Tag: 4th amendment

A Florida Man Was Arrested for Filming Marion County Sheriff’s Deputies. Now He’s Suing.

A Florida man has filed a federal civil rights lawsuit three years after a Marion County sheriff’s deputy arrested him for filming officers from a public sidewalk.

In 2021, Marion County Sheriff’s Deputy Neil Rosaci arrested George Nathansen and charged him with obstruction of justice for refusing to follow his orders to leave the scene of an investigation. However, body camera footage showed Nathansen standing at least 30 feet away on a public sidewalk before Rosaci walked over and handcuffed him.

In Nathansen’s lawsuit, filed last Friday in the U.S. District Court for the Middle District of Florida, he alleges that Rosaci and the Marion County Sheriff’s Office (MCSO) violated his Fourth Amendment and Fourteenth Amendment rights by falsely arresting and incarcerating him.

Numerous federal appeals courts have ruled that filming the police is protected under the First Amendment, but police around the country continue to illegally arrest people for it. The Justice Department released a report this month on pervasive civil rights violations by the Phoenix Police Department, including retaliating against citizens who were trying to record them. Earlier this year, Texas prosecutors dropped charges against a citizen journalist who was arrested, strip-searched, and jailed for filming police.

Nathansen’s case is yet another example of police retaliation against someone for core First Amendment activities.

The incident began on July 24, 2021, when Rosaci arrived at the scene of a car crash. While deputies were talking to the two parties involved in the accident, Nathansen arrived and began filming with his cell phone. There are a growing number of self-styled “First Amendment auditors” around the country who record police interactions and post them online. (In response to alleged harassment, several states have passed dubious “buffer-zone” laws that criminalize being too close to a first responder.) 

Rosaci’s body camera footage, obtained by the Ocala Post, showed that Nathansen was filming near the deputies’ cars when Rosaci first shooed him away and told him, “You can stand on the sidewalk over there.”

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Michigan Supreme Court Allows Evidence Collected by Drone, Without a Warrant

Last week, the Michigan Supreme Court ruled unanimously that evidence collected illegally could still be used to enforce civil penalties.

Todd and Heather Maxon keep cars on their five-acre property in Long Lake Township. The township sued in 2007, alleging that the Maxons were violating a zoning ordinance by keeping “junk” on the property. When the Maxons fought back, the township agreed to drop the charges and reimburse attorney fees, and in exchange, the Maxons would not expand the number of cars on the property.

Township officials heard that the Maxons’ collection was growing, but the cars were hidden from the road, so they had no way to verify it without a warrant—or so you would think. Instead, officials hired a company to surveil the property with aerial drones on three different occasions. Finding that the collection had indeed expanded, the township sued the Maxons for violating the agreement.

The Maxons filed to suppress the drone evidence as a Fourth Amendment violation, since the township never obtained a warrant. The case made its way to the Michigan Supreme Court, which heard oral arguments in October. The court had previously remanded the case back to the Michigan Court of Appeals to determine “whether the exclusionary rule applies to this dispute.” The exclusionary rule holds that evidence obtained illegally cannot be introduced at trial.

Last week, in a unanimous decision, the Michigan Supreme Court sided with the township. “The exclusionary rule may not be applied to civil enforcement proceedings that effectuate local zoning and nuisance ordinances,” wrote Justice Brian Zahra, adding that “the costs of excluding the drone evidence outweighed the benefits of suppressing it.”

“Generally, the exclusionary rule operates to exclude or suppress evidence in certain legal
proceedings if the evidence is obtained in violation of a person’s constitutional rights,” Zahra wrote. “Caselaw, however, has never suggested that the exclusionary rule bars the introduction of illegally seized evidence in all proceedings or against all persons. Given the history of the rule, it is only applicable when the objective of deterring wrongful law enforcement conduct is most effectively met.”

The court of appeals originally determined that the search had violated the Fourth Amendment before the higher court sent it back for further consideration. “Because the Supreme Court limited our review to the exclusionary rule’s role in this dispute, we proceed by assuming that a Fourth Amendment violation occurred,” wrote Chief Judge Elizabeth Gleicher of the Michigan Court of Appeals.

