Tag: 4th amendment

Be Careful Who You Live With

The Supreme Court has issued another opinion on the Fourth Amendment, and *gasp*it further dilutes one of the most valuable liberties you have.  No surprise here.  Just in the short time this blog has been running you can see posts regarding the further degradation of the 4th.  The entire body of 4A jurisprudence is a whimsical walk down the erosion of your freedoms.  Don’t worry, there will be many more awful decisions to come.  You can find the full text of Fernandez v. California here:

First, a quick recitation of the facts:  Cops are told that their suspect is an an apartment.  They go to the apartment and a beaten woman answers the door.  They seek to do a protective sweep of the apartment but the suspect appears and tells the cops they can’t search his apartment.  The cops, with probable cause to believe he’d beaten the woman, arrest him.  They then return after they had taken the suspect to jail, and the woman consents to the apartment search which yields evidence of criminal activity.

Here’s the important fact:  the suspect already told the officers no.  They returned and got a yes after he was arrested.

This case focuses heavily on a few other cases, the largest being Georgia v. Randolf , 547 U.S. 103 (2006).  The main holding in that case was that if a person was present to tell the cops no, then another person could not give the cops consent.  The cases are similar, except here, the cops took the guy who said no, and arrested him, then came back and got their yes.

Next I’ll hit some main points in Justice Alito’s decision.

“And even where the police could establish probable cause, requiring a warrant despite the owner’s consent would needlessly inconvenience everyone involved—not only the officers and the magistrate but also the occupant of the premises, who would generally either be compelled or would feel a need to stay until the search was completed. Michigan v. Summers, 452 U. S. 692, 701 (1981)”

That’s correct, when your Supreme Court considers whether or not the 4th Amendment should be called to protect you, they’re considering “convenience”.

“As the Court put it, ‘the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.’ ” United States v. Matlock, 415 U. S. 164 (1974).

This is true, and while I believe a wrong decision, it is key to the Court’s holding in this case.

What they aren’t strongly considering is the holding in Randolph where they stated, “a physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant.”  They aren’t overruling that holding; they’re placing far too much weight in the physical presence part.

Basically, they’re still onto the idea that if multiple tenants are present, the cops can’t just keep asking all the tenants until they get a yes, the Randolph holding, but that in this case, the no vote was gone, never mind that they made him go away.

Then there’s the added issue that comes with what is called the “good faith exception”.  Under this exception, an officer can make a mistake of fact, but still have that evidence admitted so long as he didn’t violate your rights on purpose.  Fortunately, the state of Idaho at least recognizes just how silly a rule this is and we don’t recognize it, but that isn’t going to help you on the federal level.  So when the officer approaches and gets permission to search your house from, say, an angry girlfriend, a neighbor, pretty much anyone, so long as that officer doesn’t KNOW that they didn’t have the right to give consent, that evidence can be admitted (again, not in Idaho).  In fact, the Court cites to another case, Illinois v. Rodriguez, 497 U.S. 177 (1990) where this very thing happened.  The cops wrongly assumed a person who gave consent to search was still a resident.  Yet because their assumption was a reasonable one, evidence was still admitted.

So the Defendant felt that he was protected under the 4th Amendment for 2 reasons:  1) because he did not allow the officers consent, so they removed him.  He feels that the other tenant’s consent is not valid then, as in the Randoloph holding; and 2) that his previous objection denying them consent was sufficient.

To the first point the court holds that “We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.”

This is a decent statement of law so long as you accept the idea that the Matlock holding was correct giving each tenant the right to give consent.  I would say that the 4th Amendment requires informed consent from all parties, but I’m not a justice so we’ll just play along.  However, the above holding just doesn’t fit the facts of the case very well.  Why a tenant is gone shouldn’t matter, UNLESS, it’s because the cops physically removed him.  It’s almost like the joke from Ron White where he is arrested for being drunk in public after he was thrown out of the bar, “Hey, I was drunk in a bar.  They threw me into public.  I don’t wanna be drunk in public.  I want to drunk in a bar”:

The second argument is dismissed by the Court also on grounds of convenience.

“Suppose that a husband and wife owned a house as joint tenants and that the husband, after objecting to a search of the house, was convicted and sentenced to a 15-year prison term. Under petitioner’s proposed rule, the wife would be unable to consent to a search of the house 10 years after the date on which her husband objected. We refuse to stretch Randolph to such strange lengths.”  They then refuse to use the term “a reasonable amount of time”.

It appears that Justice Alito doesn’t understand that our Bill of Rights don’t exist in the name of convenience.  GET A WARRANT.  Let us consider this the above scenario.  Are you going to tell me that at no point during those 10-15 years would the officers be able to get a warrant?  Double so when you consider the case placed before the court.  The other tenant gave consent to a search of the house.  So you can now use an affidavit by her TO GET A WARRANT.  They’re removed any possibility of the suspect destroying evidence because he’s in county at this point.

