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The case stemmed from a 2015 arrest in Grove City. CEE-VI Drug and Gang Task Force agents had an arrest warrant for Leona Rose deLottinville, then 27, of Grove City. It was alleged that she had violated court-ordered conditions of release.

With information that deLottinville was at her boyfriend's Grove City home, officers went there on March 24, 2015, where they allegedly saw deLottinville through a glass patio door.

One officer opened the unlocked door, went inside the home, and arrested deLottinville.

Marijuana and a bong were sitting in plain view on a countertop.

After deLottinville's arrest, officers obtained a search warrant for the home and allegedly found marijuana, meth, hydrocodone pills and drug paraphernalia. She was charged with two additional counts of fifth-degree drug possession, and possession of drug paraphernalia.

In Meeker County District Court, deLottinville submitted a motion to dismiss all of the charges on the grounds that police should not have been allowed to enter the home.

Judge Stephanie Beckman granted the motion, and dismissed all charges against deLottinville in August 2016. Even as a short-term guest, Beckman stated, deLottinville had an expectation of privacy in the home.

The Minnesota Court of Appeals reversed that ruling, arguing that a guest in a home does not have a right to more privacy than the homeowner.

That decision was appealed to, and upheld by, the Minnesota Supreme Court, which issued the ruling Wednesday.

Justice David L. Lillehaug authored the opinion filed with the ruling.

In the Payton v. New York ruling, he wrote, the U.S. Supreme Court determined that an arrest warrant was grounds to enter the home in which that individual lives to arrest them.

What was not determined, Lillehaug wrote, was "whether the same holds true when the subject of an arrest warrant is believed to be present in another person's home."

The U.S. Supreme Court also previously ruled that an arrest warrant for a guest in a home does not justify searching the home. In that case, a search warrant would be required.

The case ruled upon on Wednesday, then, involved a window that had not yet been defined: What are a guest's rights inside a home?

Lillehaug wrote that even though the home is traditionally where an individual has a right to privacy, police can still enter to execute an arrest warrant. That constitutional reasoning should not change when the individual is in a home other than their own, Lillehaug wrote.

"A guest should not receive any greater Fourth Amendment protection when outside her home than when inside it," he wrote.

Justice Margaret H. Chutich dissented from the ruling.

She disagreed with the Supreme Court's application of the Payton v. New York ruling in the current case.

"This unwarranted extension of Payton fails to apply later Fourth Amendment precedents," Chutich wrote, "and fails to protect the right of a host from unreasonable governmental intrusion into the sanctity of her home, a right at the 'very core' of the Fourth Amendment."

The Fourth Amendment to the U.S. Constitution prohibits unreasonable search and seizure.

In the opinion, Lillehaug had acknowledged that, with the ruling, there would be "potential for abuse." But he said that in this case, deLottinville was visible to the officer before he entered the home. There was no evidence of abuse, he said.

Chutich wrote that that potential for abuse "is not merely theoretical."

"Minnesotans would certainly be surprised to realize that the police can enter their homes at any time with nothing more than an arrest warrant for an overnight guest, or even a short-term social guest," she said.

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Minn. Supreme Court reverses Meeker County fourth amendment case - West Central Tribune

Imagine you are in the middle of your typical day-to-day activities. Maybe you are driving, spending time with family, or working. If you are like most people, your phone is at your side on a daily basis. Little do you know that, at any time, police and law enforcement could be looking at information stored on your phone. You havent done anything wrong. You havent been asked for permission. You arent suspected of any crime.

The StingRay

Police have the power to collect your location along with the numbers of your incoming and outgoing calls and intercept the content of call and text communication. They can do all of this without you ever knowing about it.

How? They use a shoebox-sized device called a StingRay. This device (also called an IMSI catcher) mimics cell phone towers, prompting all the phones in the area to connect to it even if the phones arent in use.

The police use StingRays to track down and implicate perpetrators of mainly domestic crimes. The devices can be mounted in vehicles, drones, helicopters, and airplanes, allowing police to gain highly specific information on the location of any particular phone, down to a particular apartment complex or hotel room.

Quietly, StingRay use is growing throughout local and federal law enforcement with little to no oversight. The ACLU has discovered that at least 68 agencies in 23 different states own StingRays, but says that this dramatically underrepresents the actual use of StingRays by law enforcement agencies nationwide.

The Violation

Information from potentially thousands of phones is being collected every time a StingRay is used. Signals are sent into the homes, bags, and pockets of innocent individuals. The Electronic Frontier Foundation likens this to the Pre-Revolutionary War practice of soldiers going door-to-door, searching without suspicion.

Richard Tynan, a technologist with Privacy International notes that, there really isnt any place for innocent people to hide from a device such as this.

