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Fourth Amendment

November 10, 2011
Big Brother Surveillance: Getting Bigger
Guest Post

By Margaret Hu, a visiting assistant professor at Duke Law School. Her research focuses on immigration and surveillance policy. She previously served as special policy counsel on immigration-related discrimination in the Civil Rights Division of the U.S. Department of Justice.

When it comes to surveillance, size matters. In U.S. v. Jones, the GPS tracking case, the Supreme Court just might agree.On November 8, the Court heard arguments on whether the police violated the Fourth Amendment’s prohibition against unreasonable searches and seizures when it continued to monitor Mr. Jones’ car with a GPS device after the warrant expired. During oral argument, what seemed clear to the Justices is that cyber-surveillance today is not your grandma’s apple pie surveillance. With new technologies, the Justices seem to be wondering whether being watched 24/7 may one day be as common as, well, apple pie.

Back in the day, surveillance meant being tailed. The government sent someone to follow you around. Today, technology has given the government the capacity to track both your body and biography 24/7. And it’s not just “persons of interest” anymore. With cyber-surveillance, it’s now cost-effective to track everyone. But, is it ok for the government to check your email, google searches, and Facebook page? Skim your credit card records and purchases on Amazon? Monitor your cell phone records and smartphone locations? During U.S. v. Jones, the Supreme Court wondered aloud during oral argument whether the government could attach GPS devices to the license plates of everyone who owns a car in the entire U.S.

This last scenario might not be as far-fetched as it sounds.
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Tags:
Surveillance, Technology and I.P., Constitutional Interpretation and Change, Electronic privacy, Fourth Amendment, GPS tracking device, Guest Post, U.S. v. Jones
July 28, 2011
Constitution Check: Full-Body Scanning at the Airport
Guest Post

By Lyle Denniston. Mr. Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work. Denniston’s analysis was first posted at the National Constitution Center’s Constitution Daily.

The constitutional claim:

“The TSA’s body scanner program violates the Fourth Amendment…The TSA subjects all air travelers to the most extensive, invasive search available…The TSA rules require individuals to submit to a digital strip search that is maximally intrusive.”

- Arguments made in a legal brief filed by the Electronic Privacy Information Center (EPIC) in its lawsuit against the Dept. of Homeland Security, decided by the D.C. Circuit Court of Appeals, July 15, 2011.

The constitutional response:

The U.S. Supreme Court has never ruled directly on the constitutionality of screening passengers at the nation’s airports, but has suggested in cases involving other kinds of searches that airport searches are vital to public safety. In the first federal court test of full-body scanners, the Court of Appeals for the D.C. Circuit earlier this month rejected the constitutional challenge.

Full-body scanners are now in use at more than 80 U.S. airports and are destined for all domestic air terminals as the primary screening method, replacing magnetometers. A passenger who objects to this imaging can choose a physical pat-down.

From the time the government began using full-body imaging four years ago, there have been strong protests that the technology invades personal privacy and is unconstitutional under the Fourth Amendment.

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Tags:
Other courts, Search and seizure/Fourth amendment, Constitutional Interpretation and Change, airport security, Constitution Daily, Electronic Privacy Invformation Center (EPIC), Fourth Amendment, full body scanners, Guest Post, Lyle Denniston, Privacy, TSA, U.S. Supreme Court
June 17, 2011
Chipping Fourth Amendment Away, Let’s Celebrate Mapp v. Ohio, While We Can

The U.S. Supreme Court’s landmark opinion in Mapp v. Ohio celebrates its 50th birthday this week, but as a number of experts suggest, we probably should celebrate that historic decision’s affirmation of the Fourth Amendment’s bar from “unreasonable searches and seizures” and the extension of the exclusionary rule to the states while we still have the opportunity.

Mapp turns 50 this Sunday but, as Alexander Wohl writes in Slate, “an increasingly conservative court has issued numerous rulings slowly chipping away at Mapp and now appears to be within one vote of overturning it entirely.” Wohl suggests that Mapp, written by the moderate justice Tom Clark, is actually a decision that true conservatives should embrace, rather than attack.

Wohl, a former Supreme Court judicial fellow who is writing a biography of Justice Clark (pictured) and his son, former attorney general Ramsey Clark, tells the story of Mapp’s origins and explains how Tom Clark transformed the decision from a first amendment case into the historic Fourth Amendment ruling.

“How and why an easygoing Texan managed to engineer this historic decision with a court comprised of brilliant prima donnas, including another southerner who happened to be a former member of the KKK is almost the best part of the story,” he writes.

Wohl continues:

Although he was good friends with two of the court's leading liberals, Warren and Brennan, Clark was no liberal, no judicial activist—and no pushover. A former assistant district attorney and later Harry Truman's attorney general, Clark was as pro-law enforcement as they came. As attorney general he had come under fire from civil libertarians for his stewardship of a Truman anti-Communist law known as the Attorney General's List of Subversive Organizations. So when Clark talked about "judicial integrity" and the problems resulting from federal officers who "were invited to and did … step across the street to the state's attorney with their unconstitutionally seized evidence," there is reason to respect his understanding of law enforcement practices. And that's why, in that elevator, Justice Black, who would become the key fifth vote for incorporation of the exclusionary rule, was willing to listen to him.

See the entire article here.

