Posts tagged as:

Fourth Amendment

  • Cop caught on camera stealing dying motorist’s $3700 and gold crucifix “walked out of courtroom with big smile on face” [Bridgeport; Connecticut Post]
  • Durham, N.C. police officer testifies department would illegally gain access to homes for purposes of search by lying about getting 911 calls [IndyWeek]
  • “California Highway Patrol Seizes Medical Records Of Woman An Officer Was Caught On Tape Beating” [Tim Cushing, TechDirt]
  • Drivers routinely expected to give up otherwise-basic civil liberties in exchange for right to use the roads [Michael Tracey, Vice]
  • Teen sexting prosecutions in Virginia and elsewhere: “We must destroy the children in order to save them” [Radley Balko]
  • Narcotics officers get training credit at tax-funded seminars in how to argue in favor of drug laws [Missouri pro-legalization site via Balko]
  • Back from the ashes: advances in fire and arson forensics cast doubt on earlier convictions [Texas Monthly]

Riley’s best line

by Walter Olson on June 28, 2014

“The United States asserts that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of [a wallet or purse] … That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.” — Chief Justice Roberts, writing for the Court in Riley v. California, in which the Justices unanimously disallowed warrantless police searches of arrestees’ cell phones.

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Ilya Shapiro at Cato:

In its ruling today in Riley v. California, the Supreme Court unanimously established a clear new rule for police-citizen interaction: The police can’t, without a warrant, search the digital information on cell phones they seize from people they arrest. This is a big deal because it means that being arrested for, say, not paying a speeding ticket, will no longer open you up to having your entire life examined by law enforcement. Unlike the satchels and billfolds of yore, people now carry essentially all their private documents with them at all times: address books, financial and medical records, photo albums, diaries, correspondence, and more. To allow police to review all of that information just because they happen to have arrested someone would violate the Fourth Amendment’s protection of personal papers and effects against unreasonable searches and seizures. …

Kudos to the Court—and raspberries to the federal government, which has now had its expansive arguments rejected unanimously 11 times since January 2012.

More: Orin Kerr.

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Less than a mile before a police DUI checkpoint in Parma, Ohio, resident Doug Odolecki held a sign reading “Check point ahead turn now.” Police gave him a ticket and confiscated the sign: “Odolecki was issued a ticket and forced to hand over his sign. “Parma Police tell us they can’t get into the details of the pending case but a Sergeant told me that Odolecki was obstructing officers ability to do their job. They also said that the issue was with the part of the sign that said ‘turn now.’” [WOIO via AOL]

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  • Boston’s North End, the home-as-one’s-castle doctrine, and how we got the Fourth Amendment [Ted Widmer, Globe]
  • NYT sniffs at Origination Clause as basis for ObamaCare challenge, but many framers of Constitution saw it as vital [Trevor Burrus, Forbes; Ilya Shapiro; four years ago on another Origination Clause episode]
  • Justice Scalia, concurring in Schuette, knocks the fabled Carolene Products footnote down a peg [Michael Schearer]
  • SCOTUS lets stand New Jersey’s very extreme gun control law. Was it serious about reviving the Second Amendment? [Ilya Shapiro]
  • Didn’t link this earlier: Kenneth Anderson discusses his excellent Cato Supreme Court Review article on Kiobel, the Alien Tort case [Opinio Juris]
  • Kurt Lash guestblogs on 14th Amendment privileges and immunities clause [Volokh Conspiracy]
  • Supreme Court reviving law/equity distinction? (Hope so.) [Samuel Bray, SSRN via Solum]

