate judge ahead of time when the warrant is issued.

A warrant provision providing authorization to get thumbprints is the mirror image of ex ante restrictions. Now the government wants ex ante approval of steps in the execution of the warrant rather than judges wanting ex ante disapproval of steps. But the principle is the same. Just as a magistrate judge cant gauge at the time of the warrant application what limits on the execution of the search would be proper, neither can a magistrate judge gauge what added government steps would be proper. We have to wait for the execution of the search and for reasonableness determinations to be made on the scene by the officers and then reviewed ex post by courts.

This point is true even if courts in future ex post litigation rule that a particular thumbprinting practice complies with the Fourth Amendment. If courts later issue those rulings, then magistrates still shouldnt include provisions about them in warrants. Instead, they will become part of background Fourth Amendment principles that apply to every warrant. And notably, the Fourth Amendment cases the court discusses on detention and fingerprinting are all about what was deemed reasonable ex post. None of them are about provisions included in a warrant ex ante.

If Im right that this fingerprint provision is categorically improper, one question is why is the government seeking it. Whats the perceived advantage? I suspect there are two reasons. First, prosecutors and agents are probably thinking that magistrate preapproval will help trigger the good-faith exception of United States v. Leon. If a particular fingerprinting is later questioned in court, and a judge rules that it was improper, agents can fall back on the preapproval of the process in the warrant to avoid suppression. If thats what they are thinking, its all the more reason to reject the provision: It makes no sense for magistrate preapproval of something they have no authority to preapprove to change whether the exclusionary rule applies.

Second, prosecutors and agents may be thinking that including the provision in the warrant will encourage people not to resist giving their thumbprints. Agents wont want to force people to put their thumbs on the phones; they would rather those present do so without force. With a warrant in hand saying that a judge has ordered it already, people are probably more likely to submit. But if thats the concern, I think the same objective could be met with an appellate court ruling saying that the thumbprints are permitted as a matter of Fourth Amendment law. Agents could show people a summary of the law on the issue, printed up on government letterhead, and I think that would have equivalent persuasive force. And of course that assumes that the courts would issue such a blanket ruling. Whether that is true would have to be litigated first, obviously.

I interpret the judges Fourth Amendment analysis to be at least somewhat in sync with the argument I have made here. On that basis I think the judge was correct to reject the provision, although I would have expressed the Fourth Amendment argument somewhat differently.

II. My Analysis the Fifth Amendment Issues

On to the Fifth Amendment issues. I wrote a long blog post last year on why I think compelling fingerprints to unlock phones can but usually wont raise Fifth Amendment issues: The Fifth Amendment and Touch ID.That post largely explains why I disagree with much of the magistrate judges Fifth Amendment analysis. The judge seems to think that using a persons body to reveal really private information somehow makes it testimonial; it is using the body to produce evidence, after all. But the Fifth Amendment is solely concerned with compelling use of the mind, not compelling use of the body.

There are ways that compelling someone to place fingers on biometric readers can require use of the mind, as I argued back in October. Imagine the police walk up to a person present at the scene and say this: Here are 10 phones, and you have to pick out your phone and unlock it with Touch ID. Complying will be testimonial as to which phone belongs to that person and will amount to testimony that they know which part of their body unlocks it. On the other hand, if the police walk up to a suspect and say, place your right thumb on this phone, complying wont amount to testimony about anything.

The fact that iPhones didnt exist in 1967 is irrelevant, as is the fact that the police are ultimately able to get lots of personal information by unlocking a phone. Those are relevant to the Fourth Amendment analysis, as the Riley case shows. But theyre not relevant to the Fifth Amendment standard.

Ill conclude with a procedural point. Im skeptical that possible Fifth Amendment issues that might arise in the execution of the warrant are properly before the court. For the Fifth Amendment to apply,the person must first expressly invoke the privilege. Given that people may or may not invoke their Fifth Amendment rights, Im skeptical that there is a ripe dispute now that can allow a court to adjudicate the Fifth Amendment issue. This concern would be solved by removing the provision from the warrant, as I think the Fourth Amendment requires.

