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"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 Fourth Amendment protection against "unreasonable searches and seizures" was adopted as a protection against the widespread invasions of privacy experienced by American colonists at the hands of the British Government. So-called "writs of assistance" gave royal officers broad discretion to conduct searches of the homes of private citizens, primarily as a way of discovering violations of strict British customs laws. This practice led to a unique awareness among our Founding Fathers of the threat to individual liberty and privacy that is created by unchecked government search powers.

Today, the Fourth Amendment has lost its preferred status among our cherished Bill of Rights Protections. In recent decades, growing concerns regarding crime and public safety in America have forced our Courts to balance the privacy rights contained in the Constitution with the ever-expanding needs of law-enforcement officers whose duty it is to investigate and arrest dangerous criminals. The Supreme Court's rulings in Fourth Amendment cases demonstrate the challenge involved in reconciling these competing ideals.

Ultimately, the Constitution's prohibition against unreasonable searches and seizures has been trimmed-down in recent years and tailored to suit the needs of modern law enforcement as we wage war against drugs and terrorism. For this reason, it is important for conscientious citizens to be familiar with the lawful parameters of police authority to conduct searches, as well as the legal doctrines by which that authority is limited.

The Fifth Amendment: Self-incrimination Clause

"...No person... shall be compelled in any criminal case to be a witness against himself or be deprived of life liberty or property without due process of law..."

* The Supreme Court has made a new ruling that you must tell the police officer that you will NOT talk to him, you request a lawyer and then keep your mouth shut.

The right against self-incrimination has ancient roots in common law dating back to biblical times. While most provisions of the Fifth Amendment, such as the right to a jury trial and the right against double jeopardy, impose restrictions upon our courthouses, the right against self-incrimination has a profound effect upon the behavior of law-enforcement officers as they investigate crimes. For this reason, the meaning of the self-incrimination clause has remained one of the most controversial issues in criminal procedure since the Supreme Court's ruling in Miranda v. Arizona.

At this time, it is required by the Supreme Court that police inform all criminal suspects of their right to remain silent prior to interrogation. This right extends from the point of arrest throughout the suspect's involvement in the criminal justice system. While many in the law-enforcement community feel that this restriction unfairly limits the ability of police and prosecutors to obtain convictions, studies have shown that conviction rates have not changed significantly since the Court first required police to inform those arrested of their right against self-incrimination.

The Sixth Amendment: Right to Counsel Clause

"In all criminal proceedings, the accused shall enjoy the right to have the assistance of counsel for his defense."

The Sixth Amendment right to counsel is a critical component of the Bill of Rights in that it provides the accused with an advocate who is trained in the legal process and can provide a safeguard against violations of the suspect's other Bill of Rights protections. Interestingly, it was not until 1963 that the Supreme Court held that states must provide a lawyer for all felony suspects, ending disparities in legal representation based on economic class.

Today, all person charged with a serious crime in the United States enjoy the assistance of a defense attorney regardless of economic status. State-employed public defenders represent clients who cannot afford their own attorneys, and contrary to popular belief, achieve roughly equal outcomes for their clients as do the more expensive privately-hired lawyers.

The Relationship Between Self-incrimination and the Right to Counsel

Many Americans, particularly young people, have become cynical about police practices and our legal system. It is not uncommon to lose hope when arrested or even become angry at the officer or the law he is enforcing. It is an important reality however, that our legal system does provide services for the accused. It cannot be overstated how important it is to wait for legal advice before attempting to discuss a criminal charge with police. The subtleties of the legal process require careful decisions about what to say and how to say it. A lawyer will help you prepare for tough questions and can emphasize your positive qualities to the judge, including qualities you didn't know you had.

The constitution includes protections for criminal suspects because the legal system is incredibly complex, involving rules and regulations that everyday people would not understand. If you are charged with a crime, take advantage of the protections the constitution gives you. Don't talk to police about what happened until you have spoken with a lawyer and discussed how to present your side of the story.

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Fourth Amendment Body Search Home Search You rights ...

A federal appellate court on Wednesday widened a split among circuits on a major privacy question thats pending before the U.S. Supreme Court: Fourth Amendment protection for cellphone location information.

In United States v. Graham, a divided panel of the U.S. Court of Appeals for the Fourth Circuit held that the governments warrantless search of the cellphone location information of two accused robbery defendants violated their Fourth Amendment rights. However, because the government relied in good faith on court orders issued under the federal Stored Communications Act, the information could be admitted as evidence in their trial.

Last month, the American Civil Liberties Union and private counsel filed a petition for review in the high court in Davis v. United States. In that case, a divided en banc Eleventh Circuit held that the criminal defendant had no reasonable expectation of privacy in cellphone location records held by his service provider. And even if a Fourth Amendment search had taken place, the court said, use of an Stored Communications Act order rather than a warrant was reasonable because the privacy intrusion was minor and the government had a compelling interest in investigating crimes.

