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A new decision from the U.S. Court of Appeals for the 9th Circuit, United States v. Gorman, touches on an interesting question: If an officer pulls over a car for a traffic violation and suspects the car has drugs, but he cant get the drug-sniffing dog to come in time to sniff it, can the officer end the traffic stop and call ahead to another police officer to get a dog and watch for the car to pull it over for a second violation? Specifically, if the second officer gets a dog and spots a second traffic violation, can the second officer pull over the car and use the drug-sniffing dog to get probable cause to search the car?

In Gorman, there was a twist: The first officer held the driver for too long. The officer pulled over Straughn Gormans motor home for a traffic offense and then he held Gorman for almost a half-hour. He called for a drug-sniffing dog but was told there werent any available. Twenty minutes into the stop, the officer gave Gorman his documents back and told him he was not issuing a ticket. The officer continued to question Gorman, however, based on suspicion that Gorman was carrying drug money in the motor home. The stop went on for too long under the time-limiting doctrine articulated by the Supreme Court in Rodriguez v. United States, 135 S.Ct. 1609 (2015).

The officer became convinced that there was drug money in the motor home, but he did not have sufficient probable cause to search the car. He let the driver go, and he then called ahead to a second officer in the next county to get a dog and watch the vehicle. The second officer did so, later pulling over the motor home for a second traffic violation. The dog alerted, and a warrant was obtained to search the motor home. The search revealed $167,070 in cash in various interior compartments. The government brought a civil forfeiture action seeking to keep the cash as the proceeds of illegal drug activity, and Gorman moved to suppress the fruits of the search so it could not be used in the civil forfeiture action.

Held, per Judge Reinhardt: The evidence found following the second stop was a fruit of the unconstitutionally prolonged first stop. As a result, the money was suppressed.

From the opinion:

Here, there is an indisputable causal connection between Gormans concededly unlawful detention and the dog sniff and its fruits. See id. at 245. The detention unquestionably served as the impetus for the chain of events leading to the discovery of the currency. See id. It is clear, moreover, that [the first officer]s suspicions from the first stop significantly directed [the second officers] actions in making the second stop and conducting the sniff and search. See id. The close connection between the constitutional violation (the first detention) and the seizure of the currency is apparent.

On the basis of suspicions that accrued during the course of Gormans unlawful detention, [the first officer] alerted a separate law enforcement agency, informed [the second officer] of the basis for his suspicions, and requested that he attempt to stop Gorman for a second time, this time with a drug-sniffing dog. [The second officer] promptly estimated Gormans location and made a special trip to the highway for the purpose of apprehending him and conducting the dog sniff the sniff which led to the discovery of the currency. To repeat, there was a direct connection between the Fourth Amendment violation and its fruits. Thus, any evidence obtained from the sniff and search is inadmissible under the fruit of the poisonous tree doctrine.

The government does not contend that the fruit of the poisonous tree doctrine is applicable only if the impetus for the second stop came from the unlawful portion of Gormans detention. Even if it did, however, our conclusion would be the same, because the facts here show clearly that part of the impetus for the second stop did come from the unlawful portion of Gormans detention. It was only after the stops mission had been completed that [the first officer developed suspicion that the car motorhome was being used to carry drug money. . . . ] Given that sequence, we need not determine whether it would be appropriate to divide an unlawful detention into lawful and unlawful parts for purposes of fruit of the poisonous tree analysis

Reinhardt adds:

The coordinated action at issue in Gormans case offers a prime illustration of the value of the fruit of the poisonous tree analysis. The analysis allows us to see the officers conduct in Gormans case as what it is: a single integrated effort by police to circumvent the Constitution by making two coordinated stops. When the result of one stop is communicated and, on that basis, another stop is planned and implemented, the coordinated stops become, in effect, one integrated stop that must as a whole satisfy the Constitutions requirements. An illegal police venture cannot be made legal simply by dividing it into two coordinated stops. . . . The Constitution guards against this kind of gamesmanship because the Fourth Amendments protections extend beyond the margins of one particular police stop and can extend to the integrated and purposeful conduct of the state.

Putting aside whether this fruit of the poisonous tree analysis is correct under Utah v. Strieff, Im more interested in whether the second stop would be allowed if the first stop had not been prolonged. That is, can officers coordinate stops, watching for new traffic violations to stop a car to make sure a drug-sniffing dog will be present?

