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“This Is Not The18th Century”: Fourth Amendment Purists Are Living In A Dream World

Spy work holds deep allure for many people. My own career as a secret agent began as an outgrowth of training beagle hunting dogs. See, I needed new antennas for the little radio transmitters in the animal’s collars—which combined with a directional antenna and multi-channel receiver helped me bring the little rascals home alive at day’s end.

You wouldn’t believe some of the scrapes those dogs could get into. One time, we found three beagles inside a beaver dam fighting a cornered raccoon. Had we not intervened, he’d probably have drowned them.

So anyway, I called customer service at Wildlife Materials, Inc. to order the antennas. Ever the subversive, I made a joke about buckling a tracking collar to the bumper of my wife’s car.

Long, painful silence.

“Um, air, we’re not supposed to talk about that.”

Oh well.

Of course these days, that technology’s way out of date for marital espionage. You can’t make a beagle carry a cellphone, but most wives cling to theirs 24/7. With the right software and a wi-fi connection, you can track her whereabouts in real time from your friendly neighborhood tavern, and even message her at the No-Tell Motel to say you’re stuck at the office.

Unless she’s also tracking you, in which case all bets are off.

Of course, my own wife’s phone is lost half the time. I sometimes wish the National Security Agency weren’t too busy monitoring guys calling 1-900-HotVirgins over in Yemen to help her find it.

But let’s get halfway serious about this NSA business. First, where has everybody been since 2006, when USA Today first revealed the existence of large scale NSA telephone data mining? That was objectionable in two big ways: the Bush White House acted unilaterally, without the court supervision required by law, and it was also indulging in warrantless wiretaps.

Congress fixed that in 2008, permitting statistical analysis of telephone traffic, but requiring both ongoing FISA Court oversight and search warrants for actual eavesdropping. After his customary tap-dancing, Sen. Barack Obama supported the bill. Hearing no announcement that the Obama White House had canceled the program, a person would have to be awfully naïve to imagine NSA had gone out of business.

The court order produced with a great flourish by Glenn Greenwald and The Guardian mainly confirmed that the system appears to be working as designed. So why the hyperventilating? The way some people are carrying on, you’d think the KGB or East German Stasi had set up shop in the White House—which definitely isn’t how people would act if they really feared tyranny.

Greenwald himself rather specializes in hyperventilation. It’s a rare terrorist attack that isn’t immediately followed by a Greenwald essay pointing out that Norwegian civilians or off-duty British soldiers  are no less legitimate targets than Pakistani children — true enough in an abstract moral sense, but of vanishing political usefulness.

However, when a reporter begins a profile by praising his own work as “one of the most significant leaks in US political history,” a skeptic is apt to wince. Maybe it’s just me, but I wouldn’t have taken Edward Snowden (or any single source) at face value. There are plenty of clues even in The Guardian hagiography that not everything may be exactly as it seems. Running to China seeking freedom?


Then there’s this: Any NSA analyst “at any time can target anyone, any selector, anywhere,” Snowden said. “I, sitting at my desk, certainly had the authorities to wiretap anyone from you or your accountant to a federal judge to even the president if I had a personal email.”

Now me, I don’t think NSA computer tech can wiretap a Federal judge any more than I think a bank teller can transfer the judge’s bank account to her boyfriend without getting caught. Sure enough, Robert Dietz, a former CIA and NSA lawyer, told the Los Angeles Times the claim was “complete and utter” falsehood.

“First of all, it’s illegal,” he said. “There is enormous oversight. They have keystroke auditing. There are, from time to time, cases in which some analyst is [angry] at his ex-wife and looks at the wrong thing and he is caught and fired.”

Which is basically where we came in. Fourth Amendment purists are living in a dream world. Neither cellphones nor lunatics using airliners as weapons existed in Ben Franklin’s day. If you want privacy as defined in the 18th century, it’s easy: no phones, no Internet (and certainly no Facebook or Twitter) no credit cards or bank accounts, no EZ-Pass, no nothing.