But the state supreme court punted on that issue: “Because the exclusionary rule did not apply in this civil proceeding to enforce zoning and nuisance ordinances,” Zahra wrote, “the Court declined to address whether the use of an aerial drone under the circumstances of this case was an unreasonable search or seizure for purposes of the United States or Michigan Constitutions.”

In other words, the state’s highest court decided that it was irrelevant whether the search violated the Fourth Amendment because the evidence would not be excluded either way, so long as the search was conducted to investigate civil and not criminal violations.

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Killing the Constitution

In the last days of East Germany, when government officials detected that their power was unraveling, they ratcheted up enforcement of the nation’s reporting laws. The reporting laws made it a felony to know of a crime and fail to report it. It was also a crime to tell the person of whose crime you learned that you had done so. There was no right to privacy and there was no freedom of speech.

This Orwellian tangle resulted, of course, in many false reports of crimes. It also resulted in many prosecutions for failing to report crimes or for warning others that they were being spied upon. As of this past weekend, we in America are headed to the same authoritarian place. Thanks to legislation that fell one vote short of demise in each house of Congress last weekend, America in 2024 will soon resemble East Germany in the late 1980s, where nearly everyone was a spy and no one could talk about it.

Here is the backstory.

The quintessential American right is the right to be left alone. Justice Louis Brandeis called it the most comprehensive of rights and the right most valued by civilized persons. It presumes that you can think as you wish and say what you think and read what you want and publish what you say, that you can exclude whomever you wish – including the government – from your property and from your thoughts; and that you can do all this without a government permission slip or fear of government reprisal.

This natural right is also protected in the Fourth Amendment to the Constitution, which requires a warrant issued by a judge based upon probable cause of crime before the government can invade your property or spy on you.

The warrant requirement serves three purposes.

The first is to force the government to stay in the lane of crime solving, rather than crime predicting.

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Down with Big Brother: Warrantless Surveillance Makes a Mockery of the Constitution

“Whether he wrote DOWN WITH BIG BROTHER, or whether he refrained from writing it, made no difference … The Thought Police would get him just the same … the arrests invariably happened at night … In the vast majority of cases there was no trial, no report of the arrest. People simply disappeared, always during the night. Your name was removed from the registers, every record of everything you had ever done was wiped out, your one-time existence was denied and then forgotten. You were abolished, annihilated: vaporized was the usual word.”—George Orwell, 1984

The government long ago sold us out to the highest bidder.

The highest bidder, by the way, has always been the Deep State.

What’s playing out now with the highly politicized tug-of-war over whether Section 702 of the Foreign Intelligence Surveillance Act gets reauthorized by Congress doesn’t just sell us out, it makes us slaves of the Deep State.

Read the fine print: it’s a doozy.

Just as the USA Patriot was perverted from its stated intent to fight terrorism abroad and was instead used to covertly crack down on the American people (allowing government agencies to secretly track Americans’ financial activities, monitor their communications, and carry out wide-ranging surveillance on them), Section 702 has been used as an end-run around the Constitution to allow the government to collect the actual content of your conversations (phone calls, text messages, video chats, emails and other electronic communication) without a warrant.

Now intelligence officials are pushing to dramatically expand the government’s spying powers, effectively giving the government unbridled authority to force millions of Americans to spy on its behalf.

Basically, the Deep State wants to turn the American people into extensions of Big Brother.

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Biden Opposes Bill That Would Keep Cops and Feds From Buying Your Data

A bipartisan group of lawmakers is once again trying to keep the government from performing an end run around the Fourth Amendment by buying people’s personal data. This week, President Joe Biden indicated that he opposed the bill.

H.R. 4639, known as the Fourth Amendment Is Not For Sale Act, “expands prohibited disclosures of stored electronic communications” to include purchases of data by law enforcement and intelligence agencies.

First introduced in 2021 by Sens. Ron Wyden (D–Ore.), Rand Paul (R–Ky.), Patrick Leahy (D–Vt.), and Mike Lee (R–Utah), the bill has been reintroduced in subsequent sessions. The current version was introduced in the House by Rep. Warren Davidson (R–Ohio) and in the Senate by Wyden and Paul.

On Wednesday, Rep. Jerrold Nadler (D–N.Y.), ranking member of the House Judiciary Committee and one of the House bill’s cosponsors, affirmed his support on the House floor. “That anyone should have Americans’ private information is highly troubling to me,” Nadler said. “But that our federal government can obtain it without a warrant should be troubling to all of us.”

