Tag: 4th amendment

No Fourth Amendment In American Airports?

Do you, as an American citizen, have to hand over your cell phone — along with the access code to open it — upon a (warrantless) demand by a border agent at the airport?

There’s a case grinding through the courts about that right now because one man, a Mr. Sam Tunick, refused.  

Not only did he refuse but he had an app on his phone that triggered its erasure once you keyed in a particular code to open it.  That was the code he gave CBP (Customs and Border Patrol) when they demanded his code to open it.  And then his phone was, indeed, erased right there on the spot, in the hands of the CBP agent.

That’s when CBP got really p***ed off.

According to the reporting on his case, this man was not a criminal.  He was not under suspicion or surveillance for anything, so far as we know. He is not related to Spencer Tunick, an artist who famously creates mass nude photo shoots in public places. He was, in point of fact, a left-wing activist with environmental interests, but, again, without any contact with or prior interest from law enforcement that we know of.

He was just a guy.  Coming home from an international trip (the Dominican Republic.).

You may well be thinking, “A left-wing activist with an erasure code?  Sounds suspicious!”

Let me pause to explain why I don’t think so.

A “right-winger” I know just traveled internationally recently and she traveled with a burner phone to avoid exactly this kind of search in another country.  It was England specifically.  

In England there is no Fourth Amendment and they can search your phone when you land.  They also have no First Amendment and they have terrible censorship laws now.  You can be arrested and jailed for social media posts.  Even some perfectly benign ones, like “Islam is incompatible with Liberty” — that kind of thing.

The Dominican Republic also has no Fourth Amendment and if they simply suspect you have contraband or are engaged in some other illegal activity (so a very wide berth), they have every right to inspect your phone.  Maybe this young man just didn’t want the hassle. Maybe this app was this “left-winger’s” choice instead of a burner, and in the heat of the moment, decided to deploy it once facing our own CPB here in the U.S.

In short, I don’t find it suspicious at all knowing the legal overreach climate we are living in now.  And we certainly can’t be searching American citizens and seizing their devices based on politics alone.  I hope we can all agree on that.

Back to the case:

One attorney, Mike Fox of the Cato Institute characterized Mr. Tunick’s situation this way: “This is new, uncharted territory.”

The Supreme Court has never ruled on your Fourth Amendment rights as they specifically relate to your cell phone at American airports/border crossings.  They have ruled on whether or not your phone is searchable in the interior of the United States and the answer is “no” — not without a warrant.

But somehow an American in an American airport on American soil has to surrender his rights to an American customs agent?  What is this sorcery?

Let’s review the Fourth Amendment, in its entirety:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Supreme Court has ruled on Fourth Amendment exceptions at border crossings, but not cell phones in particular.  That’s why you have to go through customs and scanners and open your luggage, etc.  We’ve all been doing it forever without a thought.

But your phone ought to be a separate matter entirely, containing as it does, your digital “papers and effects.”  According to the available reporting, there was no “probable cause” to search Mr. Tunick. CPB wasn’t looking for anything specific, which is what a warrant would demand.  They just wanted to go out on a scenic drive, seeing what they could see on his phone.

Hell. No.

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The Fourth Amendment Is Being Liquidated by Subscription

The black pole does not look like tyranny.

That is the point.

It looks like street furniture. A small black camera. A solar panel. A utility box. Nothing dramatic. No uniformed officer standing beside it. No marked police vehicle. No flashing lights. No warrant presented to the driver. In many communities, there was barely any public debate before it appeared.

Yet the device photographs nearly every vehicle that passes. It reads the license plate, records the time and location, identifies the make, model and color, and may catalogue distinctive features such as bumper stickers, roof racks, dents, scratches and damage. That information is uploaded into a cloud platform where police can search for vehicles across time and geography. [1]

The government once needed detectives, informants, stakeouts and court orders to follow someone across a city.

Now it can type a plate number into a privately operated dashboard.

Flock Safety calls this public safety.

A more accurate description is a privately administered ledger of American movement.

This is not merely a story about one overly ambitious technology company. Flock is the case study, but the real subject is the creation of a public-private surveillance regime in which corporations collect the data, venture capital finances the infrastructure, local governments purchase access, federal agencies find side doors into the system, and ordinary citizens are told that none of this is particularly concerning because they were technically visible while driving on a public road.

The state did not formally repeal the Fourth Amendment.

