Tag: 4th amendment

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

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

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

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

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

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

Keep reading

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

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

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

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

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

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

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

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

Keep reading

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

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

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

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

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

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

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

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

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

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

Keep reading

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

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

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

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

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

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

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

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

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

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

Keep reading

Taxpayer-Subsidized Seminars Train Cops To Violate the Constitution

If a driver looks away while passing a police car, cops learn from a checklist promoted at an October 2021 conference in Atlantic City, that is suspicious. But if a driver stares at the police car, that is also suspicious. Hats work both ways too: Wearing one “low to cover [your] face” is suspicious, but so is removing a hat when you are stopped by the police. Other telltale signs of criminal activity, according to Street Cop Training’s list of “reasonable suspicion factors,” include texting, smoking, lip licking, yawning, stretching, talking to a passenger while keeping your eyes on the road, signaling a turn early or late, maintaining “awkward closeness” or “awkward distance” during a stop, standing parallel or perpendicular to the car, saying you are heading to work or heading home, questioning the reason for the stop, and refusing permission for a search.

That Street Cop Training checklist, which offers handy excuses for officers keen to conduct searches for drugs or seizable cash, figures prominently in a recent report from Kevin Walsh, New Jersey’s acting comptroller. The report criticizes the New Jersey company for encouraging officers to make or extend stops without reasonable suspicion and for promoting a “warrior” mentality that fosters the excessive use of force. “We found so many examples of so many instructors promoting views and tactics that were wildly inappropriate, offensive, discriminatory, harassing, and, in some cases, likely illegal,” Walsh said when he released the report this week. “The fact that the training undermined nearly a decade of police reforms—and New Jersey dollars paid for it—is outrageous.”

Street Cop Training was founded in 2012 by Dennis Benigno, who was a Woodbridge, New Jersey, police officer until 2015. Each year the company, which Benigno describes as “one of the largest, if not the largest, police training providers in the United States,” trains about 25,000 officers from agencies across the country. The six-day Atlantic City seminar that Walsh describes in his report attracted nearly 1,000 officers, including 240 from New Jersey. Their employers covered the expenses, which included a $499 fee for each officer, travel and lodging, and paid time off.

What did taxpayers get for their money? Potentially, Walsh argues, greater exposure to more expenses down the road, including millions of dollars spent to litigate and settle civil rights lawsuits. “This kind of training comes at too high a price for New Jersey residents,” Walsh’s report says. “The costs of attendance for training like this is small in comparison to the potential liability for lawsuits involving excessive force, unlawful searches and seizures, and harassment and discrimination.”

While “some of the observations and reasoning” described in Street Cop’s checklist “find support in case law,” Walsh says, “others appear to be arbitrary and contradictory.” Officers who follow Benigno’s advice therefore may end up violating the Fourth Amendment by making or prolonging stops based on factors that fall short of reasonable suspicion. If so, any resulting searches also would be unconstitutional, making any evidence they discover inadmissible.

Keep reading

Secret Surveillance Program: White House Goes Rogue, Breaking All Laws

The government wants us to believe that we have nothing to fear from its mass spying programs as long as we’ve done nothing wrong.

Don’t believe it.

It doesn’t matter whether you obey every law. The government’s definition of a “bad” guy is extraordinarily broad, and it results in the warrantless surveillance of innocent, law-abiding Americans on a staggering scale.

For instance, it was recently revealed that the White House, relying on a set of privacy loopholes, has been sidestepping the Fourth Amendment by paying AT&T to allow federal, state, and local law enforcement to access—without a warrant—the phone records of Americans who are not suspected of a crime.

This goes way beyond the NSA’s metadata collection program.

Operated during the Obama, Trump and now the Biden presidencies, this secret dragnet surveillance program (formerly known as Hemisphere and now dubbed Data Analytical Services) uses its association with the White House to sidestep a vast array of privacy and transparency laws.

According to Senator Ron Wyden, Hemisphere has been operating without any oversight for more than a decade under the guise of cracking down on drug traffickers.

This is how the government routinely breaks the law and gets away with it: in the so-called name of national security.

Keep reading

A Secret Phone Surveillance Program is Spying on Millions of Americans

According to a letter obtained by WIRED, a little-known surveillance program called Data Analytical Services (DAS) has been secretly collecting and analyzing more than a trillion domestic phone records within the U.S. each year. The program, which was formerly known as Hemisphere, is run by the telecom giant AT&T in coordination with federal, state and local law enforcement agencies.

The program uses a technique known as chain analysis, which targets not only those in direct phone contact with a criminal suspect but anyone with whom those individuals have been in contact as well. This means that innocent people who have no connection to any crime can have their phone records swept up and scrutinized by the authorities.

