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ST. PAUL A Wabasha police officer had no right to stop a man he saw driving down a narrow dirt road a stop that led to a DWI charge and the revocation of his driver's license.

The Minnesota Court of Appeals handed down the decision Monday, ruling in favor of David Kenneth Schlicher, 41, of Elk River. It reversed a May 2016 ruling by Wabasha County District Court Judge Terrance Walters.

Monday's ruling sends the case back to district court.

The case began early March 3, 2016, when Wabasha officer spotted Schlicher turn onto a narrow dirt road. The officer knew the private road led only to a commercial business, which was closed at that hour, so he followed Schlicher's vehicle.

As the officer drove down the dirt road, he saw Schlicher's vehicle coming toward him. The officer put his squad car in reverse because the road was too narrow for them both to fit, and he "didn't want to approach the vehicle from the front," the complaint says.

The officer stopped his squad near the end of the dirt road and got out; another squad car arrived about then. Schlicher's car was still moving when the first officer got out of his car Schlicher testified that he only stopped his vehicle because he couldn't fit past the squad car.

After an investigation at the scene, the officer arrested Schlicher for DWI. He refused to take a breath test, and his license was revoked.

Schlicher challenged the revocation in Wabasha County District Court; he disputed, among other issues, that the officer had a "reasonable, articulable suspicion of criminal activity to stop" Schlicher's car. It was, he said, a violation of his Fourth Amendment rights.

The district court ruled the officer's stop was constitutional, and upheld the license revocation.

Schlicher then appealed to the state court.

The judges agreed that the "seizure" occurred when the officer parked his car, exited and began walking toward Schlicher's car, which was still moving.

The officer didn't reverse his squad car out onto the main road, which would have allowed Schlicher complete access to the main road, the document says.

"Considering the positioning of the officer's squad car on the narrow road; the fact that the officer exited his vehicle while (Schlicher) was still driving; and the fact that another squad car had arrived on the scene, we conclude that the officer's actions constituted a seizure because no reasonable person in appellant's position would have felt free to leave," the judges wrote.

Nor did the officer have a reasonable suspicion of criminal activity, they continued; "in fact, the officer testified that his actions were motivated by his curiosity."

The area wasn't known for, or vulnerable to, criminal activity, the ruling says, and the officer didn't suspect some wrongdoing was occurring.

"The only factors to which the officer testified that would suggest criminal activity were the time of night, that he had never before seen anyone driving on that private narrow road, and that the narrow road led to a closed business.

"These factors are insufficient," the justices wrote, "and the stop and seizure were unlawful."

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Appeals Court: Area case violated Fourth Amendment rights - Post-Bulletin

On Monday, the Colorado Senate is expected to consider a bill to prohibit cities and counties from limiting their role in enforcing federal immigration law. Senate Bill 281, the Colorado Citizen Protection Against Sanctuary Policies Act, relies on two fallacies perpetuated by the Trump administration in its campaign against so-called sanctuary cities.

First, President Trump claims sanctuary jurisdictions endanger the public. SB 281 likewise claims that sanctuary policies are contrary to the safety of Coloradans. This assertion is demonstrably false. Study after study has shown that noncitizens regardless of their immigration status commit less crime than citizens. As Michael Tonry noted, high levels of both legal and illegal Hispanic immigration has been credited with a decline in American crime rates.

Other studies demonstrate that adopting sanctuary policies does not endanger the public. Recently, Tom K. Wong concluded that not only is crime lower in sanctuary counties, their economic indicators including median household income, poverty rate, and unemployment are stronger than in non-sanctuary counties. Aware of these facts, many law enforcement officials oppose involving the local police in federal immigration matters. In Colorado, the County Sheriffs of Colorado, Colorado Association of Chiefs of Police, and Colorado Counties, Inc., a nonpartisan organization that assists county commissioners, all oppose SB 281.

Proposals like SB 281 suggest that law enforcement voices should be overridden. Instead of local officials making decisions about policing, SB 281 would hand that power to state legislators. That would put police chiefs and sheriffs in the unfortunate position of having to follow politicians dictates over sound policing practices.