It outsourced its erosion.

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Supreme Court Rules Police Conduct a Fourth Amendment “Search” When Grabbing Your Google Location History Data Through Geofence Warrants

The U.S. Supreme Court held Monday that law enforcement officers conduct a Fourth Amendment search when they obtain cell phone users’ precise Location History data from Google using a geofence warrant.

In a 6-3 decision in Chatrie v. United States, the Court ruled that Americans have a reasonable expectation of privacy in their cell phone location information, even when that data is stored by a third-party technology company such as Google. The ruling represents one of the Court’s most significant digital privacy decisions since its 2018 Carpenter decision involving historical cell-site location data.

Justice Elena Kagan authored the majority opinion, joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Brett Kavanaugh, Ketanji Brown Jackson, and Jackson separately concurring.

Justice Neil Gorsuch concurred only in the judgment, while Justice Samuel Alito dissented, joined in part by Justices Clarence Thomas and Amy Coney Barrett. Justice Barrett also filed a separate dissent.

This builds directly on the landmark Carpenter v. United States (2018) decision, which already required warrants for cell-site location information (CSLI).

The Court made clear that Google’s even more precise and sweeping Location History data — which logs a user’s location every two minutes or so, within about 20 meters, and can even reveal elevation and which floor of a building someone is on — deserves at least the same protection.

The case, Chatrie v. United States (No. 25-112), arose from a May 20, 2019, armed robbery of a credit union in Midlothian, Virginia. Police had surveillance footage and witness statements but no suspect. On June 14, they obtained a Virginia magistrate’s geofence warrant directed at Google.

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A Nation of Suspects

Some of the recent legal challenges to the use of surveillance by the Department of Homeland Security upon Americans have resulted in the revelation of truly terrifying behavior by the government, in direct defiance of the Fourth Amendment to the Constitution. We now know that the federal government spies on innocent Americans without suspicion and without warrants.

The spying seems to fall into several categories. The National Security Agency, which is in the Department of Defense, employs about 60,000 domestic spies. These are the folks who want us to believe that they go through the trouble of making applications to the Foreign Intelligence Surveillance Court for warrants to spy on foreigners.

Actually, from time to time they do go to this court, but their travels there — where judges are frisked upon entering and leaving the courthouse by the NSA agents who appear before them — serve as fig leaves for their massive warrantless spying on Americans. The FISA Court is unconstitutional because it issues warrants based on probable cause of communicating with a foreign person, rather than on probable cause of crime as the Fourth Amendment requires.

The courts have ruled consistently since the 1960s that spying — surveillance, as the feds call it — is a search, and the capture of data from a surveillance is a seizure.

The Fourth Amendment protects all persons in America — not just Americans — from warrantless searches and seizures of their “persons, houses, papers, and effects.” There are some well-recognized exceptions to this constitutional baseline, such as evidence that will quickly vanish or be seriously degraded, but those exceptions do not apply here as the NSA captures in real time all keystrokes on all digital devices and all fiber optic data transmitted into, out of and within the United States.

The judges of the FISA Court surely know that the Department of Justice lawyers and NSA agents who appear before them are going through a charade, and the court has been made a part of it. The charade is the pretense that all spying is done pursuant to the warrants that FISA Court judges issue. Former NSA agents have revealed publicly that this is hardly the case.

Nevertheless, the lowered standard from probable cause of crime to probable cause of communicating to a foreign person was crafted by Congress — in another of its many moments heedless of the Constitution. After a few years of this, the FISA Court began to issue warrants for spying on the Americans who communicate with foreigners, out to the sixth degree. A sixth grader can do the math, as this leads to hundreds of millions of Americans whose communications are captured.

A second category of spying is employed by the DHS. The DHS — now a 250,000-person strong federal police department nowhere countenanced by the Constitution — has sophisticated software that can read fingerprints at 15 feet and irises at 15 inches. So, if you wave goodbye or good riddance to an ICE agent, and he holds up his mobile phone, and you are in the federal system for any benign reason, he has captured your bank, health, legal and commercial records on the spot. If he talks to you in your car and is within 15 inches of your face, he can capture the same data.

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A Nation of Suspects

Some of the recent legal challenges to the use of surveillance by the Department of Homeland Security upon Americans have resulted in the revelation of truly terrifying behavior by the government, in direct defiance of the Fourth Amendment to the Constitution. We now know that the federal government spies on innocent Americans without suspicion and without warrants.