Reinhardt drops the following footnote on this issue:

Because we conclude that the seized currency is inadmissible as the fruit of the poisonous tree, we do not consider the argument that the second stop, taken independently, was itself unconstitutional. It could well be argued, for example, that performing the routine records checks during the second stop (which in Gormans case took significantly longer than usual because the central dispatch was delayed in responding to [the second officer]s inquiry) unreasonably prolonged Gormans roadside detention because [the second officer] knew in advance what the results of those redundant checks would be, as he correctly assumed [the first officer] already had done them and knew [the first officer] had found no probable cause to search the vehicle. [The second officers] checks therefore served no purpose other than to prolong the traffic stop.

Im not sure what I think of this, but it seemed like an interesting question worth flagging for the Fourth Amendment nerds among our readership.

Follow this link:
Coordinated traffic stops and the Fourth Amendment - Washington Post

Phillips is the founder of Tea Party Nation. He is based in Nashville, Tenn.

Among lawyers, there is a saying, Bad cases make bad law. Now, a single case is about to make very bad law. It will eviscerate the Fourth Amendment of the Constitution in the 21st Century.

And Congressman Bob Goodlatte can stop it.

While the background for this is a little technical, it is worth knowing. In 2013, the United States Department of Justice sought a search warrant on electronic communications for an individual, under Section 2703(a) of the Stored Communications Act.

The search warrant was served on Microsoft, for communications in the companys possession. Microsoft complied with the warrant as far as any digital communications that it had that were stored in America. The problem for law enforcement was some of those communications were stored in Ireland and Microsoft said it could not and would not produce those. Microsoft was held in civil contempt for refusing to turn over the emails and contents stored in Ireland.

Eventually the case went to the Second Circuit Court of Appeals, which ruled that Microsoft was not obligated to turn over emails and other digital records that were exclusively stored outside of the United States.

Not satisfied with that ruling, the Department of Justice chose a different route. They decided to ask Congress to give them what the Courts would not. The House Judiciary committee will hold a hearing on June 15th, entitled, Data stored abroad: Ensuring Lawful Access and Protecting Privacy.

Fortunately, the laws governing false advertising do not apply to Congress.

When the 4th Amendment was written, it was one of the most expansive statements of liberty and an incredible restriction on the power of government. The Fourth Amendment says, 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.

If you consider the world of the 1780s, that statement was amazing. Every form of property the founding fathers could think of was included. Today, we live in a world where the government wants all of the data about us it can get. Guilty or innocent, it does not matter.

The modern surveillance state is the exact reason our founding fathers incorporated the Fourth Amendment into the Bill of Rights.

In the last few years, the American people have been treated to one horror story after another that featured the abuse of citizens by our government. America is only scratching the surface of the unmasking scandal from the last year of the Obama administration. The story of the IRS abuse of citizens who dared to disagree with the government continues

Does any sane person trust giving the government more power?

Privacy, as we know it, is on the endangered species list. There are many government officials who believe that the only privacy rights Americans should have are those the government chooses to grant them.

There is an truism that says, Those who forsake liberty for security, deserve neither. As the Chairman of the House Judiciary Committee, Congressman Goodlatte has the power to stop this bad idea and protect the Fourth Amendment.

He needs to hear from Virginians that the government is too powerful now. He needs to hear that the government needs to stay within its bounds and allow liberty to flourish. He needs to hear that this idea should be tossed on to the ash heap of bad ideas and forever forgotten.

Congressman Goodlatte, help save the Fourth Amendment.

See more here:
Phillips: Congressman Goodlatte, Save the Fourth Amendment - Roanoke Times

The Supreme Court recently agreed to hear Carpenter v. United States, a case on whether the Fourth Amendment protects historical cell-site records. In this post, I want to focus on a small but potentially important part of the Carpenter litigation: How should an originalist Justice vote in the case? There are many different flavors of originalism, of course, and originalist arguments often can be used to argue for different outcomes. But in this post I want to discuss one originalist argument that I think is significant. Ill then ask readers to weigh in on it.

Lets start with the obvious: The Framers could not have imagined a world of cell-site records. And the original public meaning of the Fourth Amendment is open to a wide range of interpretations at different levels of generality. With that said, the text of the Fourth Amendment does have an important clue about what the Fourth Amendment was originally understood to mean that might be important to the Carpenter case.

Heres the opening text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]

As Justice Antonin Scalia emphasized in his concurrence in Minnesota v. Carter, the word their can be understood as important in historical context. It signals that to assert a Fourth Amendment violation, a persons own self, houses, papers or effects must be unreasonably searched or seized.