The Bill of Rights is designed specifically to make life hard for government.  It’s there to protect us.

Everything that you need to know about this decision, and about the 4th Amendment as a whole is right here in Justice Ginsburg’s dissent: “The Court has accordingly declared warrantless searches, in the main, “per se unreasonable.  If this main rule is to remain hardy, the Court has explained, exceptions to the warrant requirement must be “few in number and carefully delineated.” (citations omitted for readability).

“Although the police have probable cause and could obtain a warrant with dispatch, if they can gain the con- sent of someone other than the suspect, why should the law insist on the formality of a warrant? Because the Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad, saint or sinner, from unchecked police activity.”

There are then a variety of property law arguments made, which are good, but not dispositive.

So, what does this mean to you?

Well, in his concurrence, Justice Thomas sums it up well:

“[c]o-occupants have ‘assumed the risk that one of their number might permit [a] common area to be searched.’” Ibid. (quoting United States v. Matlock, 415 U. S. 164, 171,(1974)).

So be careful who you choose to live with.  Be careful who you let into your home.  Many families have a fire plan.  Have a police contact plan.  Make sure each party understands that they are not to give consent to search.  And don’t go around beating up on women.  They might not care about protecting your sorry ass if you do.

Don’t Be Too Proud of This Technological Terror You’ve Constructed

So the NSA is spying on us.  This is my surprised face.  Is the era of privacy dead?  Many people think so.  I recently published a blog post as a response to the Supreme Court’s opinion allowing for the collection of your DNA.  We know the NSA is spying on us.  We give out our information willingly to Facebook, Amazon, Google, and others.  Google glass and the miniaturization of technology and cameras will allow us to conceal video equipment nigh anywhere.  Should we modify our lives, and accept the fact that privacy is dead?  I think not.  I think privacy is alive and well, so long as we don’t concede the battle.

What we are in at this point is a technological arms race — I intend to win it.  The NSA is snooping.  Sam Fisher is in the corner with a bag of popcorn watching you have sex with your wife.  According to American Hero and whistleblower Edward Snowden, domestic spying on our phone call  and emails is expansive with almost no oversight.

So what to do?  Some look to a political answer.  Others, a legal one.  Yet others, a violent one.  They’re all wrong.

Political power consolidates.  Congressmen are openly lied to by NSA administrators with no consequence.  Those who lead the charge against our 4th Amendment rights, such as Dick Cheney, have called Snowden a traitor.  Many of your fellow citizens, pathetic sheep fearful of terrorists, agree.  The President, after attacking Bush for these tactics, has expanded them massively.  The American political machine has developed it’s own consciousness, independent of all its parts, just as a human body has one consciousness despite consisting of billions of unique living cells.  Just as you cannot uninvent the gun, so too can you not uninvent this snooping technology.  As I’ve said before, power centralizes.  The political leaders cannot stop this.

The legal route also will not work.  The Supreme Court has eviscerated the 4th Amendment.  Why would it protect it now?  Even so, administrators lie.  Presidents battle transparency in the name of “national security”.  Those 4th Amendment wins we occasionally secure  are bandaids.  They are valuable for sure, as they dissuade the footsoldiers of tyranny (read: cops and other low level administrators) but they are a small part of the war for liberty.

The solution?  We battle tech with tech.  Just as a good citizen must know how to shoulder a rifle, so too much he learn to program.  I don’t know what the answer is yet, but if I allowed my imagination to run I’d figure up something akin to a bracelet that emitted some sort of frequency that turned you into a blob on any pictures you may show up.  Perhaps ways to pick up on when you’re being bugged.  Targeted EMP used as a shield, rather than a sword.  Encryption!  We have it now.  Learn it.  Use it.  You can encrypt your correspondence and give it greater security against the NSA than a spy on horseback with George Washington’s orders written in invisible ink had against the redcoats.  Freedom is out there.  Privacy is out there.  You have to fight for it now, just as you did then.  How private do you think the lives of those families in the 50’s were?  They weren’t!  We just socially allowed that the dad beat his kids, or that men took certain liberties with women.  Spying has always existed, and it always will.  You don’t give up the fight; you continue the technological arms race and fight for your freedom and your privacy.

You don’t think your privacy is well protected?  Well, “We shall double our efforts!”

Fight!  Win!  You’re an American.  Fucking act like it.

All Your DNA Are Belong to Us

All Your DNA Are Belong to Us

All apologies for the late update.  Putting the new firm together is taking priority.

In another 5-4 decision certain to inspire confidence in the citizenry that words truly have meaning and the law isn’t simply made up by by a handful of people in robes, the United States Supreme Court once again used the telephone game called the common law to rewrite the Bill of Rights.