The spying seems to fall into several categories. The National Security Agency, which is in the Department of Defense, employs about 60,000 domestic spies. These are the folks who want us to believe that they go through the trouble of making applications to the Foreign Intelligence Surveillance Court for warrants to spy on foreigners.

Actually, from time to time they do go to this court, but their travels there — where judges are frisked upon entering and leaving the courthouse by the NSA agents who appear before them — serve as fig leaves for their massive warrantless spying on Americans. The FISA Court is unconstitutional because it issues warrants based on probable cause of communicating with a foreign person, rather than on probable cause of crime as the Fourth Amendment requires.

The courts have ruled consistently since the 1960s that spying — surveillance, as the feds call it — is a search, and the capture of data from a surveillance is a seizure.

The Fourth Amendment protects all persons in America — not just Americans — from warrantless searches and seizures of their “persons, houses, papers, and effects.” There are some well-recognized exceptions to this constitutional baseline, such as evidence that will quickly vanish or be seriously degraded, but those exceptions do not apply here as the NSA captures in real time all keystrokes on all digital devices and all fiber optic data transmitted into, out of and within the United States.

The judges of the FISA Court surely know that the Department of Justice lawyers and NSA agents who appear before them are going through a charade, and the court has been made a part of it. The charade is the pretense that all spying is done pursuant to the warrants that FISA Court judges issue. Former NSA agents have revealed publicly that this is hardly the case.

Nevertheless, the lowered standard from probable cause of crime to probable cause of communicating to a foreign person was crafted by Congress — in another of its many moments heedless of the Constitution. After a few years of this, the FISA Court began to issue warrants for spying on the Americans who communicate with foreigners, out to the sixth degree. A sixth grader can do the math, as this leads to hundreds of millions of Americans whose communications are captured.

A second category of spying is employed by the DHS. The DHS — now a 250,000-person strong federal police department nowhere countenanced by the Constitution — has sophisticated software that can read fingerprints at 15 feet and irises at 15 inches. So, if you wave goodbye or good riddance to an ICE agent, and he holds up his mobile phone, and you are in the federal system for any benign reason, he has captured your bank, health, legal and commercial records on the spot. If he talks to you in your car and is within 15 inches of your face, he can capture the same data.

As if all this were not enough, the feds and local police use a device called a Stingray, which mimics the signal sent to all mobile devices as if the device were being used to communicate. But the communication is just one way, as the Stingray will tell the government where the person possessing the mobile device is at any given moment. This, too, is a seizure of private personal information — the contents of the computer chip in your mobile device — which the Fourth Amendment characterizes as an “effect.”

And then there is the FBI, which now uses zero-click software. This permits agents without warrants or even approval of their superiors to engage in computer hacking without having to trick the hacked victim into clicking on a link. Computer hacking is a felony.

All of this surveillance is unconstitutional, dangerous and commonplace. It consists in the use of surveillance and law enforcement tools without articulable suspicion.

For 600 years, articulable suspicion — the lowest evidentiary standard we have — has been the baseline for all government behavior that targets an individual. Articulable suspicion is the fact-based ability to state why a person — not a group — should be targeted and for what crime. This is the same standard that must be met when police stop someone in public.

Anything less than articulable suspicion is a fishing expedition; stated differently, a general warrant. General warrants — which were used by British agents on American colonists — permitted the agents to stop anyone, to search anywhere and to seize anything without articulable suspicion. The Fourth Amendment outlawed them.

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Defending The Fourth Amendment To Protect Gun Owners

All gun owners fully understand the vital importance of preserving the Second Amendment. But right behind that Constitutional Amendment in importance is the need to uphold the Fourth Amendment’s protection against unreasonable searches and seizures.

After all, without robust Fourth Amendment rights, we will never have much of a Second Amendment right. For that reason, both Gun Owners of America and Gun Owners Foundation have regularly filed amicus briefs to guard against erosion of Fourth Amendment rights. We recently filed such an amicus brief in the U.S. Supreme Court, asking the High Court to ensure that law enforcement not abuse the investigative technique known as “knock and talk.”

As more and more states seek to ban more and more classes of previously legal firearms, gun confiscation has become an ever-greater threat. Historically, the Fourth Amendment’s protections have been greatest when applied to the home, which also happens to be where most guns are kept. The Supreme Court has discussed the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.

