ADAM COHEN Wednesday, Aug. 25, 2010
Government agents can sneak onto your property in the middle of the night, put a GPS device on the bottom of your car and keep track of everywhere you go. This doesn't violate your Fourth Amendment rights, because you do not have any reasonable expectation of privacy in your own driveway — and no reasonable expectation that the government isn't tracking your movements.
That is the bizarre — and scary — rule that now applies in California and eight other Western states. The U.S. Court of Appeals for the Ninth Circuit, which covers this vast jurisdiction, recently decided the government can monitor you in this way virtually anytime it wants — with no need for a search warrant.
It is a dangerous decision — one that, as the dissenting judges warned, could turn America into the sort of totalitarian state imagined by George Orwell. It is particularly offensive because the judges added insult to injury with some shocking class bias: the little personal privacy that still exists, the court suggested, should belong mainly to the rich...
The judges veered into offensiveness when they explained why Pineda-Moreno's driveway was not private. It was open to strangers, they said, such as delivery people and neighborhood children, who could wander across it uninvited.
Chief Judge Alex Kozinski, who dissented from this month's decision refusing to reconsider the case, pointed out whose homes are not open to strangers: rich people's. The court's ruling, he said, means that people who protect their homes with electric gates, fences and security booths have a large protected zone of privacy around their homes. People who cannot afford such barriers have to put up with the government sneaking around at night.
Judge Kozinski is a leading conservative, appointed by President Ronald Reagan, but in his dissent he came across as a raging liberal. "There's been much talk about diversity on the bench, but there's one kind of diversity that doesn't exist," he wrote. "No truly poor people are appointed as federal judges, or as state judges for that matter." The judges in the majority, he charged, were guilty of "cultural elitism."
The court went on to make a second terrible decision about privacy: that once a GPS device has been planted, the government is free to use it to track people without getting a warrant. There is a major battle under way in the federal and state courts over this issue, and the stakes are high. After all, if government agents can track people with secretly planted GPS devices virtually anytime they want, without having to go to a court for a warrant, we are one step closer to a classic police state — with technology taking on the role of the KGB or the East German Stasi.
Fortunately, other courts are coming to a different conclusion from the Ninth Circuit's — including the influential U.S. Court of Appeals for the District of Columbia Circuit. That court ruled, also this month, that tracking for an extended period of time with GPS is an invasion of privacy that requires a warrant. The issue is likely to end up in the Supreme Court.
In these highly partisan times, GPS monitoring is a subject that has both conservatives and liberals worried. The U.S. Court of Appeals for the D.C. Circuit's pro-privacy ruling was unanimous — decided by judges appointed by Presidents Ronald Reagan, George W. Bush and Bill Clinton.
Plenty of liberals have objected to this kind of spying, but it is the conservative Chief Judge Kozinski who has done so most passionately. "1984 may have come a bit later than predicted, but it's here at last," he lamented in his dissent. And invoking Orwell's totalitarian dystopia where privacy is essentially nonexistent, he warned: "Some day, soon, we may wake up and find we're living in Oceania."
Full Article:
http://www.time.com/time/magazine/article/0,9171,2015765,00.html
Showing posts with label Fourth Amendment. Show all posts
Showing posts with label Fourth Amendment. Show all posts
Saturday, November 26, 2011
Tuesday, May 31, 2011
US Supreme Court gives green light to warrant-less searches of homes
By Tom Carter
19 May 2011
http://wsws.org/articles/2011/may2011/spct-m19.shtml
A decision Monday by the US Supreme Court represents a further major step in abolishing the basic civil liberties protections in the Bill of Rights and enhancing the arbitrary powers of the police. The decision permits police to conduct searches of private homes without a warrant under a mundane pretext.
The issue in the case, Kentucky v. King, decided 8-1, was whether the police should have obtained a search warrant before they kicked in the door of Hollis Deshaun King’s apartment, conducted a search, and found marijuana. King was sentenced to 11 years in prison.
The Fourth Amendment to the US Constitution, enacted in 1791 in the aftermath of the American Revolution, guarantees to the people “[t]he right … to be secure in their houses… against unreasonable searches and seizures.” The Fourth Amendment also requires that police seek the authorization of a neutral judge, in the form of a warrant, before undertaking a search or seizure. To obtain the warrant, the police are required to demonstrate “probable cause.”
The Fourth Amendment, together with the Third Amendment, which prohibits the government from quartering soldiers in private homes, arose out of a profound hatred and resentment towards arbitrary government intrusions into the home, as well as an understanding that protection of the privacy of the home is necessary to political freedom.
