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In a split decision in United States v. Delva, No. 15-cr-683 (Kearse, Winter, Jacobs), the Second Circuit held that the Fourth Amendment allowed law enforcement officers to seize cell phones and a number of letters that were in plain view in the room of a suspects home where he was interviewed immediately after an arrest. The majority opinion, written by Judge Kearse, relied on the exigent circumstances doctrine to hold that it was reasonable under the circumstances to hold an interview in the suspects home, which allowed the officers to seize incriminating evidence that was in plain view without obtaining a search warrant. Although the majority opinion is careful to recognize that the exigent circumstances exception requires a case-by-case analysis, the decision extends the infrequently applied exigent circumstances doctrine to a new set of facts. The decision drew a dissent from Judge Jacobs, who objected to the majoritys reliance on the exigent circumstances doctrine when the government had not raised it in the trial or appellate court, thus denying the defendant any chance to respond to this somewhat novel analysis offered by the Court.

The case arose out of a brutal drug-related double kidnapping, robbery, and assault committed in 2012 in the Bronx. The panel opinion begins with a recitation of the gory facts, which involved a violent home invasion robbery followed by a second kidnapping, all in a search for drug money. The resulting investigation led law enforcement officers to a small, three-room apartment with an arrest warrant for Gregory Accilienbut no search warrant. When the police arrived, Accilien was in the apartment along with defendant David Delva, who was not yet a suspect in the kidnapping/robbery, as well as two other men, a woman, and several children. After entering the apartment, the police moved the woman and children to the living room, handcuffed three of the men in the kitchen, and handcuffed Delva on the floor of the bedroom. While securing Delva and checking the bedroom for additional people, the officers spotted a bag of cocaine and a loaded gun through an open closet door. They seized the gun and the drugs and moved Delva to the kitchen. It took the officers less than two minutes to secure the apartment.

While Accilien was put under arrest for the kidnapping, the officers testified that they did not know who was responsible for the guns and the drugs found in the bedroom, which contained both a bed and an air mattress. The officers took Accilien into the bedroomthe only empty room other than the bathroomto question him. Accilien said that the gun and the drugs were Delvas, and Delva was arrested and charged under state law. However, while they were in the bedroom questioning Accilien, one of the officers observed two cell phones, one on the TV and one on the bed, and several letters addressed to Accilien from an individual who was already under arrest for the kidnapping. The letters implicated Delva in the kidnapping, and he was rearrested on federal charges several months later.

The primary question on appeal was whether the district court (Forrest, J.) erred in denying the motion to suppress the phones and the letters. There was little dispute that the items were in plain view, so, under well-established case law, the officers could seize the phones and letters so long as the officers were lawfully in the bedroom when they spotted them. The Second Circuit began by rejecting the reasoning of the district court, holding that the phone and the letters were not seized as part of a protective sweep of the apartment. The Second Circuit found that the district court erred by treating the phone and letters, which the officers saw in plain view during the interview of Accilien, just like the gun and the drugs, which they saw in plain view while securing Delva and the bedroom. While the officers behaved reasonably to ensure their safety by conducting a protective sweep, handcuffing Delva, and checking that the bedroom was otherwise empty, they did not see the phone or the letters on this first trip to the bedroom during this protective sweep. It was only when the officers re-entered the bedroom, after the apartment had been secured, that the additional evidence was found. At that point, additional searches could not be justified by the officers concern for their safety.