On Tuesday, the White House announced that the Biden administration “strongly opposes” the bill. According to a Statement of Administration Policy, the bill “generally would prohibit the Intelligence Community and law enforcement from obtaining certain commercially available information—subject only to narrow, unworkable exceptions.”

The Stored Communications Act forbids technology companies from disclosing certain subscriber information, including to the government. But certain types of data—including search histories, credit reports, employment records, and cellphone geolocation data—is “commercially available” and can be sold by third parties called data brokers. Often this data is purchased by private companies in order to better tailor their ad spending.

Governments typically need a warrant to access any of that type of information—as recently as 2018, the Supreme Court affirmed in Carpenter v. United States that the government cannot access a person’s cellphone location data without a warrant. “Although such records are generated for commercial purposes,” wrote Chief Justice John Roberts, that alone did not “negate” the plaintiff’s expectation of privacy. “We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information.”

Put simply: Come back with a warrant.

But instead of honoring that decision, law enforcement and intelligence agencies just started buying the information from data brokers instead: The National Security Agency (NSA) buys people’s internet metadata, and agencies within the Department of Homeland Security—including Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP)—purchase cellphone location data.

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The CIA Wants More Power To Spy on Americans

Americans need to be aware of the unbridled propensity of federal intelligence agencies to spy on all of us without search warrants as required by the Fourth Amendment to the U.S. Constitution.

These agencies believe that the Fourth Amendment – which protects the individual right to privacy – only regulates law enforcement and does not apply to domestic spying.

There is no basis in the constitutional text, history or judicial interpretations for such a limiting and toothless view of this constitutional guarantee. The courts have held that the Fourth Amendment restrains government – all government. Last week, the CIA asked Congress to expand its current spying in the United States.

Here is the backstory.

When the CIA was created in 1947, members of Congress who feared the establishment here of the type of domestic surveillance apparatus that the Allies had just defeated in Germany insisted that the new CIA have no role in American law enforcement and no legal ability to spy within the U.S. The legislation creating the CIA contains those unambiguous limitations.

Nevertheless, we know that CIA agents are present in all 50 statehouses in the United States. They didn’t arrive there until after Dec. 4, 1981. That’s the date that President Ronald Reagan signed Executive Order 12333, which purports to give the CIA authority to spy in America – supposedly looking for narcotics from foreign countries – but keeps from law enforcement whatever it finds.

Stated differently, while Reagan purported to authorize the CIA to defy the limitations imposed upon it by the Constitution and by federal law, he insisted on a “wall” of separation between domestic spying and law enforcement.

So, if the CIA using unconstitutional spying discovered that a janitor in the Russian Embassy in Washington was really a KGB colonel who abused his wife in their suburban Maryland home, under E.O. 12333, it could continue to spy upon him in defiance of the Fourth Amendment and the CIA charter, but it could not reveal to Maryland prosecutors – who can only use evidence lawfully obtained – any evidence of his domestic violence.

All this changed 20 years later when President George W. Bush demolished Reagan’s “wall” between law enforcement and domestic spying and directed the CIA and other domestic spying agencies to share the fruits of their spying with the FBI.

Thus, thanks to Reagan and Bush, and their successors looking the other way, CIA agents have been engaging in fishing expeditions on a grand scale inside the U.S. for the past 20 years. Congress knows about this because all intelligence agencies are required by statute to report the extent of their spying secretly to the House and Senate Intelligence Committees.

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Study Estimates Nearly 96% of Private Property Is Open to Warrantless Searches

Police can traipse onto the vast majority of private property in the country without a warrant thanks to a century-old Supreme Court decision, according to a new study by the Institute for Justice, a libertarian-leaning public-interest law firm.

In a study published in the spring 2024 issue of Regulation, a publication of the Cato Institute, Institute for Justice attorney Josh Windham and research analyst David Warren estimate that at least 96 percent of all private land in the country is excluded from Fourth Amendment’s warrant requirement under the “open-fields doctrine,” which allows police to forego warrants when they searched fields, woods, vacant lots, and other property not near a dwelling.

That adds up to nearly 1.2 billion acres open to government trespass, and the Institute for Justice says that’s a conservative estimate. The organization also says the study is the first attempt to quantify how much private property is affected by the Supreme Court’s 1924 ruling in Hester v. U.S., which created the doctrine.

