Tag: 4th amendment

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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The FBI Took Her $40,000 Without Explaining Why. She Fought Back Against That Practice—and Lost.

Linda Martin found out the hard way that the most powerful law enforcement agency in the U.S.—the FBI—can seize your assets without articulating why. Worse: Law enforcement took her savings in a raid that was itself unconstitutional. Worse still: A lawsuit she filed met its demise last week, allowing the federal government to continue the dubious practice of taking people’s valuables without having to explain the reason it is justified in doing so.

The agency never did furnish a specific reason in Martin’s case—because she wasn’t charged with a crime. Her saga began in 2021, when the FBI sought to take more than $100 million in assets from U.S. Private Vaults, a business that offered safe-deposit boxes. That company was suspected of, and ultimately charged with, criminal wrongdoing. But the warrant expressly forbade agents from engaging in a “criminal search or seizure” of customers’ boxes, like Martin’s.

They did so anyway, rummaging through approximately 800 of them and seizing assets that belonged to a slew of innocent people. That included Travis May, who stored gold and $63,000 in cash; Jeni Verdon-Pearsons and Michael Storc, who kept $2,000 in cash, as well as approximately $20,000 worth of silver; Paul and Jennifer Snitko, whose box contained personal items, like marriage, birth, and baptismal certificates; and Don Mellein, who had invested in gold coins, many of which the FBI said it lost (to the tune of over $100,000).

A judge later ruled violated the Fourth Amendment. But it was too late for Martin, who received notice that the FBI had taken $40,200, her life savings, from her box. To justify that, the notice listed hundreds of federal crimes that would lead to a seizure. As Institute for Justice (I.J.) Director of Media Relations Andrew Wimer points out, the list included such crimes as copyright infringement and barring business deals with North Korea. But the bureau notably did not specify how Martin was supposedly involved in any of those offenses, because it is not required to do so.

So she sued. “When the FBI attempts to forfeit someone’s property, due process requires that it say why, citing specific facts and laws,” reads her appellant brief. “By sending notices that initiate and, often, consummate property’s forfeiture—all without ever saying what exactly the FBI thinks justifies the forfeiture, the FBI deprives owners of crucial information they need to protect their rights.” After she filed the lawsuit, and about two years post-seizure, the agency returned Martin’s cash. But she continued in court in hopes that the judiciary would agree that the FBI was violating people’s due process rights by seizing assets with effectively no explanation.

That died last week, when the U.S. Court of Appeals for the District of Columbia dismissed the suit for lack of jurisdiction.

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A Federal Judge Says New Mexico Cops Reasonably Killed an Innocent Man at the Wrong House

Around 11:30 on a Wednesday night in April 2023, three police officers repeatedly knocked on the door of Robert Dotson’s house at 5305 Valley View Avenue in Farmington, New Mexico. They were responding to a report of “a possible
domestic violence situation,” but they were in the wrong place: They were supposed to be at 5308 Valley View Avenue, which was on the opposite side of the street. When Dotson, a 52-year-old father of two, came to the door with a gun in his hand, the cops shot and killed him.

That response, a federal judge in New Mexico ruled last week, was reasonable in the circumstances and therefore did not violate Dotson’s Fourth Amendment rights. The officers “reasonably believed that Dotson posed a severe risk of imminent harm” to them, U.S. District Judge Matthew Garcia writes in response to a federal civil rights lawsuit that Dotson’s family filed in September 2023. Garcia rejected the plaintiffs’ argument that the officers—Daniel Estrada, Dylan Goodluck, and Waylon Wasson—”recklessly created the need to apply deadly force by going to the wrong address.”

Garcia concedes that the defendants’ conduct prior to the shooting was “not a paragon of careful policework,” which is quite an understatement. When the cops were dispatched to 5308 Valley View Avenue, he notes, Wasson “utilized his service vehicle’s mobile data terminal” to “locate the address, incorrectly placing the [house] on the right (south) side of the street.” Meanwhile, Goodluck, who was in a separate vehicle, “searched Google Maps to locate the property,” and that search correctly located the house as “being situated on the left (north) side of Valley View Avenue.”

When the officers arrived at the scene, Goodluck “continued to question whether [they] were headed to the correct residence,” Garcia says, but “he deferred to Officer Wasson’s seniority and said nothing.” After Wasson knocked on the front door of Dotson’s house three times without getting a response, Goodluck “finally voiced his concern that the Defendant officers went to the wrong address.” Pointing across the street, he said, “It might have been 5308. Right there.” Wasson was puzzled: “Is this not 5308? That’s what it said right there, right?” No, Goodluck replied: “This is 5305, isn’t it?”

Wasson then asked the dispatcher to confirm the correct address. After the dispatcher said “5308 Valley View Avenue,” Wasson jokingly said, “Don’t tell me I’m wrong, Dylan.” By this point, the plaintiffs say, the cops “were realizing they were at the wrong residence and were laughing about it.”

According to the lawsuit, Dotson and his wife, Kimberly, were upstairs in their bedroom when Wasson knocked on the front door. “The knock was not loud, and his announcement ‘Farmington Police’ could not be heard” on the second story, the complaint says. “The police vehicles were parked down the street and did not have their lights on.” But the couple “believed that they heard a knock,” so Dotson “put on his robe and went downstairs.” For “personal protection,” he “picked up the handgun which was kept on top of the refrigerator in the Dotson residence, not knowing what he might encounter at that late hour.”

