Articles Tagged with Fourth Amendment

Terry v. Ohio[1]’s “narrow” ruling on the constitutionality of police stop and pat downs absent probable cause has opened up a whole new world of Supreme Court jurisprudence. The Court has sketched out the scope of these searches, seizures, and what remedies apply to constitutional violations resulting from them.

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Simple Scope Expansions for Vehicles

The Supreme Court quickly extended the principles of Terry from beat cops seeing suspicious behavior on the street, to police officers who see suspicious behavior on the road and in vehicles. Beginning with Pennsylvania v. Mimms[2], the Court allowed for officers to ask people to exit their vehicle and conduct a “Terry Frisk” when the officer has reasonable suspicion that the person is armed and dangerous.

The phrase “Stop and Frisk” has become a common feature of today’s political debate. The practice is often brought up in discussions of police tactics, court cases, and criminal justice. However, the average person has little awareness of the jurisprudence surrounding the practice. Unfortunately, people must be aware of what the practice actually is to properly safe guard their constitutional rights against abusive and unconstitutional police action.

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What is “Stop and Frisk”?

The phrase “Stop and Frisk” is a shortened way of describing two distinct government actions of a Terry stop, and a Terry frisk both of which arose out of the 1968 case of Terry v Ohio[1]. Terry v Ohio has proven to be one of the most important Supreme Court decisions in terms of the practical impact on the fourth amendment[2].  Terry outlined a new way of interpreting the meaning of the fourth amendment’s reasonableness and probable cause requirements in the context of a search and seizure.

iStock_000006229203XSmall-214x300As the digital age advances, technology becomes ever more entwined into our daily lives. Stunning revelations about mass government surveillance[1] have led many to wonder what privacy protections still remain for citizens. With the death of Justice Antonin Scalia[2]; the most ardent defender of the Fourth Amendment on the Supreme Court, some feel that the Amendment’s protections will continue to erode in the digital age.

What is the Fourth Amendment?

The Fourth Amendment of the Unites States Constitution is one of the bedrocks of our criminal justice system. While relatively short, the Amendment encapsulates a foundational idea of our government. It guarantees citizens’ protection against unreasonable search and seizure, and establishes the importance of a warrant.  The Fourth Amendment reads as such:

iStock_000000350401XSmall.jpgThe government intercepts the phone calls of suspect criminals through the use of a wiretap. Wiretaps are search warrants that allow a law enforcement agency to eavesdrop on phone calls or internet communications (E.g. cell, land line, Skype calls). Law enforcement agencies can only eavesdrop after they obtain a court order from a judge authorizing them to listen in on certain conversations. In order to obtain a court order, the officer must file an application with the court requesting authorization from the court to conduct a wiretap. The application is an essential part of the process and is subject to strict compliance with 18 U.S.C.A. § 2518.

The first requirement is that the investigative or law enforcement officer making the application be identified along with the officer who authorized the application. This requirement is important for a couple of reasons. First, there are strict disclosure laws that prohibit liberal sharing of wiretaps. Officers cannot freely discuss wiretaps with whomever they want, even if they are talking to other officers. The disclosure must be permitted by statute. Second, it identifies the law enforcement agency that is conducting the wiretap. Particular agencies can conduct wiretaps for certain reasons. Certain agencies investigate certain crimes; not all crimes are subject to wiretap surveillance either. A law enforcement agency must be investigating a crime that is enumerated under 18 U.S.C.A. § 2703, and the crime must be one that the agency investigates.

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Fotolia_69031331_Subscription_Monthly_M.jpgEvery American citizen has a reasonable expectation of privacy. This Constitutional protection applies to many aspects of modern life. It extends over things such as a person’s house, car, and telephone. However, the government can get past this shield of privacy. Law enforcement and the judicial branch work hand in hand to acquire warrants to get past a person’s right of privacy. If the government believes a person is committing criminal behavior, then it will try to stop whatever that person is doing by piercing his privacy. In this regard, one of the government’s most powerful tools is wiretapping.