Heres what Scalia wrote in Carter, with emphasis in the original:

The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . . U. S. Const., Amdt. 4 (emphasis added). It must be acknowledged that the phrase their . . . houses in this provision is, in isolation, ambiguous. It could mean their respective houses, so that the protection extends to each person only in his own house. But it could also mean their respective and each others houses, so that each person would be protected even when visiting the house of someone else. As todays opinion for the Court suggests, however, ante, at 88-90, it is not linguistically possible to give the provision the latter, expansive interpretation with respect to houses without giving it the same interpretation with respect to the nouns that are parallel to housespersons, . . . papers, and effectswhich would give me a constitutional right not to have your person unreasonably searched. This is so absurd that it has to my knowledge never been contemplated. The obvious meaning of the provision is that each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.

The founding-era materials that I have examined confirm that this was the understood meaning. . . . Like most of the provisions of the Bill of Rights, the Fourth Amendment was derived from provisions already existing in state constitutions. Of the four of those provisions that contained language similar to that of the Fourth Amendment, two used the same ambiguous their terminology. See Pa. Const., Art. X (1776) (That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure . . .); Vt. Const., ch. I, XI (1777) (That the people have a right to hold themselves, their houses, papers, and possessions free from search or seizure. . .). The other two, however, avoided the ambiguity by using the singular instead of the plural. See Mass. Const., pt. I, Art. XIV (1780) (Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions); N. H. Const., XIX (1784) (Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions).

The New York Convention that ratified the Constitution proposed an amendment that would have given every freeman a right to be secure from all unreasonable searches and seizures of his person his papers or his property, 4 B. Schwartz, The Roots of the Bill of Rights 913 (1980) (reproducing New York proposed amendments, 1778) (emphases added), and the Declaration of Rights that the North Carolina Convention demanded prior to its ratification contained a similar provision protecting a freemans right against unreasonable searches and seizures of his person, his papers and property, id., at 968 (reproducing North Carolina proposed Declaration of Rights, 1778) (emphases added). There is no indication anyone believed that the Massachusetts, New Hampshire, New York, and North Carolina texts, by using the word his rather than their, narrowed the protections contained in the Pennsylvania and Vermont Constitutions.

That their . . . houses was understood to mean their respective houses would have been clear to anyone who knew the English and early American law of arrest and trespass that underlay the Fourth Amendment. The peoples protection against unreasonable search and seizure in their houses was drawn from the English common-law maxim, A mans home is his castle. As far back as Semaynes Case of 1604, the leading English case for that proposition (and a case cited by Coke in his discussion of the proposition that Magna Carta outlawed general warrants based on mere surmise, 4 E. Coke, Institutes 176-177 (1797)), the Kings Bench proclaimed that the house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house. 5 Co. Rep. 91a, 93a, 77 Eng. Rep. 194, 198 (K. B.).

Thus Cooley, in discussing Blackstones statement that a bailiff could not break into a house to conduct an arrest because every mans house is looked upon by the law to be his castle, 3 W. Blackstone, Commentaries on the Laws of England 288 (1768), added the explanation: [I]t is the defendants own dwelling which by law is said to be his castle; for if he be in the house of another, the bailiff or sheriff may break and enter it to effect his purpose. . . . 3 W. Blackstone, Commentaries on the Laws of England 287, n. 5 (T. Cooley 2d rev. ed. 1872). See also Johnson v. Leigh, 6 Taunt. 246, 248, 128 Eng. Rep. 1029, 1030 (C. P. 1815) ([I]n many cases the door of a third person may be broken where that of the Defendant himself cannot; for though every mans house is his own castle, it is not the castle of another man).

Of course this is not to say that the Fourth Amendment protects only the Lord of the Manor who holds his estate in fee simple. People call a house their home when legal title is in the bank, when they rent it, and even when they merely occupy it rent freeso long as they actually live there. That this is the criterion of the peoples protection against government intrusion into their houses is established by the leading American case of Oystead v. Shed, 13 Mass. 520 (1816), which held it a trespass for the sheriff to break into a dwelling to capture a boarder who lived there. The court reasoned that the inviolability of dwelling-houses described by Foster, Hale, and Coke extends to the occupier or any of his family . . . who have their domicile or ordinary residence there, including a boarder or a servant who have made the house their home. Id., at 523 (emphasis added). But, it added, the house shall not be made a sanctuary for one such as a stranger, or perhaps a visitor, who upon a pursuit, take[s] refuge in the house of another, for the house is not his castle; and the officer may break open the doors or windows in order to execute his process. Ibid. (emphasis in original).