However, the courts have recognized that police have the right to “knock” on the door of your home, and “talk” to you – if you agree to speak. In Florida v. Jardines, 569 U.S. 1 (2013), the U.S. Supreme Court ruled that all visitors – including the police – have an “implicit license” to “[i] approach the home by the front path, [ii] knock promptly, [iii] wait briefly to be received, and then (absent invitation to linger longer) [iv] leave.” That rule seems entirely reasonable – but it is astonishing how police have come to abuse that “implicit license.”

In a recently decided case from North Carolina, State v. Reel, 297 N.C. App. 205 (N.C. Ct. App. 2024), the police broke every one of the rules, but the search was upheld. The officers suspected drug dealing was going on at a house, so they parked on a side street and crossed the defendant’s side yard – not the front yard. They followed a visitor to the front door, and when the defendant opened the door for the visitor, tried to force their way in behind her. The police never actually knocked. And, they never actually talked – except to demand the door be opened so they could rush in, claiming to have smelled marijuana. When the defendant refused and shut the door, another officer kicked in the door, searching for and seizing drugs. Thus, “knock and talk” was used as a pretext to conduct a warrantless search and seizure in a home. Nevertheless, North Carolina’s two highest courts approved.

GOA’s amicus brief urged the U.S. Supreme Court to impose a “bright-line” rule for law enforcement, so officers would know their limits, and judges would have a clear rule to enforce. We argue that since the “implied license” was based on the fact that any visitor – such as trick-or-treaters or girl scouts – to a house could “knock and talk,” the police could do the same. So we took that justification and suggested it be made the rule – a clear limitation on what the police could do. We proposed the rule to be:

The right of a police officer to conduct a “knock-and-talk” is no greater than a Girl Scout has to approach a house to sell cookies.

Since a Girl Scout cannot walk around your house to the back yard to the back door, neither can the police. Since a Girl Scout cannot come to your house in the middle of the night, neither can uninvited police. No peering through windows. No forcible entry. No hanging around without invitation from the occupant. No repeated trips back to harass the occupant. No surveillance devices. And, the occupant must have the right to refuse to talk, and to revoke the “implied license” for the police to remain and talk whenever he chooses.

The police have a tough enough job. Fuzzy rules of procedure not only jeopardizes the peoples’ liberties, but also law enforcement safety.

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West Virginia Supreme Court Considers Whether Smell Of Marijuana Can Be Basis For Police To Search Homes

The Supreme Court of Appeals of West Virginia is considering a case that questions whether the odor of marijuana alone is enough for law enforcement to obtain a warrant to search a person’s home.

The Supreme Court is expected to rule on an appeal of Berkeley County Circuit Court’s decision to throw out evidence Martinsburg police officers found in a home after detecting the “strong odor” of the drug. Excluding the evidence effectively stopped the state from prosecuting a man on drug charges, an attorney told justices last week.

Aaron Lewis was arrested in 2020 on three counts of drug possession with intent to deliver and being a prohibited person in possession of a firearm, according to reporting by the Herald-Mail.

Court documents say Martinsburg police were answering another man’s call about a suicidal woman who had reportedly stabbed herself when they came across Lewis while searching the caller’s backyard. Officers were unable to locate the woman so they started going door-to-door looking for her.

The officers went to Lewis’s home where his son, Aaron Lewis Jr. answered the door. The officers detected the “strong odor of marijuana,” according to court documents. The younger Lewis refused to give officers permission to search the home.

Before they obtained a search warrant, they entered the home to conduct a “protective sweep,” during which they found a bundle of money and two clear bowls with a leafy substance on the kitchen stove, court documents say. Two officers then left to obtain the search warrant while other officers stayed on scene to secure the apartment.

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Supreme Court Hears Landmark Case On Geofence Warrants, Testing Digital Privacy Limits

The U.S. Supreme Court on Monday heard oral arguments in Chatrie v. United States, a high-stakes case that could reshape Fourth Amendment protections in the digital age and determine the future of controversial “geofence” search warrants used by law enforcement.

Geofence warrants allow police and federal agents to compel companies like Google to disclose location data for all users present in a designated geographic area during a specific time window. Investigators use the tool to identify potential suspects by sifting through vast troves of smartphone location information, effectively searching first and developing probable cause later.