Yale Kamisar, who is the nation’s preeminent expert on Mapp and co-author of the casebook, “Modern Criminal Procedure,” also has a piece commemorating Mapp in The National Law Journal. He too notes the precarious setting of the landmark case. “It is fairly clear that four members of the current Court are quite unhappy with the search-and-seizure exclusionary rule: Chief Justice John Roberts Jr. and justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr.”

Last year, ACS published an issue brief, “The Crisis in Fourth Amendment Jurisprudence,” by Jay Stanley. In 2009, ACS published an Issue Brief by Susan Bandes, “The Roberts Court and the Future of the Exclusionary Rule.”

Tags:
Criminal Justice, Exclusionary Rule, Fourth Amendment, unreasonable searches and seizures
January 11, 2011
Can Police Create the Circumstances That Support a Warrantless Search?
Guest Post
By Martin Magnusson. Mr. Magnusson is an associate at Day Pitney LLP.
Under the Fourth Amendment, police need a warrant to enter a person's home without that person's consent. An exception to this rule exists for so-called exigent circumstances. Under the exigent-circumstances exception to the Fourth Amendment's warrant requirement, police are excused from getting a warrant when faced with situations that call for immediate action. An important example of exigent circumstances is the destruction of evidence. If the police had to get a warrant before entering a home in which they believe evidence is being destroyed, the evidence would be probably gone by the time that they return with the warrant.
Tomorrow, the Supreme Court will hear oral argument in Kentucky v. King, a case that explores the boundaries of the exigent-circumstances exception. According to the trial court's findings of facts in that case, police officers smelled burning marijuana outside an apartment. Instead of seeking a warrant to search the apartment, though, the police officers "banged on the door of the apartment . . . identifying themselves as police officers and demanding that the door be opened by the persons inside." The officers then heard "things being moved in the apartment." They subsequently described the sounds as that of "people moving around as opposed to furniture being moved." From these sounds, "[i]t seemed to the officers that the occupants . . . may have been in the process of destroying evidence." After no one answered the door, the police forcibly entered the apartment. Inside, they found Hollis King smoking marijuana.

Before the Supreme Court, Mr. King argues that the police officers' warrantless entry into his apartment violated the Fourth Amendment and that the evidence discovered during their warrantless entry must therefore be suppressed. His position is that if the police create the exigent circumstances that purportedly call for immediate action, there really isn't any emergency and the exigent-circumstances exception is inapt. The logic of Mr. King's argument is hard to argue with: If the police could circumvent the Fourth Amendment's warrant requirement by manufacturing emergencies, then the warrant requirement wouldn't be very meaningful.

Although the King case has received little press attention, its resolution could affect anybody who is visited by the police. As Professor Orin Kerr has noted:

When the police bang on a door, shout that they are the police, and demand entry, they do what they do when they have a warrant. To someone inside, that noise from outside creates the impression that the police are following the "knock and announce" rule they have to follow when executing warrant. Under the rule, if no one answers the door in 15-20 seconds, the police will break down the door and enter. If I'm in an apartment and I hear that outside, I'm not just going to sit there in my apartment and keep watching TV or surfing the Internet or watching the paint dry. Rather I'm either going to run to the door immediately to stop the police from breaking it down (which I have only a few seconds to do before they enter) or else I'm going to prepare myself for a bunch of cops violently entering a few seconds later. Either way, I'm going to move around and make some noise.

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Tags:
Search and seizure/Fourth amendment, Constitutional Interpretation and Change, Criminal Justice, exigent circumstances, Fourth Amendment, Guest Post, Hollis King, Kentucky v. King, Martin Magnusson, 1st Circuit
July 12, 2010
Police, DNA Uses and Implications for the Fourth Amendment
The arrest of Lonnie David Franklin, suspected of being the "Grim Sleeper" seriel killer in Los Angeles, while being "an investigative triumph," should prompt concern about the methods police used to obtain the suspect's DNA, writes Elizabeth E. Joh in an op-ed for the Los Angeles Times.
It is during these moments -- of seemingly investigative victories -- that "can blind us to the dangers of expanding genetic surveillance," Joh, a professor of law at UC Davis School of law, maintains. Joh describes three uses of DNA evidence that were used in the Grim Sleeper case that should trigger concern for the Fourth Amendment: "familial DNA searches abandoned or discarded DNA and sweeping arrests, or DNA dragnets.

Regarding discarded DNA, Joh writes:

The second investigative technique used in the Grim Sleeper investigation was the use of ‘abandoned' or ‘discarded' DNA. We all leave DNA on used coffee cups, smoked cigarettes and many other items on a daily basis. After the police turned their focus to Franklin, undercover police followed him until he left some of his DNA on a piece of pizza as well as silverware and a glass after a meal out.

Few rules govern the circumstances in which police can collect this involuntarily shed DNA. Police typically defend the practice by saying it produces results. Of course, when successful matches are found, the unrestrained collection of abandoned DNA sounds defensible. But what about all of the hunches that police might like to pursue in this way? Have we all silently consented to giving up our discarded DNA to the police?

Joh's entire article is here. Joh recently participated in a panel discussion about the Fourth Amendment and technology's impact on the amendment's scope. Video of the panel, "Technology, Change, and the Future of the Fourth Amendment," is available here.

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Tags:
Search and seizure/Fourth amendment, Criminal Justice, DNA Evidence, Elizabeth Joh, Fourth Amendment