Tag: 4th amendment

Hawaii Residents Should Be Terrified to Find Out What Will Happen If These Bills Pass

Remember that scene in Star Wars Episode III: Revenge of the Sith when the Galactic Senate votes to give all-encompassing emergency powers to Emperor Palpatine?

That’s basically what will happen in Hawaii if a pair of emergency powers bills are passed. State lawmakers have advanced two bills that would empower the governor to declare an emergency and then order quarantines, enter private property, suspend existing statutes, regulate and seize firearms, and completely exterminate the Jedi order.

Okay, I made that last one up, but the fact remains: These bills are some of the scariest I’ve seen at any level of government lately.

House Bill 2236 and Senate Bill 2151 are moving through the state legislature at the same time that Gov. Josh Green is still ruling under a longstanding housing emergency proclamation that suspended land-use and transparency rules to fast-track home construction, Hawaii Public Radio reported.

The bill would grant the governor the authority to “require the quarantine or segregation of persons who are affected with or believed to have been exposed to any infectious, communicable, or other disease” and to “authorize without the permission of the owners or occupants, entry on private premises for any of these purposes.”

The state would also be empowered to “authorize that public nuisances be summarily abated and, if need be, that the property be destroyed by any police officer or authorized person.”

Those opposing the measures point out the impact it will have on constitutional rights. Advocacy group Hawaii Capitol Watch warned that the bills “would ensure that executive branch leaders do not arbitrarily call long-standing and complex societal challenges, such as unaffordable housing or illegal activity, as ‘emergencies’ in order to suspend our environmental, cultural protection, good governance, procurement, and labor laws indefinitely – as the Governor attempted to do with his emergency proclamation on (un)affordable housing.”

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The Incremental Loss of Freedom

Last week, the U.S. Circuit Court of Appeals for the Fifth Circuit, which covers Louisiana, Mississippi and Texas, ruled that the problem of undocumented immigrants in the U.S. is so acute and vast, and the Fourth Amendment so burdensome and time-consuming, that it should cut some constitutional corners. 

The federal judiciary is supposed to be in the business of protecting the rights of individuals from infringement by Congress or the president or the states. In this case, the court saw fit to allow Immigration and Customs Enforcement, or ICE, to trample the sacred American right to be left alone.

How sacred? Well, James Madison, who was largely responsible for crafting the new Constitution and stewarding it through the states, realized a few years later — after Congress created the First National Bank — that the government would need some restraints. 

The restraints were cataloged in the Bill of Rights. The Fourth Amendment, which protects privacy, has some of the most precise Madisonian language in the Constitution in order to enshrine privacy and protect it from the government.

To prevent the new government from doing what British soldiers and agents had done to the colonists, the Fourth Amendment prohibits general warrants which had authorized the bearer to search wherever he wished and seize whatever he found. 

The amendment recognizes that our rights come from our humanity — not from the government — and they are inalienable unless and until we give them up by violating someone else’s natural rights.

This concept of rights as integral to humanity was articulated by Aristotle, refined by Augustine, codified by Aquinas, modernized by John Locke, embraced by the Continental Congress and Thomas Jefferson in the Declaration of Independence, and made part of the Constitution in the Ninth Amendment by Madison and the ratifiers.

The Fourth Amendment requires that if the government wants to search or seize any “persons, houses, papers, (or) effects,” it needs to be investigating a crime and it must have probable cause to believe that in those papers, houses or effects or on those persons is evidence of criminal behavior.

Then the government must present its probable cause to a judge under oath. If the judge agrees that the presentation does constitute probable cause of crime, the judge can sign either a search or an arrest warrant; and the warrant must particularly describe the places to be searched and the persons or things to be seized.

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Hawaii Bills Would Allow Gov’t To Quarantine People, Enter Property, Seize Firearms, & Suspend Laws

The Hawaii Legislature is advancing companion legislation that would formally codify sweeping emergency powers for the governor and county officials—including authority to quarantine individuals, enter private property without consent, suspend laws, and seize control of infrastructure—under the justification of preparing for future disasters and disease outbreaks.

House Bill 2236 and Senate Bill 2151, both titled “Relating to Emergency Management,” were introduced in January and February 2026 and are now moving forward through both chambers.

Legislative records show the bills are formally linked, with each designated as “Same As/Similar To” the other, confirming that Hawaii’s full legislature—not just one chamber—is advancing the emergency powers framework.