The US Supreme Court Justice Robert H. Jackson wrote in 1948 that the Fourth Amendment requirement that the government obtain a warrant to conduct a search is among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.”
In King’s case, no warrant was ever issued. The police, including an undercover officer, followed a person they believed was carrying drugs to King’s apartment complex, where one officer said he “smelled marijuana” outside King’s home. The officers, who had no warrant to search King’s apartment, decided not to seek a warrant and instead pounded loudly on the door, shouting “This is the police! Police! Police! Police!”
After not receiving an answer and hearing vaguely described “noises” coming from inside, the officers broke the door down, searched the apartment, and arrested King, his girlfriend, and a guest. As it turned out, the person the police had been following never entered King’s home.
Over the past several decades, the US Supreme Court has made Swiss cheese out of the Fourth Amendment’s warrant requirement, inventing myriad exceptions that together nearly swallow the rule. These exceptions cover a wide range of scenarios. Warrant-less searches of automobiles and warrant-less “frisks” of suspects, for example, have been tolerated for decades.
A number of “exigent circumstances” have already been found to justify a warrant-less search of a home. For example, police in “hot pursuit” may follow a suspect into his home, and police may also enter if they believe they can prevent “imminent injury.” Even so, the home remained one of the last places where the Fourth Amendment’s warrant requirement had any practical force. As recently as 2006, the Supreme Court wrote that “searches and seizures inside a home without a warrant are presumptively unreasonable.”
At his trial, King argued that the evidence discovered during the search of his apartment should be suppressed because the entry by police into his home was warrant-less and illegal. The trial court and the Kentucky Court of Appeals found that the search was legal despite the absence of a warrant, citing the “need to prevent destruction of evidence” as an “exigent circumstance” justifying the absence of a warrant.
The Kentucky Supreme Court reversed, suggesting that the officers “deliberately created the exigent circumstances with bad faith intent to avoid the warrant requirement.” The Kentucky Supreme Court further declared that the police could not rely on an exigency if “it was reasonably foreseeable that [police] investigative tactics … would create exigent circumstances.”
The “police-created exigency” doctrine, developed by the Kentucky Supreme Court as well as a number of other courts around the country, prevented police from deliberately manufacturing circumstances that would justify a warrant-less search, where the police could just have easily have obtained a warrant.
All but one justice on the US Supreme Court, including the erstwhile “liberal” Obama appointees Elena Kagan and Sonia Sotomayor, joined in the decision to eviscerate the “police-created exigency” doctrine.
The majority decision, authored by Samuel Alito, drips with dishonesty. For example, according to Alito, the police officers were not necessarily demanding entry into King’s apartment, in violation of the Fourth Amendment, when they pounded on the door without a warrant. “There is no evidence of a ‘demand’ of any sort,” Alito wrote. Perhaps, Alito suggests, the police merely wished “to speak with the occupants … before deciding whether it [was] worthwhile to seek authorization for a search.” Or perhaps, wrote Alito, the police wanted to ask King whether he would consent to a search.
Ruth Bader Ginsburg, in her brief dissent, makes clear that this decision will have devastating immediate consequences. “The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” she wrote.”In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”
In other words, for all practical purposes, all a police officer has to do in order to search a person’s house without a warrant is approach the front door, knock, listen, and then announce, “I think evidence is being destroyed!” Then the police may break down the door and search the house.
To anyone who has a brain and who is not one of the eight Supreme Court justices who joined the majority opinion, Alito’s reasoning will not pass the laugh test. Everyone knows that that a police officer is “demanding” entry when he, as the police officer did in this case, starts pounding “as loud as [he] could” on the front door and yelling, “This is the police! Police! Police! Police!”
Further, how could the police, standing outside, possibly know that “evidence” was being destroyed inside the apartment? At King’s trial, asked how he knew evidence was being destroyed, one officer responded, “It sounded as [though] things were being moved inside the apartment.”
Finally, it is obvious that the police could easily have sought a warrant before approaching King’s apartment. As Ginsburg observes sardonically, quoting past Supreme Court opinions, “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.”
But there is more to the Kentucky v. King decision than the patently ludicrous arguments of Alito and company. A central role of the US judiciary historically has been to act as a check on the executive branch, ensuring that from the president down to the sheriff, the executive operates within the bounds of the law. The Fourth Amendment warrant requirement is a central feature of that framework.