A wiretap is a government interception of electronic communications. Typically speaking, a wiretap catches phone calls, but it can be extended now to get other modes of real-time communications made over the internet, such as Skype calls. Different law enforcement agencies conduct wiretaps for different reasons. For example, the DEA will conduct a wiretap for the purpose of preventing drug trafficking.

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iStock_000020746027_ExtraSmall.jpgIn December of 2013, a 54-year-old Texas woman was traveling back from spending the Christmas holiday with a family friend in Ciudad Juarez, Mexico when she was stopped by federal agents at the Cordova Bridge border crossing in El Paso, Texas. As the unnamed woman was passing through the checkpoint, a police drug dog allegedly alerted on her, prompting U.S. Customs and Border Protection agents to select her for additional screening. The woman was quickly stripped searched and forced to undergo several body cavity searches at the crossing checkpoint, but the agents failed to turn up absolutely any evidence of drugs.

Regardless of this fact, the agents were determined to find some evidence of drugs and proceeded to transport the woman, handcuffed and against her will, to the University Medical Center of El Paso. At the hospital, doctors subjected the woman to an observed bowel movement, an expensive total body CT scan and numerous body cavity probes in a desperate attempt to find some trace of drugs. However, after enduring over six hours of demeaning and highly invasive searches, the agents were forced to admit the woman had committed no crime and released her with no charges. However, to add insult to injury, the woman soon received a $5,000 bill from the hospital for the exams she was wrongly forced to undergo.

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iStock_000005542834XSmall (2).jpgUnmanned Aerial Vehicles (UAVs) revolutionized the War in Afghanistan. These drones allowed the military to perform a variety of operations while reducing the threat of injury to human soldiers. In the battlefield, it may be somewhat easy to rationalize the use of UAVs, especially against a foreign terrorist threat. Your feelings might dramatically change when you think about your local police force using UAVs to fight crime. This idea may seem a little bizarre and unrealistic. However, there are Texas counties currently allowing Law Enforcement to use UAVs and others who are engaging in UAV pilot programs.

UAVs enable the police to conduct unmanned surveillance over public and private areas. The main focus of UAV surveillance is to monitor or observe criminal behavior. While monitoring public areas is seemingly reasonable, the invasion of privacy UAVs present is cause for concern. For example, the Austin police department used a UAV in 2009. The Austin police department was executing a search warrant on a suspect’s house. The suspect was a drug trafficker and was believed to be heavily armed and dangerously. The police were concerned that the suspect was capable of shooting down a helicopter, so they conducted a sweep of the property with a UAV before executing the search warrant. This UAV, called the Wasp, was particularly special because it was the size of a small bird, which would be undetectable to the unwary eye.

Feelings about drones differ amongst Texas counties. Currently, Harris County does not to take part in UAV pilot programs. It initially participated in a UAV program, but it withdrew its participation in 2007. On the other hand, Montgomery County has a $300,000 Shadowhawk helicopter drone (developed from Vanguard Industries). It is a 50 pound helicopter with an extremely powerful camera mounted in the front with infrared capabilities. Assigned to man this drone are Sgt. Melvin Franklin, a licensed pilot, and Lt. Damon Hall, who is head of the department’s crime lab and crime scene unit. Montgomery County paid with this money with a homeland security grant. This drone is intended “to assist the County in a number of critical operations to include emergency management, search & rescue, and S.W.A.T. operations.”

iStock_000009656284XSmall.jpgIn 1971, officers arrested Ronald Kelly, a high school student at the time, for possession of a small bag of marijuana. Kelly received a misdemeanor conviction and was punished by one year of probation. Shortly after, Kelly served in the U.S. Army for 20 years where he gained more experience in properly handling firearms than most lawful gun owners possess. Despite his expertise in firearms and extended service to his country, Kelly was recently denied approval for a .22 caliber rifle at a Texas Wal-Mart due to his prior marijuana conviction.