“Now we have hard data showing that the Supreme Court’s century-old error blew a massive hole in Americans’ property and privacy rights,” Windham said in a press release. “Now we know what the open fields doctrine really means: Government officials can treat almost all private land in this country like public property.”

Windham added that “courts and lawmakers across the country will have to face the consequences of keeping this doctrine on the books.” 

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Cops Arrested Him for a Fictitious Traffic Violation Because He Flipped Them Off

On a Friday night in July 2018, Des Moines police officers Ryan Steinkamp and Brian Minnehan saw Domeco Fugenschuh, a 22-year-old black man, driving west on Hickman Road. Steinkamp and Minnehan, both white, were assigned to a “special enforcement team” focused on illegal guns, drugs, and gang activity. They had no reason to believe Fugenschuh was involved with any of that, but they decided to follow him anyway because he “sat up slightly” and “turned his head to stare at the officers” as he passed them.

After the cops followed Fugenschuh for several blocks, he expressed his irritation at the unjustified attention by giving them the finger. Steinkamp and Minnehan did not like that, so they continued following Fugenschuh and pulled him over for an invented traffic violation. During the stop, the officers handcuffed Fugenschuh, roughed him up, searched his car, and arrested him for the alleged traffic infraction. They also charged him with marijuana possession after the car search turned up a bit of pot and a portable phone charger that they mistakenly thought was a digital scale.

When Fugenschuh sued Steinkamp and Minnehan for a litany of constitutional violations, they argued that they were shielded by qualified immunity, which bars federal civil rights claims against government officials unless their alleged misconduct violated “clearly established” law. Last Saturday, U.S. Chief Magistrate Judge Helen C. Adams rejected that defense, ruling that a jury should hear Fugenschuh’s allegations because it might reasonably conclude that Steinkamp and Minnehan ignored constraints that should be familiar to every police officer in the country.

The decision was a small victory for civil liberties, and the abuses that Fugenschuh suffered pale beside the sort of outrageous police conduct that tends to attract national attention. But this run-of-the-mill case nicely illustrates the wide discretion that the Supreme Court has given police officers to harass motorists for no good reason—leeway that cops nevertheless manage to exceed on a regular basis.

The facts of the traffic stop are mostly undisputed, conceded by the officers and/or verified by dash and body camera footage. Steinkamp and Minnehan pulled Fugenschuh over after he stopped at a red light, signaled a right turn, and turned onto 30th Street. When Steinkamp approached Fugenschuh’s car, he initially refused to explain the justification for the stop. Instead he ordered Fugenschuh out of the car and handcuffed him.

After Fugenschuh “asked numerous times why he was stopped,” Steinkamp claimed Fugenschuh had “cut off” a car that was moving north on 30th Street, as evidenced by the fact that the driver had applied his brakes. Fugenschuh disputed that account, which apparently irked Steinkamp, who “proceeded to bend Fugenschuh over the hood of the patrol car,” “pull his handcuffed arms up above his body,” and push his face into the hood of the car.

While frisking Fugenschuh, Steinkamp asked if he had insurance, at which point Fugenschuh began cursing at the cops. “You’re going to jail now,” Steinkamp responded.

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Texas Cops Held a Terrified Couple at Gunpoint After Raiding the Wrong House

Tyler Harrington and his wife were asleep in their beds when four Harris County, Texas, Constable Officers burst into their home and held the terrified couple at gunpoint. While the cops eventually realized they were in the wrong house, they didn’t leave without admonishing the couple for keeping their door unlocked.

Harrington has now filed a lawsuit, arguing that the officers’ invasion of his home was an unconstitutional breach of his Fourth Amendment protections against unreasonable search and seizure.

On September 24, 2022, Officer James Lancaster responded to a call from a woman, named “Mrs. H” in the complaint, who said that she heard a knock at her back door. Lancaster spoke to Mrs. H and examined the outside of her property, finding nothing suspicious. 

Mrs. H also told Lancaster that her daughter and her daughter’s boyfriend would arrive to check out the house themselves. Mrs. H then decided to “get in her car and drive around until others came home.” When Mrs. H’s daughter and her boyfriend arrived, another neighbor, named “Mr. S,” called the police to report their truck as suspicious. When talking to dispatchers, Mr. S accidentally gave the wrong address for Mrs. H’s house, reporting Harrington’s address instead.

