Issues in the American Creed (Constitutional Law and related matters) SCOTUS

[Crafty_Dog]

By MICHAEL W. MCCONNELL
Last week's announcement that "Pay Czar" Kenneth Feinberg slashed compensation for executives at seven large financial firms by an average of 50% stunned Wall Street, stoked the fires of populist resentment, and troubled economists. Will this government-mandated pay cut drive the most talented professionals away from these companies, endangering their recovery? Does it augur further politicization of economic decisions?

Lost in the arguments over economics and political theory, however, is a more basic question: Was this action constitutional?

Mr. Feinberg's ukase is the most prominent example (and not just by the Obama administration) of the exercise of power by an individual unilaterally appointed by the executive branch without Senate confirmation—and thus outside the ordinary channels of Congressional oversight. Earlier this month, the Senate Subcommittee on the Constitution conducted hearings into the constitutional basis for this practice, which many see as an end-run around checks and balances. The Obama administration declined Sen. Russ Feingold's (D., Wisc.) invitation to send a witness to the hearing to explain the constitutional basis for its various "czars."

So who is Kenneth Feinberg, and where did he get the power to set pay for executives at private firms?

As part of the hastily enacted and seldom-read legislation establishing the Troubled Asset Relief Program (TARP), Congress authorized the Secretary of the Treasury to "require each TARP recipient to meet appropriate standards for executive compensation." To carry out this task, last June the Treasury promulgated an emergency "Interim Final Rule," waiving ordinary requirements for a public comment period.

As part of this emergency rule, Treasury Secretary Timothy Geithner created the office of "Special Master" for compensation, delegated his TARP authority to set compensation standards to this officer, and appointed Mr. Feinberg (a lawyer and mediator) to this position, without obtaining Senate confirmation.

Therein lies the problem. The Appointments clause of the Constitution, Article II, section 2, provides that all "Officers of the United States" must be appointed by the president "by and with the Advice and Consent of the Senate." This means subject to confirmation, except that "the Congress may by Law vest the Appointment" of "inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

There is no doubt that Mr. Feinberg is an "officer" of the United States. The Supreme Court has defined this term (Buckley v. Valeo, 1976) as "any appointee exercising significant authority pursuant to the laws of the United States." Mr. Feinberg signed last week's orders setting pay levels for executives at Bank of America, AIG, Chrysler Financial, Citigroup, GMAC, General Motors and Chrysler. They have the force of law and are surely an exercise of "significant authority" pursuant to an Act of Congress. He is not a mere "employee," acting at the direction of a superior. That means his office is subject to the requirements of the Appointments Clause.

While somewhat more disputable, Mr. Feinberg's is probably an "inferior" officer, defined as one subject to supervision and removal by a member of the cabinet. Although he has substantial discretion and independence, Mr. Feinberg reports to the secretary of the Treasury, who can fire him any time for any reason. This means that Congress could, if it wished, vest the appointment of the pay czar in the secretary, without any need for Senate confirmation.

But Congress has not done so. On the contrary, it vested the authority to implement TARP's compensation provision in the secretary of the Treasury. The secretary may sub-delegate that power to someone else—but that someone must be an "officer" properly appointed "by and with the advice and consent of the Senate."

The Supreme Court observed in Buckley v. Valeo that the provisions governing appointments under the Constitution reflect more than "etiquette or protocol." They embody the Founders' conviction that all power under U.S. laws must be exercised by officers with constitutional authority.

The Founders understood that the president and heads of the executive departments could not single-handedly carry out the law, so they required Senate confirmation as what the Federalist Papers call "an excellent check" on abuse or favoritism by the president. Yes, there are some offices so inferior that this check may be eliminated—but it is for Congress to judge which ones these may be. Congress and Congress alone has power to dispense with the safeguard of the confirmation process.

The power to set compensation at large American businesses is especially subject to potential abuse, favoritism, arbitrariness, or political manipulation. It is no reflection on Kenneth Feinberg, who has a sterling reputation and who appears to have approached these sensitive duties with a spirit of commendable integrity, to say that the checks and balances of the Constitution should be scrupulously observed. They were not. Because he is not a properly appointed officer of the United States, Mr. Feinberg's executive compensation decisions were unconstitutional.

Mr. McConnell is on the faculty of Stanford University Law School, director of its Constitutional Law Center, and a senior fellow at the Hoover Institution. He was a federal judge on the 10th Circuit Court of Appeals from 2002-2009.

[Crafty_Dog]

Pasting here BBG's post from the Libertarian thread:

fizer abandons site of infamous Kelo eminent domain taking

By: Timothy P. Carney
Examiner Columnist
11/09/09 1:47 PM EST

The private homes that New London, Conn., took away from Suzette Kelo and her neighbors have been torn down. Their former site is a wasteland of fields of weeds, a monument to the power of eminent domain.

But now Pfizer, the drug company whose neighboring research facility had been the original cause of the homes' seizure, has just announced that it is closing up shop in New London.

To lure those jobs to New London a decade ago, the local government promised to demolish the older residential neighborhood adjacent to the land Pfizer was buying for next-to-nothing. Suzette Kelo fought the taking to the Supreme Court, and lost. Five justices found this redevelopment met the constitutional hurdle of "public use."

The Hartford Courant reports:

Pfizer Inc. will shut down its massive New London research and development headquarters and transfer most of the 1,400 people working there to Groton, the pharmaceutical giant said Monday....

Pfizer is now deciding what to do with its giant New London offices, and will consider selling it, leasing it and other options, a company spokeswoman said.

Scott Bullock, Kelo's co-counsel in the case, told me: "This shows the folly of these redevelopment projects that use massive taxpayer subsidies and other forms of corporate welfare and abuse eminent domain."

http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/Pfizer-abandons-site-of-infamous-Kelo-eminent-domain-taking-69580497.html

[DougMacG]

Amazing and appalling that these public officials were in such a hurry to take these homes and that now, a decade later, the project will not be built.

Your home is your castle.  You are constitutionally protected against unreasonable search.  But condemnation, taking of the title and bulldozing can be done simply in the name of economic favoritism according to Anthony Kennedy siding with all the 'liberals' on the court.

[Crafty_Dog]

http://www.constitution.org/afp/afp.htm

A friend likes this one in particular

http://www.constitution.org/afp/brutus01.txt

[Crafty_Dog]

by JAMES TARANTO
New York

Seth Lipsky has a knack for seeing the bright side of things. A nearly 20-year veteran of this newspaper, including its editorial page, he cheerfully acknowledges the obvious: This is far from a golden age of free-market conservatism. Of President Obama, he tells me over lunch, "I sense that he has a very leftist, socialist-oriented worldview."

Yet this makes Mr. Lipsky anything but grim: "I for one find this very exciting. . . . We're just at a great moment."

Why? Because, he says, "America is in what I call a constitutional moment." Mr. Obama's efforts to expand government power raise basic questions about the constitutional limits of that power. "The enumerated-powers argument is enormous," Mr. Lipsky says. "It's just enormous, the ground that is open for contest here. . . . Right now, we're at a moment where we're not going to be able to turn to either the Congress or the executive branch for help on this." He believes "the only defense now, the only tool we have now, is the Constitution. That's why I call it a constitutional moment, as opposed to a political moment."

That makes it an auspicious moment for Mr. Lipsky's new book, "The Citizen's Constitution: An Annotated Guide." The U.S. Constitution is a brief document, taking up just 42 pages in a popular pocket-size edition from the Cato Institute. Mr. Lipsky expands it to 287 pages of 5 by 8 inches, by way of 327 lengthy footnotes in which he discusses each and every constitutional clause in the context of history, case law and current events. There are an additional 36 pages of bibliographic references, making it the only book I've seen in which the footnotes have endnotes.

