Archive | Fourth Amendment

Arms and Persons

Eugene Kontorovich has argued that the plural “Arms” in the Second Amendment implies a right to more than one gun per person. I argued that “Arms” had to be plural to match “the right of the People,” plural, and so the plural tells us nothing about number of guns per person. Eugene responds with a comparison to the Fourth Amendment: “Is the ‘people’s’ right to be secure in their ‘houses, papers, and effects’ even arguably singular, or be [sic] restricted to one house, one paper, one effect?”

Fair enough, but Eugene skips a telling counterexample. The Fourth Amendment also protects “The right of the people to be secure in their persons ….” The word “persons” had to be plural — just as “houses,” “papers,” “effects,” and “Arms” all had to be plural — to match the plural word “people.” Nevertheless, each individual presumably has a right to be in secure only in his own, singular, person. So, the plural nouns in the text simply do not answer the question of number per person; even though both “persons” and “papers” are plural in the text, each individual has a right to be secure in his person (singular) and his papers (plural). At least as a matter of grammar, “Arms” could be like “papers” (presumably many per individual), or like “persons” (presumably one per individual).

Again, I am sympathetic to Eugene’s ultimate conclusion, but I don’t think that grammar proves the point. [...]

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Response to Prof. Rosenkranz: ArmS & the Man – or Arms & the People

Nick takes issue with my suggestion that the Second Amendment on its face bars laws restricting people to one gun, such as that currently proposed by Gov. Quinn in Illinois.

My (first) argument is not an originalist or purposivist one, but rather a purely textual one. The primary meaning of “arms” is plural. Nick argues the plural is used to go with “the right of the people.” The real “reason,” I think, the plural term is used is probably because that is how it was written in the English Bill of Rights (and the Magna Carta). The question is what are the consequences of those possibly unconscious decisions and associations for a textual reading of the Constitution.

Certainly the plural arms goes with the plural “people.” But both are independent drafting choices. For example, the right of the people could have been “to be armed,” which would leave out the plural. Or it need not have been written in terms of “the People.” Nick compares it the Fourth Amendment. I like that: is the “people’s” right to be secure in their “houses, papers, and effects” even arguably singular, or be restricted to one house, one paper, one effect? Could papers be limited to one piece of paper? It is not “people” that makes “papers” plural, it is the way people commonly use paper.

Turning to purpose, the Framers used a plural word; they certainly did not intend to rule out “one gun” rules, because as far as I know, they had never encountered such restrictions, and were more interested in gun minimimums than maximums. None the less, the plural has consequences. Nor are the consequences absurd (this still permits two-gun limits) though they may be undesirable from certain policy perspectives. Nor is the reading contradicted by substantial originalist [...]

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Hints and Questions About the Secret Fourth Amendment Rulings of the FISA Court

In the New York Times, Eric Lichtblau has a major scoop describing some of the secret rulings of the Foreign Intelligence Surveillance Court, aka the FISC (and sometimes just called “the FISA court”). According to Lichtblau’s sources, described as “current and former officials familiar with the court’s classified decisions,” the FISA court has issued over a dozen significant rulings. Some of the rulings are “nearly 100 pages long.” Although Lichtblau purports to summarize the rulings, I find his descriptions a frustrating read. Maybe it’s just me, but I find Lichtblau’s writing to be sufficiently vague that his distillation of the opinions leaves me with more questions than answers. In this post, I want to go through what Lichtblau says about the Fourth Amendment rulings of the FISA court and why his descriptions leave me confused. I’ll try to get to the statutory issues in a future post.

Lichtblau writes:

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings,

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Girlfriend Who Had Permission to Use Boyfriend’s Computer Can Consent to Search of It While a Weekend Guest At His Parents’ Home, Wisconsin Supreme Court Holds

Last Thursday, a divided Wisconsin Supreme Court handed down a Fourth Amendment decision in State v. Sobczak on a novel issue: When can a weekend guest consent to a law enforcment search of a home computer?

In the case, a girlfriend (Podella) had been dating her boyfriend (Sobczak) for a few months. He invited her to to spend the weekend with him at his parents’ house while his parents were away. Podella was stuck at home all day while Sobczak was at work, and she asked for and obtained permission from him to use his computer while he was away. Podella started using the computer and “encountered” videos containing child pornography. She called her grandmother and asked her to call the cops. When a police officer arrived, he spoke to Podella at the entrance of the house. The officer told her that either she could bring the computer to him at the front of the door or he could enter and see the computer with her permission, and that the choice was hers. She invited the officer in and showed him the computer, which was in the living room area about 20 feet from the entrance to the home. She then clicked on a video file she had seen and showed the video to the officer. The officer agreed that the video was child pornography, and he clicked on a few more links and saw more images. The officer then seized the computer and brought it to the stationhouse. At some point a warrant was obtained to search the computer, but the opinion is not entirely clear on when.