The Fourth Amendment of the Constitution states that, 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.

The StingRay clearly violates these standards. The drafters of the Constitution recognized that restricting the government from violating privacy is essential for a free society. Thats why the Fourth Amendment exists. The StingRay is creating a dangerous precedent that tells the government that its okay for them to violate our rights. Because of this, freedom is quietly slipping out the window.

Little Regulation

Law Enforcement is using StingRays without a warrant in most cases. For example, the San Bernardino Police Department used their StingRay 300 times without a warrant in a little over a year.

A handful of states have passed laws requiring police and federal agents to get a warrant before using a StingRay. They must show probable cause for one of the thousands of phones that they are actually searching. This is far from enough.

Additionally, there are many concerns that agents are withholding information from federal judges to monitor subjects without approval bypassing the probable cause standard laid out in the Constitution. They even go as far as to let criminals go to avoid disclosing information about these devices to the courts.

If the public doesnt become aware of this issue, the police will continue to use StingRays to infringe on our rights in secret and with impunity.

Olivia Donaldson is a recent high school graduate that is currently opting out of college and participating in an entrepreneurial program called Praxis. Originally published at fee.org.

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StingRay is why the 4th Amendment was written - Richmond County Daily Journal

Imagine you are in the middle of your typical day-to-day activities. Maybe you are driving, spending time with family, or working. If you are like most people, your phone is at your side on a daily basis. Little do you know that, at any time, police and law enforcement could be looking at information stored on your phone. You havent done anything wrong. You havent been asked for permission. You arent suspected of any crime.

The StingRay

Police have the power to collect your location along with the numbers of your incoming and outgoing calls and intercept the content of call and text communication. They can do all of this without you ever knowing about it.

How? They use a shoebox-sized device called a StingRay. This device (also called an IMSI catcher) mimics cell phone towers, prompting all the phones in the area to connect to it even if the phones arent in use.

The police use StingRays to track down and implicate perpetrators of mainly domestic crimes. The devices can be mounted in vehicles, drones, helicopters, and airplanes, allowing police to gain highly specific information on the location of any particular phone, down to a particular apartment complex or hotel room.

Quietly, StingRay use is growing throughout local and federal law enforcement with little to no oversight. The ACLU has discovered that at least 68 agencies in 23 different states own StingRays, but says that this dramatically underrepresents the actual use of StingRays by law enforcement agencies nationwide.

The Violation

Information from potentially thousands of phones is being collected every time a StingRay is used. Signals are sent into the homes, bags, and pockets of innocent individuals. The Electronic Frontier Foundation likens this to the Pre-Revolutionary War practice of soldiers going door-to-door, searching without suspicion.

Richard Tynan, a technologist with Privacy International notes that, there really isnt any place for innocent people to hide from a device such as this.

The Fourth Amendment of the Constitution states that, 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.

The StingRay clearly violates these standards. The drafters of the Constitution recognized that restricting the government from violating privacy is essential for a free society. Thats why the Fourth Amendment exists. The StingRay is creating a dangerous precedent that tells the government that its okay for them to violate our rights. Because of this, freedom is quietly slipping out the window.

Little Regulation

Law Enforcement is using StingRays without a warrant in most cases. For example, the San Bernardino Police Department used their StingRay 300 times without a warrant in a little over a year.

A handful of states have passed laws requiring police and federal agents to get a warrant before using a StingRay. They must show probable cause for one of the thousands of phones that they are actually searching. This is far from enough.

Additionally, there are many concerns that agents are withholding information from federal judges to monitor subjects without approval bypassing the probable cause standard laid out in the Constitution. They even go as far as to let criminals go to avoid disclosing information about these devices to the courts.

If the public doesnt become aware of this issue, the police will continue to use StingRays to infringe on our rights in secret and with impunity.

Olivia Donaldson is a recent high school graduate that is currently opting out of college and participating in an entrepreneurial program called Praxis. Originally published at fee.org.

http://yourdailyjournal.com/wp-content/uploads/2017/02/web1_oliviadonaldsonjpg.jpg

.

See the article here:
Richmond County Daily Journal | StingRay is why the 4th ... - Richmond County Daily Journal

The Supreme Court will hear arguments next week in a Fourth Amendment case, Hernandez v. Mesa. The facts of the case are simple. At the border that separates El Paso, Tex., from Ciudad Jurez, Mexico, a U.S. border patrol agent named Mesa shot and killed a Mexican citizen named Hernandez. The bullet itself crossed the border, as Mesa was on U.S. land and Hernandez was on Mexican land. A subsequent lawsuit was filed by Hernandezs parents, as successors-in-interest to his estate, alleging excessive force under the Fourth Amendment.