The legislation explicitly cites COVID-19 as justification for strengthening emergency authority, stating:

“The COVID-19 pandemic highlights the importance of clear legal frameworks for state and county emergency management to ensure that the State and counties are ready for any type of emergency.”

You can see which state legislators are backing these bills further down in this article.

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Immigration officers assert sweeping power to enter homes without a judge’s warrant, memo says

Federal immigration officers are asserting sweeping power to forcibly enter people’s homes without a judge’s warrant, according to an internal Immigration and Customs Enforcement memo obtained by The Associated Press, marking a sharp reversal of longstanding guidance meant to respect constitutional limits on government searches.

The memo authorizes ICE officers to use force to enter a residence based solely on a more narrow administrative warrant to arrest someone with a final order of removal, a move that advocates say collides with Fourth Amendment protections and upends years of advice given to immigrant communities.

The shift comes as the Trump administration dramatically expands immigration arrests nationwide, deploying thousands of officers under a mass deportation campaign that is already reshaping enforcement tactics in cities such as Minneapolis.

For years, immigrant advocates, legal aid groups and local governments have urged people not to open their doors to immigration agents unless they are shown a warrant signed by a judge. That guidance is rooted in Supreme Court rulings that generally prohibit law enforcement from entering a home without judicial approval. The ICE directive directly undercuts that advice at a time when arrests are accelerating under the administration’s immigration crackdown.

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Supreme Court Fails to Keep a Tight Leash on Police K-9 Drug-Sniff Searches That Intrude Into Vehicles, Raising Fourth Amendment Concerns

In yet another ruling that contributes to the steady normalization of police overreach, the U.S. Supreme Court has refused to rein in police K-9 drug-sniff searches during traffic stops.

By declining to hear an appeal in Mumford v. Iowa, the Court let stand an Iowa Supreme Court ruling that allows police to rely on a drug dog’s intrusion into a car’s interior during a traffic stop—even when officers lack probable cause to believe the car contains contraband. In a 5-2 decision in Mumford v. Iowa, the Iowa Supreme Court upheld as constitutional a search in which a police K-9 placed its paws on a car door and inserted its snout through an open window before alerting to drugs.

The Rutherford Institute, joined by Restore the Fourth, had urged the U.S. Supreme Court to overturn the ruling, arguing that warrantless, nonconsensual intrusions into protected spaces violate the Fourth Amendment, which extends its protection to a person’s vehicle. The amicus brief further warned that allowing a police dog to breach the interior of a car provides no limiting principle: if a dog’s snout may trespass inside a vehicle without probable cause, then so might thermal-imaging devices, x-ray scanners, fiberscopes, or other police technologies.

“What this ruling makes clear is that no American is safe from government intrusion, not even during a routine traffic stop. This is how constitutional rights are lost—not in dramatic sweeps, but in small, incremental intrusions that courts refuse to check,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “If a police dog’s snout can be used to justify a warrantless search of a car, then there is nothing to stop the government from using ever more intrusive technologies, surveillance tools, and police instrumentalities to invade our privacy with little to no judicial oversight.”

The case arose after an Iowa police officer initiated a traffic stop of Ashlee Mumford’s vehicle, claiming the last two numbers on her license plate were obscured by dirt and grime. The officer summoned a K-9 unit, and Mumford and her passenger were ordered out of the vehicle “for their own safety” while the handler walked the dog around the car to conduct a “free air sniff.” Because Mumford’s passenger had left his window open, the dog pushed its snout through the open window into the cabin before alerting to drugs. A subsequent search of the vehicle uncovered drugs in the glove compartment which apparently belonged to the passenger. Officers then searched Mumford’s purse—which she had taken with her upon exiting the vehicle—and found marijuana and a pipe.

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Lindsey Graham Falls Prey to the Surveillance Monster He Championed

Some people find religion after a brush with mortality. Lindsey Graham found the Fourth Amendment after a brush with Jack Smith.

The senator from South Carolina has spent the past two decades helping build the modern surveillance state, and now he’s furious that it turned its cold electronic eye on him.

Federal prosecutors secretly subpoenaed his phone records without his knowledge as part of Special Counsel Smith’s investigation into President Donald Trump’s alleged role in the events of January 6.