In a host of recent decisions, all of which in one way or another purport to show “deference” to the executive, whether for reasons of “national security,” “state secrets,” or the “exigencies” of police work, the Supreme Court is abandoning any effort to restrain the exercise of executive power. These decisions, taken together, effectively relegate a US judge to the same role as a judge in a police state, who functions merely as an after-the-fact rubber stamp for executive decisions.
This ruling enhances the arbitrary powers of the police and makes the security and privacy of the home even more dependent on the subjective whims of individual police officers.
In her dissent, Ginsburg quoted at some length a warning by Justice Jackson in 1948: “The right of officers to thrust themselves into a home is … a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not a policeman …”
The disappearance of this sentiment from the pages of majority opinions of the US Supreme Court should be taken as a warning of things to come.
19 May 2011
http://wsws.org/articles/2011/may2011/spct-m19.shtml
A decision Monday by the US Supreme Court represents a further major step in abolishing the basic civil liberties protections in the Bill of Rights and enhancing the arbitrary powers of the police. The decision permits police to conduct searches of private homes without a warrant under a mundane pretext.
The issue in the case, Kentucky v. King, decided 8-1, was whether the police should have obtained a search warrant before they kicked in the door of Hollis Deshaun King’s apartment, conducted a search, and found marijuana. King was sentenced to 11 years in prison.
The Fourth Amendment to the US Constitution, enacted in 1791 in the aftermath of the American Revolution, guarantees to the people “[t]he right … to be secure in their houses… against unreasonable searches and seizures.” The Fourth Amendment also requires that police seek the authorization of a neutral judge, in the form of a warrant, before undertaking a search or seizure. To obtain the warrant, the police are required to demonstrate “probable cause.”
The Fourth Amendment, together with the Third Amendment, which prohibits the government from quartering soldiers in private homes, arose out of a profound hatred and resentment towards arbitrary government intrusions into the home, as well as an understanding that protection of the privacy of the home is necessary to political freedom.
The US Supreme Court Justice Robert H. Jackson wrote in 1948 that the Fourth Amendment requirement that the government obtain a warrant to conduct a search is among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.”
In King’s case, no warrant was ever issued. The police, including an undercover officer, followed a person they believed was carrying drugs to King’s apartment complex, where one officer said he “smelled marijuana” outside King’s home. The officers, who had no warrant to search King’s apartment, decided not to seek a warrant and instead pounded loudly on the door, shouting “This is the police! Police! Police! Police!”
After not receiving an answer and hearing vaguely described “noises” coming from inside, the officers broke the door down, searched the apartment, and arrested King, his girlfriend, and a guest. As it turned out, the person the police had been following never entered King’s home.
Over the past several decades, the US Supreme Court has made Swiss cheese out of the Fourth Amendment’s warrant requirement, inventing myriad exceptions that together nearly swallow the rule. These exceptions cover a wide range of scenarios. Warrant-less searches of automobiles and warrant-less “frisks” of suspects, for example, have been tolerated for decades.
A number of “exigent circumstances” have already been found to justify a warrant-less search of a home. For example, police in “hot pursuit” may follow a suspect into his home, and police may also enter if they believe they can prevent “imminent injury.” Even so, the home remained one of the last places where the Fourth Amendment’s warrant requirement had any practical force. As recently as 2006, the Supreme Court wrote that “searches and seizures inside a home without a warrant are presumptively unreasonable.”
At his trial, King argued that the evidence discovered during the search of his apartment should be suppressed because the entry by police into his home was warrant-less and illegal. The trial court and the Kentucky Court of Appeals found that the search was legal despite the absence of a warrant, citing the “need to prevent destruction of evidence” as an “exigent circumstance” justifying the absence of a warrant.
The Kentucky Supreme Court reversed, suggesting that the officers “deliberately created the exigent circumstances with bad faith intent to avoid the warrant requirement.” The Kentucky Supreme Court further declared that the police could not rely on an exigency if “it was reasonably foreseeable that [police] investigative tactics … would create exigent circumstances.”
The “police-created exigency” doctrine, developed by the Kentucky Supreme Court as well as a number of other courts around the country, prevented police from deliberately manufacturing circumstances that would justify a warrant-less search, where the police could just have easily have obtained a warrant.
All but one justice on the US Supreme Court, including the erstwhile “liberal” Obama appointees Elena Kagan and Sonia Sotomayor, joined in the decision to eviscerate the “police-created exigency” doctrine.
The majority decision, authored by Samuel Alito, drips with dishonesty. For example, according to Alito, the police officers were not necessarily demanding entry into King’s apartment, in violation of the Fourth Amendment, when they pounded on the door without a warrant. “There is no evidence of a ‘demand’ of any sort,” Alito wrote. Perhaps, Alito suggests, the police merely wished “to speak with the occupants … before deciding whether it [was] worthwhile to seek authorization for a search.” Or perhaps, wrote Alito, the police wanted to ask King whether he would consent to a search.