The majority takes the legal issue to be whether Podella could give third-party consent to search the home and the computer, which requires application of the Matlock “common authority” test. According [...]

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Dick Cheney Unintentionally Explains the Dangers of the NSA Surveillance Program

In this recent article, conservative columnist John Fund highlights some interesting comments by former Vice President Dick Cheney:

On Sunday, former vice president Dick Cheney addressed the dilemma many conservatives face in assessing the revelations about the National Security Agency’s data collection. On the one hand, they are suspicious of the federal government. On the other, they often mute such concerns when it comes to anything touching on national security.

Cheney captured the tension perfectly in defending the NSA’s activities. Fox News Sunday’s Chris Wallace first asked him: “What right do you think the American people have to know what the government is doing?” After a pause, Cheney said: “Well, they get to choose, they get to vote for senior officials, like the president of the United States or like the senior officials in Congress. And you have to have some trust in them….”

Later in the interview, Wallace asked Cheney for his opinion of President Obama. “I don’t think he has credibility,” he said. “I think one of the biggest problems we have is, we have got an important point where the president of the United States ought to be able to stand up and say, ‘This is a righteous program, it is a good program, it is saving American lives, and I support it.’ And the problem is the guy has failed to be forthright and honest and credible on things like Benghazi and the IRS. So he’s got no credibility.” If we are to rely on the people elected to high office not to abuse their authority, what do we do when they do exactly that — as Cheney thinks Obama has?

So Cheney’s view is that the NSA program is justified because we should trust “senior officials, like the president of the United States.” But [...]

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Julian Sanchez on Pilon and Epstein’s Defense of the NSA Electronic Data Collection Program

Last week, Roger Pilon of the Cato Institute and famed libertarian law professor Richard Epstein published an op ed defending the NSA policy of collecting data on millions of Americans’ electronic communications. Pilon and Epstein may be the only prominent libertarian defenders of the NSA on this issue; though, obviously, that doesn’t necessarily mean they are wrong.

Pilon’s Cato Institute colleague Julian Sanchez recently posted a thorough and compelling critique of Pilon and Epstein’s argument. I think this part does a great job of capturing the main danger posed by the program:

[T]he crucial question is not really whether the short term-benefit of a particular government search outweighs its immediate harm or inconvenience—though I note that the marginal benefit of the NSA program over narrower methods remains as yet asserted rather than demonstrated. By that standard, surely many warrantless searches would pass muster….

Rather, the appropriate question is whether the creation of a system of surveillance perilously alters that balance too far in the direction of government control, whether or not we have problems with the current use of that system. We might imagine a system of compulsory cameras installed in homes, activated only by warrant, being used with scrupulous respect for the law over many years. The problem is that such an architecture of surveillance, once established, would be difficult to dismantle, and prove too potent a tool of control if it ever fell into the hands of people who—whether through panic, malice, or a misguided confidence in their own ability to secretly judge the public good—would seek to use it against us.

Among other things, Sanchez’s post includes a good critique of Smith v. Maryland, the 1979 Supreme Court decision cited by both Pilon and Epstein and many other defenders of the NSA program. Like Sanchez, I [...]

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Sen. Ted Cruz (R-TX) Sides With Dissent in Maryland v. King

The press release is here:

Today’s unfortunate U.S. Supreme Court ruling in Maryland v. King, by a vote of 5-4, expands government power, invades our liberty, and undermines our constitutional rights. The Court held that the police can forcibly take DNA samples from people who have been arrested — but have not been tried or convicted — of a serious offense. So now the government can capture, without a search warrant, the most personal information about an individual, and use it to search vast databases for unrelated offenses.

All 50 States already collect DNA from convicted felons. So this intrusion of liberty will matter only for those not convicted: the innocent and wrongly accused or those for whom there is insufficient evidence to convict.

As Justice Scalia rightly noted in dissent, “As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

All of us should be alarmed by this significant step towards government as Big Brother. The excessive concentration of power in government is always inimical to liberty, and a national database of our DNA cannot be reconciled with the Fourth Amendment.

Accumulating DNA from arrestees — without warrant or probable cause to seize the DNA — is not designed to solve the crime for which the person has (rightly or wrongly) been arrested. Rather, it’s to test the DNA against a national database to potentially implicate them in other unsolved crimes. But the Constitution requires particularized suspicion of a specific crime; indeed, the Fourth Amendment was adopted to prohibit the British practice of “general warrants” targeting individuals absent specific evidence of wrongdoing.

