Tag: 4th amendment

The 5th Circuit Rejects Qualified Immunity for Cops Who Searched a Driver After a Bogus Traffic Stop

Around 5 p.m. on a Wednesday in June 2022, Mario Rosales was driving his red Mustang on Jackson Street in Alexandria, Louisiana, waiting to turn left onto Dorchester Drive, when a police SUV pulled up behind him. After the traffic light turned green and Rosales made his turn, Officers Samuel Terrell and Jim Lewis activated their lights and pulled him over.

The officers later claimed Rosales had “failed to signal” his turn. But as dashcam video showed, that was not true: The Mustang’s left-turn signal was blinking as Rosales waited at the intersection. And after stopping Rosales and his girlfriend, Gracie Lasyone, who was sitting in the front passenger seat, Terrell and Lewis detained them for 21 minutes, during which the cops asked if there was anything illegal in the car, grilled them about drug use, frisked Rosales, instructed him to empty his pockets, and gave him and Lasyone the Miranda warning that typically accompanies an arrest.

Rosales and Lasyone sued Terrell and Lewis in federal court that November, arguing that the officers had violated their Fourth Amendment rights under color of law. Terrell and Lewis claimed they were protected by qualified immunity, a doctrine that bars such lawsuits unless they allege violations of “clearly established” law. A federal judge disagreed, and last week the U.S. Court of Appeals for the 5th Circuit upheld that decision, concluding that Rosales and Lasyone’s allegations were sufficient to defeat qualified immunity at this stage of the case.

That ruling by a unanimous three-judge panel is striking for two reasons. It illustrates the limits of the broad leeway that the Supreme Court has given police officers to stop and interrogate motorists. It also illustrates the limits of qualified immunity, which in many cases has prevented victims of outrageous police misconduct from pursuing constitutional claims because they were unable to cite sufficiently specific precedents.

In the 1968 case Terry v. Ohio, the Supreme Court ruled that police may stop someone when they reasonably suspect he is involved in criminal activity and may frisk him if they reasonably suspect he is “armed and dangerous.” Three decades later in Whren v. United States, the Court said reasonable suspicion of a traffic violation is enough to justify stopping a car, even when that allegation is a pretext for an unrelated criminal investigation. And when a traffic stop is legally justified, the Court has held in other cases, police may question the driver about unrelated matters and may order both the driver and any passengers out of the car in the interest of officer safety.

The impact of those rulings was clear when Terrell and Lewis pulled over Rosales and Lasyone. The cops ordered both of them to exit the car, and they interrogated them about their places of residence, itineraries, criminal histories, and personal habits.

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Flock’s Optional Gunshot Detection Feature Has Fourth Amendment Implications for Gun Owners

Flock is just one of many suppliers in the global gunshot detection market, which has an estimated total value of $1.5 billion. But the company’s marketing material raises concerns about the technology’s capabilities, which go beyond simply detecting gunfire. In Flock’s own words, a confirmed gunshot “can surface the vehicles seen entering or leaving the area around the time of the sound, using nearby Flock license plate reader cameras.” That statement deserves scrutiny, since it describes a mechanism for turning suspected gunfire into a list of nearby vehicles.

Innocent gun owners could end up on such lists. Suppose a bang recorded by one of these microphones gets classified as gunfire (which it may not actually be, given the possibility of a false positive from a similar noise). That “confirmed event” can trigger an ALPR [automated license plate recognition] inquiry that sweeps in drivers who had nothing to do with the noise. In a country where more than 20 million people have carry permits and 29 states do not require them, some of those drivers will be lawfully armed. The proximity of those innocent drivers could be mistaken for evidence that they fired the shot.

This possibility raises two legal concerns for lawful gun owners. First, what justifies stopping a person on one of these lists? Second, is querying the database a search under the Fourth Amendment? Recent cases provide some answers.

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen protects lawful public carry. In the 2024 case United States v. Daniels, which involved the detention of an unarmed man who did not match a 911 caller’s description of armed men, the U.S. Court of Appeals for the 10th Circuit noted that no crime was reported. Citing Bruen, the court said it “cannot look with suspicion on citizens presumably exercising their Second Amendment rights in a lawful way.”

Last May in Commonwealth v. Foster, by contrast, the Pennsylvania Supreme Court upheld a stop where police responded within seconds to late-night alerts from a gunfire microphone, found only two people, and observed conduct the court considered evasive. An investigative stop requires reasonable suspicion based on specific facts connecting someone to suspected criminal activity. The risk here is that an alert combined with a plate match could be treated as sufficient for reasonable suspicion even though it only establishes proximity.

A recent case from New Jersey illustrates that risk. Last March, in State v. Carrillo, a state appeals court ordered suppression of evidence (an unlawfully possessed handgun) discovered in a minivan after a traffic stop. The police searched the minivan after obtaining a warrant. But the court held that a gunshot alert and an ALPR hit did not adequately connect the minivan to a shooting the day before. Prosecutors conceded that video supposedly showing muzzle flashes from the minivan at the time of the gunfire actually showed none.