Ruth Bader Ginsburg, in her brief dissent, makes clear that this decision will have devastating immediate consequences. “The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” she wrote.”In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”
In other words, for all practical purposes, all a police officer has to do in order to search a person’s house without a warrant is approach the front door, knock, listen, and then announce, “I think evidence is being destroyed!” Then the police may break down the door and search the house.
To anyone who has a brain and who is not one of the eight Supreme Court justices who joined the majority opinion, Alito’s reasoning will not pass the laugh test. Everyone knows that that a police officer is “demanding” entry when he, as the police officer did in this case, starts pounding “as loud as [he] could” on the front door and yelling, “This is the police! Police! Police! Police!”
Further, how could the police, standing outside, possibly know that “evidence” was being destroyed inside the apartment? At King’s trial, asked how he knew evidence was being destroyed, one officer responded, “It sounded as [though] things were being moved inside the apartment.”
Finally, it is obvious that the police could easily have sought a warrant before approaching King’s apartment. As Ginsburg observes sardonically, quoting past Supreme Court opinions, “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.”
But there is more to the Kentucky v. King decision than the patently ludicrous arguments of Alito and company. A central role of the US judiciary historically has been to act as a check on the executive branch, ensuring that from the president down to the sheriff, the executive operates within the bounds of the law. The Fourth Amendment warrant requirement is a central feature of that framework.
In a host of recent decisions, all of which in one way or another purport to show “deference” to the executive, whether for reasons of “national security,” “state secrets,” or the “exigencies” of police work, the Supreme Court is abandoning any effort to restrain the exercise of executive power. These decisions, taken together, effectively relegate a US judge to the same role as a judge in a police state, who functions merely as an after-the-fact rubber stamp for executive decisions.
This ruling enhances the arbitrary powers of the police and makes the security and privacy of the home even more dependent on the subjective whims of individual police officers.
In her dissent, Ginsburg quoted at some length a warning by Justice Jackson in 1948: “The right of officers to thrust themselves into a home is … a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not a policeman …”
The disappearance of this sentiment from the pages of majority opinions of the US Supreme Court should be taken as a warning of things to come.
Saturday, July 25, 2009
Liberty and Safety
http://www.lewrockwell.com/orig6/napolitano6.1.1.html
Liberty and Safety
by Andrew P. Napolitano
July 17, 2009
For a professor of law at one of the country's best law schools who was once the go-to guy in the Justice Department whenever the Bush White House needed legal cover for its truly lawless ventures outside the Constitution, John Yoo has revealed a breathtaking ignorance of American values, history, and jurisprudence.
In his startling mea culpa, published in the Wall Street Journal yesterday, Professor Yoo confessed to advising President Bush that he possessed powers from some source other than the Constitution, that in the name of public safety he could cut down all laws written for the express purpose of restraining the President, and that Americans would expect no less than this so long as they were actually kept safe as a result of it.
He advanced the argument that since the President's first job is to keep us safe, he could disregard the 1978 FISA law as "obsolete" since it was written in an era when modern day non-state terrorism was not contemplated. By this unprecedented and perverse logic, one wonders if the President was told if he could disregard as obsolete any law that was inconvenient to his purposes; even the Supreme Law of the Land itself, which the Constitution declares itself to be.
The whole purpose of FISA was to abolish the Nixonian notion that "If the President does it, it's not illegal." While FISA's statutory reduction of the constitutionally-mandated standard for obtaining a judicial search warrant – from probable cause of crime to probable cause of foreign status – is itself of dubious constitutionality, nevertheless, it is and was at the time Professor Yoo was telling President Bush to disregard it, the "exclusive" lawful means for agents of the President to wiretap foreign persons present in the U.S. Moreover, the FISA court has become the President's rubber stamp by granting well over 99% of requested warrants.
It is not painless for one who loathes this law to defend it; but it was among the laws that the President and the Professor swore to uphold, it does force the executive branch to identify and specify who and what it wishes to pursue, and it presents at least a minimum of checking and balancing by forcing the President to go before a super-secret court (without an adversary present) and seek permission to violate the Fourth Amendment-guaranteed rights of the President's targets.
The time-is-of-the essence argument is nonsense. I once issued a search warrant in my gym shorts from my living room at 3 am, and I know of a former FISA court judge who did the same from his cell phone while riding a motorcycle. While neither of these situations is optimal, there are at least written records of what was done to whom and why; and that was a goal of the law which President Bush was told was obsolete.