Justice Scalia’s scathing dissent is right: If we really want a DNA database to

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South Carolina Supreme Court (3-2) Mostly Upholds Lifetime Satellite Location Monitoring for Child Molesters

When Jennifer Dykes was 26, she had a sexual relationship with a 14-year-old girl. She was convicted of “lewd act on a minor,” and was sentenced to (in effect) 3 years in prison and 5 years’ probation. She violated her probation in various ways (flaking out on sex offender counseling, moving without notifying her probation agent, and more). Under South Carolina law, people guilty of lewd acts with minors must be placed on lifetime satellite monitoring, and the same is true for people convicted before the satellite monitoring statute’s effective date if they violate probation after that effective date.

Dykes sued to set aside the lifetime monitoring as a violation of the Fourteenth Amendment, but a majority of the South Carolina Supreme Court disagreed (State v. Dykes (S.C. May 22, 2013)). The lead opinion (for two Justices) concluded that such lifetime monitoring is constitutional if it has a rational basis, and found that there is such a rational basis. One Justice concurred in the judgment without opinion. Two dissenting Justices reasoned that such lifetime monitoring must pass strict scrutiny, which this law didn’t, because it didn’t provide for “actual consideration of [each offender’s] likelihood to reoffend.”

Note that all the Justices agreed that the provision that the lifetime monitoring order can’t later be reexamined and suspended by a judge was unconstitutional. “The complete absence of any opportunity for judicial review to assess a risk of re-offending … is arbitrary and cannot be deemed rationally related to the legislature’s stated purpose of protecting the public from those with a high risk of re-offending.” The lead opinion and the concurrence seemed to think, though, that striking down the statutory bar on judicial review was sufficient to make the law constitutional; the dissent would have required some specific showing at the [...]

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Peering Through A Window Next to A Front Door Held to Be A Fourth Amendment Search

Here’s an interesting new application of Florida v. Jardines (March 26, 2013), which recently held that bringing a drug-sniffing dog up to the front door of a home for a “sniff” of the front door area is a Fourth Amendment search. In this morning’s decision in Powell v. State of Florida, officers went up to the front door of a mobile home and knocked. When there was no answer, they took a step off the front steps and peered through a window at eye level about two feet from the front steps. Peering in, the officers saw marijuana growing under lamps in the home; they later obtained a warrant based on that viewing and searched the home.

The state intermediate court held that peering into the window was a Fourth Amendment search that required a warrant. Going up to the front door and knocking was fine, but peering through the window off of the front steps was not okay under the Jones trespass/intrusion test:

The deputies . . . deviated from established norms by entering upon that portion of the property directly in front of the window. Nothing in their testimony or the record establishes any license to do that. The officers had to step off the front door step, move two feet to the left, and position themselves directly in front of the window, their faces no more than a foot away. At that point they were virtually within the home without breaking its close. Because they physically entered a part of the curtilage where they had no right to be for the purpose of gaining information, the intrusion test is met.

The court notes that the Jones trespass/intrusion test is the easiest way to resolve the case: “Cases involving warrantless searches of the home or curtilage [...]

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District Judges Divide on Long-Term Cell Phone Tracking Under the Fourth Amendment

I haven’t blogged recently on judicial decisions considering the mosaic theory of the Fourth Amendment. As regular readers will recall, the “mosaic theory” is a term for the idea that long-term monitoring of a suspect can be a Fourth Amendment search even if short-term monitoring is not. Under this approach, which was suggested by the concurring opinions in United States v. Jones, surveillance and analysis of a suspect is outside the Fourth Amendment until it reaches some point when it has gone on for too long, has created a full picture of a person’s life (the mosaic), and therefore becomes a search that must be justified under the Fourth Amendment. I think the mosaic approach is a misstep for reasons I elaborated on in this article. And the handful of lower courts to have considered the theory since Jones mostly have not adopted it, either because they found it unpersuasive, because they distinguished Jones on the facts, or because they avoided the question under the good-faith exception to the exclusionary rule. See, e.g., United States v. Graham, 846 F.Supp.2d 384 (D.Md. 2012).

In the last week, two district courts have divided on the question: United States v. Rigmaiden (D. Ariz. May 8, 2013), and United States v. Powell, — F.Supp.2d –, 2013 WL 1876761 (E.D. Mich May 3, 2013) In this post, I want to discuss the two rulings, and then offer some critical commentary on Powell at the end.

First, today in United States v. Rigmaiden (D. Ariz. May 8, 2013), Judge Campbell held that the third-party doctrine applies to both cell-site information collected over 38 days and websurfing destination IP address information that collected 1.8 million destination IP addresses. Judge Campbell held that the mosaic theory did not apply when the [...]

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Florida Supreme Court Deepens Lower Court Split on Searching a Cell Phone Incident to Arrest

I recently mentioned my new short essay, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403 (2013), about how the Supreme Court should resolve the lower court division on the Fourth Amendment rule for searching a cell phone incident to arrest. In light of that, I thought I would flag this morning’s decision by the Florida Supreme Court deepening the lower court division. In the new case, Smallwood v. State, the court ruled that the police can routinely seize a cell phone incident to arrest, but they generally need a warrant to search it absent a demonstrated risk that evidence on the phone could be destroyed after it had been seized. Here are the two key passages from Smallwood:

[W]e . . . conclude that the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices. Consistent with this conclusion, we hold that the decision of the United States Supreme Court in Robinson, which governed the search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone.