Rather than reverse the decision of the district court and remand the case, the majority instead identified a different doctrine that supported the constitutionality of the search: the exigent circumstances exception. The Court held that this doctrine justified the officers presence in the bedroom when they saw the cell phones and letters. This rationale had not been raised by the government at the trial court or circuit court level. The classic exigent circumstances case involves a situation in which the police must enter a private area to prevent the destruction of evidence or a suspects flight. But the majority extended the doctrines reach to these facts, noting that reasonableness is always the touchstone of Fourth Amendment analysis. The Court cited to its prior decisions considering whether warrantless conduct was permitted. E.g., United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc). The majority found that it was reasonable for the officers to take Accilien into the bedroom to interview him because (1) they did not know who to arrest for possession of the drugs and the cellphone, (2) Accilien might have been intimidated from speaking freely in the presence of the others, and (3) besides the bathroom, the bedroom was the only empty room in the apartment with a door. The case cited by the panel involving the most analogous facts to those in Delva was an unpublished decision from the Sixth Circuit. See United States v. Ocean, 564 F. Appx 765, 771 (6th Cir. 2014).

Judge Jacobs dissented from the Fourth Amendment analysis, and would have remanded the case to the district judge to consider the exigent circumstances exception, the application of which is a fact-dependent question. He observed that because the government had never raised that exception, either before the trial court or on appeal, Delva had no opportunity to respond, either on the facts or the law. Moreover, Judge Jacobs said that [i]t is not as though there would have been nothing for Delvas counsel to say, noting that no published opinion from any circuit court has ever applied the exigent circumstances doctrine to similar facts.

In a brief final section of the opinion, the majority rejected Delvas remaining arguments. It held that the district court did not abuse its discretion in allowing one of the victims to testify about her rape, even though Delva was not charged with rape, because it formed a part of the story line that explained how the crime progressed. The Court also found no abuse of discretion in the removal of a juror who had failed to disclose arrests and convictions at voir dire and during later questioning. Finally, the Court rejected Delvas challenge to his sentence which, at 360 months, was below the Guidelines range of life plus five years.

The Court of Appeals was evidently troubled by the district courts ruling on the protective sweep doctrine, believing that the district court expanded the doctrine beyond the very specific type of situation it was meant to address: a warrantless seizure of evidence that is seen in plain view while the police officers are conducting a necessary safety procedure during an arrest. Where the officers have secured the premises and are taking second-order investigative steps, the protective sweep doctrine no longer applies. By deciding the appeal on alternate grounds, the Court of Appeals was able to avoid remanding this case, involving very serious allegations, for a new trial. However, this result came at the cost of a broadened interpretation of the exigent circumstances doctrine. Given the fact-specific nature of the Courts decision and the Courts emphasis on reasonableness as the touchstone of Fourth Amendment analysis, it leaves open the possibility of limiting the reach of Delva in future cases. Finally, although the majority seems to have believed that no additional fact-finding or briefing was necessary, litigants are rightly disturbed to lose on an issue that they never had the opportunity to brief or argue. In light of this, litigants will probably hope that this procedure continues to be the exception and not the rule.

Read more:
Exigent Circumstances Under the Fourth Amendment May Extend to the Need to Interview an Arrestee in Place - Lexology (registration)

Therewas enormously important Fourth Amendment news from the Supreme Court on Monday: The justices agreed to review the U.S. Court of Appeals for the 6th Circuits decision in Carpenter v. United States, one of the long-pending cases on whether the Fourth Amendment protects government access to historical cell-site records.

This is a momentous development, I think. Its not an exaggeration to say that the future of surveillance law hinges on how the Supreme Court rules in the case. Let me say a bit about the case, the issues it will decide and why it matters.

I. The Facts of the Case

Carpenter involves a string of armed robberies that occurred over a two-year period. A group of men (at least five of them) would go into cellphone stores armed with guns, order the customers and employees to the back, and steal the phones. Carpenter was the lead organizer of the conspiracy, and he often supplied the guns, acted as a lookout and would signal when each robbery was to begin.

One of Carpenters conspirators confessed to the crime and gave the government his cellphone number and the numbers of the other conspirators (16 numbers total). The government applied for three different court orders for the cell-site records associated with those numbers, which included Carpenters number. Specifically, the orders sought cell site information for Carpenters phone at call origination and at call termination for incoming and outgoing calls. The government obtained the orders under the Stored Communications Act. They complied with the statute, but the statute requires only reasonable suspicion and not probable cause.