The Framers never contemplated FISA, and I cannot conceive of Jefferson, Madison, or even Hamilton condoning it. But one thing we know the Framers would never condone is a government that refused to reside within the Constitution; "chained down" by it as Jefferson once said.
The Founders, unlike John Yoo and George Bush, feared a king who enforced only the laws he found convenient to his present needs, who dispatched his agents with their own self-generated search warrants to knock on any door and seize any thing they or the king wanted, and who claimed to be doing all this for safety's sake.
Cutting down the laws to get at the Devil is dangerous business. As Robert Bolt argued in A Man for All Seasons, the land is planted thick with laws. If you cut them down to get to the Devil, who could stand the wind that then would blow?
When President Lincoln and the Radical Republicans tried civilians in military tribunals in the North, hundreds of miles from battle, and in the South after the Civil War had ended, a unanimous Supreme Court stopped them. It declared that "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."
President Bush argued frequently and forcefully that his first job was to keep us safe. He was wrong. The Constitution tells us that his sole job was to enforce the Constitution; and that means keeping us free. Free from tyrants who sought and claimed power from thin air; free from prince-like federal agents who could behave without constitutional or legal restraint; free to live with a government that obeyed its own laws. Any president who keeps us safe but unfree is rejecting his oath to the American people.
Andrew P. Napolitano, who was on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His newest book, coming in April, is Dred Scott’s Revenge: A Legal History of Race and Freedom in America, (Nelson, 2009) His previous books are A Nation of Sheep, The Constitution in Exile and Constitutional Chaos: What Happens When the Government Breaks Its Own Laws.
Liberty and Safety
by Andrew P. Napolitano
July 17, 2009
For a professor of law at one of the country's best law schools who was once the go-to guy in the Justice Department whenever the Bush White House needed legal cover for its truly lawless ventures outside the Constitution, John Yoo has revealed a breathtaking ignorance of American values, history, and jurisprudence.
In his startling mea culpa, published in the Wall Street Journal yesterday, Professor Yoo confessed to advising President Bush that he possessed powers from some source other than the Constitution, that in the name of public safety he could cut down all laws written for the express purpose of restraining the President, and that Americans would expect no less than this so long as they were actually kept safe as a result of it.
He advanced the argument that since the President's first job is to keep us safe, he could disregard the 1978 FISA law as "obsolete" since it was written in an era when modern day non-state terrorism was not contemplated. By this unprecedented and perverse logic, one wonders if the President was told if he could disregard as obsolete any law that was inconvenient to his purposes; even the Supreme Law of the Land itself, which the Constitution declares itself to be.
The whole purpose of FISA was to abolish the Nixonian notion that "If the President does it, it's not illegal." While FISA's statutory reduction of the constitutionally-mandated standard for obtaining a judicial search warrant – from probable cause of crime to probable cause of foreign status – is itself of dubious constitutionality, nevertheless, it is and was at the time Professor Yoo was telling President Bush to disregard it, the "exclusive" lawful means for agents of the President to wiretap foreign persons present in the U.S. Moreover, the FISA court has become the President's rubber stamp by granting well over 99% of requested warrants.
It is not painless for one who loathes this law to defend it; but it was among the laws that the President and the Professor swore to uphold, it does force the executive branch to identify and specify who and what it wishes to pursue, and it presents at least a minimum of checking and balancing by forcing the President to go before a super-secret court (without an adversary present) and seek permission to violate the Fourth Amendment-guaranteed rights of the President's targets.
The time-is-of-the essence argument is nonsense. I once issued a search warrant in my gym shorts from my living room at 3 am, and I know of a former FISA court judge who did the same from his cell phone while riding a motorcycle. While neither of these situations is optimal, there are at least written records of what was done to whom and why; and that was a goal of the law which President Bush was told was obsolete.
The Framers never contemplated FISA, and I cannot conceive of Jefferson, Madison, or even Hamilton condoning it. But one thing we know the Framers would never condone is a government that refused to reside within the Constitution; "chained down" by it as Jefferson once said.
The Founders, unlike John Yoo and George Bush, feared a king who enforced only the laws he found convenient to his present needs, who dispatched his agents with their own self-generated search warrants to knock on any door and seize any thing they or the king wanted, and who claimed to be doing all this for safety's sake.
Cutting down the laws to get at the Devil is dangerous business. As Robert Bolt argued in A Man for All Seasons, the land is planted thick with laws. If you cut them down to get to the Devil, who could stand the wind that then would blow?