The petition asks the justices to decide whether the Fourth Amendment warrant requirement applies to these searches and seizures. It also asks whether the good-faith exception to the exclusionary rule applies when the search was based on a court order sought by a prosecutor, particularly when the relevant statute gave the prosecutor the option of pursuing a warrant.

In the Fourth Circuit case decided Wednesday, the government secured court orders, under the Stored Communications Act (SCA) for 221 days worth of cellphone location information from Sprint/Nextel. The government ultimately used the information at trial to establish the defendants locations at various times before and after most of the charged robberies.

Senior Judge Andre Davis, joined by Judge Stephanie Thacker, wrote:

Examination of a persons historical CSLI (cell site location information) can enable the government to trace the movements of the cellphone and its user across public and private spaces and thereby discover the private activities and personal habits of the user. Cellphone users have an objectively reasonable expectation of privacy in this information. Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.

The established exception in this case, Davis added, was the good faith exception to the exclusionary rule.

Here, the government is entitled to the good-faith exception because, in seeking appellants CSLI, the government relied on the procedures established in the SCA and on two court orders issued by magistrate judges in accordance with the SCA, Davis wrote.

The Stored Communications Act includes no direction on when the government should seek a warrant versus an order, he said.

More:
Fourth Amendment Protects Cellphone Location Data, Appeals ...

Summary: The Courts are divided when it comes to deciding if the Fourth Amendment applies to cellphone tracking information, which affects whether a warrant versus an order is required.

The U.S Court of Appeals for the Fourth Circuit was divided in their decision in United States v. Graham. The government used cellphone location information to determine where two accused robbers were before and after the alleged robberies had taken place. They did not use a warrant to obtain the information but relied on the good faith of orders obtained through the Stored Communications Act.

In another case, David v. United States, the Eleventh Circuit found that the criminal defendant had no right to privacy from his cellphone location information. They also found that a Stored Communications Act order or a warrant was good enough to obtain the information.

The petition filed by the American Civil Liberties Union and private counsel that filed the review of the case wanted the court to state whether the Fourth Amendment protection that requires a warrant applied in this case.

In the first case, the court found that the Stored Communications Act provides no rules on when the government can seek an order over a warrant so the government is allowed to use the good faith exception when seeking cellphone location information. The court also found that they are not protected by the Fourth Amendment because they are sharing information with a third party every time their cellphone connects with a tower.

Source: http://www.nationallawjournal.com/home/id=1202733998931

Photo: slate.com

Tagged: cellphone location information, fourth amendment, Government, order, privacy, warrant

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Fourth Amendment Does Not Protect Cellphone Location ...

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Text of Amendment:

Writs of Assistance:

The Fourth Amendment was written directly in response to British general warrants (called Writs of Assistance), in which the Crown would grant general search powers to British law enforcement official.

These officials could search virtually any home they liked, at any time they liked, for any reason they liked or for no reason at all. Since many of the founding fathers were smugglers, this was an especially unpopular concept in the colonies.

Limited Power:

In practical terms, there is no means by which the government can exercise prior restraint on law enforcement officials. If an officer in Jackson, Mississippi wants to conduct a warrantless search without probable cause, the judiciary is not present at the time and can't prevent the search. This meant that the Fourth Amendment had little power or relevance until 1914.

The Exclusionary Rule:

In Weeks v. United States (1914), the Supreme Court established what has been known as the exclusionary rule. The exclusionary rule states that evidence obtained through unconstitutional means is inadmissible in court and cannot be used as part of the prosecution's case. Before Weeks, law enforcement officials could violate the Fourth Amendment without being punished for it, secure the evidence, and use it at trial.

The exclusionary rule establishes consequences for violating a suspect's Fourth Amendment rights.

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Fourth Amendment - the Text, Origins, and Meaning

The Fourth Amendment to the U.S. Constitution protects personal privacy, and every citizen's right to be free from unreasonable government intrusion into their persons, homes, businesses, and property -- whether through police stops of citizens on the street, arrests, or searches of homes and businesses.

What Does the Fourth Amendment Protect?

In the criminal law realm, Fourth Amendment "search and seizure" protections extend to:

The Fourth Amendment provides safeguards to individuals during searches and detentions, and prevents unlawfully seized items from being used as evidence in criminal cases. The degree of protection available in a particular case depends on the nature of the detention or arrest, the characteristics of the place searched, and the circumstances under which the search takes place.

When Does the Fourth Amendment Apply?

The legal standards derived from the Fourth Amendment provide constitutional protection to individuals in the following situations, among others:

Potential scenarios implicating the Fourth Amendment, and law enforcement's legal obligation to protect Fourth Amendment rights in those scenarios, are too numerous to cover here. However, in most instances a police officer may not search or seize an individual or his or her property unless the officer has:

What if My Fourth Amendment Rights Are Violated?

When law enforcement officers violate an individual's constitutional rights under the Fourth Amendment, and a search or seizure is deemed unlawful, any evidence derived from that search or seizure will almost certainly be kept out of any criminal case against the person whose rights were violated. For example:

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"Search and Seizure" and the Fourth Amendment - FindLaw