But if you want government to have any chance to defeat mass-casualty terror attacks, surrendering raw phone data isn’t much of a concession. Besides, there are far more efficient ways of targeting enemies of the state than trying to make something of who they’ve talked to on the phone.


By: Gene Lyons, The National Memo, June 12, 2013

June 15, 2013 Posted by | National Security | , , , , , , , , | Leave a comment

“Suspicionless Search And Seizure”: The Supreme Court Rules That DNA Is Like A Fingerprint Or Mugshot

In a  5-4 decision, the U.S. Supreme Court has ruled that police have the right to gather DNA evidence without a search warrant after an arrest and before the arrestee has been convicted of a crime. The majority ruled that a cheek swab is no different from taking a fingerprint or a photograph.

Already 26 states collect DNA samples from suspects, a fact that had gone mostly unnoticed until 26-year-old Alonzo King was arrested in Maryland for second-degree assault in 2009. Maryland authorities took a DNA swab from King while he was in custody, and after running it through the state’s and the FBI’s databases, they found that it matched DNA from an unsolved rape committed in 2003.

The U.S. Supreme Court’s decision on Monday reversed a 2012 Court of Appeals decision in which Maryland’s highest court ruled in King’s favor, stating that the DNA swab was used for investigative purposes after his arrest—this was in direct violation of his Fourth Amendment rights, as he had not been convicted of any crime and was still presumed innocent.

Groups including DNA Saves have been advocating for the DNA swabbing of arrestees as a means to close unsolved cases, citing statistics that most crimes are committed by repeat offenders.

Justice Anthony Kennedy was among the five Justices who voted to reverse Maryland’s decision. “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure,” Kennedy wrote. “Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined Justice Antonin Scalia in his written opposition to the court’s decision. His dissent began, “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incrimi­nating evidence. That prohibition is categorical and with­out exception; it lies at the very heart of the Fourth Amendment.”

Scalia’s defense of the Fourth Amendment continued in his scathing dissent: “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the pro­tection of our people from suspicionless law-enforcement searches.”

The dissenting Justices warned of likening DNA sampling to fingerprinting and taking photographs. They aimed to differentiate between methods of identifying and investigating an individual after their arrest and before a trial.

New technologies are increasingly presenting privacy challenges that complicate the typical conservative/liberal alliances on the Court.

USA Today reports, “Last year, they held that police could not attach a GPS tracking device to a car in order to monitor a suspect’s movements. This year, they ruled that using a drug-sniffing dog with reasonable suspicion was OK — but not at the door of a private home. And they decided that executing a search warrant after a suspect had left his home was out of bounds.”

Of course the major difference between last year’s decisions and the one the Supreme Court reached today is that DNA swabs may be used by authorities to implicate an arrestee in crimes for which they have no warrant or reasonable suspicion. In this way, the majority found, a DNA swab is similar to the procedural tasks of taking a fingerprint or a mugshot.

The minority warned of the broader implications of the decision.

“Make no mistake about it: Because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia wrote in his dissent. “This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane.”

By: Allison Brito, June 3, 2013

June 5, 2013 Posted by | Civil Rights, Supreme Court | , , , , , , , | Leave a comment

“Unreasonable Search And Seizure”: Supreme Court Undercuts 4th Amendment Protections-Again

In yet another 5-4 decision of the Supreme Court, the conservatives sitting on the Roberts Court have cut deeply into our protection from unreasonable search and seizure guaranteed to Americans by the 4th Amendment to the Constitution.

As a result of today’s ruling, jailers can now perform bodily strip searches on anyone brought in to a holding cell, no matter how minor the alleged infraction. And when I say ‘minor’, I’m not talking about people arrested and held for violent or even misdemeanor drug related crimes.

I’m talking about individuals arrested for riding a bicycle without an audible bell, driving a car with a noisy muffler or failing to properly use a signal when making a left or right turn.


These are but a few of the offenses that were committed by people who found themselves being strip-searched and subject to the long arm of the law when that long arm intruded into personal spaces where no arm was intended to go. These were also the offenses represented in a class action brought against two New Jersey jails by Albert Florence, a New Jersey resident who was also subjected to the humiliation of a strip search—twice— for what the police believed was an outstanding warrant for failing to pay a court fine.

