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'How Far Can They Go?' Police Search of Hundreds of Students Stokes Lawsuit and Constitutional Questions New York Times The Fourth Amendment of the United States Constitution guarantees people's right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, and a series of court decisions has laid the groundwork for ... and more »

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'How Far Can They Go?' Police Search of Hundreds of Students Stokes Lawsuit and Constitutional Questions - New York Times

The doorbell to the home you are renting rings. You open it to find a city code enforcement officer asking to do an interior inspection. The officer unveils a list of 80 items to check. There will be snooping through cupboards and drawers, bathrooms, bedrooms and closets.

You feel extremely uncomfortable with the idea of a stranger rummaging through your home, and you wonder why the city feels its needed. After all, if theres a problem with the property, all you need to do is call the owner. It you dont get satisfaction, you could contact code enforcement at that point.

So, you politely tell the officer, I do not want you to inspect the inside of my home.

The officer responds that the inspection is required by city law, and the owner will get in trouble if you dont let me in.

You reply, Im sorry, but without a warrant you cannot come in.

This is a true story, showing how the tenants in a Highland rental home that I own became caught up in the citys systematic assault on privacy rights.

Highland developed a plan to inspect all 4,800 residenti al rentals, whether or not there were any issues with the properties. Officials also decided to cut corners and not seek judicial approval to enter dwellings. Instead, they would pressure owners and renters to allow inspectors in.

My tenants certainly had no complaints about their rental home; it is well-maintained, as with all my properties. They had no reason to want officials intruding on their privacy, so they refused to agree to the inspection, as did I.

The city responded by issuing me a fine, and withholding my rental license in order to force me to comply.

Some property owners might have given in at that point, unwilling to fight city hall. But I have a strong reverence for the Constitution and Americas heritage of liberty, and I was determined not to let the citys coercion go unchallenged. Along with my tenants, I filed a lawsuit in federal court, represented free of charge by Pacific Legal Foundation, a watchdog organization for property rights and individual liberty.

Our case rested on the Fourth Amendment freedom from unreasonable searches. This is a core liberty, part of the Bill of Rights. It reads as follows:

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.

You dont need to be a legal scholar to interpret these words. In order for a government agent to enter a private home without permission, a warrant must be obtained.

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The good news is that, in the wake of our lawsuit, the city has now repealed its invasive inspection scheme, replacing it with an owners self-inspection program. Highland can now focus enforcement resources on the small number of real problem cases, instead of unnecessarily disturbing the privacy of rental-home residents.

Tenants are customers. Like any business, if you dont take care of your customers they will give their business to someone else. Rental owners want happy, long-term tenants. That is why the vast majority of owners do a good job taking care of their customers.

Whether you own or rent, the Fourth Amendment protects you from warrantless searches of your personal effects, in your private home. It is a precious liberty that we should all cherish.

Unfortunately, Highland is far from alone in imposing oppressive, unjustified search and inspection schemes for rental homes. But the victory that my tenants and I have achieved in Highland should send a message to cities throughout California: They need to bring their code enforcement into conformity with the Constitution.

Karl J. Trautwein, a resident of San Juan Capistrano, owns rental homes in Highland and other Southern California communities.

Read more here:
Highland case a Fourth Amendment victory: Guest commentary - San Bernardino County Sun

June 8, 2017

The law dictates when enforcement officers need a warrant for searches and when they dont. Where do the protections of the Fourth Amendment apply and where do they not.

Technologys rapidly changing capabilities present a constant need for constitutional protections to be guided by updated rule of law.

In June 2014, the Supreme Court expanded the law to address privacy concerns in the digital age. In Riley v. California, the justices decided a warrant is needed to search cellphones seized from someone who has been arrested. They knew when they ruled that they werent just talking about a flip phone with a few photos and a contact list. It was a landmark ruling.

In that 2014 decision, Chief Justice John Roberts wrote: The term cell phone is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers.

Roberts likened it to ransacking a persons home. Indeed, a cellphone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.

An example he gave: past location information, now a standard feature.

The court will decide whether law enforcement authorities need a warrant to gather cellphone data from cellphone companies.

The case, Carpenter v. U.S., involves a convicted robber named Timothy Carpenter, who was found guilty partly on the basis of months of cellphone location records turned over without a warrant.