Thus, in deciding the question presented today we write upon a slate that is far from clean. The text of the Fourth Amendment, the common-law background against which it was adopted, and the understandings consistently displayed after its adoption make the answer clear. We were right to hold in Chapman v. United States, 365 U. S. 610 (1961), that the Fourth Amendment protects an apartment tenant against an unreasonable search of his dwelling, even though he is only a leaseholder. And we were right to hold in Bumper v. North Carolina, 391 U. S. 543 (1968), that an unreasonable search of a grandmothers house violated her resident grandsons Fourth Amendment rights because the area searched was his home, id., at 548, n. 11 (emphasis added). We went to the absolute limit of what text and tradition permit in Minnesota v. Olson, 495 U. S. 91 (1990), when we protected a mere overnight guest against an unreasonable search of his hosts apartment.

I think we can all agree that the cellphone companys records of which of its cell towers were associated with its customers phone at some point in the past are, in the abstract, papers or effects. I would think that an originalist would then want to ask the Carter question: Whose papers or effects are they? Presumably they are the papers or effects of the phone company. But are they also the papers or effects of the customer?

The idea of papers and effects presumably was understood to include situations such asEntick v. Carrington (1765), the case that helped inspire the Fourth Amendments enactment, in which the kings officials broke into Enticks home. Inside the home, the officials removed all the private papers, books, etc. of the plaintiff there found, . . . and took and carried away 100 printed charts, 100 printed pamphlets, etc. etc. of the plaintiff there found, and other 100 charts etc etc took and carried away. In that setting, papers and effects likely meant something like a persons private property. Indeed, the first draft of the Fourth Amendment used property instead of effects.

The question is, can cell-site records be the users own papers or effects? It seems like an uphill battle. Cell-site records are a phone companys internally generated records ofhow its network connected a communicationbetween a customer and someone else. Cellphone customers dont know what cell towers their phones are connecting to, or where the towers are located. They dont know what the phone companys records say. Thats information that the phone company generates describing how its own network service operated that the phone company keeps in the ordinary course of its business. Whether those records are retained, and for how long, is up to the phone company. Its the phone companys business and its network, and users wouldnt see or access the records that the phone company creates and stores.

Given that, to say that cell-site records belong to the user that they are the users papers or effects you would need some kind of theory by which a person has some kind of property or property-like rights in another persons records of what they did on your behalf.

There are ways to get there, but Im not aware of any of those theories being recognized in the past much less the late 18th century. For example, one option would be to look to contract law or agency law. Perhaps signing the agreement makes the phone company the agent of the user, such that the phone company is working for the user and its company records belong, at least in some sense, to the user. This is creative, but at least at this point I dont see support for this theory in the historical caselaw or other materials.

Id be happy to be corrected, but Im not aware of an early court or even just a litigant suggesting that the contractual or agency relationship made the providers records in some sense the customers own, triggering the Fourth Amendment, its state equivalents, or common law search and seizure principles. There presumably were situations in the 18th or 19th century in which two parties would enter into a contractual agreement and the government would want records or testimony from the provider of those goods or services concerning what the recipient of the goods or service had done. A possibly interesting example is hotel guest lists, which are at least somewhat analogous to cell-site records records by a business of who was using a particular service and when. My understanding is that hotel guest lists were traditionally left open to inspection by anyone. See Jefferson Williamson, The American Hotel: An Anecdotal History 181 (1930). The records apparently werent considered the guests own papers, even though they were created in the course of providing a service to the guest.

It would be a different case, I think, with the contents of communications. In the case of contents, the network provider is merely holding the private communications of the user on the users behalf. The communications are still the users communications. The user wrote them, or, on receipt, received them. If I decide to store my emails on Gmails servers, for example, they are still my emails, just as my letters are still my letters when I send them through the postal mail. See Ex Parte Jackson, 96 US 727, 733 (1877) (Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles.).

If Im right, an originalist might plausibly conclude that the contents of communications are protected by the Fourth Amendment as the users papers or effects but that the business records of the company as to how those papers or effects were delivered would be the companys records, not the users.

Anyway, thats my tentative thinking. Im very interested to know whether readers who are interested in originalism find this thinking persuasive. And my apologies in advance if I have offered a wrong or naive view of originalism. It sometimes seems that one must be a sophisticated theorist of originalism to truly understand what originalism means, and I admit I am only a simple country Fourth Amendment lawyer.