Mr. Lipsky doesn't remember exactly when he thought of the idea, but he believes it was in the late 1980s. "I got into an argument over abortion and was talking to someone about the right to privacy," he recalls. "I looked at a pamphlet the government had issued with a text-only edition of the Constitution, and I realized I couldn't find the word 'privacy' in the Constitution. I began to think about a better edition." Mr. Lipsky's edition has an index, where the listing for "privacy, right to" directs the reader to the chapters on the Third, Ninth and 14th amendments.

As a newspaperman for 40-plus years—in addition to working for the Journal, he founded two papers of his own—Mr. Lipsky has built a career on the First Amendment. But his enthusiasm extends as well to the preamble, the original seven articles and the 26 other amendments.

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Zina Saunders
 ."For years I've been sending memos to people who worked for me—desk editors, reporters, editorial writers—constantly trying to raise their consciousness about the usefulness of the Constitution in editorial work," he says. "Usually these memos that I would send would be simple memos, like, 'Where the hell does the Congress get the power to do that?' or, 'The New York Sun will not carry a dispatch about the Second Amendment which does not quote Justice Story as saying the Second Amendment is the palladium of our liberties.'"

In 1968, after graduating from Harvard, Mr. Lipsky took a reporting job at the Anniston Star in Alabama. He was there just seven months before he was drafted and sent to Vietnam, but it was long enough to provide a formative experience. He visited Frank Johnson, then a federal district judge, who had been a member of the three-judge panel that ordered the desegregation of Montgomery buses after Rosa Parks's arrest. Johnson also presided over Lee v. Macon County, a school-desegregation case that began in 1963.

He told Mr. Lipsky about the trial: "The school board was ready to accede when Gov. [George] Wallace heard about it and ordered them not to. So Johnson gets [Wallace] into court, and he says, 'On what basis are you objecting to this order?' [The governor] says, 'Well, I'm the ex officio chairman of the state board of education, and under that authority, I'm telling them not to integrate the schools.'

"Johnson says, 'As ex officio chairman of the state board of education, you have the power to tell the school board of Macon County, Alabama, that they can't integrate the school?' And the governor says, 'Yes, your honor, I do.' The judge says, 'Well, then, I'm ordering you to integrate all 67 counties in Alabama.'"

In Vietnam, Mr. Lipsky worked as a combat reporter for Pacific Stars and Stripes. Returning to civilian life, he joined the Journal in Detroit, with later postings in Hong Kong, New York and Brussels. He left in 1990 to start an English-language weekly edition of the Forward, a venerable Yiddish newspaper. In 2002, he founded the daily New York Sun—or rather he revived it, the original Sun having folded in 1950. The new Sun attracted a small but influential readership and gave many aspiring writers their start. It ceased publication last year, although Mr. Lipsky and a small stable of writers still publish occasional stories at nysun.com.

The optimism that drove Mr. Lipsky to start a daily newspaper in the Internet age also informs his view of the prospects for American governance. "One of the wonderful things about the Constitution is that anybody can play," he says. "Ordinary people asking simple questions have affected the country in enormous ways using this document. . . . It's just astounding the way individual predicaments and problems are used by the [Supreme] Court to lay down broad principles in the country."

To prove his point, he cites examples from the 1930s, the 1960s and the current decade.

The 1935 case of Schechter Poultry Corp. v. U.S. was decided at a time when the liberal political juggernaut looked even more unstoppable than today. Mr. Lipsky describes the facts: Enforcing the National Industrial Recovery Act, which gave the president vast powers to regulate business, "government thugs went into the kosher butcher shop of the Schechter family in Brooklyn, and they arrested its proprietor on criminal charges."

Among the charges: permitting a housewife "to pick which chicken she wanted." This measure provoked some levity during oral arguments at the Supreme Court: "The judges are asking a question about, 'How is the housewife supposed to pick out her chicken when she can't look at it?' Schechter's lawyer reaches over his shoulder into an imaginary cage and starts pitching around for a chicken, and the Supreme Court started laughing."

The justices ruled unanimously in Schechter's favor and declared the act unconstitutional. "They ended the New Deal," Mr. Lipsky says. Then, with more feeling: "They ended the New Deal!" (This overstates the case somewhat. The court later upheld the Social Security Act and the National Labor Relations Act.)

Gideon v. Wainwright (1963) "involved this guy who was arrested in Florida for robbing a poolroom. He goes into the court and says, 'The Supreme Court says I have a right to a lawyer.' The judge says . . . something to the effect of, 'Not in the state of Florida, you don't.' He gets convicted; he gets sent to prison. While he's in prison, he goes to the prison library. This derelict basically writes an appeal to the Supreme Court . . . in pencil and paper—a pauper's petition that says, 'I have a right to a lawyer.' The Supreme Court notices it, assigns Abe Fortas"—who himself joined the court in 1965—"to defend him. He wins the right to a lawyer for everyone accused of a crime in America. The name of Clarence Earl Gideon will be remembered as long as there is a law."

Last year's District of Columbia v. Heller, in which the court held that the Second Amendment protects an individual right to own firearms, exemplifies Mr. Lipsky's point that the language of the Constitution retains its power even when long ignored. "We've had 200 years, and nothing's ever been done about this," he says. "For 50 of the 200 years, the New York Times has been sneering at the idea of an individual right, and everybody's been talking about how this right belongs to the 'militia.'"

Yet by carefully analyzing the language of the Second Amendment, the court cast aside that musty conventional wisdom. Mr. Lipsky, who describes himself as "a partisan of the plain-language school of the law," applauds not just the result but the method the justices, in an opinion by Antonin Scalia, employed to reach it: "They really get into the language. I mean, the actual grammar, the sentence structure, the subordinate and not-subordinate clauses, which—forgive me, but I've been arguing for a generation and a half as an editorial writer, the plain language of this thing is plain."

Although anybody can play, not everybody can win. In 2003, the high court ruled against Susette Kelo and allowed the city of New London, Conn., to seize her house under eminent domain and turn the land over to private developers.

It's just unbelievable, that case," Mr. Lipsky says—and all the more so in light of the latest development, or rather the lack of development. On Monday, Pfizer Inc., which was to have built offices on the now-barren site, announced that it was leaving New London altogether as part of a consolidation move.

Such disappointments notwithstanding, Mr. Lipsky's passion for the Constitution is a tonic for political depression. If ObamaCare does become law, to take an especially worrying example, it isn't hard to imagine a lot of Americans facing "individual predicaments," including threats to their lives from government rationing. It's some comfort to think they'll be able to petition for a stay—and to demand an answer to the question in that old Lipsky memo: "Where the hell does the Congress get the power to do that?"

Mr. Taranto, a member of The Wall Street Journal's editorial board, writes the Best of the Web Today column for OpinionJournal.com.

[Body-by-Guinness]

. . . can be found here:

http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521-ts.pdf

[Body-by-Guinness]

Second post.

Heller Counsel Argues for an Originalist Revolution
Posted By Ilya Shapiro On November 17, 2009 @ 8:54 am In Law and Civil Liberties | Comments Disabled

Alan Gura, who successfully defended the individual right to keep and bear arms under Second Amendment in District of Columbia v. Heller has now filed his brief [1] in the case that seeks to apply that right to the states, McDonald v. City of Chicago.  (Cato earlier filed a brief [2] supporting Alan’s cert petition, the background to which you can read about here [3].)