The order that covered Carpenter was directed at his cellphone provider MetroPCS. MetroPCS produced 127 days of historical cell-site records. (Sprint produced another seven days of historical cell-site records for Carpenters phone from a time window when he was roaming and Sprint picked up his service instead of MetroPCS.) Together with the orders obtained, the records showed that that the phones of the alleged conspirators were within distances ranging from a half-mile up to two miles of the robberies at the time they occurred. Specifically, Carpenters phone was shown to be in communication with cell towers near four robberies over a five-month window.

II. The Legal Issues

Here is how counsel for the petitioner framed the question presented:

Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.

And heres how the United States redrafted the question presented in its brief in opposition:

Whether the governments acquisition, pursuant to a court order issued under 18 U.S.C. 2703(d), of historical cell-site records created and maintained by a cellular-service provider violates the Fourth Amendment rights of the individual customer to whom the records pertain.

I gather, then, that the case will consider two distinct questions. First, is the collection of the records a Fourth Amendment search? And second, if it is a search, is it a search that requires a warrant?

Notably, neither side sought review of whether the good-faith exception applies if the answer to both of these questions is yes. The parties are asking only for a ruling on the merits, with any remedies decision bifurcated for review on remand if the Supreme Court reverses.

III. Why The Case Matters

The Carpenter case is tremendously important, I think. The structure of modern surveillance law is built on the idea that the contents of communications receive Fourth Amendment protection but that non-content metadata records about communications, and other third-party business records do not. That has been the rule since the 19th century for postal letters, and it has been the rule since 1979 for phone calls. Carpenter will help determine if that basic rule framework will remain, or if the Supreme Court will amend it somewhat or even dramatically change it.

Part of the importance of the case is that its not just about cell-site records. Although the case is formally about cell-site records, its really about where to draw lines in terms of what network surveillance triggers the Fourth Amendment and how the Fourth Amendment applies. The justices cant answer how the Fourth Amendment applies to cell-site records without providing a framework for how the Fourth Amendment applies to many other forms of surveillance, such as visual surveillance, obtaining traditional phone records, obtaining e-mail transactional records, obtaining credit card records and the like.

For example, readers will recall the debate over the mosaic theory of the Fourth Amendment. Among the issues likely to be pressed in Carpenter is whether the justices should adopt or reject the mosaic theory. Note that the question presented focuses on the fact that the records covered 172 days. Should the length covered by the records matter? Is evidence collection for a short time window no search that becomes a search because the records spanned a long time window?

Plus, remember that the justices will have two questions: what a search is, and when searches are reasonable. Most will focus on the first question, but note that the two issues go together. As I explained here, the broader the court interprets search, the more pressure there is to water down reasonableness. The narrower the definition of search, the stronger the reasonableness standard tends to be. This creates some interesting dynamics. For example, you might get a ruling that there is no search but that retains the traditional default warrant rule for searches. On the other hand, you might get a ruling that a search occurred but that authorizes a new category of warrantless surveillance. This is just speculation, of course, but I suspect the briefing will urge major doctrinal innovations on both questions.

IV. Why Did the Justices Take the Case?

Some will speculate that the Supreme Court would have taken the case only if it were going to reverse. I have no idea how the court will rule, but I tend to doubt that. If I had to guess, I would guess that the court took these cases because theyre really important. The lower court rulings are based on the third-party doctrine, and none of the current justices were on the court the last time the justices decided a case on the third-party doctrine. Its pretty sensible to have the current Supreme Court weigh in.

As it happens, I think the third-party doctrine is essential to technological surveillance in a digital age. As I see it, the doctrine is needed to maintain the essential balance on which Fourth Amendment law has been built and on which it evolves in response to new technology. Prominent alternatives, like the mosaic theory, strike me as a dead end. But it makes a lot of sense for the justices to review these cases and decide whether they agree and if not, identify what new framework should replace it.