. . . .

Gant demonstrates that while the search-incident-to-arrest warrant exception is still clearly valid, once an arrestee is physically separated from an item or thing, and thereby separated from any possible weapon or destructible evidence, the dual rationales for this search exception no longer apply. Applying Supreme Court precedent from Chimel and Gant to the instant case, we conclude that Officer Brown unquestionably was authorized to take physical possession

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Fascinating New Case on Legal Standards for Searching a Remote Computer With Unknown Location

Here’s a fascinating issue that just led to an unusual opinion by Magistrate Judge Stephen Wm. Smith of the Southern District of Texas, who is no stranger to the Volokh Conspiracy for his, um, unusual opinions. The issue: What are the legal standards for the government to search a hacker’s remote computer to determine the hacker’s identity and location? In this case, someone hacked the e-mail account of a victim in Texas and used the e-mail account to access the victim’s bank account. After the unauthorized access to the account was blocked, the hacker set up an e-mail address almost (not not quite) identical to the real e-mail account and tried to wire money to a foreign bank. The location of the hacker is unknown, although there are signs that he is abroad: The most recent IP address resolved to a country in Southeast Asia. In this case, the government applied for a search warrant to remotely access the intruder’s computer and search it for evidence of who the intruder is and where he located.

I. Magistrate Judge Smith’s Denial of the Warrant Application

The application went before Magistrate Judge Smith, who denied the application for a warrant. As his occasional practice, Smith authored a published opinion, forthcoming in the F. Supp.2d., explaining the different reasons why he denied the warrant application. As far as I can tell, he did not ask for briefing on the issue; he just issued the opinion based on his own research. Anyway, here are the three reasons he offers for denying the application:

1) Rule 41 of the Federal Rules of Criminal Procedure generally only authorizes warrants to search property inside the magistrate’s own district. Because the location of the computer that will be searched is unknown, the magistrate does not have sufficient assurance [...]

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House-to-House Searches and the Fourth Amendment

Current events in Boston raise the question of whether the Fourth Amendment allows the government to conduct house-to-house searches for an armed and dangerous suspect on the loose. Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment? The answer depends on whether such home entries are “reasonable” under the Fourth Amendment, which requires a case-by-case balancing of the government’s interest in making the searches and the scope of the privacy invasion. The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way. Fortunately there aren’t a lot of cases on anything like we’re seeing in Boston, at least as far as I could find. The closest cases I know of involve roadblocks instead of home searches, which is in the ballpark of dragnet searches and seizures but not particularly close on the facts. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (noting in dicta that “the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.”); United States v. Paetsch, — F.Supp.2d —-, 2012 WL 5213011 (D.Colo. 2012) (dragnet roadblock at intersection to catch bank robber held reasonable under the Fourth Amendment).

Note that caselaw on these sorts of facts are particularly unlikely for reasons beyond the fortunate rarity of their occurrence. The suspect won’t have Fourth Amendment standing to bring a suit or a motion to suppress [...]

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Missouri v. McNeely and Exigent Circumstances to Conduct Blood Tests for Drunk Driving Cases

Today the Supreme Court handed down Missouri v. McNeely, a Fourth Amendment case involving whether the government needs a warrant to draw blood after a suspect’s arrest for drunk driving to determine the suspect’s alcohol level. The Court held that whether a warrant is required “must be determined case by case based on the totality of the circumstances” to determine if the government could have obtained a warrant “within a reasonable amount of time” or if obtaining a warrant would “produce unacceptable delay” in light of the exigency of the dissipating alcohol levels in the arrestee’s blood.

So how do the police know when they need a warrant to conduct a blood draw following a drunk driving arrest? The majority starts with this general guidance: If the police can “reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” On the other hand, if case by case circumstances “make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test,” no warrant is needed.

So that’s the general guidance. How about specifics? Here’s one piece of guidance the majority offers on when a warrant must be obtained:

[In] a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer[, . . ]there would be no plausible justifica­tion for an exception to the warrant requirement.

More broadly, the issue seems to be how much delay is introduced by getting a warrant. Can the officers get the warrant “within a [...]

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Bleg on temporary of seizures firearms

I would be grateful if commenters could point to cases, statutes, or secondary materials which address these questions: In Terry stops, traffic stops, and other police encounters with individuals which do not involve an arrest, under what circumstances can a law enforcement officer temporarily detain a person’s firearm? For example, for officer safety during a traffic stop? To call a central database and see if the gun’s serial number is on a list of stolen guns? [...]

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