Graham says it’s an outrage, a scandal. He’s demanding the impeachment of the federal judge who approved it and threatening to sue someone, though he hasn’t worked out who, for “tens of millions of dollars.”

It’s the kind of melodrama that comes easily to a man who’s never been shy about using the power of the state when it suits him.

This story started last month when FBI Director Kash Patel revealed that phone records of eight Republican senators, including Graham’s, were pulled as part of Smith’s “Arctic Frost” probe.

The data covered January 4 to 7, 2021, and came with gag orders preventing telecom companies from telling the targets they were under the microscope.

“They spied on my phone records as a senator and a private citizen,” Graham complained on Fox News. “I’m sick of it.”

He’s not wrong to be angry. But there’s something deeply comic about Graham discovering his inner civil libertarian only after the dragnet landed on his number.

Graham has been one of the most reliable defenders of the surveillance architecture that is now bothering him.

In 2001, as a House member, he voted for the Patriot Act, the law that kicked open the door for mass data collection. When Edward Snowden revealed that the NSA was collecting Americans’ phone records by the millions, Graham didn’t seem alarmed.

“I’m a Verizon customer. It doesn’t bother me one bit for the NSA to have my phone number,” he famously said. “I’m glad the NSA is trying to find out what the terrorists are up to overseas and in our country.”

He later voted to codify those surveillance powers into Section 702 of the Foreign Intelligence Surveillance Act in 2008 and backed every major reauthorization since.

For most of his career, Graham treated Section 702 like a sacred text.

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Bondi DOJ Backs Warrantless Invasion Of Gun Owners’ Homes

The Department of Justice under Attorney General Pam Bondi is advancing an argument that threatens to hollow out the Fourth Amendment’s core protection: that Americans may be secure in their homes against warrantless searches.

The lawsuit is Case v. Montana. After a difficult breakup, William Trevor Case was at home alone when police arrived for a so-called “welfare check.” They spent nearly an hour outside his house. Officers walked around the property, shined flashlights through windows, and even discussed calling his relatives or reaching him directly. They never did. Instead, they retrieved rifles and a ballistic shield, broke down his door without a warrant, and shot him. 

The Montana Supreme Court upheld the police’s warrantless entry. Apparently, the government’s “reasonable suspicion” that Treavor Case might need “help” was sufficient to justify an armed warrantless intrusion into his home. That standard is alarmingly low. The Fourth Amendment requires probable cause and judicial approval before government agents may enter a home. It does not permit entry based on a hunch.

And it was not as if obtaining a warrant would have been difficult. A recent Harvard Law Review study found that 93 percent of warrants are approved on first submission, often in less than three minutes. With modern technology, police can draft and submit warrant requests directly from their phones. The officers in Montana had nearly an hour to seek judicial approval. They chose not to.

The U.S. Supreme Court addressed a similar issue in Caniglia v. Strom in 2021. In that case, officers entered a man’s home without a warrant after a domestic dispute, claiming they were acting as “community caretakers.” The Court unanimously rejected that argument. Justice Clarence Thomas wrote that the Fourth Amendment’s protections do not vanish just because police say they are trying to help. The Court allowed for true emergencies—cases of imminent harm or death—but drew a clear line against open-ended “caretaking” exceptions.

The facts in Montana look nothing like an emergency. Body camera transcripts reveal that officers themselves doubted that Case required immediate aid. One noted that “chances are pretty slim” he needed urgent medical attention. They discussed staging medical personnel outside but decided against it. After forty minutes of hesitation, they declared the situation an “emergency” and broke in anyway.

In any other context, an armed entry without a warrant would be understood as unlawful. The Constitution does not stop at the property line of a gun owner. If a homeowner responds defensively to armed intruders, the law recognizes the basic right of self-defense. What transforms that same scenario into a police action is supposed to be the warrant requirement. Strip that away, and the police have no more right to enter than anyone else.

Pam Bondi’s Department of Justice, however, has sided with Montana. 

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Florida Court Blocks Police From Using The Smell Of Marijuana Alone To Search Vehicles

A Florida court has ruled that police cannot search a person’s vehicle based only on the smell of marijuana.

The District Court of Appeal of Florida Second District on Wednesday issued an opinion, authored by Judge Nelly Khouzam, overturning a lower court decision that upheld the “plain smell doctrine” that has long permitted cannabis odor to be used as a pretense for vehicle searches.