V. Lots of Blogging Ahead

Finally, Ill probably be doing a lot of carpentry (that is, blogging about the issues raised in Carpenter) over the next few months. A lot of my academic work in the past decade has been about issues that touch on the case, so it will be really fun to see what the justices do.

Read the original here:
Supreme Court agrees to hear 'Carpenter v. United States,' the Fourth Amendment historical cell-site case - Washington Post

The Fourth Amendments barriers to unreasonable searches and seizures dont get the attention the First Amendment does, but theyre at least as important as a guarantee of liberty. And during his White House years Barack Obama vandalized the Fourth Amendment. His glittering words blinded the media to his unprecedented assault on the right to be let alonethe most cherished right among civilized people.

The American Revolution was ignited by British invasions of the right to privacy. James Otis protested British Writs of Assistance that empowered every petty official to rummage through colonial businesses and homes on a hope and a prayer that smuggled goods or other incriminating evidence of wrongdoing might be discovered:

Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

Pitt the Elder, speaking to the British Parliament, captured the heart and soul of what came to be ratified as the Fourth Amendment:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.

The Amendment protects reasonable expectations of privacy from government surveillance, and in Olmstead v. United States (1928), Justice Brandeis (dissenting) said that, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. The government cannot invade a persons privacy without documenting a particularized and urgent criminal justice or foreign intelligence need to a neutral and impartial magistrate. The prohibition does not bend even in cases of homicide or international terrorism where its shield might enable serious wrongful conduct to escape detection. Our Constitution is anchored to the high principle that it is better to risk being the victim of injustice than to risk being complicit in it.

That is, until now. President Obamas dragnet collection of internet and phone metadata on every American citizen obliterated the Fourth Amendments privacy fortress. Without getting a court warrant, Obamas National Security Agencys Stellar Wind program indiscriminately collected internet metadata, i.e., the accounts to which Americans sent and from which they received emails. The metadata detailed the internet protocol (IP) addresses used by people inside the United States when sending emails. Julian Sanchez of the CATO Institute explained the magnitude of the invasion of privacy:

The calls you make can reveal a lot, but now that so much of our lives are mediated by the internet, your IP logs are really a real-time map of your brain: what are you reading about, what are you curious about, what personal ad are you responding to (with a dedicated email linked to that specific ad), what online discussions are you participating in, and how often?...Seeing your IP logs and especially feeding them through sophisticated analytic tools is a way of getting inside your head thats in many ways on par with reading your diary.

President Obama also collected metadata on every phone call made by Americans, under a tortured interpretation of section 215 of the USA Patriot Act. Among other things, the telephony metadata included the time, duration, number called, and routing information of every phone communication in the United States. The database would enable the government to create a personal profile of citizen.

United States District Judge Richard Leon found a high probability that the dragnet collection of telephony metadata violated the Fourth Amendment in Klayman v. Obama.

I cannot imagine a more indiscriminate and arbitrary invasion [of privacy] than this systematic and high-tech collection and retention of personal data on virtually every single citizen for the purpose of querying and analyzing it without prior judicial approval. Surely, such a program infringes on that degree of privacy that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware the abridgment of freedom of the people by gradual and silent encroachments by those in power, would be aghast.

President Obamas own Privacy and Civil Liberties Board similarly found Steller Wind unauthorized by section 215 of the USA Patriot Act. It amplified that it could not find a single instance in which the program made a concrete difference in the outcome of a terrorism investigation[and added]we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. The United States Court of Appeals for the Second Circuit also concluded that Stellar Wind was illegal in ACLU v. Clapper.

President Obamas presidency was unprecedented in its scorched earth tactics against the Fourth Amendment. And were only now beginning to find out how he weaponized this information against political enemies.