The question presented in this case is: Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.  Remarkably, only 7 of the brief’s 73 pages are devoted to the Due Process Clause, which is the constitutional provision by which almost all the the Bill of Rights has been “incorporated” against the states.  Indeed, the brief argues that the Due Process Clause “has incorporated virtually all other enumerated rights” and so there is no reason to make the Second Amendment an exception.

The rest of the brief is far more interesting, arguing for overturning the ill-fated Slaughter-House Cases, which eviscerated the Priviliges or Immunities Clause in 1873.  Slaughter-House forced the Court to start protecting natural rights and fundamental liberties under the oddly named “substantive due process” doctrine — and it remains a bugaboo for legal scholars of all ideological stripes.  Overturning it would potentially open the door to challenges against legislation that violates a host of unenumerated rights, such as the right to enter into contract or to earn an honest living.

Understandably, libertarians are excited at the prospect of Privileges or Immunities’ revival.  But so too are liberals, at the thought of potentially filling an empty constitutional vessel with positive rights (to health care, education, pensions, etc.).  I believe this to be an overstated threat from the perspective of constitutional interpretation — as opposed to legislation – and have an article coming out with Josh Blackman in the Georgetown Journal of Law and Public Policy in January making this point.  (The article, titled “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” will shortly be up on SSRN [4], but for now you can read the abstract/introduction here [5].)

In any event, P or I (as it’s known) is a vastly superior way of giving people in the states the right to keep and bear arms for self-defense. But it’s ambitious to argue this way rather than settle for the traditional jurisprudence.  As Orin Kerr says at the Volokh Conspiracy [6], “It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.”

For further discussion of Alan’s McDonald brief — which Cato will be supporting with an amicus brief next week – see Lyle Deniston’s write-up [7] at SCOTUSblog.

Article printed from Cato @ Liberty: http://www.cato-at-liberty.org

URL to article: http://www.cato-at-liberty.org/2009/11/17/heller-counsel-argues-for-an-originalist-revolution/

URLs in this post:

[1] his brief: http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521-ts.pdf
[2] a brief: http://www.cato.org/pubs/legalbriefs/chicago_second_am_brief.pdf
[3] here: http://www.cato.org/pub_display.php?pub_id=10336
[4] on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1503583
[5] here: http://ssrn.com/abstract=1503583
[6] at the Volokh Conspiracy: http://volokh.com/2009/11/16/petitioners-brief-in-mcdonald-v-city-of-chicago-the-second-amendment-incorporation-case/
[7] Lyle Deniston’s write-up: http://www.scotusblog.com/wp/history-lesson-on-2nd-amendments-reach/

[Crafty_Dog]

BBG:

This is quite remarkable.  I hope you will continue to monitor this case and its issues and share here.

Thank you.

[Body-by-Guinness]

How Will the Court Vote on “Incorporating” the Second Amendment?
Posted By Ilya Shapiro On November 18, 2009 @ 10:37 am In Government and Politics, Law and Civil Liberties | Comments Disabled

Yesterday I described [1] the brief [2]Alan Gura filed on behalf of the petitioners challenging Chicago’s gun ban in the Supreme Court — asking the Court to apply the individual right to keep and bear arms to the states.

Late last night, Orin Kerr at the Volokh Conspiracy sketched out his predictions [3] of whether the individual justices would go for Gura’s main argument: that the indefensible Slaughter-House Cases should be overturned and thus that the Court should “incorporate” the rights at issue via the Privileges or Immunities Clause.  (Cato supports this argument, as we’ll show in the brief we’ll be filing next week.) He concludes that Justice Thomas is the only vote available for this claim. According to Orin, the Chief Justice and Justices Scalia and Alito are too enamored with stare decisis to overturn an 1873 precedent, Justice Kennedy isn’t an originalist and likes substantive due process too much, and the other four are too afraid of Lochner and Institute for Justice-style economic liberty arguments to go there.

As George Will would say: Well. Orin could turn out to be right, but I think his analysis is too simplistic. I was just about to write my response when I saw that Josh Blackman, with whom I have a law review article [4] forthcoming on these issues, already said it best in the comments to Orin’s post [3]:

First, I think you present a binary choice; incorporate through Due Process OR incorporate through privileges or immunities. The question presented asked about both routes of incorporation. Neither path is by necessity mutually exclusive. As Gura’s brief makes clear, the Court could incorporate through the Due Process Clause, and alternatively recognize that the right to keep and bear arms is also among the Privileges or Immunities of Citizenship. The Court need not displace 100 years of substantive due process jurisprudence with this single case. And from a practical perspective, basically the entire Bill of Rights has been incorporated. So, unless some people start clamoring about states quartering troops in theirs homes, this would be a one time deal. Such a holding would do little to upset the apple cart, or as we put it, open Pandora’s Box.

Second, I think you may over-simplify Scalia’s views on originalism and stare decisis. Our article shows that Scalia, while on the Supreme Court, has never voted in favor of a substantive due process incorporation. The last such case was in 1982. Can Scalia really cite the doctrine that he excoriated in Lawrence, Casey, and elsewhere based solely on reliance interests? It is no secret Scalia likes guns, and he wants to incorporate the 2nd Amendment. But he does not want to enlarge substantive due process. Is he stuck between a rock and a substantively hard place? The Privileges or Immunities Clause provides an alternative method for Scalia. He could write a classic originalist opinion tracing the right to bear arms during Reconstruction, and find that it applies to the State.

Finally, fellow Volokh conspirator Randy Barnett (and Cato senior fellow) also disagrees with Orin, offering this perspective [5]:

When choosing between the two pending cases in the Seventh Circuit, why would four Justices grant cert on the McDonald case in which the challenge was focused on the Privileges or Immunities Clause and deny cert on NRA case, which confined its argument to the Due Process Clause? Why would they have rejected the City of Chicago’s proposal which limited the question presented to Due Process?

Faced with this background and the actual question presented, I wonder how would Orin have briefed the case. Would he have offered any of the analysis in his post? Would he have told the Court just to ignore the Privileges or Immunities Clause? Or might he not have assumed as an experienced litigator that the Justices could write a Due Process Clause “incorporation” opinion in their sleep–heck, their clerks could write that opinion in their sleep–and then devoted the bulk of his brief to describing the meaning of the Privileges or Immunities Clause in context?

Ultimately, Orin’s analysis is based in what he thinks will be the Justices’ dislike for the interpretation of the Privileges or Immunities Clause described in the brief. The conservatives will hate the references to “natural rights” while the liberals will hate the references to “property.” Fair enough. But notice that the brief does not offer Alan Gura’s theory of the Privileges or Immunities Clause. All the phrases to which Orin objects are taken from quotes from the historical sources. Was Gura supposed to conceal these sources from the Court or faithfully report them? Orin may think this case is a hoot, but for the parties and the Court it is serious business.

In short, Orin’s legal realism/conventional wisdom may turn out prescient — and all the rest of us are engaged in a quixotic originalist/libertarian crusade [6]– but I’ll put my money [7] elsewhere.

Article printed from Cato @ Liberty: http://www.cato-at-liberty.org

URL to article: http://www.cato-at-liberty.org/2009/11/18/how-will-the-court-vote-on-incorporating-the-second-amendment/

URLs in this post:

[1] described: http://www.cato-at-liberty.org/2009/11/17/heller-counsel-argues-for-an-originalist-revolution/
[2] brief : http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521-ts.pdf
[3] sketched out his predictions: http://volokh.com/2009/11/17/how-many-votes-to-overrule-the-slaughterhouse-cases/comment-page-1/#comment-689859
[4] a law review article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1503583
[5] this perspective: http://volokh.com/2009/11/18/predicting-the-mcdonald/
[6] originalist/libertarian crusade : http://www.cato-at-liberty.org/2009/04/28/in-defense-of-libertarian-crusades/
[7] put my money: http://fantasyscotus.net/

[Crafty_Dog]

Tis a rare event that I post a NYT editorial in agreement!