The policy was challenged in district court after a man had his probation revoked when police pulled over a car he was in, claimed to smell marijuana, forced the occupants to exit the vehicle to conduct a search and discovered cannabis and pills.

But while it might have made sense in the past to use cannabis odor as a pretext for a search when it was strictly prohibited, the state’s laws have “fundamentally” changed, the appellate court said, referencing the legalization of hemp and medical marijuana in Florida.

“For generations, cannabis was illegal in all forms—thereby rendering its distinct odor immediately indicative of criminal activity. But several legislative amendments over the years have fundamentally changed its definition and regulation,” it said. “The cumulative result is that cannabis is now legal to possess in multiple forms, depending on discrete characteristics such as where it was procured or its chemical concentration by weight.”

“We are obligated under well-established constitutional principles to give meaning and effect to the legislature’s significant amendments to cannabis regulation,” the opinion, first reported by News Service of Florida, said.

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Michigan Supreme Court Rules Unrestricted Phone Searches Violate Fourth Amendment

The Michigan Supreme Court has drawn a firm line around digital privacy, ruling that police cannot use overly broad warrants to comb through every corner of a person’s phone.

In People v. Carson, the court found that warrants for digital devices must include specific limitations, allowing access only to information directly tied to the suspected crime.

We obtained a copy of the opinion for you here (the opinion starts on page 5).

Michael Carson became the focus of a theft investigation involving money allegedly taken from a neighbor’s safe.

Authorities secured a warrant to search his phone, but the document placed no boundaries on what could be examined.

It permitted access to all data on the device, including messages, photos, contacts, and documents, without any restriction based on time period or relevance. Investigators collected over a thousand pages of information, much of it unrelated to the accusation.

The court ruled that this kind of expansive warrant violates the Fourth Amendment, which requires particularity in describing what police may search and seize.

The justices said allowing law enforcement to browse through an entire phone without justification amounts to an unconstitutional exploratory search.

Smartphones now serve as central hubs for people’s lives, containing everything from health records and banking details to travel histories and intimate conversations.

Searching a device without limits can expose a volume and variety of personal information that far exceeds what a physical search could reveal.

Groups including the Electronic Frontier Foundation, ACLU National, and the ACLU of Michigan intervened in the case, filing a brief that called on the court to adopt strict rules for digital searches.

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The Right to Be Left Alone

What if the federal government captures in real time the contents of every telephone call, email and text message and all the fiber-optic data generated by every person and entity in the United States 24/7? What if this mass surveillance was never authorized by any federal law and tramples the Fourth Amendment?

What if this mass surveillance has come about by the secret collusion of presidents and their spies in the National Security Agency and by the federal government forcing the major telephone and computer service providers to cooperate with it? What if the service providers were coerced into giving the feds continuous physical access to their computers and thus to all the data contained in and passing through those computers?

What if President George W. Bush told the NSA that since it is part of the Defense Department and he was the commander in chief of the military, NSA agents could spy on anyone, notwithstanding any court orders or statutes that prohibited it? What if Bush believed that his orders to the military were not constrained by the laws against computer hacking that Congress had written or the interpretations of those laws by federal courts or even by the Constitution?

What if Congress has written laws that all presidents have sworn to uphold and that require a warrant issued by a judge before the NSA can spy on anyone but Bush effectively told the NSA to go through the motions of getting a warrant while spying without warrants on everyone in the U.S. all the time? What if Presidents Barack Obama, Joe Biden and Donald Trump have taken the same position toward the NSA and ordered or permitted the same warrantless and lawless spying?

What if the Constitution requires warrants based on probable cause of criminal behavior before surveillance can be conducted but Congress has written laws reducing that standard to probable cause of communicating with a foreign national? What if a basic principle of constitutional law is that Congress is subject to the Constitution and therefore cannot change its terms or their meanings?

What if the Constitution requires that all warrants particularly describe the place to be searched or the person or thing to be seized? What if the warrants Congress permits the NSA to use violate that requirement by permitting a federal court — the FISA Court — to issue general warrants? What if general warrants do not particularly describe the place to be searched or the person or thing to be seized but rather authorize the bearer to search indiscriminately through service providers’ customer data?

What if the government has no moral, constitutional or legal right to personal information about and from all of us without a valid search warrant consistent with constitutional requirements?

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