When President Lincoln and the Radical Republicans tried civilians in military tribunals in the North, hundreds of miles from battle, and in the South after the Civil War had ended, a unanimous Supreme Court stopped them. It declared that "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."
President Bush argued frequently and forcefully that his first job was to keep us safe. He was wrong. The Constitution tells us that his sole job was to enforce the Constitution; and that means keeping us free. Free from tyrants who sought and claimed power from thin air; free from prince-like federal agents who could behave without constitutional or legal restraint; free to live with a government that obeyed its own laws. Any president who keeps us safe but unfree is rejecting his oath to the American people.
Andrew P. Napolitano, who was on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His newest book, coming in April, is Dred Scott’s Revenge: A Legal History of Race and Freedom in America, (Nelson, 2009) His previous books are A Nation of Sheep, The Constitution in Exile and Constitutional Chaos: What Happens When the Government Breaks Its Own Laws.
Monday, June 29, 2009
Strip search of teen was unconstitutional
Robalini's Note: In an 8-1 decision, the Supreme Court ruled the strip search of a 13-year-old girl by Arizona school officials violated the Fourth Amendment. In his solitary dissent, Clarence Thomas wrote: "If a guy can't check out a teenage bitch naked, then what's the point of becoming a principal in the first place?"
http://www.latimes.com/news/nationworld/nation/la-na-court-strip-search26-2009jun26,0,5149828.story
Strip search of teen was unconstitutional, Supreme Court rules
The high court says the search of a 13-year-old girl at an Arizona middle school was unjustified. But justices reject the suit against school employees, saying the law had not been clear.
By David G. Savage
June 25, 2009
Reporting from Washington -- The strip search of a 13-year-old school girl who was suspected of hiding pain-relief pills was unreasonable and unconstitutional, the Supreme Court ruled today, setting new legal limits on how far school officials may go to inspect for drugs on campus.
In an 8-1 decision, the high court called a strip search at school "categorically distinct" from other inspections for drugs and so degrading that it usually cannot be justified.
The justices said a search of a student's backpack or outer clothing was reasonable whenever a school employee had sufficient suspicion that the student was hiding something illegal, such as drugs or a weapon.
But requiring a student to remove her clothes required a "quantum leap" of suspicion and wrongdoing to be justified, the court said.
Its ruling was a partial victory for Savana Redding and her mother, April, who sued the vice principal of her Arizona middle school over a strip search in 2003. The vice principal was told by another girl that Savana had brought extra-strength ibuprofen pills to school and planned to give them to other students.
She was questioned and denied having the pills. Her backpack was searched as well. When no pills were found, the vice principal sent her to a nurse's office, where she was ordered to remove her clothes.
No pills were found, but school officials did not apologize to the girl or her mother. The two sued the employees and the Safford Unified School District, contending the strip search violated Savana's rights under the 4th Amendment, which forbids "unreasonable searches" by the government.
In today's ruling, the justices agreed the search itself was unconstitutional, but they also rejected the suit against the school employees because the law had not been clear.
The decision sets a standard for all future school searches, but it may result in no compensation for Savana and her mother. The court sent the case back to Arizona to consider whether the school district itself may face some liability.
In Safford vs. Redding, Justice David H. Souter said the vice principal had reasonable grounds for questioning the students about drugs, but he went way too far.
"In sum, what was missing," Souter said, "was an indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that combination of these deficiencies was fatal to finding the search reasonable," he wrote.
Only Justice Clarence Thomas dissented. He complained the ruling "grants judges sweeping authority to second guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge."
Meanwhile, Justices John Paul Stevens and Ruth Bader Ginsburg would have gone further and upheld a liability ruling against the school officials in this case. "I have long believed that it does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude," Stevens wrote.
http://www.latimes.com/news/nationworld/nation/la-na-court-strip-search26-2009jun26,0,5149828.story
Strip search of teen was unconstitutional, Supreme Court rules
The high court says the search of a 13-year-old girl at an Arizona middle school was unjustified. But justices reject the suit against school employees, saying the law had not been clear.
By David G. Savage
June 25, 2009
Reporting from Washington -- The strip search of a 13-year-old school girl who was suspected of hiding pain-relief pills was unreasonable and unconstitutional, the Supreme Court ruled today, setting new legal limits on how far school officials may go to inspect for drugs on campus.
In an 8-1 decision, the high court called a strip search at school "categorically distinct" from other inspections for drugs and so degrading that it usually cannot be justified.