===============

GPS and Privacy Rights Recommend
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LinkedinDiggFacebookMixxMySpaceYahoo! BuzzPermalinkPublished: November 22, 2009
A federal appeals court in Washington, D.C., heard arguments last week about whether police should have to get a warrant before putting a GPS device on a suspect’s car. It is a cutting-edge civil liberties question that has divided the courts that have considered it. GPS devices give the government extraordinary power to monitor people’s movements. The Washington court should rule that a warrant is required.

Antoine Jones was charged with being part of an interstate drug conspiracy. The government obtained evidence against Mr. Jones by putting a GPS device on his Jeep. It obtained a court order to install the GPS device, but the defense said the order was faulty, and tried to get the evidence collected by the device thrown out. The government responded that the evidence was admissible because it did not need to get a court order at all.

The Supreme Court has not considered the question of whether the police need a court order to install a GPS device. The government has tried to draw an analogy to a 1983 case in which the court ruled that the police do not need a warrant to use a radio beeper to track a vehicle on public roads, but the circumstances were different. In that case, the police were conducting visual surveillance of a particular suspect’s movements, and a beeper augmented the officers’ senses. A modern GPS device is a far more potent means of tracking people than a beeper.

Lower courts have reached different conclusions. A panel of the Chicago-based United States Court of Appeals for the Seventh Circuit ruled in 2007 that a warrant is not required for remote surveillance by a GPS device, although it said that if the police began to use the technique on a large scale it might violate the Fourth Amendment.

The highest courts of three states — New York, Oregon and Washington — ruled the opposite way, that their state constitutions prohibit the police from installing GPS devices without a warrant. The New York Court of Appeals, the highest New York court, got it exactly right earlier this year, insisting that permitting police to install GPS devices without judicial oversight would be “an enormous unsupervised intrusion by the police agencies of government upon personal privacy.”

As technology advances, government will continue to acquire new and more efficient ways of monitoring people. It is critical that the privacy rights guaranteed by the Fourth Amendment keep up with those advances.

[G M]

Should a warrant be required to physicallly surveil a suspect? If not, why? What's the difference?

[Body-by-Guinness]

What's the difference?

Benefit/cost analysis. Physical surveillance is so labor intensive that the powers that be are inspired to commit resources in a sensible fashion. GPS monitoring is comparably cheap and so easy to deploy that there is little incentive to select targets narrowly.

I like check and balances. Surveillance has 'em. Not aware of many where GPS is involved.

[G M]

American law enforcement is being hollowed out as we speak. Lots of veteran investigators are pulling the pin and taking their institutional knowledge with them and those that remain are being put back into uniform. As a result, only the low hanging fruit of stupid street criminals will face investigation and complex/organized crime will face little to no prosecution.

Surveillance is how you will tend to establish probable cause that a crime was/is being committed. You can raise the bar so that all but the most basic police services are impossible to provide. It's good news for the real world Tony Sopranos/Avon Barksdales out there.

[Crafty_Dog]

Disagree that the bar is being raised in this case.  Here the question presented is whether surveillance capabilities can be vastly expanded and permanently accelerated by technology to where the State can keep track of all of us all the time.

[G M]

What state? No matter the technology involved, it boils down to flesh and blood humans doing the job. Now more than ever, there are less doing law enforcement and greater demands on those doing the job. My state invests little in law enforcement in the best of times, as a result, outlaw motorcycle gangs have set up shop here as they discuss how it's a safe state from them to operate in.

[G M]

http://www.policeone.com/law-enforcement-and-the-economy

A recent poll by the Police Executive Research Forum found that more than half the agencies questioned had been "bracing for funding cuts during the upcoming year."

[Crafty_Dog]

Do you see no problem with THE State having a permanent record of where everyone goes and has gone?

Would YOU want to run for office to challenge the powers that be if you knew they could look up everywhere you go and had gone? 

Have you ever heard of the politicis of personal destruction?

Would you want President Obama and his vast left wing conspiracy with this knowledge about you?

[G M]

Do I want a GPS tracker on everyone's car? No. For law enforcement purposes, it would normally be used as a tool to assist in a physical surveillance, not a substitute for "tailing" a suspect in a crime. You need to be able to testify that your suspect was the driver of the car at the time the car was used in a criminal act. Otherwise your surveillance is worthless because of the "soddi" defense.

[Crafty_Dog]

What do you make of this?

===============

http://www.wired.com/beyond_the_beyond/2009/11/the-joy-of-intimidating-peacenik-troublemakers-through-their-license-plates/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wiredbeyond+%28Blog+-+Beyond+the+Beyond%2FSterling%29

[G M]

The US has laws that forbid such things, and rightly so.

http://www.ojp.usdoj.gov/BJA/topics/CI_Paper_0703.pdf

While intelligence plays a key role in law enforcement operations,
history tells us that it can also be the instrument of abuse if
such operations are not properly organized, focused and directed.
Particularly during times of national emergency, one must be
particularly vigilant to prevent aggressive enforcement and intelligence
gathering from becoming incursions upon constitutional
rights. Aggressive intelligence gathering operations that resemble
fishing expeditions have been employed improperly in the
past to garner sensitive or confidential information on individuals
for whom there is no reasonable suspicion of criminal activity.
Once documented, such information can develop a life of its
own if sufficient safeguards are not built into screening, review
and management of intelligence files. If passed on to other law
enforcement agencies as intelligence, it can form the basis for
abuse of civil liberties and potential civil liability.
In the same manner, intelligence operations are misguided
that directly or indirectly gather information on persons based
solely on their dissident political activities or views, because they
espouse positions or philosophies that are perceived to threaten
conventional social or political doctrine, traditionally accepted
social mores or similar societal values or institutions, or because
they have cultural connections with terrorists. Use of law
enforcement intelligence resources to intimidate, inhibit or suppress
such activities or harass such individuals under the pretext
of legitimate police concern for maintaining social order are at
best misguided and, in the worst case scenario, constitute a threat
to the principles of law enforcement in a democratic society.
Additionally, misguided intelligence gathering is a waste of valuable
resources that are desperately needed to ferret out wrongdoers
and persons who pose real threats to national and local
security.

[Crafty_Dog]

New York judges served up what basketball fans call a facial on Tuesday, when an appellate court ruled that the state may seize homes and small businesses in Brooklyn for the benefit of a private developer and the New Jersey Nets. The decision represents a backward step for the effort to protect property rights at the state level since the Supreme Court's 2005 decision in Kelo v. New London.

The case, Goldstein v. New York State Urban Development Corporation, dealt with plans by developer Forest City Ratner to build a new arena for the Nets as well as snazzy apartments and offices on land currently occupied by homes and businesses. To make way for the sports complex, the state declared the property "blighted" and used its power of eminent domain to hand it to the developer.

Such unabashed takings have an unfortunate history in New York state, where the political class has a habit of using its powers on behalf of well-connected private interests. Caught under the wheels are average citizens whose only recourse is to try to defend their property rights in court.

So much for that. In allowing the property seizure, the Court of Appeals dodged some of the central challenges to the condemnation, including whether the Empire State Development Corporation's designation of blight in the Atlantic Yards area was applied after the stadium project had already been planned, making it a "pretext." Nor did the court take on the question—at the heart of eminent domain law since Kelo—whether economic development may be considered a public use under the New York Constitution.