Florence’s ordeal began on a day in 2005 while he and his family were on his way to his mother-in-law’s home to celebrate the purchase of a new residence for the Florence family. Mrs. Florence was at the wheel of the family BMW when she was pulled over for speeding. When the police officer ran a check on Mr. Florence as the owner of the car (despite the fact that he wasn’t driving), they discovered that he had an outstanding warrant for failing to pay a fine to the Court.

Never mind that Mr. Florence, a financial executive with an automobile dealership, had, in fact, paid the fine and actually had proof of having done so in the glove box of his automobile because he feared that local police were suspicious of black men who drive nice cars. And never mind that even if the warrant had been an outstanding bench order, not paying a court fine in New Jersey is not a crime.

Florence was arrested and handcuffed as his pregnant wife and young son watched in distress.

When Mr. Florence arrived at the local jail where he was to be held pending a hearing on the warrant, he was subjected to a strip-search. And when he was transferred to a different county jail he was treated to a search of his body once again, despite the fact that, at no time since his first strip-search, was he outside the custody of the police.

During his first strip-search, Florence was forced to disrobe in front of an officer and told to lift his genitals. Upon arriving at the second jail, he was made to squat and cough in front of a number of viewers for the purpose of expelling anything that might be hidden in a body cavity.

Setting aside my curiosity as to what the cops expected to find hiding beneath his genitals, I will simply report that the local Magistrate finally ordered Mr. Florence released when he determined that Florence had, indeed, paid the fine some years before.

Still, the Supreme Court came to the conclusion that the body searches Mr. Florence was subjected to—not once but twice and despite the fact that he had been in police custody the entire time between the first and second search—were “reasonable” within the meaning of what constitutes a reasonable search and seizure for 4th Amendment purposes.

So deeply concerned was the five Justice majority for the need to keep contraband—including weapons and drugs—out of the jail system, they were prepared to relieve authorities throughout the nation of their responsibility to afford American citizens their privacy rights—even when they are hauled in for having a broken bell on a bicycle.

Writing the minority opinion, Justice Stephen Breyer argued that this behavior is not constitutionally appropriate for an individual arrested for a minor offense that does not involve drugs or violence.

“A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person’s body, is a serious invasion of privacy,” Breyer wrote. The “invasion of personal rights” at issue in this case, the dissenters argued, “is very serious and lacks need or justification — at least as to the category of minor offenses at issue.

Via SCOTUSblog

The Court’s decision greatly expands upon what authorities can do when searching those they detain for alleged crimes, no matter how miniscule the charge may be.

In 1979, the Supreme Court upheld the policy of body cavity searches for prisoners after they had met with visitors. The theory was that the possibility of a guest from the outside having slipped an item of contraband to a prisoner posed a significant threat to the remainder of the prison population and jail officials. For that reason, the search was deemed reasonable.

However, since that decision, the principle has been widely limited so as not to to be applied to newly arriving prisoners where there was no reason for authorities to suspect that the incoming prisoner might have some item of contraband on his or her person requiring confiscation. In other words, the ‘reasonable’ standard was applied.

That limitation is no longer the law of the land.

In what is becoming a habit of some members of the conservative side of the Court who don’t appear to want to be held responsible for the bad precedents they set, Justices Roberts and Alito when out of their way to say that this practice should be limited to the case at hand and that it should not be assumed that this principle is to be applied to all searches—particularly when someone is only to be held for a short time and placed in a cell separated from the general population.

The hope is that this limiting opinion will be applied at jails throughout the country so that people held only until bond is posted will not be subjected to intrusive and humiliating strip -searches.

Just last year, the Roberts Court put another serious dent into the 4th Amendment prohibition against unreasonable search and seizure when it upheld the constitutionality of police in Kentucky entering a suspect’s home without a search warrant.

By: Rick Ungar, Contributor, The Policy Page, Forbes, April 2, 2012

April 3, 2012 Posted by | SCOTUS | , , , , , , | 2 Comments

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