Tag: Fourth Amendment to the United States Constitution

The Taxman Listeneth

Just fucking great:

The Internal Revenue Service (IRS) has claimed that agents do not need warrants to read people’s emails, text messages and other private electronic communications, according to internal agency documents.
The American Civil Liberties Union (ACLU), which obtained the documents through a Freedom of Information Act request, released the information on Wednesday.

In a 2009 handbook, the IRS said the Fourth Amendment does not protect emails because Internet users “do not have a reasonable expectation of privacy in such communications.” A 2010 presentation by the IRS Office of General Counsel reiterated the policy.

The 2010 presentation is critical because it took place after the Warshak decision said that people do have an expectation that e-mails will be private. The ACLU is still awaiting FOIA requests to see if other agencies are similarly thumbing their nose at Warshak.

Congress is supposedly working on legislation to put a warrant requirement on e-mails but they really shouldn’t need to. When you think about it, this should have been the subject of a 9-0 Supreme Court decision at some point. If the IRS broke into my house and confiscated letters, no one would tolerate it (we hope). But let an e-mail be stored on a server and suddenly it’s open season.

This is worse than it sounds, actually. Our government agencies will charge people with conspiracy and lying to investigators in circumstances where no actual crime was committed. So if they snoop through your e-mails and find an exchange with your accountant that looks suspicious, you could end up charged with a crime without actually having evaded any taxes based entirely on evidence obtained without a warrant.

(The IRS has issued a non-denial denial claiming they don’t “use emails to target taxpayers”. That careful wording avoids the point. We’re interested in why they target a taxpayer; we’re interested in what they do once they’ve targeted him.)

At some point, we have to stop putting up with this crap … in any context. Liberals can’t ignore this one because it’s the IRS getting tax cheats. Conservatives can’t ignore other contexts because it involves drug dealers or terrorists. No government agency should be allowed to read the entire contents of my spam folder without a warrant. Period.

The Eye in the, uh, Bushes

The Fourth Amendment takes another one in the seat for the Great Lost Cause.

U.S. District Judge William Griesbach ruled that it was reasonable for Drug Enforcement Administration agents to enter rural property without permission — and without a warrant — to install multiple “covert digital surveillance cameras” in hopes of uncovering evidence that 30 to 40 marijuana plants were being grown.

Funny thing about this: I do have some personal experience with this practice. In my PI days, I used a small wireless camera almost exactly like this one that I would place whenever I needed to watch a spot that direct surveillance wouldn’t work for. I could monitor it from about 1/2 mile away and record footage for as long as the batteries lasted. This was more for workman’s comp/disability cases, but the application was similar enough. And yes, I would position it on a subject’s property if I could, even though I never disregarded a No Trespassing sign like the Feds did on this case.

Did I feel like a creep spying on people that way? I guess I probably should have, but it was business. From the perspective of our rotting civil liberties though, increased technological surveillance is totally inevitable as long as we keep this charade on drugs going.

Unfortunately, the judge in this case properly applied the open fields exception and it will probably hold up on appeal.

Get a Warrant


The Supreme Court on Monday put the brakes on the government’s use of high-tech monitoring devices to track motorists, ruling unanimously that police and the FBI violated the 4th Amendment by attaching a GPS device to a Jeep owned by a drug suspect.

The justices all agreed that the government needs a search warrant from a judge before it seeks to track a suspect by secretly installing a device on his car.

There’s a little bit of division on the ruling, with Scalia taking the narrower view that it was the placing of the device that violated the Fourth Amendment, while Alito thinks the tracking of the car in general was a violation.

Here’s why these attempts to bypass warrants bother me: warrants are generally easy to get. This is especially true of the FISA Court, which almost never rejects a petition, but even lower courts are fairly generous about this. To track a drug dealer, a simple undercover buy could establish a reason for a warrant. So why the big push to avoid them?

In any case, I’m glad to see the Court bounce this. Maybe it’s just me, but they seem to be having a pretty good session this year. Wouldn’t be interesting if Bush’s biggest achievement was the Roberts Court?

Big Brother Is Getting Bigger

Next month SCOTUS will get a chance to put the kabosh on police agencies getting a little too cute with their toys and possibly violating your constitutional rights in the process:

In a move that could have a profound impact on Fourth Amendment law, the Supreme Court has agreed to consider a question that has split the nation’s appeals courts: can the police install and use a GPS tracking device to follow a person’s movements around the clock every day for a month—without a search warrant?