Instead, the majority argued that because the state had designated the area as blighted, the takings were therefore a "public use," and it was not the place of the court to interfere. Nevermind that the determination of blight was based largely on a study funded by . . . the aspiring developer.

Courts in New York have been famously hostile to eminent domain challenges, but 43 states have adjusted their laws since Kelo to provide stronger protections for property owners. The New York ruling vindicates Justice Sandra Day O'Connor's prediction in dissent in Kelo that "the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." Q.E.D.

[Body-by-Guinness]

Surveillance Shocker: Sprint Received 8 MILLION Law Enforcement Requests for GPS Location Data in the Past Year
News Update by Kevin Bankston
This October, Chris Soghoian — computer security researcher, oft-times journalist, and current technical consultant for the FTC's privacy protection office — attended a closed-door conference called "ISS World". ISS World — the "ISS" is for "Intelligence Support Systems for Lawful Interception, Criminal Investigations and Intelligence Gathering" — is where law enforcement and intelligence agencies consult with telco representatives and surveillance equipment manufacturers about the state of electronic surveillance technology and practice. Armed with a tape recorder, Soghoian went to the conference looking for information about the scope of the government's surveillance practices in the US. What Soghoian uncovered, as he reported on his blog this morning, is more shocking and frightening than anyone could have ever expected

At the ISS conference, Soghoian taped astonishing comments by Paul Taylor, Sprint/Nextel's Manager of Electronic Surveillance. In complaining about the volume of requests that Sprint receives from law enforcement, Taylor noted a shocking number of requests that Sprint had received in the past year for precise GPS (Global Positioning System) location data revealing the location and movements of Sprint's customers. That number?

EIGHT MILLION.

Sprint received over 8 million requests for its customers' information in the past 13 months. That doesn't count requests for basic identification and billing information, or wiretapping requests, or requests to monitor who is calling who, or even requests for less-precise location data based on which cell phone towers a cell phone was in contact with. That's just GPS. And, that's not including legal requests from civil litigants, or from foreign intelligence investigators. That's just law enforcement. And, that's not counting the few other major cell phone carriers like AT&T, Verizon and T-Mobile. That's just Sprint.

Here's what Taylor had to say; the audio clip is here and we are also mirroring a zip file from Soghoian containing other related mp3 recordings and documents.

[M]y major concern is the volume of requests. We have a lot of things that are automated but that's just scratching the surface. One of the things, like with our GPS tool. We turned it on the web interface for law enforcement about one year ago last month, and we just passed 8 million requests. So there is no way on earth my team could have handled 8 million requests from law enforcement, just for GPS alone. So the tool has just really caught on fire with law enforcement. They also love that it is extremely inexpensive to operate and easy, so, just the sheer volume of requests they anticipate us automating other features, and I just don't know how we'll handle the millions and millions of requests that are going to come in.
Eight million would have been a shocking number even if it had included every single legal request to every single carrier for every single type of customer information; that Sprint alone received eight million requests just from law enforcement only for GPS data is absolutely mind-boggling. We have long warned that cell phone tracking poses a threat to locational privacy, and EFF has been fighting in the courts for years to ensure that the government only tracks a cell phone's location when it has a search warrant based on probable case. EFF has also complained before that a dangerous level of secrecy surrounds law enforcement's communications surveillance practices like a dense fog, and that without stronger laws requiring detailed reporting about how the government is using its surveillance powers, the lack of accountability when it comes to the government's access to information through third-party phone and Internet service providers will necessarily breed abuse. But we never expected such huge numbers to be lurking in that fog.

Now that the fact is out that law enforcement is rooting through such vast amounts of location data, it raises profoundly important questions that law enforcement and the telcos must answer:

How many innocent Americans have had their cell phone data handed over to law enforcement?
How can the government justify obtaining so much information on so many people, and how can the telcos justify handing it over?
How did the number get so large? Is the government doing massive dragnet sweeps to identify every single cell phone that was in a particular area at a particular time? Is the government getting location information for entire "communities of interest" by asking not only for their target's location, but also for the location of every person who talked to the target, and every person who talked to them?
Does the number only include requests to track phones in real-time, or does it include requests for historical GPS data, and if so, why did the telcos have that incredibly sensitive data sitting around in the first place? Exactly when and how are they logging their users' GPS data, and how long are they keeping that data?
What legal process was used to obtain this information? Search warrants? Other court orders? Mere subpoenas issued by prosecutors without any court involvement? How many times was this information handed over without any legal process at all, based on government claims of an urgent emergency situation?
Looking beyond Sprint and GPS, how many Americans have had their private communications data handed over to law enforcement by their phone and Internet service providers?
What exactly has the government done with all of that information? Is it all sitting in an FBI database somewhere?
Do you really think that this Orwellian level of surveillance is consistent with a free society and American values? Really?
These questions urgently need to be asked — by journalists, and civil liberties groups like EFF, and by every cell phone user and citizen concerned about privacy. Most importantly, though, they must be asked by Congress, which has failed in its duty to provide oversight and accountability when it comes to law enforcement surveillance. Congress should hold hearings as soon as possible to demand answers from the government and the telcos under oath, and clear the fog so that the American people will finally have an accurate picture of just how far the government has reached into the private particulars of their digital lives.

Even without hearings, though, the need for Congress to update the law is clear. At the very least, Congress absolutely must stem the government's abuse of its power by:

Requiring detailed reporting about law enforcement's access to communications data using the Electronic Communications Privacy Act (ECPA), just as it already requires for law enforcement wiretapping under the Wiretap Act, and make sure that the government actually fulfills its obligations rather than ignore the law for years on end.
Requiring that the government "minimize" the communications data it collects under ECPA rather than keep it all forever, just like it is supposed to do with wiretaps.
Prohibiting the government from using in a criminal trial any electronic communications content or data that it obtains in violation of ECPA, just as the government is prohibited by the Wiretap Act from using illegally acquired telephone intercepts.
Clarifying that ECPA can only be used to get specific data about particular individuals and cannot be used for broad sweeps, whether to identify everyone in a particular geographic area or to identify every person that visits a particular web site.
It's time for Congress to pull the curtain back on the vast, shadowy world of law enforcement surveillance and shine a light on these abuses. In the meantime, we give our thanks to those like Chris Soghoian who are doing important work to uncover the truth about government spying in America.

UPDATE: Sprint has responded to Soghoian's report:

The comments made by a Sprint corporate security officer during a recent conference have been taken out of context by this blogger. Specifically, the “8 million” figure, which the blogger highlights in his email and blog post, has been grossly misrepresented. The figure does not represent the number of customers whose location information was provided to law enforcement, as this blogger suggests.

Instead, the figure represents the number of individual “pings” for specific location information, made to the Sprint network as part of a series of law enforcement investigations and public safety assistance requests during the past year. It’s critical to note that a single case or investigation may generate thousands of individual pings to the network as the law enforcement or public safety agency attempts to track or locate an individual.

Instances where law enforcement agencies seek customer location information include exigent or emergency circumstances such as Amber Alert events, criminal investigations, or cases where a Sprint customer consents to sharing location information.

Sprint takes our customers’ privacy extremely seriously and all law enforcement and public safety requests for customer location information are processed in accordance with applicable state and federal laws.
This response provides some important answers, while raising even more questions. First off, Sprint has confirmed that it received 8 million requests, while denying a charge that no one has made: that 8 million individual customers' data was handed over. Sprint's denial also begs the question: how many individual customers have been affected?