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Supreme Court considers parents’ rights after boy killed by agent across Mexican border – Washington Times

Posted: February 22, 2017 at 3:55 am

The Supreme Court struggled Tuesday to define limits to the Constitutions Fourth Amendment in a tragic case in which a U.S. Border Patrol agent fired his weapon and killed a 15-year-old boy on the Mexican side of the line.

Some of the justices feared that if they went too far, they could open the U.S. military to claims from victims of drone attacks in foreign countries. But the courts liberal wing worried that unless they gave the family its day in court, it had no recourse to punish rogue agents.

You have a very sympathetic case, Justice Stephen G. Breyer told the attorneys for the family of Sergio Hernandez, the boy killed in 2010 by the shot fired by agent Jesus Mesa Jr.

Mr. Mesa was cleared after a probe by the U.S. government, which said it could not establish that he violated Border Patrol policies.

The family says it wants justice in the courts. The only problem: Lower courts have ruled that since the boy was in Mexico, the Fourth Amendment protections dont apply in this case.

Robert C. Hilliard, the attorney for the Hernandez family, cast his case as a defense for other Mexicans who might find themselves in the same situation. He said there is an ongoing domestic routine law enforcement issue that needs to be solved.

Were here because the interaction of the Border Patrol in this area, the government has taken the position that on the border, the Constitution turns off if the deadly force goes across the border, he said.

He said there have been 10 instances in which the Border Patrol has fired from the U.S. into Mexico and killed someone.

Ahead of Tuesdays oral argument, some analysts said the case could give an indication of how the justices might rule on the extreme vetting executive order issued by President Trump. That order has been mostly blocked by federal courts, which ruled that potential visitors outside the U.S. and foreigners inside the U.S. illegally have constitutional rights that must be respected.

But the justices didnt stray far afield Tuesday. Instead, they debated whether they could draw a line that would allow the family to sue in this case but wouldnt open a whole category of lawsuits against U.S. troops who create collateral damage.

How do you analyze the case of a drone strike in Iraq where the plane is piloted from Nevada? Chief Justice John G. Roberts Jr. asked Mr. Hilliard.

Justice Ruth Bader Ginsburg waved aside those concerns, saying thats a military operation that could be distinguished from a border encounter involving a federal law enforcement officer.

The chief justice did not seem swayed by the distinction, particularly in a tort claim against a federal employee.

The case could turn on the exact spot where the slaying occurred. The boy was shot in a culvert that is maintained by both the U.S. and Mexico though the ground where he fell is clearly on the Mexican side, the attorneys said.

Some of the courts liberal justices said that if the U.S. government has some authority over the territory, that could be a zone where Fourth Amendment protections against searches and seizures and in this case unlawful death would apply.

But Randolph J. Ortega, Mr. Mesas attorney, said the matter of the border cant be minimized.

Wars have been fought to establish borders. The border is very real, he said.

Mexico had asked for Mr. Mesa to be extradited to face charges there, but the U.S. government refused. The Mexican government then backed the familys lawsuit in court.

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WaPo: The Fourth Amendment at the border and beyond: A few …

Posted: February 20, 2017 at 6:55 pm

ABA Journal’s Blawg 100 (2015-2016)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact / The Book

2003-17, online since Feb. 24, 2003


Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Federal Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: S.Ct. Com’t’ry:

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx $ (criminal law/ 4th Amd) $ (4th Amd) $ F.R.Crim.P. 41 Federal Law Enforcement Training Center Resources FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf) Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, “The Who Live at Hyde Park” (Showtime 2015)

“I can’t talk about my singing. I’m inside it. How can you describe something you’re inside of?” Janis Joplin

“Love work; hate mastery over others; and avoid intimacy with the government.” Shemaya, in the Thalmud

“A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one’s attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.” Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev’d Nix v. Williams, 467 US. 431 (1984).

“The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Mapp v. Ohio, 367 U.S. 643, 659 (1961).

“Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.” Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

“There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.” Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

“The great end, for which men entered into society, was to secure their property.” Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment.” United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

“A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Arizona v. Hicks, 480 U.S. 321, 325 (1987)

“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

“In Germany, they first came for the communists, and I didn’t speak up because I wasn’t a communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics and I didn’t speak up because I wasn’t a Catholic. Then they came for meand by that time there was nobody left to speak up.” Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men! —Pep Le Pew

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SCOTUS Will Hear Cross-Border Shooting Case – Daily Caller

Posted: at 6:55 pm


The Supreme Court will hear oral arguments in a case implicating a U.S. Border Patrol agent in the cross-border shooting of a Mexican national in the border zone near El Paso, Texas, Tuesday.

The case asks the justices to determine how the Fourth Amendments prohibition on unjustified deadly force applies in the border zone and if the agent is protected by qualified immunity, which protects federal employees from civil suits when they are working in their official capacity.

Sergio Adrian Hernandez Guereca, a Mexican national, was shot and killed by Agent Jesus Mesa, Jr., July 7, 2010. Mesa was standing in the United States when he discharged his service weapon. Hernandez was shot and died on Mexican soil.

Lawyers for Hernandezs family allege he and several friends were playing a game in which they ran up the inclined border culvert separating the U.S. and Mexico, touched the border fence, and retreated back into Mexico.

The U.S. Department of Justice strongly disputes this framing of the incident.

After the shooting, the Department of Justice conducted a comprehensive and thorough investigation into the shooting, concluding that the shooting took place while alien smugglers, including Hernandez, unsuccessfully attempted an illegal border crossing, and began to hurl rocks from close range at Agent Mesa while he was attempting to detain a suspect, Mesas brief for the Court reads. Hernandez had been arrested twice before for alien smuggling. The Justice Department declined to recommend criminal charges against Mesa.

The justices are not asked to reach findings on these factual disputes.

On appeal, the 5th U.S. Circuit Court of Appeals dismissed the case, finding the Supreme Courts ruling in U.S. v. Verdugo-Urquidezmitigated against such claims. In that case, the justices found that the Fourth Amendments prohibition on unwarranted searches and seizures does not apply when federal agents search homes owned by foreign nationals in other countries. They also ruled that Mesa was entitled to qualified immunity.

Hernandezs family counters by arguing the Court established in Boumediene v. Bush,that, in particular contexts, foreign nationals may have constitutional protections. The Boumediene decisionallowed detainees at Guantanamo Bay, Cuba, to challenge the legality of their detention. Mesa rebuts by asserting that decision applies only to territories over which the U.S. has de facto control like Guantanamo Bay and not to territories over which the U.S. does not have exclusive control, like the border zone.

The outcome of the Fourth Amendment decision reflects a divergence in approach to such questions within the Court. While some of the justices favor maintaining bright-line rules about the extent of the Constitutions application abroad, others prefer an approach which considers the details unique to each situation, and will extend certain constitutional protections on a case-by-case basis.

The question of qualified immunity will turn on whether a reasonable officer would have known his conduct was unconstitutional.

In addition to the Fourth Amendment and qualified immunity questions, the justices asked the parties to answer whether or not the Hernandezs could bring a suit under Bivens v. Six Unknown Agents, which allows courts to award damages for egregious constitutional violations by federal officials.

The case could have a significant effect on U.S. law enforcement or national security abroad. Writing at Lawfare, professor Andrew Kent of Fordham University School of Law explains:

If these amendments are held to apply outside U.S. borders to protect noncitizens, a huge array of intelligence, military, immigration, customs, and law enforcement activity could be impacted. To take two examples that are salient for Lawfare readers: extraterritorial foreign intelligence surveillance and drone strikes, both of which have proceeded to date under the executive branchs assumption that noncitizens outside the United States have no relevant constitutional rights in those contexts.

The case has attracted a great deal of attention from other parties. Amnesty International and the ACLU have each filed amicus, i.e. friend-of-the-court briefs, in support of the Hernandez family, while the Criminal Justice Legal Foundation filed a brief backing Mesa.

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Minn. Supreme Court reverses Meeker County fourth amendment case – West Central Tribune

Posted: at 6:55 pm

The case stemmed from a 2015 arrest in Grove City. CEE-VI Drug and Gang Task Force agents had an arrest warrant for Leona Rose deLottinville, then 27, of Grove City. It was alleged that she had violated court-ordered conditions of release.