Maryland roundup

by Walter Olson on May 17, 2014

  • Civil libertarians won victories last term in restraining open-ended use of police surveillance, search and seizure: access to emails and social media postings older than six months will now require warrant, as will location tracking; new restrictions also placed on use of automatic license plate reading system data [ACLU 2014 policy report]
  • Bill that would have banned weapons on private school grounds, whether or not the school itself had objection, failed to make it out of committee [SB 353, earlier here, here]
  • Judge overturns state union’s takeover of Wicomico County teacher’s association [Mike Antonucci, more]
  • Vague definitions of “trafficking” + asset forfeiture: what could go wrong with Del. Kathleen Dumais’s plan? [Reason, WYPR "Maryland Morning", more (legislative agenda of "trafficking task force")]
  • In his spare time, Maryland Commissioner of Labor and Industry Ronald DeJuliis apparently likes to engage in urban beautification of the sign removal variety [Baltimore Sun, Quinton Report, Daily Record (governor's office considers criminal charges against appointee "personal" and relating to "after hours")]
  • Behind the controversy over Rockville firearms dealer’s plan to offer “smart gun” [David Kopel]
  • Baltimore tightens curfew laws, ’cause criminalizing kids’ being outside is for their own good [Jesse Walker, followup]
  • In Montgomery County, police-union demands for “effects bargaining” were a bridge too far even for many deep-dyed liberals, but union hasn’t given up yet [Seventh State]

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  • Anonymous tip as basis for search? Thomas, Scalia divide in 5-4 SCOTUS decision [Tim Lynch/Cato; Popehat and Scott Greenfield vs. Orin Kerr]
  • Undercover police target Uber, Lyft drivers to “send a message” [Alice Truong, Fast Company; related on New York AG Eric Schneiderman; yet more from NY state senator Liz Krueger (claims AirBnB could also lead to gambling and drugs)]
  • Judge Rakoff on plea deals: “hundreds… or even tens of thousands of innocent people who are in prison, right now” [Tim Lynch, Cato]
  • “Everybody’s trafficked by something,” claims one Phoenix police lieutenant [Al-Jazeera via Elizabeth Nolan Brown, Reason] “Lies, damned lies, and sex work statistics” [Maggie McNeill]
  • Small town police get feds’ surplus armored military vehicles. What could go wrong? [Radley Balko, with reader comments on challenges of supplies and maintenance]
  • Good: “Obama to consider more clemency requests from nonviolent drug offenders” [CBS, Tim Lynch, my take in December]
  • Arkansas: “Mom Arrested for Breastfeeding After Drinking Alcohol in a Restaurant” [Free-Range Kids]

Even if the cops wave you to the side amid flashing lights, and functionaries come out to ask you for saliva or blood samples, and keep asking after you say no, it’s all “voluntary.” Right? Right. “A recent Georgia appellate decision reversed a trial court that held the lights atop a police car were merely an invitation to chat rather than a command to stop, the refusal of which tended to produce death by a hail of gunfire.” [Amy Alkon, Scott Greenfield, earlier here, here, and, on "no-refusal" blood-draw DUI checkpoints, here]

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An extra reason to be cautious in your holiday driving:

If you live in one of 30 cities, you may find yourself pulled over soon at roadblocks where police and federal contractors ask to swab your cheeks, take your blood or give a breath sample to see if you’re on drugs without any probable cause that you’ve committed a crime. Such an exciting time for your civil liberties!

[Jalopnik via @ProfBainbridge] On the separate issue of “no-refusal” blood draws at DUI stops in states like Texas and Tennessee, see Sept. 30.

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Yes, “copyright infringement”:

Agencies working to curb drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement complain that their attempts to exploit the [National Security Agency's] vast resources have often been turned down because their own investigations are not considered a high enough priority, current and former government officials say. …

“It’s a very common complaint about N.S.A.,” said Timothy H. Edgar, a former senior intelligence official at the White House and at the office of the director of national intelligence. “They collect all this information, but it’s difficult for the other agencies to get access to what they want.”

“The other agencies feel they should be bigger players,” said Mr. Edgar, who heard many of the disputes before leaving government this year to become a visiting fellow at Brown University. “They view the N.S.A. — incorrectly, I think — as this big pot of data that they could go get if they were just able to pry it out of them.”

Rep. Justin Amash (R-Mich.) speaks out on NSA bulk surveillance in this new Cato video with Caleb Brown. Earlier on surveillance here, here, and here; earlier on panopticons here. For the use of “money laundering” laws to pursue financial flows having nothing to do with terrorism or drug smuggling, see our reports here, here, here, here, etc.