The FBI’s National Instant Criminal Background Check System can prevent an adult from owning a gun if that adult was convicted of a crime, even a misdemeanor, which could have subjected the person to more than two years imprisonment. Since Kelly’s marijuana conviction could have technically landed him in jail for more than two years, even though it did not, the FBI may refuse the veteran’s firearm application. Many Texans wishing to exercise their second amendment right to bear arms seemingly face this issue since Texas is among the top states that file the most firearm applications. Further, federal law prohibits people who simply use marijuana, a substance that is not prone to make people violent, from possessing firearms and ammunition. This federal prohibition applies even if the state where the applicant resides has legalized, medicalized, or decriminalized the substance. Applicants are asked on firearm applications if they are unlawful users of a controlled substance and, if the applicant answers falsely, he could face felony charges.

A rejected firearm applicant could legally challenge his denial and petition for his right to bear arms. However, even if the government’s denial lacks an adequate basis, like an actual record of the applicant’s marijuana conviction, the burden is on the applicant to produce the evidence to argue against the FBI’s rejection. Once the FBI denies a firearm application for a prior conviction, the government does not have to produce the records of the conviction to show the denial was justified.

iStock_000007992706XSmall.jpgA conservative political activist and mother, Jessica Peck, co-founded the Women’s Marijuana Movement (WMM), an organization dedicated to changing the harmful laws of marijuana prohibition. As a primary goal, the organization seeks to inform others that marijuana use is a much safer recreational activity than alcohol consumption. Members of WMM include parents driven in the conviction that marijuana reform will create a safer environment for their children and young professionals that have grown weary with a system that permits, and even encourages, dangerous use of alcohol but criminally punishes the comparatively less harmful usage of marijuana. Women are increasingly moving in favor of marijuana reform, overcoming a historical gender gap on the issue.

Historically, males have favored marijuana reform more so than females have. For example, in 2010, national Gallup poll revealed that 51 percent of males favored marijuana legalization while only 41 percent of females were in favor. Even in Marijuana-friendly states, in the recent past women have shown much less support, as seen by a 2011 poll of Washington State voters where 56 percent of males support legalization, but a significantly smaller 37 percent of females believed in marijuana legalization.

However, much of the gender gap has closed, if not disappeared, regarding marijuana reform support. A 2013 poll shows 48 percent of women nationally now support marijuana legalization, a notable increase from the 41 percent of support in 2010. Women’s support in favor of ending marijuana prohibition was pivotal to the marijuana legalization victories in Colorado and Washington State. In polls leading up to the Colorado vote to legalize, 49 percent of women voiced their support for Amendment 64. Confirming the drastic shift of marijuana views of women, exit polls of the Colorado marijuana vote showed 53 percent of women voters supported the legalization measure. This result was very different from the failed 2006 Colorado vote to legalize, where the majority of women voted in favor of maintaining marijuana prohibition. Joining Colorado’s 2012 marijuana victory, the majority of women voters in Washington State also voted favorably to legalize marijuana.

CYMERA_20130829_142314.jpgText messaging is one of the primary methods of modern communication. It is a relatively simple process that is convenient for both the sender and recipient. Even though text messaging is thought of as a private written conversation, text messaging is not as secure as you may believe. This is especially concerning if you may have some inappropriate text messages on your phone regarding marijuana consumption, which is a crime that police officers keenly investigate. Even though you may believe that your private conversations should be protected, the laws protecting your privacy are not as strong as you may believe they are.

Let’s begin with the basics of text messaging. A text message is a written communication that lands in four locations: it begins in your phone, is then sent to a short message center (SMC), which transfers the data to your service provider’s network, and ultimately lands in the recipient’s phone. Because the data lands in the hands of a third party, namely your phone service provider, it loses much of the privacy protections that a normal communication would have, like a written letter that is in an envelope in your desk.

There are two types of cell phone service providers: electronic communication services (ECS) and remote computing services (RCS). (Katharine M. O’Connor, 😮 Omg They Searched My Txts: Unraveling the Search and Seizure of Text Messages, 2010 U. Ill. L. Rev. 685) If your carrier is an ECS, then the government has to get a warrant to search any electronic communications within 180 days (after which the government only needs a subpoena). If your carrier is labeled a RCS, then the government does not need a warrant, but only needs a subpoena. For example, Verizon Wireless’ electronic communications are obtainable through a subpoena, but the electronic communications are only available for 10 days (request has to be made within this window).