When Dotson “opened his front door,” the lawsuit says, he “was blinded by police flashlights.” At that point, “the police did not announce themselves,” and Dotson “had no idea who was in his yard shining bright lights at him.” According to the lawsuit, Wasson, upon seeing Dotson’s gun, “opened fire instantly,” and “the other officers, Estrada and Goodluck, immediately followed by firing their guns.” Dotson was struck by 12 rounds.

Hearing the shots, Kimberly Dotson rushed downstairs and “saw her husband lying in his blood in the doorway,” the lawsuit says. She “still did not know what had happened [or] that police officers were in her front yard.” She “fired outside at whoever had shot her husband,” and the officers “each fired at Mrs. Dotson—another 19 rounds. Fortunately, she was not hit.”

At that point, according to the complaint, the officers “finally announced themselves, and Kimberly Dotson told them that someone had shot her husband and requested their help.” She “did not realize even at that moment that the three police officers had killed her husband,” which she did not learn “until she was finally told eight hours later at the police station where she was detained.”

After the shooting, the lawsuit says, “the officers involved did not disclose to investigators that they were at the wrong address, which was the error leading to the tragic result and without which it would not have occurred.” The mistake “was discovered by other officers who arrived at the scene.”

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Supreme Court Rules Police No Longer Immune In Escalated Deadly Force Encounters

In a unanimous decision, the U.S. Supreme Court has rejected a legal doctrine that helped shield police from accountability for recklessly escalating confrontations and then using deadly force.

The Supreme Court’s ruling in Barnes v. Felix makes clear that when determining whether an officer’s use of deadly force was reasonable under the Fourth Amendment, courts must examine the entire sequence of events—not just the split second in which an officer claims to perceive a threat before firing a weapon. The decision strikes down the so-called “moment-of-threat doctrine,” which allowed officers to escape scrutiny for their own prior misconduct and reckless provocation. Going forward, judges must weigh all relevant circumstances, including the severity of the alleged offense, the officer’s actions leading up to the use of force, and the actual threat posed by the individual. The Rutherford Institute filed an amicus brief urging the Court to overturn the moment-of-threat rule, arguing that it violated longstanding constitutional principles and fostered a culture of impunity among law enforcement.

“For too long, our justice system has enabled a kind of legalized lawlessness, where police are empowered to escalate encounters and then respond with deadly force, knowing the courts will look the other way,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “This decision is a powerful counterbalance to the Trump Administration’s efforts to shield police from the consequences of unconstitutional behavior. While the executive branch attempts to entrench a culture of impunity, the Supreme Court has hopefully drawn a constitutional line in the sand—one that signals a long-overdue shift in how police can use deadly force.”

On April 28, 2016, a police officer in Harris County, Texas, stopped Ashtian Barnes based on a report of unpaid tolls linked to his license plate. When asked for proof of insurance, Barnes explained that the car had been rented a week earlier by his girlfriend and the paperwork might be in the trunk. Claiming to smell marijuana, the officer ordered Barnes to open the trunk and exit the vehicle. Barnes opened his door but also turned the ignition back on. At that point, the officer shouted at Barnes not to move, stepped onto the driver-side doorsill, and shoved his gun into Barnes’s head. The car started to move, and the officer fired two shots into the car, killing Barnes. The incident was captured on video. Although Barnes’s mother sued, lower courts dismissed the case—ruling that the moment of threat during the two seconds when the officer was standing on the moving vehicle justified deadly force, without considering the officer’s role in creating the danger.

The Supreme Court’s decision sends the case back to the lower courts for reconsideration under the proper constitutional standard. The Barnes decision comes as the nation reckons with the 30-year legacy of the 1994 Crime Bill, which dramatically expanded the power and protection of law enforcement at the expense of constitutional rights. As The Rutherford Institute has warned, the Crime Bill ushered in an era of “zero tolerance” policing and mass incarceration, laying the groundwork for the militarized and unaccountable police culture we see today. “The Court’s decision is an overdue course correction. But it is only a first step,” Whitehead said. “Law enforcement should not be allowed to operate beyond the reach of the Constitution.”

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New Montana Law Blocks the State From Buying Private Data To Skirt the Fourth Amendment

The Fourth Amendment to the U.S. Constitution is not long—only 54 words, in total. But its core premise can be summed up with a simple phrase: Come back with a warrant.

The Fourth Amendment protects people “against unreasonable searches and seizures.” Any law enforcement operative hoping to search or seize your “persons, houses, papers, [or] effects” must get a warrant, showing “probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

But in recent years, as Americans began storing larger portions of their personal information online, governments started buying this data, circumventing the Fourth Amendment’s guarantees of protection. This week, Montana became the first state to restrict the practice.

In 2018, the U.S. Supreme Court affirmed in Carpenter v. United States that the government cannot search a suspect’s cell phone without a warrant.

“A person does not surrender all Fourth Amendment protection by venturing into the public sphere,” including by storing personal information on their phone, Chief Justice John Roberts wrote for the majority. “Although such records are generated for commercial purposes,” that does not “negate” one’s “anticipation of privacy.”

But in the years since, governments have gotten around that pesky constitutional prohibition by simply buying people’s data, with the public’s money.

Companies have access to reams of information about their users, and they often sell that data—anonymized—to firms called data brokers, who then bundle it and sell it to other companies, like advertisers. “A large portion of data brokerage is used for identity verification or fraud prevention,” Paul Boutin wrote in Newsweek. “Much of it is used for traditional marketing.”

But governments got in on the action, too. Federal agencies like the IRS and Immigration and Customs Enforcement spent millions of dollars buying access to data that would otherwise require a warrant. In 2022, the Associated Press reported that police departments across the country had purchased and used “an obscure cellphone tracking tool, at times without search warrants, that gives them the power to follow people’s movements months back in time.”

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