As for Sprint's claim that in some instances a single case or investigation may generate thousands of location "pings", that is certainly possible, but that doesn't make the 8 million number any less of a concern, or moot any of the important questions raised by Soghoian in his report or by EFF in its post regarding the lack of effective oversight and transparency in this area.

Even assuming that Sprint's statement about "pings" is true, 8 million — or, in other words, 8,000 thousands — is still an astronomical number and more than enough to raise serious concerns that Congress should investigate and address. Moreover, the statement raises additional questions: exactly what legal process is being used to authorize the multiple-ping surveillance over time that Sprint is cooperating in? Is Sprint demanding search warrants in those cases? How secure is this automated interface that law enforcement is using to "ping" for GPS data? How does Sprint insure that only law enforcement has access to that data, and only when they have appropriate legal process? How many times has Sprint disclosed information in "exigent or emergency circumstances" without any legal process at all? And most worrisome and intriguing: what customers does Sprint think have "consent[ed] to the sharing [of] location data" with the government? Does Sprint think it is free to hand over the information of anyone who has turned on their GPS functionality and shared information with Sprint for location-based services? Or even the data of anyone who has agreed to their terms of service? What exactly are they talking about?

These questions are only the beginning, and Sprint's statement doesn't come close to answering all of them. Of course, we appreciate that Sprint has begun a public dialogue about this issue. But this should be only the beginning of that discussion, not the end. Ultimately, the need for Congress to investigate the true scope of law enforcement's communications surveillance practices remains. Congress can and should dig deeper to get the hard facts for the American people, rather than forcing us to rely solely on Sprint's public relations office for information on these critical privacy issues.

http://www.eff.org/deeplinks/2009/12/surveillance-shocker-sprint-received-8-million-law

[G M]

Oh wow, uninformed hysteria from the EFF. Shocking. 

Here is the supersecret countermeasure to protect yourself from malevolent gov't snooping.

1. Pick up cellphone.

2. Remove battery.

[Crafty_Dog]

I'm thinking the matter deserves more interest and concern than that , , ,

Anyway, here's another case in the Kelo line:

Floridians who think life's a beach should be watching the Supreme Court closely today when the Justices hear oral arguments about whether the state may confiscate private waterfront land for a dubious public purpose.

The case, Stop the Beach Renourishment v. Florida Dep't of Environmental Protection, began in 2003, when home owners in the Florida Panhandle objected to changes in their property lines caused by a "beach renourishment" program. Typically done in the name of deterring erosion, the government carts in truckloads of sand, making the beach bigger. But rather than extending the property of the owner, the state declares itself owner of the sandy addition, effectively separating waterfront home owners from the water itself.

The Florida Supreme Court ruled 5-2 for the state and claimed the program doesn't mean the state can go around "creating as much dry land between upland property and the water as it pleases." There's a point, they said, at which such beach additions would represent an unconstitutional taking. But the problem is where exactly that point occurs: Without a specific demarcation, it's a slippery slope for how much land the state may seize without having to compensate the private owners.

To reach its decision, the Florida high court had to throw over 100 years of common law to declare that waterfront property owners have "no independent right of contact with the water." In a scathing dissent, Florida Justice Fred Lewis wrote that for the court to say that waterfront rights are unconnected with ownership of the land abutting water is a non sequitur. The court had "butchered Florida law," he wrote, and "unnecessarily created dangerous precedent based on a manipulation of the question actually certified."

Beach renourishment has been controversial around the country as a waste of money spent on sand that literally washes back into the ocean. According to the National Oceanic and Atmospheric Administration, by 2002 more than $2.5 billion of federal money had been spent on beach projects. According to a May report by Oklahoma Senator Tom Coburn, many are special interest projects for wealthy communities and have few environmental benefits.

The Florida case is all the weirder because the beaches in question aren't threatened by erosion and some have grown naturally in recent years, adding to the suspicion that "beach renourishment" is a state pretext to gain waterfront rights in a desirable area. Unable to stop the state from dumping the new sand on their beaches, several owners offered to pay the state their pro-rata share of the sand distribution to maintain exclusive rights to their waterline. Florida refused the deal.

If the state wants to create a public beach, it may have the power to do so by invoking eminent domain and compensating owners for their loss. Short of that, the action is a taking that violates the Fifth Amendment, and this case provides an opportunity for the Supreme Court to begin making amends for the damage it did to property rights in the 2005 case of Kelo v. New London.

[Rarick]

8 million is a lot.  there were only Thousands of search warrants issued last year nationally.  It makes me wonder, that is what is probably concerning the EFF.  Removing the battery from your primary communication tool is like living with out a telephone, intrusion into "free association".  I do not like the appearance that a cop could pick up a phone dial a number and find out where I am at, all without a warrant or knowledge of a couple of other officers.  Too much room for abuse.

[Body-by-Guinness]

1. Pick up cellphone.

2. Remove battery.

Hmm, don't see in the users manual how I can do that with my iPhone. Perhaps you know of a way that doesn't involve a hammer?

Perhaps this is hysteria, but it's one guy working for one phone company inadvertently, I presume, revealing what's behind the curtain. I for one would like to know how often these sorts of requests are dealt with by all carriers, what procedures are in place to document these requests, how abuse is prevented, and so on. Or should members of a participatory democracy (or republic, if you prefer) not be concerned about stuff like that?

[Crafty_Dog]

I'm with BBG and Rarick on this.

[G M]

**Assuming that someone from the EFF actually has some technical ability to grasp the "electronic frontier, I'm assuming some AGW-esque book-cooking in the above post. Below is a more technically accurate and honest article:

http://www.wired.com/threatlevel/2009/12/gps-data

**Now, I assume the EFF has heard of something certain internet insiders call "google". Using this mostly unheard of website, I was able to bring up this article that was published by taxpayers money and exists as an open source document viewable by any member of said participatory democracy/republic.**

http://www.fbi.gov/publications/leb/2006/may2006/may2006leb.htm#page25

[Body-by-Guinness]

From the first link:

The spokesman wouldn’t disclose how many of Sprint’s 48 million customers had their GPS data shared, or indicate the number of unique surveillance requests from law enforcement.

Why as customers aren't we allowed to evaluate how willing a carrier is to provide locational data without a users' consent?

From the second link:

Conclusion

The only thing certain with respect to the legal requirements for acquisition of cell site information by the government for purposes of identifying the location of a cellular telephone and its user is that nothing is certain at this moment. The path that the use of cell site tracking is headed down is likely toward a legislative solution. In the interim, law enforcement should track judicial developments closely within their jurisdictions. State and local law enforcement also should take a proactive role with respect to legislative solutions to this uncertainty within their own state electronic surveillance statutes.

Sounds far less than definitive to me.

[G M]

From the first link:

The spokesman wouldn’t disclose how many of Sprint’s 48 million customers had their GPS data shared, or indicate the number of unique surveillance requests from law enforcement.

Why as customers aren't we allowed to evaluate how willing a carrier is to provide locational data without a users' consent?

**Without wading through all the applicable laws and caselaw, I'm guessing that Sprint has no legal obligation to do so. Keep in mind that this data is being accessed by court order/subpeona/warrant and is subject to judicial review.**

From the second link:

Conclusion

The only thing certain with respect to the legal requirements for acquisition of cell site information by the government for purposes of identifying the location of a cellular telephone and its user is that nothing is certain at this moment. The path that the use of cell site tracking is headed down is likely toward a legislative solution. In the interim, law enforcement should track judicial developments closely within their jurisdictions. State and local law enforcement also should take a proactive role with respect to legislative solutions to this uncertainty within their own state electronic surveillance statutes.