The justices said a search of a student's backpack or outer clothing was reasonable whenever a school employee had sufficient suspicion that the student was hiding something illegal, such as drugs or a weapon.
But requiring a student to remove her clothes required a "quantum leap" of suspicion and wrongdoing to be justified, the court said.
Its ruling was a partial victory for Savana Redding and her mother, April, who sued the vice principal of her Arizona middle school over a strip search in 2003. The vice principal was told by another girl that Savana had brought extra-strength ibuprofen pills to school and planned to give them to other students.
She was questioned and denied having the pills. Her backpack was searched as well. When no pills were found, the vice principal sent her to a nurse's office, where she was ordered to remove her clothes.
No pills were found, but school officials did not apologize to the girl or her mother. The two sued the employees and the Safford Unified School District, contending the strip search violated Savana's rights under the 4th Amendment, which forbids "unreasonable searches" by the government.
In today's ruling, the justices agreed the search itself was unconstitutional, but they also rejected the suit against the school employees because the law had not been clear.
The decision sets a standard for all future school searches, but it may result in no compensation for Savana and her mother. The court sent the case back to Arizona to consider whether the school district itself may face some liability.
In Safford vs. Redding, Justice David H. Souter said the vice principal had reasonable grounds for questioning the students about drugs, but he went way too far.
"In sum, what was missing," Souter said, "was an indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that combination of these deficiencies was fatal to finding the search reasonable," he wrote.
Only Justice Clarence Thomas dissented. He complained the ruling "grants judges sweeping authority to second guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge."
Meanwhile, Justices John Paul Stevens and Ruth Bader Ginsburg would have gone further and upheld a liability ruling against the school officials in this case. "I have long believed that it does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude," Stevens wrote.
Thursday, October 11, 2007
2 Patriot Act provisions ruled unlawful
http://www.boston.com/news/nation/articles/2007/09/26/2_patriot_act_provisions_ruled_unlawful/
2 Patriot Act provisions ruled unlawful
By William McCall, Associated Press Writer
September 26, 2007
PORTLAND, Ore. --Two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of probable cause, a federal judge ruled Wednesday.
U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, "now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment."
Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the federal government after he was mistakenly linked by the FBI to the Madrid train bombings that killed 191 people in 2004.
The federal government apologized and settled part of the lawsuit for $2 million after admitting a fingerprint was misread. But as part of the settlement, Mayfield retained the right to challenge parts of the Patriot Act, which greatly expanded the authority of law enforcers to investigate suspected acts of terrorism.
Mayfield claimed that secret searches of his house and office under the Foreign Intelligence Surveillance Act violated the Fourth Amendment's guarantee against unreasonable search and seizure. Aiken agreed with Mayfield, repeatedly criticizing the government.
"For over 200 years, this Nation has adhered to the rule of law -- with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised," she wrote.
By asking her to dismiss Mayfield's lawsuit, the judge said, the U.S. attorney general's office was "asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so."
Elden Rosenthal, an attorney for Mayfield, issued a statement on his behalf praising the judge, saying she "has upheld both the tradition of judicial independence, and our nation's most cherished principle of the right to be secure in one's own home."
Justice Department spokesman Peter Carr said the agency was reviewing the decision, and he declined to comment further.
The ruling probably won't have any immediate affect on enforcement under the Patriot Act, according to legal experts who predicted the government would quickly appeal.
"But it's an important first step," said Jameel Jaffer, director of the American Civil Liberties Union's national security project.
Jaffer noted that the Patriot Act carries dozens of provisions and that several have been challenged -- but that this is one of the first major rulings on Fourth Amendment rights.
"This is as clear a violation of the Fourth Amendment as you'll ever find," Jaffer said.
Garrett Epps, a constitutional law expert at the University of Oregon, said the ruling adds to the poor record that the Bush administration has piled up in defending the Patriot Act.
"It's embarrassing," Epps said. "It represents another judicial repudiation of this administration's terrorist surveillance policies."
A federal judge in New York this month handed the ACLU a victory in a challenge to the Patriot Act on behalf of an Internet service provider that was issued a "national security letter" demanding customer phone and computer records. The judge in that case ruled the FBI must justify to a court the need for secrecy for more than a brief and reasonable period of time.
Mayfield, a Muslim convert, was taken into custody on May 6, 2004, because of a fingerprint found on a detonator at the scene of the Madrid bombing. The FBI said the print matched Mayfield's. He was released about two weeks later, and the FBI admitted it had erred in saying the fingerprints were his and later apologized to him.
Before his arrest, the FBI put Mayfield under 24-hour surveillance, listened to his phone calls and surreptitiously searched his home and law office.
