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An interesting Fourth Amendment issue has come up in debates over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act. This is the authority, some will recall, that allows the government to collect from inside the United States the contents of communications of foreigners reasonably believed to be outside the United States without obtaining a warrant. Heres the question, as I understand it: If a foreigner (a non-United-States person, in the statute) is communicating with a U.S. citizen inside the United States, and the government has collected the communications between them under Section 702 by targeting the foreigner, what are the Fourth Amendment limits on querying the database to find evidence of criminal activity committed implicating the United States person? In other words, after the government has collected the contents under the national security authorities based on the non-U.S. person, what are the limits on switching over to a criminal query that targets the U.S. person?

As I understand the intelligence communitys position, it takes the view that querying the database is always okay because its not an additional Fourth Amendment search. The Fourth Amendment governs collection of the contents of the communications, but not the separate query. From Q&A posted earlier this year:

Querying databases containing Section 702 information does not result in any new acquisition of data; it is instead only an examination or re-examination of previously acquired information. Therefore, those queries are not separate searches for Fourth Amendment purposes. The IC queries its databases to more quickly and efficiently sort and identify communications already lawfully collected, such as information potentially related to a terrorist plot against the United States, without having to sift through each individual communication that has been collected.

I dont find this persuasive. As I understand this, Section 702 raw data has been collected but not yet observed. In Fourth Amendment law, it has been seized but not searched. See Soldal v. Cook County (1992). As a result, the data maintains the Fourth Amendment protection it had before it was copied.

Its true that, after data has been exposed to human observation, it has been searched and Fourth Amendment search rights expire. Once that exposure has happened, the data can be used and reanalyzed in any way the government wants without it being another search. See Illinois v. Andreas (1983). But the mere copying of data without human observation is a seizure but not a search, I think. Thats why courts scrutinize how the government searches images of seized hard drives or the copies of email accounts obtained from service providers. If the data has been copied but not searched, querying it is a search. Or so it seems to me.

Granted, there is a circuit split right now on the private-search reconstruction doctrine that might be relevant. The split concerns how much is searched when a private party sees a file on the hard drive: Is just the exposed data searched, or the file, or even the entire physical storage device? Its fair to assume, although not entirely obvious, that the answer to that also sheds light on what is searched in the government context. But even so, it seems hard to believe that a court would say that observing some files in a massive government database of unsearched contents extinguishes all Fourth Amendment rights in that data.

If Im right about that, then the query through the raw 702 database requires its own Fourth Amendment justification. Im not sure what warrant exception could apply, though. Its a query for criminal investigative purposes, as I understand the hypo, so no national security reasonableness exception could apply. Its targeting the U.S. persons communications, so presumably its outside the reasonableness framework unpersuasively invented by the Ninth Circuit in the Mohamud case. Maybe theres some other way to get around a Fourth Amendment warrant requirement here, but its not clear to me what it is.

Im not saying I have the answers to this question. And maybe I am misunderstanding the question itself. But based on the public discussions I have seen about what is happening, I worry that there is a lot more of Fourth Amendment concern here than the government is acknowledging.

See more here:
The Fourth Amendment and querying the 702 database for ...

The Fourth Amendment was designed to stand between us and arbitrary governmental authority. For all practical purposes,that shield has been shattered, leaving our liberty and personal integrity subject to the whim of every cop on the beat, trooper on the highway and jail official.Herman Schwartz,The Nation

Our freedomsespecially the Fourth Amendmentare being choked out by a prevailing view among government bureaucrats that they have the right to search, seize, strip, scan, shoot, spy on, probe, pat down, taser, and arrestanyindividual atanytime and for theslightestprovocation.

Such is life in America today that Americans are being made to relinquish the most intimate details of who we areour biological makeup, our genetic blueprints, and our biometrics (facial characteristics and structure, fingerprints, iris scans, etc.)in order to clear the nearly insurmountable hurdle that increasingly defines life in the United States:we are now guilty until proven innocent.

Forced cavity searches, forced colonoscopies, forced blood draws, forced breath-alcohol tests, forced DNA extractions, forced eye scans, forced inclusion in biometric databases: these are just a few ways in which Americans are being forced to accept that we have no control over our bodies, our lives and our property, especially when it comes to interactions with the government.