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Far-Left MA Gov. Maura Healey Wants Government Healthcare Workers to Barge Into the Homes of EVERY New Baby in the State “To Make an Assessment”

Far-left Democrat Governor Maura Healey is pushing a shocking new proposal that would expand state-funded home visits to the house of every single newborn baby born in the state.

Under the guise of “maternal healthcare” and mental health support, Healey wants government-appointed healthcare providers to physically enter the homes of parents to conduct “assessments” on families.

On Boston Public Radio, after pitching her postpartum package, Healey said this:

“Everybody in the state, when you have a baby, you’re going to have a home visit. You’re going to have a home visit within days, weeks, and that will be an opportunity for a healthcare provider to make an assessment and to see if you need some additional support and resources.”

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Flock surveillance cameras and Second Amendment rights clash at gun shops across America

It’s widely known, certainly among my readers, that Atlanta-based Flock Group Inc. is violating the Fourth Amendment rights of Americans on a mass scale, and any local politicians or sheriffs who don’t realize that clearly don’t have even a basic understanding of what those rights consist of.

The Fourth Amendment protects the right of all Americans to be secure from unreasonable searches and seizures by the government. It also requires warrants to be based on probable cause and to describe the place and things to be searched or seized.

But a less recognized clash is taking shape between Flock’s AI surveillance grid and the Second Amendment, which gives citizens the right to keep and bear arms, part of which the courts have generally agreed forbids the creation of a national gun registry.

But what if every gun purchase is logged on a video and stored somewhere in a central database?

The Washington Times is reporting that gun shops are pulling down their Flock cameras following a growing number of complaints from customers who believe the cameras have turned into a monitoring network that threatens their gun rights.

Michael Carter, owner of Gun Commanders in Cleveland, Georgia, installed Flock cameras two years ago to combat burglars and help law enforcement nab illegal gun buyers.

He told the Times that he recently took down the cameras, which record license plate numbers and other data such as make, model, color, and even scratches, dents and bumper stickers to track vehicles entering and exiting his parking lot. He pulled the cameras after his customers complained and posted their criticisms on social media.

This is the latest component of a nationwide privacy-rights backlash against​ Flock’s AI-powered surveillance cameras popping up on street corners, in parks, parking lots, neighborhoods or on drones buzzing overhead.

Carter has taken the hint. If he values his customers, he had better ditch the AI surveillance cameras documenting everyone who comes to his shop to buy a gun.

“I installed the system with the best of intentions — to protect the people who walk through our doors every day,” Carter told Now Georgia. “After listening to my customers, I realized that maintaining their trust is more important than any piece of technology.”

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Shapiro Tries To Arm Pennsylvania Health Bureaucrats With Warrantless Entry Powers And Forced Vaccine Databases — Voters Already Said No Once

Pennsylvania Governor Josh Shapiro is pursuing autocratic powers for public health that Pennsylvania voters removed five years ago, and he is doing it behind the scenes through regulations not legislation.

A 502-page proposal for modifications to the Pennsylvania health code, published on August 8, grants the Pennsylvania Department of Health vast new powers to enter premises without warrants, access medical records without consent, direct a statewide vaccine data system, impose masking mandates during an outbreak, as well as masking mandates in an effort of “prevention” for any “condition” the department has determined warrants an intervention.

It is important to digest the implications of this. The proposed regulations define “condition” to mean “noninfectious medical ailment or other health-related event”. That gives far reaching powers to the department of health in the guise of public health.

“The administration’s draft rules on masks and infectious diseases are deeply troubling,” said Pennsylvania lawmaker Michele Brooks. “These include standards that establish ‘rule by fiat’ for the imposition of masking, distancing, and virtually any other disease control measures; a state vaccine registry with mandatory reporting; the power to control attendance at funerals; and the broadest powers to track and collect private health information and to enter private property.”

Pennsylvanians know where this goes. Former Governor Tom Wolf instituted some of the most draconian COVID-19 lockdown orders in the U.S. from March 2020 to June 2021. Shapiro, then Attorney General, issued the mandates, and in defense of the state’s school mask mandate, called concerned parents “self-centered” in a 2021 filing to the Pennsylvania Supreme Court.

The Supreme Court ultimately handed down a judgment against Shapiro, ruling the Department of Health acted outside of its authority. However, the Court did write that the Department of Health had the ability to change its own rules. Shapiro seems to have taken this to heart.

In May 2021, Pennsylvanians passed a constitutional amendment constraining governors’ emergency powers to three weeks. Shapiro’s regulatory maneuver is designed to circumvent this democratic outcome entirely, granting a permanent, non-emergency power to a department he controls.

Randall Wenger, chief counsel of the Independence Law Center, fearful that health care workers will be allowed to access schools and interrogate children in private, said that parents deserve the right to care for their children as they see fit. “These regulations allow a bureaucrat to go into a school to meet with a child without parents’ knowledge and telling the school officials that they can’t even interfere with this. That’s unconscionable,” Wenger told The Daily Wire.

Shapiro comes from the Democrat buzz saw of presidential candidates and is potentially running in 2028. What he is doing in Pennsylvania is not public health — it is building a system of surveillance and compliance to be used nationwide. Pennsylvania did not vote for this system. Shapiro is doing it anyway, and whether the legislative branch steps in tells us how much the voters value the limits to power they voted for this year.

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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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