The cert petitionarticulated two questions to be decided:

Does a formalist or functionalist analysis govern the extraterritorial application of the Fourth Amendments prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States?

May qualified immunity be granted or denied based on factssuch as the victims legal status unknown to the officer at the time of the incident?

When the court granted cert, the court added a third question drafted by the court itself: Whether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).

Here are a few thoughts about the case.

One of the most important questions for the future of the Fourth Amendment is whether non-U.S. persons get Fourth Amendment rights abroad. As I explained in my recent article, The Fourth Amendment and the Global Internet, 67 Stan. L. Rev. 28 (2015), the basic structure of what kind of Internet surveillance is permitted hinges on the question.

Under the rule of the majority opinion in Verdugo-Urquidez the so-called formalist approach you get one framework with some significant uncertainties but a lot of results settled. On the other hand, under Justice Anthony Kennedys impracticable and anomalous test the so-called functional approach no one really knows what the Fourth Amendment would look like in the context of global network surveillance. And because those cases come up for litigation so rarely, it would take many years for courts to figure out the answers (by which time the technology may have changed anyway).

From that perspective, the odd part about Hernandez v. Mesa is that it asks the court to decide between the formalist and functionalist approaches in a setting that appears to implicate almost none of the real stakes of the answer. The facts of a shooting across the border are like a law school exam. They raise interesting questions, but the context seems pretty idiosyncratic. In contrast, the application of the functionalist or formalist approach has a massive day-to-day impact on global Internet surveillance. Its there, not in the context of a cross-border shooting, that the Fourth Amendment question in Hernandez seems to matter most.

Hernandezs brief argues that the court can and should apply or not apply individual parts of Fourth Amendment doctrine to non-citizens abroad depending on whether doing so would be impracticable or anomalous. But I dont see how this is at all workable. As I explain in a forthcoming article, Fourth Amendment rules are deeply path-dependent. The rules on what is a search impact the rules on what is reasonable, and vice versa; and they together impact the available remedies, and the remedies have an impact on them. In an area of law that is as exquisitely fact-sensitive as the Fourth Amendment, I dont know how you could tell whether a particular doctrines application would be impracticable or anomalous. Assuming you had an empirical way to answer that in the abstract, the answer would depend on what the other doctrines are, and without knowing if their application to non-citizens abroad would be impractical and anomalous, I dont know how you could tell.

Hernandez tries to avoid these problems by suggesting a very narrow holding. The reply brief advocates the following narrow rule: [T]he prohibition on unjustified deadly force applies at (and just across) the border, at least when a law-enforcement officer on U.S. soil fires his weapon at close range. But this attempted narrowing just makes the problem much worse. Its bad enough to figure out how the impracticable or anomalous framework should apply doctrine by doctrine. Hernandez seems to want to apply it fact pattern by fact pattern, imposing some essentially arbitrary definition of the relevant set of facts.

Think closely about Hernandezs proposed rule. In his far narrower view, the rule of extraterritorial liability advocated for in this case would apparently apply notto all excessive-force claims brought by non-citizens, but only to claims of unjustified deadly force brought by them; not outside the United States generally, but only at the specific location of at (and just across) the border; and maybe (although maybe not!) only to the narrower circumstance when the U.S. officer fires his weapon at close range. The phrasing of the question presented in the cert petition suggests another possible limitation: Maybe it applies only to shooting a person who is an unarmed Mexican citizen. As to the rule that would apply to any other facts, well, hey, courts will have to figure those out over time.

That seems kind of nuts to me. If any court can pick the set of facts over which aproposed rule of extraterritorial applicationcontrols, the result will be that any Ninth Circuit lower-court judge can just pick the result he or she wants in any case. If Judge Reinhardthas a case and wants to hold the defendants liable, he can drawthe category of facts in a stylized way so that application of the Fourth Amendment doesnt seemimpracticable. If another judge wants to rule against the plaintiffs, she can draw the category of facts differentlyso that it does. That strikes me as really problematic.

All of which is to say that I hope the court sticks with the majority opinion in Verdugo-Urquidez. Not only is itrelatively clear, but alsoI personally tend to think it isbased on apersuasive social contract approach to rights.

The Fourth Amendment issue in Hernandez is made more interesting by a practical point: Its not clear whether other members of the courtbeyond Kennedy agree with using theimpracticable or anomalous test in the Fourth Amendment context. It sometimes happens that other justices are willing to sign on to a Kennedy opinion with reasoning that they dont particularly agree with, if its needed to get to a five-justice majority. But that doesnt always happen, and it could happen either way in this case (with Kennedy applying the impractical or anomalous test in favor of either the petitioners or respondents). If the court reaches the merits, it will be really interesting to see where the votes will come out on that issue.