Consider, for example, what happened to Utah nurse Alex Wubbels after a police detective demanded to take blood from a badly injured, unconscious patient without a warrant.

Wubbels refused, citing hospital policy that requires police to either have a warrant or permission from the patient in order to draw blood. The detective had neither. Irate, the detective threatened to have Wubbels arrested if she didnt comply. Backed up by her supervisors, Wubbels respectfully stood her ground only to beroughly grabbed, shoved out of the hospital, handcuffed and forced into an unmarked carwhile hospital police looked on and failed to intervene (take a look at the policebody camera footage, which has gone viral, and see for yourself).

Michael Chorosky didnt have an advocate like Wubbels to stand guard over his Fourth Amendment rights. Chorosky was surrounded by police, strapped to a gurney and thenhad his blood forcibly drawn after refusing to submit to a breathalyzer test.

What country is this? What country is this? cried Chorosky during the forced blood draw.

What country is this indeed?

Unfortunately, forced blood draws are just the tip of the iceberg when it comes to the indignities and abuses being heaped on Americans in the so-called name of national security.

Forced cavity searches, forced colonoscopies and forced roadside strip searches are also becoming par for the course in an age in which police are taught to have no respect for the citizenrys bodily integrity whether or not a person has done anything wrong.

For example, 21-year-old Charnesia Corley wasallegedly being pulled over by Texas police in 2015for rolling through a stop sign. Claiming they smelled marijuana, police handcuffed Corley, forced her to strip off her pants, threw her to the ground,forced her legs apartand then probed her vagina. The cavity search lasted 11 minutes. This practice is referred to as rape by cop.

David Eckert was forced to undergoan anal cavity search, three enemas, and a colonoscopyafter allegedly failing to yield to a stop sign at a Wal-Mart parking lot. Cops justified the searches on the grounds that they suspected Eckert was carrying drugs because his posture [was] erect and he kept his legs together. No drugs were found.

During a routine traffic stop, Leila Tarantino was subjected to two roadside strip searches in plain view of passing traffic, while her two childrenages 1 and 4waited inside her car. During the second strip search, presumably in an effort to ferret out drugs,a female officer forcibly removed a tampon from Tarantino. No contraband or anything illegal was found.

Thirty-eight-year-old Angel Dobbs and her 24-year-old niece, Ashley, werepulled over by a Texas state trooperon July 13, 2012, allegedly for flicking cigarette butts out of the car window. Insisting that he smelled marijuana, the trooper proceeded to interrogate them and search the car. Despite the fact that both women denied smoking or possessing any marijuana, the police officer then called in a female trooper, who carried out a roadside cavity search,sticking her fingers into the older womans anus and vagina, then performing the same procedure on the younger woman, wearing the same pair of gloves. No marijuana was found.

Meanwhile, four Milwaukee police officers were charged with carrying out rectal searches of suspects on the street and in police district stations over the course of several years. One of the officers was accused of conducting searches of mens anal and scrotal areas, ofteninserting his fingers into their rectumsand leaving some of his victims with bleeding rectums.

Its gotten so bad that you dont even have to be suspected of possessing drugs to be subjected to a strip search.

Thanks to the U.S. Supreme Courts ruling inFlorence v. Burlison, any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a strip search by police or jail officials without reasonable suspicion that the arrestee is carrying a weapon or contraband.

As technology advances, police searches are becoming more invasive on a cellular level, as well, withpassive alcohol sensors,DNA collection roadblocks,iris scansandfacial recognition softwareto name just a few methodsused to assault our bodily integrity.

Americas founders could scarcely have imagined a world in which we needed protection against widespread government breaches of our privacy, including on a cellular level.

Yet thats exactly what we so desperately need.

Unfortunately, as I make clear in my bookBattlefield America: The War on the American People, the indignities being heaped upon us by the architects and agents of the American police statewhether or not weve done anything wrongare just a foretaste of what is to come.

See original here:
Fourth Amendment Freedoms are Being Choked, Guilty until Proven Innocent - Center for Research on Globalization

An Indianapolis police officer who initiated a traffic stop that led to the arrest of a passenger in the stopped vehicle did not violate the mans constitutional rights, the Indiana Court of Appeals ruled Thursday, because the officer reasonably believed the vehicle had an expired license plate and registration.