View post:
Obama Vandalized The Fourth Amendment | HuffPost - HuffPost

In an opinion that seems carefully crafted to achieve unanimity rather than break new ground, the court yesterdayunsurprisingly and unanimously rejected the U.S. Court of Appeals for the 9th Circuits Fourth Amendment provocation rule while leaving the specific facts open for further analysis on remand. Justice Samuel Alito authored a crisp 11-page opinion, without dissent, for an eight-justice court (Justice Neil Gorsuch did not participate) that is rightfully weary of 4-4 tie possibilities. Alitos opinion hewed closely to the excessive force precedent of Graham v. Connor and avoided points that had provoked strong disagreement at oral argument and in the briefs. As a result, the opinion masks more issues than it resolves. All we know, after reading this opinion, is this: When law enforcement uses force that is judged reasonable based on circumstances relevant to that determination, then a different Fourth Amendment violation cannot transform [that] reasonable use of force into an unreasonable seizure.

Sympathetic facts and three distinct Fourth Amendment claims

As detailed in my prior summary, two deputy sheriffs, searching for a felon, entered a shack where they had been told a homeless couple lived, without a search warrant and without knocking or announcing their presence or identity. Angel Mendez and his then-girlfriend were resting inside. When he heard someone entering, Mendez picked up a BB gun to move it in order to stand up. The deputies saw what they reasonably viewed as a weapon pointed in their direction, and immediately opened fire, severely injuring the woman and Mendez (whose lower leg was amputated as a result).

The Mendezes (now married) pursued three distinct Fourth Amendment claims in their federal lawsuit against the deputies and Los Angeles County: the failure to get a search warrant, the failure to knock and announce, and excessive force. No one has disputed that, at the moment of the shooting, the deputies acted reasonably in shooting to protect themselves. But as Alito notes, the district court did not end its excessive force analysis at this point. Instead, the court awarded damages based on why the shooting took place, noting that were it not for the failure to get a warrant and to knock and announce both constitutional violations Mendez would not have been startled or picked up his gun.

In so ruling, the district court applied the 9th Circuits provocation rule, which as described by Alito permits an excessive force claim where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation. On appeal, the 9th Circuit affirmed this application of its doctrine. The appeals court held that entering the residence without a warrant violated clearly established Fourth Amendment law. But the court ruled that the deputies were entitled to qualified immunity for the knock-and-announce violation, because it was not clearly established in this context: Other officers had in fact knocked and announced at the front door of the main house. Still, because the deputies unconstitutional warrantless entry had recklessly provoked the otherwise reasonable shooting, the court of appeals affirmed the damages award.

As an alternative rationale, the appeals court said that basic notions of proximate cause also supported the damages award, regardless of the provocation rule, because it was reasonably foreseeable that the officers would meet an armed homeowner when they barged into the shack unannounced. But, as the Supreme Court noted in remanding on this alternative theory, by relying on the unannounced nature of the entry, the court of appeals appeared to focus on the same knock-and-announce violation for which it had already ruled that the officers should receive immunity.

The court rejects the provocation rule as an unwarranted and illogical expansion of Graham

When law enforcement officers use force to effect a search or seizure, the Fourth Amendment requires reasonableness. A law-enforcement entry, an arrest, and even a shooting (a seizure) are Fourth Amendment events governed by this timeless yet amorphous constitutional standard. Claims of unreasonable force by law enforcement in such circumstances are characterized as excessive force, and can lead to constitutional tort damage awards for violating the Fourth Amendment, unless qualified immunity intervenes to protect the law-enforcement officers from liability.

As the court pointedly noted yesterday, The framework for analyzing excessive force claims is set out in Graham v. Connor. In Graham, Alito emphasized, the court held that the operative question in excessive force cases is whether the totality of circumstances justifies a particular search or seizure, paying careful attention to the facts and circumstances of each particular case.

No one can argue with this account of settled law because, of course, it is so general that it answers no specific questions. The trick how such general legal principles are applied to the specific facts of each case.