With information that deLottinville was at her boyfriend’s Grove City home, officers went there on March 24, 2015, where they allegedly saw deLottinville through a glass patio door.

One officer opened the unlocked door, went inside the home, and arrested deLottinville.

Marijuana and a bong were sitting in plain view on a countertop.

After deLottinville’s arrest, officers obtained a search warrant for the home and allegedly found marijuana, meth, hydrocodone pills and drug paraphernalia. She was charged with two additional counts of fifth-degree drug possession, and possession of drug paraphernalia.

In Meeker County District Court, deLottinville submitted a motion to dismiss all of the charges on the grounds that police should not have been allowed to enter the home.

Judge Stephanie Beckman granted the motion, and dismissed all charges against deLottinville in August 2016. Even as a short-term guest, Beckman stated, deLottinville had an expectation of privacy in the home.

The Minnesota Court of Appeals reversed that ruling, arguing that a guest in a home does not have a right to more privacy than the homeowner.

That decision was appealed to, and upheld by, the Minnesota Supreme Court, which issued the ruling Wednesday.

Justice David L. Lillehaug authored the opinion filed with the ruling.

In the Payton v. New York ruling, he wrote, the U.S. Supreme Court determined that an arrest warrant was grounds to enter the home in which that individual lives to arrest them.

What was not determined, Lillehaug wrote, was “whether the same holds true when the subject of an arrest warrant is believed to be present in another person’s home.”

The U.S. Supreme Court also previously ruled that an arrest warrant for a guest in a home does not justify searching the home. In that case, a search warrant would be required.

The case ruled upon on Wednesday, then, involved a window that had not yet been defined: What are a guest’s rights inside a home?

Lillehaug wrote that even though the home is traditionally where an individual has a right to privacy, police can still enter to execute an arrest warrant. That constitutional reasoning should not change when the individual is in a home other than their own, Lillehaug wrote.

“A guest should not receive any greater Fourth Amendment protection when outside her home than when inside it,” he wrote.

Justice Margaret H. Chutich dissented from the ruling.

She disagreed with the Supreme Court’s application of the Payton v. New York ruling in the current case.

“This unwarranted extension of Payton fails to apply later Fourth Amendment precedents,” Chutich wrote, “and fails to protect the right of a host from unreasonable governmental intrusion into the sanctity of her home, a right at the ‘very core’ of the Fourth Amendment.”

The Fourth Amendment to the U.S. Constitution prohibits unreasonable search and seizure.

In the opinion, Lillehaug had acknowledged that, with the ruling, there would be “potential for abuse.” But he said that in this case, deLottinville was visible to the officer before he entered the home. There was no evidence of abuse, he said.

Chutich wrote that that potential for abuse “is not merely theoretical.”

“Minnesotans would certainly be surprised to realize that the police can enter their homes at any time with nothing more than an arrest warrant for an overnight guest, or even a short-term social guest,” she said.

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Richmond County Daily Journal | StingRay is why the 4th … – Richmond County Daily Journal

Posted: February 19, 2017 at 10:56 am

Imagine you are in the middle of your typical day-to-day activities. Maybe you are driving, spending time with family, or working. If you are like most people, your phone is at your side on a daily basis. Little do you know that, at any time, police and law enforcement could be looking at information stored on your phone. You havent done anything wrong. You havent been asked for permission. You arent suspected of any crime.

The StingRay

Police have the power to collect your location along with the numbers of your incoming and outgoing calls and intercept the content of call and text communication. They can do all of this without you ever knowing about it.

How? They use a shoebox-sized device called a StingRay. This device (also called an IMSI catcher) mimics cell phone towers, prompting all the phones in the area to connect to it even if the phones arent in use.

The police use StingRays to track down and implicate perpetrators of mainly domestic crimes. The devices can be mounted in vehicles, drones, helicopters, and airplanes, allowing police to gain highly specific information on the location of any particular phone, down to a particular apartment complex or hotel room.

Quietly, StingRay use is growing throughout local and federal law enforcement with little to no oversight. The ACLU has discovered that at least 68 agencies in 23 different states own StingRays, but says that this dramatically underrepresents the actual use of StingRays by law enforcement agencies nationwide.