Soon, two more officers arrived. According to the complaint, Lancaster clearly should have known that dispatch had been given the wrong address. While pointing to Mrs. H’s house, he told the other officers, “That’s the house with the person knocking on the back door, that was the house earlier….I checked the one across the street.” In reference to Harrington’s address, he said he had “never been to this house.”

But the officers decided to enter the Harrington’s home anyway, testing both the front and back doors and finding them unlocked. A fourth officer arrived, and according to the suit, Lancaster told him that they were “waiting on the owner,” despite knowing that it was a different house than the one owned by Mrs. H, where the owner had left and was to return shortly.

Around midnight, two of the officers burst into the Harrington’s home with their guns drawn, shouting “Constable’s Office, come up with your hands out!” Harrington’s wife, whose full name wasn’t identified in the suit, was woken up by the officer’s shouting. She confirmed that she lived at the house, and one of the officers, Jared Lindsay ordered her to get her ID and come to the door.

Around the same time, Lancaster entered the home with his gun drawn, shouting the Spanish phrase for “hands up,” and began searching the home. As the officers held his wife at gunpoint, Tyler Harrington woke up and walked out of the bedroom, at which point the officers began pointing their guns at him as well, shouting questions at the couple. 

Eventually, the officers realized they were at the wrong house but still led the couple back into their own home at gunpoint. After releasing the couple, Lindsay told them that “someone had reported people searching the front and back doors of this house,” adding that the caller had told them the owner was gone. 

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Appeals Court: FBI’s Safe-Deposit Box Seizures Violated Fourth Amendment

The FBI violated the Fourth Amendment when its agents rifled through the contents of more than 700 safe-deposit boxes in the aftermath of a March 2021 raid, a panel of federal appeals court judges ruled unanimously on Tuesday.

In doing so, the judges at the 9th Circuit Court of Appeals confirmed what innocent victims of the raid and their attorneys have been arguing for years: that the FBI overstepped the bounds of its warrant issued in the case and failed to follow proper protocol when federal agents cracked open safe-deposit boxes, ran the contents past drug-sniffing dogs, and tried to seize some of the money and other valuables found in the boxes.

The 9th Circuit’s ruling pivots on a detail of the case that Reason first highlighted more than a year ago: the existence of so-called “supplemental instructions” for the handling of the safe-deposit boxes seized at U.S. Private Vaults in Beverly Hills.

The warrant authorizing the raid expressly forbade federal agents from engaging in a “criminal search or seizure of the contents of the safety [sic] deposit boxes.” Under typical FBI procedure, the boxes should have been taken into custody until they could be returned to their rightful owners. But those “supplemental instructions” drawn up by the special agent in charge of the operation told agents to be on the lookout for cash stored inside the safe-deposit boxes and to note “anything which suggests the cash may be criminal proceeds.”

It is “particularly troubling,” wrote Judge Milan D. Smith Jr. in Tuesday’s ruling, that the government was unable to provide any “limiting principle to how far a hypothetical ‘inventory search’ conducted pursuant to customized instructions can go.”

Elsewhere in the ruling, Smith theorized that if a government agency were “given the discretion to create customized inventory policies” for “each car it impounds and each person detained, the ensuing search stops looking like an ‘inventory’ meant to simply protect property and looks more like a criminal investigation of that particular car or person, i.e, more like a ‘ruse.'”

“If there remained any doubt whether the government conducted a ‘criminal search or seizure,’ that doubt is put to rest by the fact that the government has already used some of the information from inside the boxes to obtain additional warrants to further its investigations and begin new ones,” Smith wrote.

“The Ninth Circuit today held that the FBI violated the Fourth Amendment rights of hundreds of people by breaking into their safe deposit boxes to try to forfeit everything worth taking,” Robert Frommer, an attorney with the Institute for Justice, a libertarian legal nonprofit that represented some of the plaintiffs in the case, tells Reason. He said the case should bring renewed attention to a congressional proposal to reform federal forfeiture laws in order to “stop federal cops from continuing to act like robbers.”

A spokesperson for the FBI declined to comment on the ruling and referred the matter to the U.S. Attorney’s Office, which did not respond to Reason’s request for comment.

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