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A spy’s warning

by Walter Olson on July 17, 2013

U.K.: “Dame Stella Rimington, the former head of MI5, has warned that the fear of terrorism is being exploited by the Government to erode civil liberties and risks creating a police state.” [Telegraph]

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  • “I’m looking at Sarge, like, ‘What am I writing him for?’ The sergeant said, ‘Blocking pedestrian traffic.’” [Brian Doherty]
  • “No one is innocent: I broke the law yesterday and again today and I will probably break the law tomorrow” [Alex Tabarrok, BLT]
  • Alabama officials reviewing NTSB-funded weekend roadblocks where motorists were asked for breath, blood and saliva samples [Montgomery Advertiser] “Maybe the NTSB should become a Common Rule agency” [i.e., subject to Human Subjects Research rules; @MichelleNMeyer]
  • New Jersey bill would require driver in some traffic mishaps to hand over cellphone to cop [S. 2783 (Holzapfel, Sen.) via @MeckReal]
  • “In Dubai airport, three poppy seeds from a bread roll fell in a Swiss man’s clothes and got him four years in prison” [@SanhoTree on BBC 2008 report]
  • “Hookup Shocker: The Sex Is Legal, but Talking About It Is a Felony!” [Jacob Sullum] “The Man Who Abused Me is Not on the Sex Offender List (The One who Saved Me Is)” [Free-Range Kids; related on registries, Michele Goodwin, Bill of Health]
  • “Senator Ervin, ‘No-Knock’ Warrants, and the Fight to Stop Cops from Smashing into Homes the Way Burglars Do” [Radley Balko guestblogging at ACLU; yesterday's post on Balko's new book, and more ("7 Ways The Obama Administration Has Accelerated Police Militarization")]

At Utah’s Deseret News, reporter Eric Schulzke writes on how “the U.S. Bill of Rights remains a work in progress 222 years after it became law — a continuing struggle between government claims for order and security, and the individual’s interest in clarity and freedom. This past year, the struggle played out in numerous areas, including free speech and search and seizure rules, to touch just a few.” He quotes me on the hope of bright-line rules establishing the public’s right to take pictures of law enforcement (recent Hawthorne, Calif. cause celebre here), on the need to focus on state and local police use of DNA databases before the inevitable abuses establish themselves, and on how four significant Fourth Amendment cases made it to the Supreme Court this year: “‘Here we are 200 years later, and a lot of big, interesting questions still haven’t been settled on what the Bill of Rights says about search and seizures,’ Olson said.” A sidebar reviews the year in civil liberties controversies.

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“…for evidence in murder, divorce cases.” [Bob Sullivan, NBC News]

Surveillance roundup

by Walter Olson on June 14, 2013

  • “Old crisis creates new leviathan” [Barton Hinkle] Some other things that maybe should happen before Snowden gets prosecuted [Bruce Schneier] “Were they here, my parents might have asked, ‘What happened to America?’” [Nat Hentoff]
  • Candidate Obama, meet President Obama; on surveillance, you’ll find you have little in common [graphic courtesy Caleb Brown, Cato at Liberty] Don’t say the president wants to be trusted with complete discretion unfettered by the other branches of government; that’s his assassination program, not his surveillance program [Jacob Sullum]
  • A different view: two leading libertarian legal thinkers, Roger Pilon and Richard Epstein, defend the NSA surveillance program [Chicago Tribune]
  • How very wrong David Simon is about the NSA’s capabilities [Clay Shirky, Guardian]
  • Tracking by advertisers just as bad? No, here’s why state surveillance is worse [Jason Kuznicki, Brian Doherty]
  • I’m not the only one wondering whether prosecution of QWest’s Joseph Nacchio relates to his non-cooperation with NSA [Michael Kelly/Business Insider, Scott Shackford/Reason, Greg Campbell/Daily Caller]
  • What would it take to bring back a Watergate-era spirit of reform? [Jesse Walker]
  • “As the NSA has made all too clear, unless we update our concept of the Fourth Amendment to fit the realities of the Internet Age, those general warrants [despised by colonists] will be back — on a far larger scale, and in secret.” [Julian Sanchez]