SB 281s second faulty assumption is that sanctuary policies are prohibited by federal law. This is a common claim of the Trump administration. There are more than 600 sanctuary policies in place across the country. Not one has been found to violate federal law. In fact, most sanctuary policies were adopted to comply with federal law specifically, the Fourth Amendment. Numerous federal courts have concluded that requests made by immigration officials for the prolonged detention in local jails of persons otherwise entitled to release, called immigration detainers, are rife with Fourth Amendment problems. After two of the most significant judicial decisions in 2014, every Colorado sheriff stopped the illegal practice.

The legal principles that led all Colorado sheriffs to stop accepting detainers are straightforward. The federal government cannot force local sheriffs to hold prisoners on its behalf at Colorado expense. If sheriffs do hold someone voluntarily at the federal governments request, they are financially liable if the detention turns out illegal. Since the detentions requested by federal immigration officers are the constitutional equivalent of new arrests, they must be supported by evidence that would justify a local police officer or sheriff in making an arrest, such as probable cause of a crime, or a judicially issued warrant. Neither is standard practice for the federal Immigration and Customs Enforcement agency. Though a new ICE policy requires detainers to be accompanied by immigration warrants, the policy specifically states that these warrants will be issued by ICE officers, as they always have been. They do not involve review by a neutral judge, like the warrants police in every city and county request daily to pursue criminal investigations, and do not satisfy the Fourth Amendment.

Colorado sheriffs rightly concluded that neither immigration detainers nor immigration warrants withstand legal scrutiny. Colorado legislators should respect their decision to abide by the Fourth Amendment and protect the communities they serve. Sanctuary policies do not threaten public safety, and they do not violate federal law. Coloradans should reject SB 281.

Christopher N. Lasch is an associate professor of law at the University of Denver and co-teaches the schools Criminal Defense Clinic. Csar Cuauhtmoc Garca Hernndez is an assistant professor of law at the University of Denver and publisher of the crimmigration.com blog.

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Colorado sanctuary city bill relies on fallacies - The Denver Post

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The Fourth Amendment to the U.S. Constitution requires the government to obtain a warrant before it can conduct a search and seizure of private property. To get a warrant, the federal government must have probable cause, which means it must have good reason to suspect the property being searched contains evidence of a crime.

But do these Fourth Amendment requirements apply to property held overseas, in other countries? In the 2016 case of Microsoft v U.S., the Second Circuit Court of Appeals held that the Fourth Amendment does apply to the search of property stored by and for U.S. citizens overseas.

That case involved a narcotics investigation. The federal government sought and obtained a warrant against Microsoft under the federal Stored Communications Act for the emails of a Microsoft customer. Microsoft, however, only provided data that was stored on servers in the U.S.

But the emails the investigators mostly wanted were stored on servers in Dublin, Ireland. The District Court consequently held Microsoft in civil contempt for failing to comply with the warrant as to those overseas emails.

On appeal, however, the Second Circuit reversed, holding that the Stored Communications Act did not apply to emails stored overseas. The Act used the term warrant, which historically did not apply to the search and seizure of property held by U.S. citizens abroad. The Second Circuit held that the primary focus of the Act was to protect the privacy of U.S. citizens, not to protect law enforcement access, which is why it used the term warrant.

The Court said,

[W]e think [Congress] used the term warrant in the Act to require pre-disclosure scrutiny of the requested search and seizure by a neutral third party, and thereby to afford heightened privacy protection in the United States. It did not abandon the instruments territorial limitations and other constitutional requirements. The application of the Act that the government proposes interpreting warrant to require a service provider to retrieve material from beyond the borders of the United States would require us to disregard the presumption against extraterritoriality that the Supreme Court restated and emphasized in Morrison.and, just recently, in RJR Nabisco, Inc.We are not at liberty to do so.

The Court added further,

The importance of the warrant as an instrument by which the power of government is exercised and constrained is reflected by its prominent appearance in the Fourth Amendment.Warrants issued in accordance with the Fourth Amendment identify discrete objects and places, and restrict the governments ability to act beyond the warrants purview of particular note here, outside of the place identified.As the term is used in the Constitution, a warrant is traditionally moored to privacy concepts applied within the territory of the United States.