The justices know that technology now gives government the ability to rummage through more than cars, closets, bedroom drawers and smartphone photos. Technology gives enforcement the ability to look at a persons entire life, personal and otherwise, under an amazingly invasive digital microscope. Where and when do you need a warrant for that?

Today, the U.S. Supreme Court conferences on 159 petitions for review and OOIDAs ELD mandate case is one of them. How does OOIDAs ELD case relate? Youve probably already put the dots together. The issues differ fromthose in OOIDAs ELD case. But the courts interest in the gathering of data from electronic devices is significant.

See more here:
Brushing up on landmark Fourth Amendment cases - Land Line Magazine

Yesterday we looked at a warrantless, mass search of Georgia high school students that was almost certainly unconstitutional, and that some students say included touching and probing of their genitals. Today,another disturbing story about what would seem to be clearly unconstitutional searches at a Colorado low-income apartment complex:

The Longmont Housing Authority says it was using the homes of low-income residents to train police drug dogs. There werent warrants, but simply a notice that the landlord was coming, and a police officer and drug dog would be there, too.

The letter to residents of The Suites low-income housing community starts with standard stuff, notifying them of an inspection. Thats what landlords across Colorado do.

Then it mentions that the police officer and drug dog. Nowhere in the letter are residents told that while they must let the landlord in, they do not have to allow the police officer and drug dog inside without a warrant. And then, if the officer does come inside, anything they find is fair game.

The head of the complex isKrystal Winship Erazo, and she appears to have no concept whatsoever of the Fourth Amendment.

Two months ago, there were some rumors and some concerns about drug activity on the property and one way we found to address it was to invite a partnership with the Longmont Police Department to invite the canines over on their training day, Erazo said in an interview with 9NEWS. Usually it helps the residents feel really secure in that were following up, were holding residents accountable, its an opportunity for the dogs to train.

Ill go ahead and write this, because apparently needs to be written: Low-incomepeople havethe same rights as everyone else. Low-income people are not the equivalent of tackling dummies, or lab rats or volunteers on some police training course.You cantuse poor people to train your police dogs.

Erazo then spoutsthe hackneyedline of every Fourth Amendment authoritarian everywhere.

If there is concern, it kind of sparks some curiosity for me, Erazo said. You know, what are they concerned about if (the officers) only job is to ensure there arent drugs in the unit?

It sparks some curiosity is a euphemistic way of saying poor people who dont want cops going through their stuff can only beup to no good.

The complex has since halted the searches. But it makes you wonder where else this sort of thing is happening. I recall in researching my first book that in the 1980s and 1990s there were policeraids on entire housing complexes. Every unit inside was hit. The raids were obviously illegal, but the people on the receiving end of them were usually powerless to do much about it.

Good on Denvers 9 News for covering this story, and for making this point in particular:

Its worth noting that the only reason this practice went public and stopped is because someone at the public housing complex knew her rights, and knew that she didnt have to submit to a warrantless police search, no matter what the housing authority said.

Link:
Colorado housing officials invite cops to perform warrantless searches on poor people - Washington Post

The Sixth Circuit Appeals Court is the latest to weigh in on cell site location info. It joins every other circuit that has handled the issue in deciding the gathering of cellphone GPS data by law enforcement is not a search under the Fourth Amendment.

This decision [PDF] isn't too surprising considering the court reached the same conclusion last year in a similar case. The difference between the two is the latest case deals with real-time collection of GPS data, rather than historical GPS records. But that's the only difference. The Appeals Court believes the same holds true for real-time location info, although it cites something other than 1979's Smith v. Maryland in its analysis.

[T]he district court heldand we affirm, holding that the governments detection of Montai Rileys whereabouts in this case, which included tracking Rileys real-time GPS location data for approximately seven hours preceding his arrest, did not amount to a Fourth Amendment search under our precedent in United States v. Skinner, 690 F.3d 772, 781 (6th Cir. 2012). The government used Rileys GPS location data to learn that Riley was hiding out at the Airport Inn in Memphis, Tennesseebut only after inquiring of the front-desk clerk did the government ascertain Rileys specific room number in order to arrest him. The GPS tracking thus provided no greater insight into Rileys whereabouts than what Riley exposed to public view as he traveled along public thoroughfares, id. at 774, to the hotel lobby. Therefore, under Skinner, Riley has no reasonable expectation of privacy against such tracking, and the district court properly denied Rileys motion to suppress evidence found upon Rileys arrest.