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Housing roundup

by Walter Olson on June 12, 2013

  • Danegeld: Wells Fargo agrees to pay $42 million to settle activist groups’ exotic legal claims re: REO property; much will directly go to support the groups [BLT]
  • On horrors of San Francisco landlordship, “Pacific Heights” still all too realistic [David Boaz, Cato]
  • Problem in Thomas Perez/HUD/St. Paul affair was not that DoJ chose to settle in such a way as to minimize its losses, but that it had pursued such a weak case in the first place [Richard Painter]
  • Dean Zarras on HUD v. Westchester [Forbes; our two cents] HUD embraces disparate-impact theory [Kevin Funnell, Arnold Kling]
  • Why did the mortgage market collapse? [Foote et al via @tylercowen]
  • Shorter Ta-Nehisi Coates: flaws of rent-to-own housing in ’50s Chicago prove US economic arrangements are a plot to immiserate blacks [The Atlantic] Yet Sinclair’s The Jungle, set 40 years before, showed very similar housing scams being played on Slavic newcomers.
  • Minnesota high court dodges Fourth Amendment worries re: rental inspection program [Ilya Shapiro, Cato, link fixed now]

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Don’t just think vacuum cleaners, think J. Edgar Hoover. [Gene Healy, Washington Examiner] In fact there’s a long history of misuse of ostensibly secure law-enforcement files and databases [1993 GAO report; Robert F. Weir, ed., book on Stored Tissue Samples; unlawful private-investigator access to the National Crime Information Center (NCIC), the FBI's electronic criminal-records database] Once DNA databases are open to varied queries from multiple law enforcement agencies, can we presume them immune from abuse? Even the NSA, whose level of professionalism is presumedly far higher than that of local law enforcement agencies, is no stranger to stories about gratuitous and offensive abuse of privacy. And, writes Jim Harper, the evidence is that the NSA has gathered telecom metadata on a dragnet basis (as distinct from individualized suspicion) not merely for data mining, but to assist in investigations of persons who may happen to come under suspicion in the future, quite a different rationale.

More: “Was a Telecom CEO Sent to Prison Because He Resisted NSA?” [Alexander Cohen, Atlas, on Joseph Nacchio's prosecution on insider trading charges after QWest refused to participate in surveillance] For many other telecoms, at any rate, fear of regulatory muscle will turn them into eager cooperators [Ira Stoll on Verizon] Related: 2007.

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Did you know the IRS has asserted, and apparently exercised, a right to read your emails without a warrant? I didn’t, until now. [ACLU; more from ProPublica]

Regarding yesterday’s revelation that the National Security Agency has been collecting the phone records of millions of Americans, Glenn Greenwald at the U.K. Guardian has the original scoop, quoting my Cato colleague Julian Sanchez about one of the most salient aspects of the program: it scoops up everyone’s phone data in a dragnet, rather than proceeding against some narrower category of phone records for which there is individualized suspicion. More coverage: Guardian sidebar on what telephone metadata can reveal; Timothy Lee/Washington Post; Orin Kerr/Volokh (“This is potentially a huge story. If the NSA is getting all call records from every domestic call from Verizon, then that’s a very big deal”); Adam Serwer/MSNBC; Electronic Frontier Foundation (“There is no indication that this order to Verizon was unique or novel. It is very likely that business records orders like this exist for every major American telecommunication company, meaning that, if you make calls in the United States, the NSA has those records. And this has been going on for at least 7 years, and probably longer.”) And from a slightly different perspective, Joshua Foust, who cites Congress for having repeatedly voted to give the Executive ultra-broad surveillance powers, and writes: “The information the NSA is collecting is metadata, not content (like a wiretap), and not account names. Uncovering personally identifiable information would require separate warrants to do so. This was a pattern analysis, not really mass surveillance as we traditionally understand it.”

P.S. On the IRS’s claims of a right to read email without a warrant, Justin Horton: “Not limited to IRS; this is basically government’s position and only 6th Circuit seems to disagree.”

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