Next month, Congress is expected to conduct a hearing on the issue and one worry is that Congress will try to moot the case by passing legislation extending warrants beyond the territory of the United States. This hearing will explore the idea of whether the data produced by an individual is the property of the person, the company or the government. Obviously, a warrant, based on probable cause, allows the government to get data under circumstances of a criminal investigation and some investigations that touch on national security, but traditionally a warrant only can be served within the boundaries of the United States, unless a foreign nation consents and helps to effectuate the warrant.

If the federal government were to push a change, it could lead to data localization and a destruction of the business model that allows American-based cloud computing to exist today. Those concerned about the civil liberties protected by warrants should be concerned and keep a close eye on Congress as this debate moves forward.

Peter Ferrara served in the White House Office of Policy Development under President Reagan, and as Associate Deputy Attorney General of the United States under President George H.W. Bush. He also served as General Counsel of the American Civil Rights Union (ACRU) from the organizations founding in 1998 until 2015.

Link:
Does The Fourth Amendment Apply Overseas? | The Daily Caller - Daily Caller

The Owner-Operator Independent Drivers Assn. is taking its opposition to the electronic logging device mandate to the highest court in the land. The small business trucking group this week filed a petition with the Supreme Court of the United States, arguing that the U.S. Court of Appeals for the Seventh Circuit was wrong when it ruled that the e-log requirement does not violate Fourth Amendment protections against illegal search and seizure. The deadline for compliance with the ELD rule is Dec. 18.

We believe that the Seventh Circuit erred in allowing warrantless searches of 3.5 million drivers, designed specifically to uncover evidence of criminal activity, said Jim Johnston, president and CEO of OOIDA. In doing so, the Seventh Circuit decision splits directly with rulings by both the Fifth and Eleventh Circuit Courts. This is also the first time that the pervasively regulated industry exception has been applied directly to the search of an individual to serve the ordinary needs of criminal law enforcement.

OOIDA contends that the pervasively regulated industry exception to the warrant requirement, the basis of the Seventh Circuits denial, does not extend beyond the search of business premises. Additionally, for such an exception and warrantless search, the Supreme Court imposed strict guidelinesguidelines which the ELD rule does not specifically address.

In short, according to OOIDA, an ELD requirement is the equivalent of warrantless surveillance of truckers.

The ELD Rule does far more than authorize administrative inspections of business premises. HOS regulations are directed toward the personal conduct of drivers, the petition states. ELDs monitor and record driver conduct, including driver activity and location, twenty-four hours per day, seven days per week, more expansively and invasively than paper logbooks currently do.

The association will also continue to pursue the issue on the congressional side as part of its Knock Out Bad Regs campaign and will continue to communicate with the Trump administration about this and other regulations, Johnson said.

We were very disappointed and surprised by the ruling against us by the Seventh Circuit Court of Appeals, Johnston said. That same court had ruled in our favor on a previous lawsuit of ours on this same issue. said Johnston.

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OOIDA appeals to Supreme Court | ELD mandate violates 4th ... - Fleet Owner

In Florida v. Jardines (2013), the U.S. Supreme Court held that a front porch is a Fourth Amendment protected area but that there is an implied license allowing the police to walk up to the front door and knock in at least some cases. If the police are just coming to talk to the homeowner, the court concluded, thats within the implied license and no Fourth Amendment search occurs. Homeowners implicitly consent to people coming to knock on the door and talk to them; thats why they have doorbells. On the other hand, if the police are bringing a drug sniffing dog to smell for drugs, that is outside the implied license. People dont implicitly consent to people coming to search them, and bringing a drug-sniffing dog to the front porch is a clear objective sign that the officers intend to search them. Coming to the front porch with a drug-sniffing dog is therefore a search, and the police ordinarily cant do that without a warrant.

Now consider this question: How does Jardines apply when properties have no trespassing signs posted? The problem is identifying the test for determining whether a posted sign revokes the implied license to approach the door and knock. To my mind, the key is that the basic nature of Jardiness implied license test is ambiguous. On one hand, you can construe that test as asking a factual question akin to implied consent: Did the person at the home impliedly welcome visitors to enter the curtilage? Alternatively, you can construe the test as asking a general social norms question: As a matter of law, do residents of homes generally grant an implied license to come up to the front door and knock? Jardines isnt clear on which understanding of the implied license is correct.