The Supreme Court granted certiorari (pdf) today in United States v. Jones (once known as United States v. Maynard). In this case, FBI agents planted a GPS device on Antoine Jones’ car while it was on private property and tracked the location of the vehicle for a full month without a warrant. Jones challenged the surveillance tactic, arguing that it violated his Fourth Amendment right against unreasonable search and seizure.

You knew this was coming. With the advent of GPS, in devises like lojack, cell phones, On Star, keeping tabs on your vehicle and you is now rudimentary. And by placing a well hidden GPS device on your vehicle, without your knowledge, the cops can track your presence anywhere you drive, sans warrant. So now, you don’t have to be a suspected terrorist, or a drug kingpin, any unsavory types that look like them and criminal activity are simpatico, they get the treatment.

Some obvious questions that SCOTUS will have to look at:

1) If the vehicle is tagged with the GPS device while on private property, isn’t the agent installing the device trespassing? So wouldn’t any info collected from the devise be subject to The Exclusionary Rule?
2) Does stalling such a device constitute a search or seizure? Is using the device a search or seizure? How about long term use, is that a search or seizure?
3) If it is not deemed a search, are there any other privacy issues involved?
4) If a warrant is necessary, how unconstitutional are “open ended” warrants, those not limiting a time frame for it’s use?
5) If the GPS device was installed to track a specific individual and someone else uses that car and subsequent criminal activity occurred, would the GPS evidence be admissible?

I am linking a BAY Area article on the case because here there was two specific cases independent of Jones but with GPS implications that would on their own make them eligible for SCOTUS determination.

Earlier this year, evidence from a tracking device installed without a warrant on a car belonging to Yusuf Bey IV, the former leader

of Oakland’s Your Black Muslin Bakery, helped convict him and another man in the 2007 murder of journalist Chauncey Bailey. Bey IV’s lawyer argued that the tracking data was obtained illegally, but a judge ruled otherwise.

If the Supreme Court rules that installing a tracker without a warrant violates the Fourth Amendment protection against unfair searches and seizures, the convictions of Bey IV and his co-defendant Antoine Mackey could be thrown out and a new trial ordered in the Bailey case, legal experts said. Two other murder convictions against Bey IV and one against Mackey would not be affected.


Last year, Yasir Afifi, an Egyptian-American student at Mission College in San Jose, filed suit after he found a GPS device on his car after taking it in for a routine oil change.

The Council on American Islamic Relations earlier this year sued the government on behalf of Afifi, arguing that his Fourth Amendment rights were violated and describing the tracker as “acting as an illegal trespasser.” Afifi, 20, who was born in the United States, said he has never done anything to attract attention of law enforcement.

The FBI placed it on Afifi’s car without a warrant as part of an investigation about which it has refused to provide details.

Police use the “expectation of privacy” exception to justify the use of GPS in tracking suspects, that while on city streets in public venues, suspects have no expectations of privacy and the use of GPS would be analogous to the cops tailing the suspect in an unmarked car. The problem with this rational is that the cops could only follow you where that expectation is applicable, but where it is not, private property, the tail would be terminated especially if that private property is secured. The GPS device knows no limitations and would continue it’s work, even in areas where it’s very application would be outside of legal scope.

The Jones case is interesting because here the police did get a warrant for the device, but the warrant expired before the device was installed. Using the GPS device, the police were able to gather evidence for a drug conviction. Defense council argued that the evidence was inadmissible due to an expired warrant and the people argued that it did not matter becasue a warrant really was not necessary to begin with.

It is interesting to me that most landmark police cases ( and this will qualify) are the result of the police basically being lazy in the administration of their duties. Extending the Jones warrant would have been almost effortless, yet it was circumnavigated for expediency sake. Miranda, Mapp, cases involving Castle violations, warrants-with the proper probable cause attached- are simple to obtain, yet avoiding that extra step has proved disastrous (and costly) to many police agencies.

I see no problem with police using whatever technological devices available in the performance of their duties, with the clear proviso that all must pass the constitutional test. I would expect the use of willy nilly GPS devices slapped on anyone for any reason without a sufficient foundation of a legal warrant to be unconstitutional and a clear violation of the Fourth Amendment. And the implications of Big Brother being able to track anyone anywhere is chilling.