Sounds far less than definitive to me.

**It's not definitive. As technology advances and new laws are written and caselaw develops, the rules and procedures get fleshed out. Still, this is being shaped as we speak by those legislatures and courts that are part of that participatory democracy/republic. Phones have come a long way since the FBI was sitting in AT&T switching operator stations, recording conversations on wax. Laws and law enforcement has to reflect that.**

[Crafty_Dog]

Also coming a real long way is the Orwellian potential of ever accelerating technological capabilities , , ,

[G M]

So, the policy solution to technology is....

[Crafty_Dog]

Well, the first step in your case would be to admit it exists

[G M]

Does the 1st amd. only apply to town criers and wood block printing? Does the 2nd. only apply to muskets? Does the 4th apply to cell phones and the intertubes, or are they somehow immune from reasonable search and seizure?

[G M]

The right of the people to be secure in their persons, houses, papers, and effects, against searches and seizures, shall not be violated, and no Warrants shall issue.

Better?

[Crafty_Dog]

"Does the 1st amd. only apply to town criers and wood block printing? Does the 2nd. only apply to muskets? Does the 4th apply to cell phones and the intertubes, or are they somehow immune from reasonable search and seizure?"

If you seize and search something after a warrant is issued, that is different that using that something to track where a human being has been or goes.

[G M]

UNITED STATES V KARO, 468 U. S. 705 (1984)
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--------------------------------------------------------------------------------

Link to the Full Text of Case: http://supreme.justia.com/us/468/705/case.html

U.S. Supreme Court
United States v Karo, 468 U.S. 705 (1984)
United States v Karo

No. 83-850

Argued April 25, 1984

Decided July 3, 1984

468 U.S. 705


Syllabus

After a Drug Enforcement Administration (DEA) agent learned that respondents Karo, Horton, and Harley had ordered 50 gallons of ether from a Government informant, who had told the agent that the ether was to be used to extract cocaine from clothing that had been imported into the United States, the Government obtained a court order authorizing the installation and monitoring of a beeper in one of the cans of ether. With the informant's consent, DEA agents substituted their own can containing a beeper for one of the cans in the shipment. Thereafter, agents saw Karo pick up the ether from the informant, followed Karo to his house, and determined by using the beeper that the ether was inside the house, where it was then monitored. The ether then moved in succession to two other houses, including Horton's, before it was moved first to a locker in one commercial storage facility and then to a locker in another such facility. Both lockers were rented jointly by Horton and Harley. Finally, the ether was removed from the second storage facility by respondent Rhodes and an unidentified woman and transported in Horton's truck, first to Rhodes' house and then to a house rented by Horton, Harley, and respondent Steele. Using the beeper monitor, agents determined that the beeper can was inside the house, and obtained a warrant to search the house based in part on information derived through use of the beeper. The warrant was executed, and Horton, Harley, Steele, and respondent Roth were arrested, and cocaine was seized. Respondents were indicted for various offenses relating to the cocaine. The District Court granted respondents' pretrial motion to suppress the seized evidence on the grounds that the initial warrant to install the beeper was invalid, and that the seizure was the tainted fruit of an unauthorized installation and monitoring of the beeper. The Government appealed, but did not challenge the invalidation of the initial warrant. The Court of Appeals affirmed, except with respect to Rhodes, holding that a warrant was required to install the beeper in the can of ether and to monitor it in private dwellings and storage lockers, that the warrant for the search of the house rented by Horton, Harley, and Steele, and the resulting seizure, were tainted by the Government's prior illegal conduct, and that therefore the evidence was properly suppressed as to Horton, Harley, Steele, Roth, and Karo.

Page 468 U. S. 706


Held:

1. No Fourth Amendment interest of Karo or of any other respondent was infringed by the installation of the beeper. The informant's consent was sufficient to validate the installation. And the transfer of the beeper-laden can to Karo was neither a search nor a seizure, since it conveyed no information that Karo wished to keep private and did not interfere with anyone's possessory interest in a meaningful way. Pp. 468 U. S. 711-713.

2. The monitoring of a beeper in a private residence, a location not opened to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence. Here, if a DEA agent had entered the house in question without a warrant to verify that the ether was in the house, he would have engaged in an unreasonable search within the meaning of the Fourth Amendment. The result is the same where, without a warrant, the Government surreptitiously uses a beeper to obtain information that it could not have obtained from outside the curtilage of the house. There is no reason in this case to deviate from the general rule that a search of a house should be conducted pursuant to a warrant. Pp. 468 U. S. 713-718.

3. The evidence seized in the house in question, however, should not have been suppressed with respect to any of the respondents. The information that the ether was in the house, verified by use of the beeper without a warrant, would be inadmissible against those respondents with privacy interests in the house, and would invalidate the search warrant, if critical to establishing probable cause. But because locating, without prior monitoring, the ether in the second storage facility was not an illegal search (use of the beeper not identifying the specific locker in which the ether was located and the locker being identified only by the smell of ether emanating therefrom), and because the ether was seen being loaded into Horton's truck, which then traveled the highways, it is evident that there was no violation of the Fourth Amendment as to anyone with or without standing to complain about monitoring the beeper while it was located in the truck. United States v. Knotts, 460 U. S. 276. Under the circumstances, the warrant affidavit, after striking the facts about monitoring the beeper while it was in the searched house, contained sufficient untainted information to furnish probable cause for issuance of the search warrant. Pp. 468 U. S. 719-721.

710 F.2d 1433, reversed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN and POWELL, JJ., joined, in Parts I, II, and IV of which REHNQUIST and O'CONNOR, JJ., joined, and in Part III of which BRENNAN, MARSHALL, and STEVENS, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in which

Page 468 U. S. 707

REHNQUIST, J., joined, post, p. 468 U. S. 721. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 468 U. S. 728.

[G M]

UNITED STATES V. KNOTTS, 460 U. S. 276 (1983)
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--------------------------------------------------------------------------------


Link to the Case Preview: http://supreme.justia.com/us/460/276/

Link to the Full Text of Case: http://supreme.justia.com/us/460/276/case.html

U.S. Supreme Court
United States v. Knotts, 460 U.S. 276 (1983)
United States v. Knotts

No. 81-1802

Argued December 6, 1982

Decided March 2, 1983

460 U.S. 276


Syllabus

Having reason to believe that one Armstrong was purchasing chloroform to be used in the manufacture of illicit drugs, Minnesota law enforcement officers arranged with the seller to place a beeper (a radio transmitter) inside a chloroform container that was sold to Armstrong. Officers then followed the car in which the chloroform was placed, maintaining contact by using both visual surveillance and a monitor which received the beeper signals, and ultimately tracing the chloroform, by beeper monitoring alone, to respondent's secluded cabin in Wisconsin. Following three days of intermittent visual surveillance of the cabin, officers secured a search warrant and discovered the chloroform container, and a drug laboratory in the cabin, including chemicals and formulas for producing amphetamine. After his motion to suppress evidence based on the warrantless monitoring of the beeper was denied, respondent was convicted in Federal District Court for conspiring to manufacture controlled substances in violation of 21 U.S.C. § 846. The Court of Appeals reversed, holding that the monitoring of the beeper was prohibited by the Fourth Amendment.