Read more:
How should an originalist rule in the Fourth Amendment cell-site case? - Washington Post

The Fourth Amendment states, "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." Pretty straightforward, right? It was, until something labeled the "Foreign Intelligence Surveillance Act" (FISA). Today, every electronic communication of every kind -- e-mail, telephone conversation, radio or TV communication, in any medium -- is routinely overheard, recorded, stored and available for use against any American citizen by the FBI, the CIA, the NSA, the IRS, the Social Security Administration and every information and intelligence gathering agency government-wide. Your cell phone isn't just a telephone any more: it's a GPS for government trackers; it stores your phone records and conversations; and the "your" telephone company routinely provides that Government whatever it asks about what we say, to whom, and when. So do our computers. The result? There is no longer any reasonable expectation of privacy, anywhere, anytime, for anyone.

One might ask, "How did this come to be?" In 1978, under President Jimmy Carter, Congress enacted something called the "Foreign Intelligence Surveillance Act" (FISA), whose nominal purpose was to enable the federal government to eavesdrop, wiretap, or otherwise capture the contents of communications and/or conversations involving people from other nations around the world whom our government believed might be plotting or conspiring to do America harm. Of course, some of those nefarious plotters might also be doing so in conjunction with Americans; therefore, it was necessary to "listen in" on everyone, lest our defenders in the intelligence community not be able to detect all they could. Which in turn meant that a mechanism needed to exist to honor the 4th Amendment - if only in form. Thus came about what is now known as the "FISA Court," whose two-fold purpose was to approve the "listening" while maintaining a cover for violating the 4th Amendment, and appearing to provide protection for American citizens against the very Government behavior things that Court was approving. (No, it doesn't make sense, but it's the way it is.) All this, of course, was long before cell phones, personal computers, laptops and even the internet.

Human nature being what it is, whatever Big Government can get away with, small government will follow. So now we have all kinds of electronic surveillance, 24/7, on everyone throughout the land, from the White House all the way to City Hall. For those readers familiar with George Orwell, "1984" is alive and well; and, yes, Big Brother is watching. And listening. And recording. And waiting -- to use whatever he has against anyone. It's no longer science-fiction; it's fact - and describes that part of the Intelligence community that has come to be labeled the "Deep State."

Again, human nature being what it is, and humans being the inherently curious political animals that we are, some in the intelligence community have turned their authorizations from guarding against our external threats, to attacking and destroying those they perceive as partisan political enemies - further violating the 4th Amendment, both in spirit and in fact.

All of this is not only in direct violation of the 4th Amendment, it's totally destructive to a free and open, self-governing society, i.e., our founding principles. If the Founders and Framers didn't want the Crown spying on us, why do we allow our government - at every level - to? For better security? Ben Franklin said it well: "Those who trade freedom for security deserve neither."

What can We, the People, do to turn this around? Obviously, trusting the Government to correct itself makes no sense at all - governments, by their very nature, acquire power; they neither share nor yield. But, we still have in place a (somewhat) representative governmental structure; why not make it truly representative? Yes, it means paying closer attention to what that government is actually doing. And it means paying even closer attention to how what it does affects us, both currently and down the road. And it means paying even more attention to knowing whether what those who claim to want to represent us will actually do that, or fall into more of the internecine partisanship that wins political victories but destroys the fabric of our Republic. It means, as Plato warned 2,500 years ago, that We, the People, must get involved and participate in this self-governance project; otherwise we'll simply continue transitioning to its opposite, i.e., tyranny. And we see tyranny blossoming everywhere, from schools to governments and everywhere in between, largely because We, the People, have assumed the best - and enabled the worst.

Remember, the Constitution neither guarantees nor enforces our rights and protections; it simply affirms them, and functions as a mechanism for us to exercise and protect them ourselves. Government, by its very nature, neither shares nor yields power; it takes it. That's why Thomas Jefferson's "In questions of power then, let no more be heard of confidence in man but bind him down from mischief by the chains of the Constitution," is so important. Bud Nason lives in Littlestown, is a Conservative Thinker and an Adams County Voter. E-mail him at budnason@aol.com.

The rest is here:
Constitution and Fourth Amendment - Gettysburg Times

With Cell Phone Record Case on SCOTUS Horizon, Originalist Analysis on IV Amendment Is Helpful CNSNews.com On June 5, the Supreme Court agreed to hear a case involving Fourth Amendment protections for cell phone records, Carpenter v. U.S. This case features a much-criticized judicial creation called the third-party doctrine and how it applies to an ...

See the rest here:
With Cell Phone Record Case on SCOTUS Horizon, Originalist Analysis on IV Amendment Is Helpful - CNSNews.com