In light of the uncertainty, I thought I would point out the latest decision on the Fourth Amendment implications of no trespassing signs: State v. Christensen, from the Tennessee Supreme Court. The case has a pretty through discussion of how different courts have treated the issue. Heres how the court summarizes the question, with paragraph breaks added and some citations omitted:

Given the Supreme Courts recognition that the knocker on the front door is treated as an invitation or license to attempt an entry, Jardines, 133 S. Ct. at 1415 [emphasis added; quotation marks omitted], it is axiomatic that a homeowner may take actions to revoke or otherwise limit that invitation or license. As elucidated by the United States District Court for the Middle District of Florida [in United States v. Holmes, 143 F. Supp. 3d 1252, 1259 (M.D. Fla. 2015):

[T]he license granted to enter property to knock on a persons door is not unlimited. Rather, it extends unless and until the homeowner provides express orders to the contrary. In determining the scope of the implied license, and therefore whether a police officers approach to the front door was permissible under the Fourth Amendment, courts ask whether a reasonable person could do as the police did. Factors that may aid in the analysis include the appearance of the property, whether entry might cause a resident alarm, what ordinary visitors would be expected to do, and what a reasonably respectful citizen would be expected to do.

The question before us in this case is whether posting No Trespassing signs near an unobstructed driveway is an express order sufficient to revoke or limit the invitation/license such that a police officer may not legitimately approach the residence via the driveway in order to conduct a warrantless knock-and-talk encounter. That is, did the Defendants signs turn the investigators entry onto his property into an intrusion subject to constitutional protections?

The court goes over the very large body of case law on the question, much of it pre-Jardines and some of it post-Jardines, which reflects a range of somewhat different legal standards. The court ends up adopting a standard offered by Chief Judge Timothy Tymkovich in a concurring opinion in United States v. Carloss, 818 F.3d 988 (10th Cir. 2016), a case that has drawn considerable attention recently because of the dissent filed by now-Justice Gorsuch. The standard adopted is this: under the totality of the circumstances, would an objectively reasonable person conclude that entry onto the Defendants driveway was categorically barred?

The court concludes that under this test, a no trespassing sign ordinarily doesnt have much Fourth Amendment significance:

In short, a homeowner who posts a No Trespassing sign is simply making explicit what the law already recognizes: that persons entering onto another persons land must have a legitimate reason for doing so or risk being held civilly, or perhaps even criminally, liable for trespass. Consequently, as set forth above, a knock-and-talk conducted within constitutional parameters is a legitimate reason for police officers to enter the curtilage of a house via a driveway that is obstructed by nothing more than several No Trespassing signs. For this reason, we disagree with the dissent that a No Trespassing sign should be of particular significance to law enforcement officers in communicating that they may need to obtain a warrant before entering the property. Officers engaging in legitimate police business will conclude, correctly, that they are not engaging in a trespass when they approach a front door to conduct a knock-and-talk. We also emphasize that the occupant of a residence is under no obligation to open a door when knocked upon by a police officer who holds no warrant.

Justice Lee dissented. From the dissent:

Mr. Christensen sufficiently revoked the publics implied license to enter his property by posting multiple No Trespassing and Private Property signs near the entrance to his driveway. A person need not have a law degree or an understanding of the various legal nuances of trespass discussed by the Court to know that these signs meant visitors were not welcome. Ms. Tammy Atkins, who visited homes in the area to share her faith, understood the meaning of the signs. She testified there were several No Trespassing signs near Mr. Christensens driveway, and she did not go to houses that had No Trespassing signs. . . .

Mr. Christensen did not just post one No Trespassing sign he posted multiple signs near the entrance to his property that were clear, unambiguous, and obvious to anyone approaching his driveway. These signs adequately communicated Mr. Christensens intent to revoke the implied license to enter his property. Under the facts of this case, law enforcement officers should have heeded the signs and taken the appropriate steps to obtain a search warrant.

I dont have particular views as to which approach is right, but its an interesting question that may be headed up to the U.S. Supreme Court before too long.

I should also flag that law professors Andrew Ferguson and Stephen Henderson have had some fun with the issue and proposed some possible signs for homeowners to post to maximize their Fourth Amendment rights.

As always, stay tuned.

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The Fourth Amendment and no trespassing signs - Washington Post