The Mayfield case has been an embarrassment for the federal government. Last year, the Justice Department's internal watchdog faulted the FBI for sloppy work in mistakenly linking Mayfield to the Madrid bombings. That report said federal prosecutors and FBI agents had made inaccurate and ambiguous statements to a federal judge to get arrest and criminal search warrants against Mayfield.
Congress passed the Patriot Act with little debate shortly after the Sept. 11, 2001, attacks to help counter terrorist activities. It gave federal law enforcers the authority to search telephone and e-mail communications and expanded the Treasury Department's regulation of financial transactions involving foreign nationals. The law was renewed in 2005.
In early August, the Bush administration persuaded lawmakers to expand the government's power to listen in on any foreign communication it deemed of interest without a court order, even if an American was a party. The expanded surveillance authority expires early next year. As Congress takes a closer look at the law, many Democrats want to rein in language that many consider overly broad.
2 Patriot Act provisions ruled unlawful
By William McCall, Associated Press Writer
September 26, 2007
PORTLAND, Ore. --Two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of probable cause, a federal judge ruled Wednesday.
U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, "now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment."
Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the federal government after he was mistakenly linked by the FBI to the Madrid train bombings that killed 191 people in 2004.
The federal government apologized and settled part of the lawsuit for $2 million after admitting a fingerprint was misread. But as part of the settlement, Mayfield retained the right to challenge parts of the Patriot Act, which greatly expanded the authority of law enforcers to investigate suspected acts of terrorism.
Mayfield claimed that secret searches of his house and office under the Foreign Intelligence Surveillance Act violated the Fourth Amendment's guarantee against unreasonable search and seizure. Aiken agreed with Mayfield, repeatedly criticizing the government.
"For over 200 years, this Nation has adhered to the rule of law -- with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised," she wrote.
By asking her to dismiss Mayfield's lawsuit, the judge said, the U.S. attorney general's office was "asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so."
Elden Rosenthal, an attorney for Mayfield, issued a statement on his behalf praising the judge, saying she "has upheld both the tradition of judicial independence, and our nation's most cherished principle of the right to be secure in one's own home."
Justice Department spokesman Peter Carr said the agency was reviewing the decision, and he declined to comment further.
The ruling probably won't have any immediate affect on enforcement under the Patriot Act, according to legal experts who predicted the government would quickly appeal.
"But it's an important first step," said Jameel Jaffer, director of the American Civil Liberties Union's national security project.
Jaffer noted that the Patriot Act carries dozens of provisions and that several have been challenged -- but that this is one of the first major rulings on Fourth Amendment rights.
"This is as clear a violation of the Fourth Amendment as you'll ever find," Jaffer said.
Garrett Epps, a constitutional law expert at the University of Oregon, said the ruling adds to the poor record that the Bush administration has piled up in defending the Patriot Act.
"It's embarrassing," Epps said. "It represents another judicial repudiation of this administration's terrorist surveillance policies."
A federal judge in New York this month handed the ACLU a victory in a challenge to the Patriot Act on behalf of an Internet service provider that was issued a "national security letter" demanding customer phone and computer records. The judge in that case ruled the FBI must justify to a court the need for secrecy for more than a brief and reasonable period of time.
Mayfield, a Muslim convert, was taken into custody on May 6, 2004, because of a fingerprint found on a detonator at the scene of the Madrid bombing. The FBI said the print matched Mayfield's. He was released about two weeks later, and the FBI admitted it had erred in saying the fingerprints were his and later apologized to him.
Before his arrest, the FBI put Mayfield under 24-hour surveillance, listened to his phone calls and surreptitiously searched his home and law office.
The Mayfield case has been an embarrassment for the federal government. Last year, the Justice Department's internal watchdog faulted the FBI for sloppy work in mistakenly linking Mayfield to the Madrid bombings. That report said federal prosecutors and FBI agents had made inaccurate and ambiguous statements to a federal judge to get arrest and criminal search warrants against Mayfield.
Congress passed the Patriot Act with little debate shortly after the Sept. 11, 2001, attacks to help counter terrorist activities. It gave federal law enforcers the authority to search telephone and e-mail communications and expanded the Treasury Department's regulation of financial transactions involving foreign nationals. The law was renewed in 2005.
In early August, the Bush administration persuaded lawmakers to expand the government's power to listen in on any foreign communication it deemed of interest without a court order, even if an American was a party. The expanded surveillance authority expires early next year. As Congress takes a closer look at the law, many Democrats want to rein in language that many consider overly broad.
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