The Violation

Information from potentially thousands of phones is being collected every time a StingRay is used. Signals are sent into the homes, bags, and pockets of innocent individuals. The Electronic Frontier Foundation likens this to the Pre-Revolutionary War practice of soldiers going door-to-door, searching without suspicion.

Richard Tynan, a technologist with Privacy International notes that, there really isnt any place for innocent people to hide from a device such as this.

The Fourth Amendment of the Constitution states that, 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.

The StingRay clearly violates these standards. The drafters of the Constitution recognized that restricting the government from violating privacy is essential for a free society. Thats why the Fourth Amendment exists. The StingRay is creating a dangerous precedent that tells the government that its okay for them to violate our rights. Because of this, freedom is quietly slipping out the window.

Little Regulation

Law Enforcement is using StingRays without a warrant in most cases. For example, the San Bernardino Police Department used their StingRay 300 times without a warrant in a little over a year.

A handful of states have passed laws requiring police and federal agents to get a warrant before using a StingRay. They must show probable cause for one of the thousands of phones that they are actually searching. This is far from enough.

Additionally, there are many concerns that agents are withholding information from federal judges to monitor subjects without approval bypassing the probable cause standard laid out in the Constitution. They even go as far as to let criminals go to avoid disclosing information about these devices to the courts.

If the public doesnt become aware of this issue, the police will continue to use StingRays to infringe on our rights in secret and with impunity.

Olivia Donaldson is a recent high school graduate that is currently opting out of college and participating in an entrepreneurial program called Praxis. Originally published at


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Judge sides with SLCPD in shooting of Geist the dog –

Posted: February 18, 2017 at 3:56 am

Source: Justice for Geist Facebook page

Source: Justice for Geist Facebook page

SALT LAKE CITY A federal judge has sided with police in the shooting of a dog as officers looked for a missing boy.

In a ruling handed down Friday night, U.S. District Court Judge Robert Shelby dismissed Sean Kendalls claims of a Fourth Amendment violation of his rights. He granted summary judgment for Salt Lake City and sent the case back to state court to be litigated.

This case is tragic on several levels. Parents feared their child missing, officers urgently responded, and Kendall lost his beloved companion animal. The court is mindful of the strong reactions this case has aroused among animal owners, parents, law enforcement, and community members, Judge Shelby wrote.

The case has exposed tensions that can arise between important competing interests, and the court has done its best to resolve these tensions while constraining its analysis to the facts presented by the parties and the established law.

Kendall sued Salt Lake City over the 2014 shooting of his dog, Geist, whobarked and ranat an officer who wandered into his backyard searching for the missing boy. The child was later found inside his own home.

Judge Shelby ruled that Kendall failed to establishan unconstitutional search and seizure violation under the Fourth Amendment.

In sum, the court concludes that even if (Officer) Olsens warrantless sweep of Kendalls backyard was a Fourth Amendment search, it was not unconstitutional because it was justified by exigent circumstances. And even in the event it was an unconstitutional search, Olsen would be entitled to qualified immunity because his mistake as to what the law requires would be reasonable, the judge wrote.

Reached by FOX 13 late Friday, Kendalls attorney, Rocky Anderson, said he would appeal to the 10th U.S. Circuit Court in Denver.

Of course we vigorously disagree, he said. We fully expect to prevail, ultimately. It would be an extremely frightening prospect if police could go throughout an entire geographic region and search in Fourth Amendment protected areas.

Anderson said the ruling enforced a shoot first culture, adding he believed there was no reason to shoot Geist under any circumstances.

Judge Shelby previously ruled against Salt Lake City police, who sought to enforce a $10,000 settlement offer extended to Kendall.

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A Step Forward in Microsoft’s Legal Battle for Transparency about Government Data Requests – EFF

Posted: at 3:56 am

Last week, a federal court in Seattle issued a ruling in Microsofts ongoing challenge to the law that lets courts impose indefinite gag orders on Internet companies when they receive requests for information about their customers. Judge James Robarthe of recent Washington v. Trump fameallowed Microsofts claim that the gags violate the First Amendment to proceed, denying the governments motion to dismiss that claim. Its an important ruling, with implications for a range of government secrecy provisions, including national security letters (NSLs). Unfortunately, the court also dismissed Microsofts Fourth Amendment claim on behalf of its users.