Finally, its not at all obvious that the court will reach the Fourth Amendment merits. The court added the Bivens question on its own, and the Solicitor Generals Office brief took the hint and made that the lead argument in its brief. The Bivens issue takes up fully 20 pages of the argument section in the governments brief, as compared with 15 pages for the Fourth Amendment merits and eight pages for the qualified-immunity issue. Well have to wait and see which issue draws the justices attention.

As always, stay tuned.

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The Fourth Amendment at the border and beyond: A few thoughts on Hernandez v. Mesa - Washington Post

February 5 marks the birth of the American who had the greatest hand in what became the 4th Amendments prohibition of unreasonable searches and seizures James Otis. Unfortunately, one of the most passionate and effective protectors of American rights is too-little remembered today.

Otis efforts applied the celebrated English maxim, Every mans house is his castle or, as William Pitt said in Parliament in 1763, that The poorest man may in his cottage bid defiance to all the force of the crown to the colonies, in resistance to Crown-created writs of assistance. They were broad search warrants enabling customs officials to enter any business or home without advance notice, probable cause, or reason, which Otis asserted were unconstitutional.

A young John Adams listened to Otis' anti-writs oration, at which "the child's independence was then and there born."Otis was an advocate general in the vice-admiralty court with responsibilities including prosecuting smuggling, to which Britains onerous trade restrictions had turned many. But when the Crown imposed writs of assistance to crack down, Otis resigned his post in protest and represented, without charge, Boston merchants efforts to stop the writs. For five hours he argued that they violated citizens natural rights, putting them beyond Parliaments powers. A young John Adams listened to Otis oration, at which the child's independence was then and there born.

Otis lost the case, but public wrath discouraged officials from employing the writs. Otis then became influential, his role growing with American grievances. He led the Massachusetts Committee of Correspondence in 1764. He wrote pamphlets. He argued against Parliaments power to tax colonists, particularly in The Rights of the British Colonies Asserted and Proved, and was a leader at the Stamp Act Congress. Otis joined Samuel Adams to pen a circular to enlist other colonies in resisting the Townshend Duties.

John Adams said, I have never known a man whose love of country was more ardent or sincere, never one who suffered so much, never one whose service for any 10 years of his life were so important and essential to the cause of his country, as those of Mr. Otis from 1760 to 1770. Why then is he not better remembered? Because he then began suffering bouts of mental illness which ended his contributions before the Revolutionary War, whose many American heroes have eclipsed him in memory.

However, search and seizure issues permeate Americans' liberties today. These include the exclusionary rules prohibition against admitting evidence gathered in violation of the 4th Amendment at trial and injured parties power to sue officers involved for damages suffered in unlawful searches. But they also include government spying on its citizens, as Edward Snowdens leaks revealed, and questionable cell phone searches, in which, as Justice Anthony Kennedys words, someone arrested for a minor crime has their whole existence exposed. Such issues make it well worth revisiting Otis highly consequential insights.

James Otis argument was based on our liberty because we are by the law of nature free born, and that [every] act against natural equity is void. In consequence,

The end of government being the good of mankind It is above all things to provide for the security, the quiet and happy enjoyment of life, liberty, and property. There is no one act which a government can have a right to make, that does not tend to the advancement of the security, tranquility and prosperity of the people.

Otis took our liberty, drawn in broad brushstrokes, and applied it specifically to our homes and possessions. He asked, Can there be any liberty where property is taken away without consent? and asserted that One of the most essential branches of liberty is the freedom of ones house, which writs of assistance steamroll. As he put it,

A mans house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ would totally annihilate this privilege. Custom-house officers may enter our houses when they please break everything in their way; and whether they break through malice or revenge, no man, no court may inquire.

Otis then asked what the consequence of violating those principles now articulated in our 4th Amendment would be. His answer was tyranny. Everyone with this writ may be a tyrant. And tyrannical violations of our rights that have occurred create no authorizing precedent.

[Even] if every prince had been a tyrant, it would not prove a right to tyrannize. There can be no prescription old enough to supersede the law of nature, and the grand of God almighty; who has given to all men a natural right to be free.

Because Tyranny of all kinds is to be abhorred, Otis offered a principled and profound response:

I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other, as this Writ of Assistance is.

The 4th Amendment is one of the most important playing fields on which the battle between liberty and tyranny is waged. That makes revisiting James Otis understanding critical. As Law Professor Thomas K. Clancy wrote:

James Otis first challenged British search and seizure practices and offered an alternative vision of proper search and seizure principles. No authority preceding Otis had articulated so completely the framework for the search and seizure requirements that were ultimately embodied in the Fourth Amendment.

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Who Was the Founding Father of the Fourth Amendment ...