While tracking a robbery suspect, law enforcement obtained an order demanding AT&T hand over location data as soon as it was collected.

The court order compelled disclosure of call metadata such as inbound and outbound phone numbers and cell-site location (CSL) data, as well as real-time tracking or pinging of the latitude and longitude coordinates of Rileys phone. Specifically, the order required AT&T to disclose the following, potentially for two months, until August 26, 2015:

16. Precision location of mobile device (GPS Location) such that service provider shall initiate a signal to determine the location of the subjects mobile device on the service providers network or with such other reference points as may be reasonable [sic] available and a [sic] such intervals and times as directed by State Task Force Investigators and Deputy Marshals of the United States Marshal Service.

The court goes on to note that the location records submitted as evidence do not show whether this collection of info was triggered by AT&T or by the cellphone's owner.

No evidence of record indicates whether Rileys phone automatically transmitted its GPS coordinates to AT&T (and if so, whether on a continuous basis or otherwise) or whether AT&T affirmatively sent a signal to Rileys phone to cause it to send AT&T its GPS coordinates.

This should have been a warning flag. It's one thing to collect this info as it comes in. If AT&T is pinging the phone to generate GPS coordinates, AT&T is essentially performing a search on behalf of the government. That should make a difference in this case, as it shifts it from being about a collection of third-party records to an affirmative gathering of records by the government, using AT&T as a third-party stand-in to work around warrant requirements. (Not that case law is settled for GPS tracking, but still)

But it doesn't. The court goes on to say it doesn't matter because the records were gathered by a third party and they all dealt with the movement of an individual in a public area (the motel where he was arrested). That's why the court cites the Skinner decision, rather than relying exclusively on Smith v. Maryland.

In Skinner, we held that location data emitted by a voluntarily procured cell phone could not be subject to a reasonable expectation of privacy, even if the cell-phone user had no reason to expect that the government would compel the service provider to disclose those data. Id. at 779. There, because the defendants movements could have been observed by any member of the public, ibid., we held that it could not possibly be a Fourth Amendment violation for law-enforcement officers to monitor those movements by using cell-phone location data just because such electronic monitoring was more efficient than relying on visual surveillance alone.

But it then goes on to reach a conclusion which seems to contradict the evidence provided.

Using seven hours of GPS location data to determine an individuals location (or a cell phones location), so long as the tracking does not reveal movements within the home (or hotel room), does not cross the sacred threshold of the home, and thus cannot amount to a Fourth Amendment search. After all, the tracking in Knotts revealed the location of the cabin to which the criminal suspects had traveledbut the tracking in Knotts was not a search because it revealed no information about the interior of the cabin itself. Likewise here, the tracking revealed only that Riley had traveled to the Airport Inn, not which room (if any) the phone was in at the time of the tracking.

The lack of location info particularity should have worked against the government's argument. The court even admits in a footnote the government had no idea where exactly the suspect was located -- only a general idea that he was likely in a publicly-accessible building.

When viewed on a map, the majority of these coordinates are scattered within the perimeter of the Airport Inn, but with insufficient precisioneven if the Airport Inn were only one story tallto reveal which room, if any, the phone was in at the time of each ping.

So, it could be argued the government did track the suspect's "movements within a hotel room," which would put this back in Fourth Amendment territory. But the court never attempts to reconcile these contradictory statements and instead continues to use both the motel's accessibility and the coarse location info as an argument against potential Fourth Amendment violations.

That Riley was arrested in a motel is of no moment, for the government learned no more about Rileys whereabouts from tracking his cell-phone GPS data than what Riley exposed to public view by traveling to the motel lobby along public thoroughfares, Skinner, 690 F.3d at 774even if Riley meant to keep his location a secret, one cannot expect privacy in ones public movements.

Certainly the arrest was "no moment," but the tracking that occurred once he was inside the building should have been given more consideration. The fact that law enforcement can obtain real-time location tracking information definitely needs to be examined more closely, especially when there's ample evidence law enforcement has effectively backdated orders like these to cover up use of more intrusive technology like Stingray devices.

More here:
Sixth Circuit Appeals Court Latest To Say Real-Time Cellphone Location Tracking Not A Fourth Amendment Issue - Techdirt