When tech companies cant tell users that the government is knocking

Before looking at the substance of Judge Robarts ruling, its worth remembering why EFF thinks Microsofts lawsuit is important. In fact, wed go so far as to say that challenging gag orders imposed alongside government data requests is one of the key digital civil liberties issues of our time. Thats true for at least two reasons:

First, there has been a sea change in where we keep our sensitive personal information papers and effects protected by the Fourth Amendment and records of First Amendment-protected speech and associations. Just twenty or thirty years ago, most or all of this information would have been found in peoples homes. In order to get at your informationwhether by breaking down your door or serving you with a grand jury subpoenathe government usually couldnt help tipping you off. These days, private information is more likely to be stored in Microsoft Office 365 or with another third-party provider than a home office. In that case, you wont know the government is interested in your information unless you hear from the government or the third-party provider. But the government isnt always required to notify the targets of data requests, and it routinely gags providers from notifying their users. The long-standing defaultnotice that the government is after your informationhas in just a short time effectively flipped to no notice.

Second, gags distort the publics understanding of government surveillance and correspondingly place far more responsibility on providers. The statutory provision at issue in Microsofts lawsuit, 18 U.S.C. 2705, applies in criminal cases. This statute allows the government to gag service providers if a court finds that informing the user will result in one of several enumerated harmsdeath or injury to a particular person, destruction of evidence, witness tampering, and so on. But as Microsofts complaint explains, Section 2705 gag orders accompany at least half of the data demands the company receives, and courts often grant them without explicit findings of potential harm. In many cases, they also do so without setting a date for the gag to dissolve. The result is a de facto permanent gag order. Thats an abuse of what is intended as a limited power, granted to the government to protect specific, sensitive investigations.

Unless a provider takes extraordinary stepslike filing a facial constitutional challenge as Microsoft didits likely that the public wont be aware of this abuse. This intensifies the role that providers play as trustees of our data. Thats why EFF tracks both transparency reports and user notification as part of our annual Who Has Your Back report. We dont just rely on companies to keep our data secure, we also need them to stand up to the government on our behalf. Its a point often missed by those who dismiss companies growing commitments to privacy as empty marketing. If not Microsoft, Apple, Google, Facebook and all the others, then who?

The ruling: first party prior restraints and third-party Fourth Amendment rights

Despite the importance of these issues, the government argued that Microsofts challenge should be bounced out of court at the preliminary motion to dismiss stage. On the First Amendment claim, at least, the court disagreed. Microsofts basic argument will be familiar if youve followed EFFs NSL cases: when the government prevents you from speaking in advance, its known as a prior restraint. Under the First Amendment, prior restraints must meet exacting scrutiny and are rarely constitutional. Here, the court found that Microsoft had more than adequately alleged that Section 2705 does not meet this exacting scrutiny because it does not require courts to time-limit gags to situations where they are actually necessary based on the facts of the case.

This is nearly identical to one of the issues in EFFs NSL casesNSLs similarly allow the FBI to gag service providers indefinitely.However, NSLs are even more egregious in several ways: the FBI can issue them without any involvement by a court at all, and it need not even claim that one of the specified harms will actually result without an NSL gag. We hope the Ninth Circuit will consider our NSL clients arguments about their First Amendment rights as thoroughly as Judge Robart did here.

Finally, the court reached an unsatisfying conclusion about Microsofts attempt to raise its users Fourth Amendment rights. As EFF explained in our amicus brief earlier in the case, notice of a search is a core part of the Fourth Amendments protections. When Microsoft is precluded from notifying users, it is the only party with knowledge of the search and therefore should be able to raise its users Fourth Amendment rights. Nevertheless, the court found that Fourth Amendment rights are inherently personal and cannot be raised by a third party, leading it to dismiss Microsofts claim. We think thats wrong on the law, and we hope Microsoft will consider seeking leave to appeal. Meanwhile, well watch as the case progresses on Microsofts First Amendment claim.

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