The program allows law enforcement agencies to access the records of any calls that use AT&T’s infrastructure, which covers a large portion of the country. The records include the phone numbers, dates, times, durations and locations of the calls, as well as the names and addresses of the subscribers.

The DAS program raises serious concerns about the privacy and civil liberties of millions of Americans. It operates without any judicial oversight or public accountability and violates the Fourth Amendment, which protects people from unreasonable searches and seizures.

Keep reading

Police Circumventing Warrant Requirements By Purchasing Data from Private Vendors

John Adams warned us that if we give government an inch, it will take a mile.

“The nature of the encroachment upon the American Constitution is such, as to grow every day more and more encroaching. Like a cancer, it eats faster and faster every hour.”

We’ve seen this play out dramatically when it comes to the Fourth Amendment.

The courts have created all kinds of exceptions to the Fourth Amendment. But the government continues to push for more and look for ways to circumvent the restrictions on searches and seizures currently in place.

In the latest ploy to gobble up as much personal information as possible, state and federal law enforcement agencies have turned to buying information from private data miners. According to a report from LawFare Media, buyers of private data include the Department of Homeland Security, the Internal Revenue Service’s Criminal Investigations Division, the Defense Intelligence Agency, and police departments across the country.

If government agents collect the same data directly from cell phones or internet providers, they would have to get a warrant. However, government attorneys argue that purchasing data from private brokers does not violate the Fourth Amendment because once the data becomes “public,” the expectation of privacy disappears. Furthermore, most user agreements stipulate that third parties may collect data. Since customers agree to the TOS, government lawyers contend that they effectively give up their right to privacy.

Keep reading

Alabama Cops Who Arrested Mechanic for Not Giving Them His ID Denied Qualified Immunity

A federal court has sided with Roland Edger, an Alabama man who says he was wrongfully arrested after he declined to give police officers his driver’s license in 2019. While a lower court had granted qualified immunity to the officers, the U.S. Court of Appeals for the 11th Circuit overturned that decision, ruling that the officers clearly violated Edger’s Fourth Amendment rights and that Edger’s suit against them may go forward.

In June 2019, Edger, a mechanic in Huntsville, Alabama, received a call from a customer, who told him that his wife’s car had broken down and asked him to come out to repair it. The car was in the parking lot of a local church, where the customer’s wife worked. The customer told Edger he could pick up her keys at the church’s front desk.

When he arrived at the church on June 10, a few days after the customer had called, Edger retrieved the keys from the church and began inspecting the car. According to the ruling, Edger says he believed something was wrong with the car’s steering or tires and that he’d need to return with the necessary tools to fix the vehicle.

Keep reading

Just The Facts On ‘Geofencing’: The Intrusive, App-Based ‘Dragnet’ That Sgt. Joe Friday Never Dreamed Of

As worshippers gathered at the Calvary Chapel in 2020, they were being watched from above.  

“We are in the space between the emergence of this technological practice and courts having ruled on its constitutionality,” said Alex Marthews, national chair for Restore the 4th, a nonprofit organization dedicated to the protection of the Fourth Amendment, which protects Americans’ rights against “unreasonable search and seizure.” 

“Geofencing” often begins with an innocent click. Smartphone apps ask if they can access location to improve service. When users say they yes, they often don’t realize that the apps that help them drive, cook, or pray are likely reselling their information to far-flung for-profit entities. This and other information detailing people’s behaviors and preferences is valuable for businesses trying to target customers. The global location intelligence market was estimated at $16 billion last year, according to Grand View Research, which predicts that figure will grow to $51 billion by 2030.

While it is legal for private companies to broker this information, constitutional questions arise when government accesses data from a third party that it would be prohibited from collecting on its own. The lawsuit filed by Calvary Chapel in August argues that Santa Clara County carried out a warrantless surveillance of the church when it acquired information in 2020 on the church’s foot traffic patterns collected by a research team from Stanford University. Court documents show the researchers acquired the information, which originated with Google Maps, from the location data company SafeGraph, which is also being sued by Calvary. 

Nicole Berger, SafeGraph’s senior vice president of operations, has said the Stanford team violated the company’s terms of service and non-commercial research agreement. For its part, Google has since cracked down on third-party vendors, though it still uses location and other data for its own operations.

Google was recently ordered to pay $93 million in a settlement over its collection of location data even after users turned off their location history. The company is also involved in an ongoing dispute in an Oakland, Calif., U.S. District Court over the company’s “Real Time Bidding” process, whereby customers’ personal information is auctioned off to advertisers, so that they can place targeted ads. According to the Calvary Chapel lawsuit, it was this process, among others, which enabled SafeGraph to collect users’ location data. 

Geofencing allows users to build a fence around certain areas or points-of-interest such as Calvary Chapel or the area near the Capitol on Jan. 6 and see when people entered that space.

Keep reading