It is in this application that the 9th Circuit erred, said the court as it overturned the provocation rule. [T]he objective reasonableness analysis, the court explained, must be conducted separately for each search or seizure. In the courts view, the fundamental flaw of the provocation rule is that it uses a separate and independent constitutional violation to manufacture an excessive force claim where one would not otherwise exist. When viewed from the deputies perspectives at the time they confronted a weapon pointed at them, the shooting in this case was not unreasonable. By asking a court to look back in time to see if there was a different Fourth Amendment violation that is somehow tied to the eventual use of force, the Supreme Court reasoned, the 9th Circuits novel and unsupported rule conflates distinct Fourth Amendment claims.

A key footnote necessary to avoid a 4-4 tie?

If you followed the courts opinion to this point, you might think that the it would conclude by holding that Mendez cannot recover damages in this case. But that is not what the opinion says at all. Instead, a single footnote appears in the opinion, marked with an * rather than a number. One can speculate that this footnote was first suggested by someone other than the opinions author a justice who threatened otherwise to dissent. Even more likely, four justices may have asked for this footnote as a condition for joining, thereby threatening a 4-4 affirmance of the judgment below and continuation of the provocation rule. That was surely an outcome Alito and other justices wanted to avoid. Thus footnote * is the key to this opinion. Here is what it says:

Graham commands that an officers use of force be assessed for reasonableness under the totality of the circumstances. On respondents view, that means taking into account unreasonable police conduct prior to the use of force that foreseeably created the need to use it. We did not grant certiorari on that question . All we hold today is that once a use of force is deemed reasonable under Graham, it may not be found unreasonable by reference to some separate constitutional violation.

Thus and this seems surprising given the tone of the opinion up to this point the court did not rule that the Mendezes cannot recover on the facts of their case. All the court held was that the theory of the provocation rule that one constitutional violation can somehow render a different, separate and distinct, reasonable seizure unconstitutional is rejected. This holding does not mean or at least it does not appear to mean that persons injured by law enforcements use of force cannot recover for injuries proximately caused by a Fourth Amendment violation committed before the moment of a shooting. Indeed, a key phrase from Graham at the moment on which the petitioners had relied, was pointedly not mentioned anywhere in this opinion.

In light of footnote *, yesterdays opinion seems uneventful. As with all good proximate cause tort hypotheticals, the outcome will depend on the facts. This is nothing new, given that the Framers made the word unreasonable the fulcrum of the Fourth Amendment in 1790.

Conclusion

In a concluding paragraph that I imagine was also worked on by more than one justice, the court appeared to endorse the objective Alito also called it a notion that it is important to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts. This seems like a healthy recognition in light of contemporary concerns regarding police shootings. Indeed, said the court, both parties and, it appears, the unanimous court accept the principle that plaintiffs can subject to qualified immunity generally recover damages that are proximately caused by any Fourth Amendment violation. This phrasing may satisfy the justices offended by this particular shooting and favoring recovery by persons like the Mendezes severely injured by law enforcement although they had nothing to do with the event, as Justice Sonia Sotomayor said at oral argument. In deference to those justices, the court remanded the case for the lower courts to revisit the proximate cause question. (In a somewhat unusual move, the court pointed to specific pages of the briefing as a useful starting point for the remand.) Meanwhile, the 9th Circuits general provocation rule is dead, as Alito had suggested it should be two years ago in City and County of San Francisco v. Sheehan and, indeed, years earlier as a judge on the U.S Court of Appeals for the 3rd Circuit.

Thus the court preserved the logic of its precedents, while not endorsing the law-enforcement shooting of two innocent people. It would be encouraging if this opinion set a new standard for the newly reconstituted court: finding ways to rule unanimously while reaching fair results.

Click for vote alignment by ideology.