Civil liberties groups argue the practice is inherently overbroad and violates constitutional safeguards against unreasonable searches. Critics point to instances where innocent bystanders, protest attendees, and unrelated individuals have had their data swept up, sometimes due to warrants that extended far beyond the crime scene, reported Tech Crunch.

The case stems from the 2019 armed robbery of a bank in Virginia. Surveillance footage showed a suspect using a cellphone. Police obtained a geofence warrant from Google, requesting anonymized location data for devices within a small radius of the bank around the time of the crime. Google initially provided data for multiple accounts. Investigators then sought identifying information for a subset of users, including Okello Chatrie, who was later linked to the scene, arrested, and sentenced to more than 11 years in prison after pleading guilty.

Chatrie’s legal team challenged the warrant, contending it lacked sufficient probable cause tying him—or any specific account—to the robbery. Lower courts split on the issue, with one ruling the warrant failed to meet constitutional standards but ultimately allowing the evidence under the “good faith” exception. Chatrie’s appeal argues the warrant unconstitutionally permitted a broad search of hundreds of millions of Google users’ data.

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Supreme Court To Review Geofencing In Pivotal Case For Privacy Rights

The Supreme Court on April 27 will hear oral arguments in a case with major implications for privacy rights—and how law enforcement uses Americans’ cell phone data while investigating crimes.

The case, Chatrie v. United States, centers on law enforcement’s use of “geofencing warrants”—judge-authorized requests for cell phone location data near the scene of a crime.

Okello Chatrie told the Supreme Court that the government’s use of these warrants, which resulted in a criminal conviction over his robbing a bank while his smart phone was on his person, violated his Fourth Amendment rights. The government, meanwhile, has argued that such data is not protected when provided voluntarily to a “third party” like Google.

The court said it would focus on the circumstances of Chatrie’s case rather than the constitutionality of geofencing more generally. However, experts say that the Supreme Court’s decision will reverberate through future cases concerning privacy in the digital age.

Dr. David Super, a professor of law at the Georgetown University Law Center, described the case to The Epoch Times as “once-in-a-generation,” whatever the outcome.

Chatrie’s Warrant

In 2019, law enforcement received a geofence warrant from a state court seeking anonymized location data for devices within 150 meters (about 500 feet) of the bank robbery. In this form, the data couldn’t be used to identify specific cellphone users.

After Google complied with the first request, law enforcement then sought location data for devices over a longer, two-hour period, without seeking an additional court warrant. Google again provided the information.

Then—still without seeking a warrant—investigators asked Google for “de-anonymized subscriber information for three devices,” and Google complied.

One of those devices belonged to Chatrie, and the information provided the basis for Chatrie’s eventual conviction for armed robbery.

Though Chatrie confessed, his lawyers argue that the geofencing evidence should be tossed because the warrant deprived him of his Fourth Amendment rights, which guarantees that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”

Chatrie’s lawyers argued that the geofence warrant allowed investigators to gather the location history of people who were near the scene of the crime even though there was no other probable cause.

Super told The Epoch Times that geofencing was “pivotal” to the case against Chatrie. “The question in Chatrie is whether something as dramatic as a geofencing search is limited by the Fourth Amendment and requires the government to show specific needs with a proper basis,” he said.

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The Surveillance Accountability Act Demands Warrants for Data

Rep. Thomas Massie (R-KY) and Rep. Lauren Boebert (R-CO) have introduced the Surveillance Accountability Act, a bill that feels like someone took the Fourth Amendment and actually meant it.

The legislation aims “to ensure that all searches that significantly impinge on the privacy or security of a person require a warrant based on probable cause” and to create “a right of action for violations of Fourth Amendment rights.” That covers the kinds of searches federal agencies currently conduct without judicial oversight: pulling your financial records from banks, requesting your browsing history from ISPs, buying your location data from brokers, and harvesting your biometric information from surveillance cameras.

We obtained a copy of the bill for you here.

The bill lands in the middle of a brutal Congressional fight over FISA Section 702, the surveillance authority that currently lets the FBI search Americans’ communications.

The new legislation goes much further than the various reform bills circulating around that debate. Where the SAFE Act and the Government Surveillance Reform Act target specific loopholes in FISA, the Surveillance Accountability Act tries to close all of them at once by rewriting the baseline rule: if the government wants your data, it needs a judge’s permission.

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