While running license plates as part of a traffic patrol on Oct. 21, 2015, Indianapolis Metropolitan Police Department Officer Cameron Taylor ran a plate on a vehicle that showed the registration was expired. The information also showed the plate and registration had an expiration date of the same day, Oct. 21, 2015.

Taylor initiated a traffic stop because of the expired registration and asked the driver for her license and the vehicles registration. Taylor also asked the front passenger, Kevin Dowdy, if he wouldnt mind giving (him) his identification, and Dowdy complied.

Taylor then ran Dowdys information and discovered warrants for his arrest. A subsequent search revealed a receipt with pills in it in Dowdys pocket, so he was charged with possession of a narcotic drug as a Level 6 felony.

Dowdy moved to suppress evidence, arguing the stop, detention, arrest and seizure of the contraband was illegal. But the Marion Superior Court denied that motion, finding Taylor reasonably relied upon information from the Bureau of Motor Vehicles that listed the registration status as expired.

In an interlocutory appeal in Kevin Dowdy v. State of Indiana, 49A02-1612-CR-2679, Dowdy argued the denial of his motion to suppress was erroneous because his registration was valid until midnight on Oct. 21, 2015, the same day Taylor initiated the traffic stop and arrested him. He also claimed his rights under the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution were violated.

But in a Thursday opinion, Indiana Court of Appeals Judge Elaine Brown wrote even if Taylor had mistakenly believed the license plate and registration had expired, the stop of the vehicle was still based upon a good faith, reasonable belief that a statutory infraction had occurred. Thus, under the totality of the circumstances, there was a particularized and objective basis for the stop, so it was not a violation of Dowdys Fourth Amendment rights, Brown wrote.

Further, Taylor did not violate the Fourth Amendment when he asked Dowdy for his identification, Brown noted, pointing to the case of Starr v. State, 928 N.E.2d 876, 878 (Ind. Ct. App. 2010). In that case, the appellate court noted that, Certainly, a police officer is free to request identification without implicating the Fourth Amendment.

Finally, using the three-part test laid out in Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005), the appellate court determined the stop did not violate Dowdys rights under Article 1, Section 11 of the Indiana Constitution.

Continued here:
COA: Officer's stop of car for expired plate 'reasonable' - Indiana Lawyer

The Minnesota Court of Appeals today threw out the conviction of a Brooklyn Park man, arrested on drug charges, because police violated his right to privacy when using a drug-sniffing dog to sniff outside his apartment door.

Cortney John Edstrom, a felon, was suspected of being a meth dealer when police, acting on a tip, used the dog to determine there were drugs inside Edstroms apartment, then persuaded a judge to issue a warrant for a search of Edstroms apartment, in which they found 227 grams of methamphetamine, multiple firearms, shotgun shells and rounds, and several digital scales with methamphetamine residue.

Police had entered the building using a lockbox key available to law enforcement.

Edstrom was found not guilty of charges of being a meth dealer, but was convicted of firearms violations and possession of a controlled substance. Todays decision throws out the convictions and the evidence used to obtain them.

The Fourth Amendment protects persons from the warrantless use of sense-enhancing technology that is not in general public use to obtain any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, Judge Roger Klaphake wrote on behalf of the three-judge panel.

Klaphake said the Fourth Amendment would be of little use to apartment dwellers if the court ruled the use of a narcotics-detecting dog does not constitute a search.

Follow this link:
MN court: Dog drug-sniffing outside apartment is 'unreasonable search' - Minnesota Public Radio News (blog)

Alexa Renee, KXTV 7:54 PM. PDT September 01, 2017

A paramedic takes a blood sample (Photo credit should read JOHAN ORDONEZ/AFP/Getty Images)

Video of a Utah nurse being handcuffed after refusing to draw blood on an unconscious patient is exploding on the web.

The police body camera video taken at University Hospital in Salt Lake City shows nurse, Alex Wubbels, calmly explaining to Salt Lake detective, Jeff Payne, that she couldn't draw blood on a patient who had been injured in a car accident.She told the officer that under hospital policy, blood could not be taken from an unconscious patient unless the patient was under arrest or if there was a warrant allowing the draw. Otherwise, the patient has to consent.