Posted in County of Los Angeles v. Mendez, Analysis, Featured, Merits Cases

Recommended Citation: Rory Little, Opinion analysis: Finding Fourth Amendment unanimity while allowing Fourth Amendment justice, SCOTUSblog (May. 31, 2017, 11:55 PM), http://www.scotusblog.com/2017/05/opinion-analysis-finding-fourth-amendment-unanimity-allowing-fourth-amendment-justice/

View original post here:
Opinion analysis: Finding Fourth Amendment unanimity while allowing Fourth Amendment justice - SCOTUSblog (blog)

ANALYSIS/OPINION:

The Fourth Amendments barriers to unreasonable searches and seizures dont get the attention the First Amendment does, but theyre at least as important as a guarantee of liberty. And during his White House years Barack Obama vandalized the Fourth Amendment. His glittering words blinded the media to his unprecedented assault on the right to be let alonethe most cherished right among civilized people.

The American Revolution was ignited by British invasions of the right to privacy. James Otis protested British Writs of Assistance that empowered every petty official to rummage through colonial businesses and homes on a hope and a prayer that smuggled goods or other incriminating evidence of wrongdoing might be discovered:

Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

William Pitt the Elder, speaking to the British Parliament, captured the heart and soul of what came to be ratified as the Fourth Amendment:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.

The Fourth Amendment protects reasonable expectations of privacy from government surveillance, and in Olmstead v. United States (1928), Justice Brandeis (dissenting) said that, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

The government cannot invade a persons privacy without documenting a particularized and urgent criminal justice or foreign intelligence need to a neutral and impartial magistrate. The prohibition does not bend even in cases of homicide or international terrorism where its shield might enable serious wrongful conduct to escape detection. Our Constitution is anchored to the high principle that it is better to risk being the victim of injustice than to risk being complicit in it.

That is, until now. President Obamas dragnet collection of internet and phone metadata on every American citizen obliterated the Fourth Amendments privacy fortress. Without getting a court warrant, Mr. Obamas National Security Agencys Stellar Wind program indiscriminately collected internet metadata, i.e., the accounts to which Americans sent and from which they received emails. The metadata detailed the internet protocol (IP) addresses used by people inside the United States when sending emails. Julian Sanchez of the CATO Institute explained the magnitude of the invasion of privacy:

The calls you make can reveal a lot, but now that so much of our lives are mediated by the internet, your IP logs are really a real-time map of your brain: what are you reading about, what are you curious about, what personal ad are you responding to (with a dedicated email linked to that specific ad), what online discussions are you participating in, and how often?Seeing your IP logs and especially feeding them through sophisticated analytic tools is a way of getting inside your head thats in many ways on par with reading your diary.

President Obama also collected metadata on every phone call made by Americans, under a tortured interpretation of section 215 of the USA Patriot Act. Among other things, the telephony metadata included the time, duration, number called, and routing information of every phone communication in the United States. The database would enable the government to create a personal profile of citizen. U.S. District Judge Richard Leon found a high probability that the dragnet collection of telephony metadata violated the Fourth Amendment in Klayman v. Obama.

I cannot imagine a more indiscriminate and arbitrary invasion [of privacy] than this systematic and high-tech collection and retention of personal data on virtually every single citizen for the purpose of querying and analyzing it without prior judicial approval. Surely, such a program infringes on that degree of privacy that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware the abridgment of freedom of the people by gradual and silent encroachments by those in power, would be aghast.

President Obamas own Privacy and Civil Liberties Board similarly found Steller Wind unauthorized by section 215 the USA Patriot Act. It amplified that it could not find a single instance in which the program made a concrete difference in the outcome of a terrorism investigation[and added]we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. The United States Court of Appeals for the Second Circuit also concluded that Stellar Wind was illegal in ACLU v. Clapper.

President Obamas presidency was unprecedented in its scorched earth tactics against the Fourth Amendment. And were only now beginning to find out how he weaponized this information against political enemies.

Read the rest here:
Obama vandalized Fourth Amendment - Washington Times