Another Assualt On The Fourth Amendment

Last month we discussed Castle Laws, the concept that a man’s home is is castle, sacrosanct, and protected both from private citizens and government agencies. The sanctity of “The Home” is mentioned both in the Third and Fourth Amendments to The Constitution. In The Third, it prohibits the quartering of troops in peace time, and The Fourth Amendment specifically mentions houses as a place where person have a right “to be secure against unreasonable searches and seizures”. And along with the protections against unreasonable search comes the concept of the expectation of privacy:

In United States constitutional law the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. It is related to, but is not the same thing as a right of privacy, a much broader concept which is found in many legal systems (see privacy law).

There are two types of expectations of privacy:

A subjective expectation of privacy is an opinion of a person that a certain location or situation is private. These obviously vary greatly from person to person.
An objective, legitimate or reasonable expectation of privacy is an expectation of privacy generally recognized by society.

There is the primer. The city council of City Falls, Iowa has passed Ordinance #2740
which forces business owners and owners of certain rental properties to provide keys to their businesses (rentals) to the city council in the form of universal lock boxes, so that they (or their agents) can enter whenever they like:

A few things I find curious, like how easily these council members hide behind “The right to protect it’s citizens” irrespective of the obvious Constitutional conflicts it provides, how the most seemingly innocuous occurrence like a fire when no one is home is ample excuse to give them total access to your castle, and how irregardless of the apparent conflicts, a judge in the court room is only (and final) arbiter of whether this is right.

The video mentioned that today, 7pm local time, the council would have another vote on the matter. As I type this, that meeting started 4 hours ago, hopefully I can find something on the outcome later but given that it flew through the first time 6-1, some stiff head winds will be required to derail it.

A few of the those speaking out against this proposal made some good points. Protecting the folks does not mean that it is their job to remove all risks, impractical and impossible. And the point the gentleman made about the purpose of The Constitution, for the people to restrain the government-not the other way around, is paramount in this discussion.

The other thing they glossed over was liability. In this new age of austerity, where cities have to be run on a shoe string, to expose themselves in this way, making them by virtue of them having the keys to the castle liable for any and all ill that might befall the owners or residences, I don’t get it.

I’ve said it before, although government has a legitimate purpose in our lives and the full backing and will of the people by virtue of their democratic assent, this in no way means that we do not watch them or trust them with that faith. Abuses, whether intentional of otherwise happen all the time. An ever watchful and diligent populace stands between democracy and totalitarianism. This is no time for the people to get all wobbly. From the DOI:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

And the people are the only judge of when it becomes destructive of these ends.

The Right to Resist


Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry.

“We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” David said. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

The case sprang from a domestic incident. A husband and wife were arguing and the cops were called. The couple refused to let them in the house and the cops came in anyway. When the husband resisted, they tasered him.

Not surprisingly, the media are able to find some soft-headed academics to praise the decision for “reducing violence”. The problem with their justification is that our Constitution is not set up to prevent violence; it’s set up to guarantee our liberty. And if there comes a time when we have to protect our liberty with violence, such action is utterly consistent with our Founding, with 200 years of American history and 900 years of Western European history. And it’s not like this guy initiated an armed standoff. He shoved a cop who was violating his home.

There’s an arrogance to this decision — a belief that citizens are incapable of deciding the extent and nature of their liberty; only the courts can decide that. You are incapable of deciding, in the moment, whether someone is violating your Fourth Amendment rights; only someone who’s gone to law school can make that decision in the oasis of calm that is the court room. But we don’t defend our liberty with ex-post facto court decisions, especially given the tendency of the Courts — like this one — to default to siding with the state.

Of course, it bears pointing out the obvious: the Courts have had no problem with violent confrontation when that violence is initiated by the state. The Courts have routinely deferred to the needs of justice when judging the legitimacy of violent no-knock raids to arrest people growing pot or playing poker or even just selling raw milk (I shit you not). Throwing battering rams into doors, smashing windows, tossing in flash-bangs and shooting dogs in the process of delivering a warrant is OK. We sure as hell don’t want to prevent that violence. But don’ you dare stand in the way of an officer when he wants to come in without a warrant or even probable cause. Best to sort that out in the court system afterward.

The state does not have an intrinsic monopoly on violence. We voluntarily give that monopoly to them in order to maintain a civilized society. But when the state violates the terms of that agreement — terms spelled out in a legal contract called the Constitution — either through action or inaction, we have a right to resist. Usually peacefully. But sometimes with an appropriate amount of physical force.

Hopefully, SCOTUS will take this on. I have no idea how they’ll rule on it. But I know perfectly well how they should.