The detective did not meet any of the requirements under hospital policy so the nurse refused to follow his request. The video ends with Payne placing Wubbels under arrest and forcefully moving her out of the hospital as she screamed.

According to the Salt Lake City Tribune, in a written report, Payne said he was responding to a Logan Police request to get a blood sample to determine whether the patient had illegal substances in his body at the time of the crash, which left another man dead. However, according to Wubbels' lawyer, the patient is considered a victim of the crash.

The video is sparking online conversations about the rights of patients and what police are legally allowed to do when requesting the blood sample of a patient who is not conscious for consent.

Here's what you should know about the laws in California:

1. The Fourth Amendmentprotects all American citizens from unlawful searches and seizures, and requires warrants be issued only upon probable cause.

In the Salt Lake City case, the detective didn't have a warrant or reason for a lawful search or arrest. Under the Constitution, a violation of Fourth Amendment rights could have been argued if he were to have successfully forced the blood test.

2. Under California law (Vehicle Code 13384), any person issued a state driver's license is required to consent in writingto submit to a chemical test or blood, breath, or urine test if under lawful arrest for driving under the influence, to determine drug and alcohol content. In other words, if you have a California driver's license, you have already consented to take a breath, blood or urine test if under arrest for drunk driving.

This is known as California's "implied consent laws".

However,recent Supreme Court rulingshave found that drawing blood on a DUI suspect without a warrant is in violation of Fourth Amendment rights. While police have to notify the person that failure to submit a test could resultin a fine, mandatory imprisonment and a license suspension, a person technically can refuse a test and ask for a warrant under their Fourth Amendment rights, according to the Supreme Court ruling, Birchfield v. North Dakota.

The Birchfield vs. North Dakota ruling basically found that criminalizing the refusal to take a blood test violates the Fourth Amendment, since it generally doesn't allow warrantlessblood draws. A person cannot be punished for exercising their Constitutional rights.

There is currently aSanta Clara County Superior Court case pending for review by the Supreme Courtwhere a man's blood was drawn without a warrant while he was unconscious.The Santa Clara County Superior Court denied the man's motion to suppress the blood test in a DUI case, on the basis the officer was acting in good faith in relying on the implied consent law to withdraw blood without a warrant. The Supreme Court will review whether or not Fourth Amendment rights were violated or if the good faith ruling will remain.

California implied consent laws are still the law but due to the recent Supreme Court rulings, the law could be deemed unconstitutional.

3. While a person under arrest for driving under the influence is required to provide a test under California law, a person does have a choice between a blood and breath test. Police are required to notify the person about the choice. If a person incapable of providing the test of choice, then the remaining test is done. If both the blood and breath test are not available, then a urine test is taken.

If a person chooses a breath test, but a police officer has reason to believe the person is under the influence of both drugs and alcohol, the officer can request a blood sample. The person can refuse and fight out the charges in court under the Fourth Amendment, but must keep in mind, it's still the current state law.

4. There are not very many exceptions to California's implied consent laws. Even if a person is unconscious or dead, they are still "deemed not to have withdrawn his or her consent and a test or tests may be administered whether or not the person is told that his or her failure to submit to, or the non-completion of, the test or tests will result in the suspension or revocation of his or her privilege to operate a motor vehicle."

However, people with a heart condition or afflicted with hemophilia are exempt from blood tests and have to submit a urine test.

5. Police should inform a person under arrest they do not have the right to have an attorney before stating whether or not they will submit to a test or deciding which test they want to take, or during test administration. In fact, refusal of the test could be used against them in court.

6.California law states, apreliminary alcohol screening, which is essentially a breathalyzer test, does not satisfy the obligation to submit to other tests if a police officer feels it's necessary. However, refusing a breath test is not something that is likely to be fought successfully in court since law officials need to have a way to determine probable cause for a DUI arrest.

The current state law is muddled due to the recent Supreme Court rulings. It's important to get in touch with an attorney if charged with a DUI.

2017 KXTV-TV

Link:
What are your California rights when police request a blood test? - ABC10