In Maryland v. King(opinion here: maryland v king) Justice Kennedy joined with conservative justices to allow DNA collection via cheek swab as part of the routine booking process.

The story:  Woman is raped in 2003, DNA is gathered at the site, but it turns into a cold case.  Man is arrested 6 years later in a different state on an assault charge. As part of the booking procedure they swab the inside of his cheek for DNA and send it off to the labs.  A few months pass and his DNA is run through a database, matching the DNA at the rape site.  Man is convicted of rape.


Why the Supreme Court says it doesn’t violate the Fourth Amendment:  DNA is like, super cool and works really well.  I mean God, how come you like criminals so much?  It’s just used to identify criminals.  It’s just like fingerprints.

Why Scalia correctly dissents (again): Clearly it isn’t simply used to ID criminals because they were running the Defendant through the criminal process for months while the DNA was being processed.  It’s a safe bet that they weren’t running the Defendant through the criminal system as a John Doe.  They knew exactly who he was each step of the way.  DNA does work well and, “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 Fourth Amendment must prevail. ”

Scalia again provides a fantastic, witty, and well thought out dissent.  This DNA was not gathered and used after a conviction.  It was gathered after an arrest.  It was never used to ID the suspect, but rather as a search of his body for the express purpose of gathering evidence for crimes he was not under investigation for.  The fact that Kennedy bases the reasonableness of the search in ANY part on the fact that a cheek swab is not painful and less invasive than a blood draw is sophistry.  Comparisons to fingerprinting and blood draws is weak.  It shows the problem with common law.  Sometimes situations and technology are new, and to force the square peg into a round hole is to do a grave injustice.  Now, when the next piece of tech comes along, instead of saying, “It’s just like fingerprinting”, they’re going to say, “It’s just like a DNA cheek swab”.

Look, if they want to get a DNA database after you’ve been convicted of a crime, we can talk.  It’d be far more reasonable, although I think the key argument is simply that you shouldn’t be allowed to have your person, houses, papers, or effects invaded without individualized suspicion of a specific crime, another point Scalia touched on.  The government also promises that your DNA is only to entered into a national database for “serious offenses”.  Pray tell why should a person ever have his liberty offended by incarceration for any “non-serious offense”?

I hate to spend this post practically copying everything Scalia has said (No I don’t), but he sums it up perfectly:

“When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, ‘We can find no significant difference between this case and King.’ Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

Friends, the era of of government honoring your privacy is OVER.  The sooner you accept that fact, the sooner we can learn how to fight to win it back.

I Take it All Back (or Boston = Belfast)

This is the personal/political side of this issue.  You can expect a legal post in the near future regarding the 4th Amendment.

Dear Boston:  I’m ashamed of you.

I’m nostalgic.  I’m nostalgic even about foolish things that don’t even make sense sometimes.  I get misty and get to feeling wistful about a lot of things.  One of those things is the city of Boston.  I was insanely excited when I got to visit the city once for a friend’s wedding.  I don’t do big cities, and many of the people are jerks, but I felt a strong emotional attachment to Boston.  This is for two reasons:  first is that I’m a huge nerd when it comes to the American Revolution.  Second, because I’m a boxing fan.

Boston (I’m speaking generically of the town and nearby areas) is the cradle of American liberty.  It was the hotbed of rebellion.  The tea party, the massacre, Lexington, Concord, hell, the Sam Adams Brewery!


That’s my girl!

But the Boston I love is the IDEA of Boston.  The reality of Boston?  You should be ashamed of yourselves.  No matter how often we run around talking about how tough a city it is, Boston is proof of one simple fact:  TERRORISM WORKS.

Two punk kids shut down a city with a greater GDP than most countries.  A people who have allowed themselves to be disarmed, Bostonians shut their doors and turned their city into a ghost town.  Consider Boston on April 19th (of all days!) and compare that to how the subject peoples of London acted when the Nazis were bombing the ever loving fuck out of them!  Shame on you Boston.

In 1773, the people of Boston threw rocks, ice, and regularly assaulted their occupying force.  In 2013 your occupying force did this…

…and you called them heroes.

They amassed an ARMY(and in many cases literally an army when they used National Guardsmen) and they caught two little punks, the last one shivering, bleeding out, and hiding in a boat.  You brought out an army to crush an ant, all the while engaging a scorched earth campaign on liberty and especially the 4th Amendment, that would give Gen. Sherman a run for his money.

I love Boston, and I feel like it cheated on me.  Boston may well be the cutting edge on the second American Revolution.  Only this time, they’re demonstrating just how easily the American people can be subjugated.

And, well, despite the fact that the city may as well have been under martial law and I shouldn’t laugh, this is just plain funny:  Boston Police Request Dunkin’ Donuts Remains Open.

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