Held: Monitoring the beeper signals did not invade any legitimate expectation of privacy on respondent's part, and thus there was neither a "search" nor a "seizure" within the contemplation of the Fourth Amendment. The beeper surveillance amounted principally to following an automobile on public streets and highways. A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements. While respondent had the traditional expectation of privacy within a dwelling place insofar as his cabin was concerned, such expectation of privacy would not have extended to the visual observation from public places of the automobile arriving on his premises after leaving a public highway, or to movements of objects such as the chloroform container outside the cabin. The fact that the officers relied not only on visual surveillance, but also on the use of the beeper, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case. There is no indication that the beeper was used in any way to reveal information as to the movement of the chloroform container within the cabin, or in any

Page 460 U. S. 277

way that would not have been visible to the naked eye from outside the cabin. Pp. 460 U. S. 280-285.

662 F.2d 515, reversed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 460 U. S. 285. BLACKMUN, J., filed an opinion concurring in the judgment, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 460 U. S. 287. STEVENS, J., filed an opinion concurring in the judgment, in which BRENNAN, and MARSHALL, JJ., joined, post, p. 460 U. S. 288.

[Crafty_Dog]

Do these cases from the mid 80s address the questions being raised now?

[G M]

Very much so:

Held: Monitoring the beeper signals did not invade any legitimate expectation of privacy on respondent's part, and thus there was neither a "search" nor a "seizure" within the contemplation of the Fourth Amendment. The beeper surveillance amounted principally to following an automobile on public streets and highways. A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements. While respondent had the traditional expectation of privacy within a dwelling place insofar as his cabin was concerned, such expectation of privacy would not have extended to the visual observation from public places of the automobile arriving on his premises after leaving a public highway, or to movements of objects such as the chloroform container outside the cabin. The fact that the officers relied not only on visual surveillance, but also on the use of the beeper, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case.

[DougMacG]

For a slightly different angle... Your cell phone signal and its records are private, your health care with its records are private, your banking and credit card records are private and yes, your garbage is private.  My garbage cans are on my property.  My contract with my hauler is to take it carefully and professionally and dispose of it, not to share it, sell it or data mine it.  Guess I won't be chosen for the court anytime soon.

The syllabus started: "Having reason to believe " which sounds vaguely like probable cause.  That changes things back to giving law enforcement the tools to do their job and making search reasonable.  If those who we trust abuse that power, knowingly dummy up the 'reason to believe', then they are violating the constitution and should be fired, fined, sued and caned IMO.  Fair enough?

[Crafty_Dog]

GM:

Your points are lucid, but I submit that there is something qualitatively different about being effortlessly being able to keep track of ALL of someone's movements, or to recover what they were retroactively.

"Nothing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case."

I'm not sure that the truth of this statement, which after all is limited to the facts presented, means that it applies across the board.

[Rarick]

All of these go around could have been avoided if the Wired article had been simply posted as a counter to the EFF article.   The usual checks and balances are in place, so there is some reasurance.  I have a certain amount of paranoia tho' like Dougy Mac, your flip answer pushes buttons, and earns a bit of aggro.

Crime Prevention is a slippery slope, catching a criminal after the fact is fine by me.  It keeps life interesting knowing you still hafta wath out for the lions, tigers and bears out there, even if they have 2 feet nowadays.  Too much surveillance precludes freedom due to a lack of privacy, if not anonymity (sp?)

[G M]

For a slightly different angle... Your cell phone signal and its records are private, your health care with its records are private, your banking and credit card records are private and yes, your garbage is private.  My garbage cans are on my property.  My contract with my hauler is to take it carefully and professionally and dispose of it, not to share it, sell it or data mine it.  Guess I won't be chosen for the court anytime soon.

**This is what the courts have said thus far on some of these key topics :

http://www.kscoplaw.com/outlines/s&sforcode.html

 Discovery of Certain Actions or Individual Characteristics do not require a Fourth Amendment "search" and are not protected by the Fourth Amendment.

Abandoned property. By definition, voluntarily abandoned property cannot support a reasonable claim of privacy or possessory interests, and so there can be no "search" or "seizure" of such property in the Fourth Amendment sense. See, e.g., Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 68 L.Ed. 898 (1924) (contraband liquor discarded in a field); Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (contents of wastebasket in vacated hotel room); and California v. Greenwood, 486 U.S. at 35, (trash left for collection at the curb); State v. Brunson, 13 Kan.App.2d 384, 394-95, 771 P.2d 938, rev. denied 245 Kan. 786 (1989)(car abandoned on golf course).


Open fields. "[A]n individual has no expectation that open fields will remain free from warrantless intrusion by government officers." Oliver v. United States, 466 U.S. 170, 181, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). See also Hester, 265 U.S. at 58; Dunn, 480 U.S. at 300; State v. Tinsley, 16 Kan. App. 2d 289, 823 P.2d 205 (1991)(marijuana growing in area 45 to 70 feet from house near a cattle shed); Dow Chemical v. United States, 476 U.S. 227, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1986)(no expectation of privacy from aerial surveillance & photography of smokestack emissions); United States v. Knotts, 460 U.S. 276, 281-82, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1983)(person traveling on public roads has no reasonable expectation of privacy from observation of his movements).

Plain view. No legitimate expectation of privacy exists in property exposed to official observation.

It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).
    There is no inadvertence requirement for plain-view seizures. Horton v. California, 495 U.S. 128, 137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).
    Two varieties of plain view seizures are possible: (1) an item exposed to view in a public place may be seized without involving any search activity; or (2) an item may be seen in plain view during the course of other lawful search or-seizure activity (such as during service of a search warrant, or while requesting consent to search). In either case, the seizure of the property in plain view "involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)(Emphasis added). See, especially, Texas v. Brown, 460 U.S. 730, 738, n. 4, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)("'plain view' provides grounds for seizure of an item when an officer's access to an object has some prior justification under the Fourth Amendment."); Arizona v. Hicks, 480 U.S. 321, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1987)(no seizure by recording serial numbers from stereos, but moving equipment to see numbers was a seizure).

    The use of optical aids, such as flashlights, searchlights or binoculars, do not affect the legality of observing in plain view what could lawfully be seen in daylight or at closer range. Texas v. Brown, 460 U.S. at 739-740 (flashlight); State v. Epperson, 237 Kan. 707, 714, 703 P.2d 761, (1985)(same); On Lee v. United States, 343 U.S. 747, 754, 72 S.Ct. 967, 96 L.Ed. 1270 (1952)(radio transmitter & receiver); United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202 (1927)(searchlight).

[G M]

GM:

Your points are lucid, but I submit that there is something qualitatively different about being effortlessly being able to keep track of ALL of someone's movements, or to recover what they were retroactively.

**You can track's someone's phone, with some effort and a court's approval, but in most situations that isn't of much evidentiary value by it's self. It is my understanding that absent a court order or request, cell phone providers dump their records very rapidly, given the cost involved in archiving such data. So there is not much in the way of retroactive recovering of location via cell records.**

"Nothing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case."

I'm not sure that the truth of this statement, which after all is limited to the facts presented, means that it applies across the board.

**It's not absolute. Remember Kyllo v. the United States? The 4th amendment protects the reasonably expected privacy in your home from thermal imaging without a search warrant. **

[G M]

FOURTH AMENDMENT [U.S. Constitution] - '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.'

To pass muster under the Fourth Amendment, detention must be 'reasonable. ' See U.S. v. Montoya de Hernandez, 473 U.S. 531, 542-44 ('85) (analyzing constitutionality of length of traveler's border detention under Fourth Amendment reasonableness standard); Caban, 728 F.2d at 75 (considering whether duration of border detention without a hearing was reasonable).

In the context of a criminal arrest, a detention of longer than 48 hours without a probable cause determination violates the Fourth Amendment as a matter of law in the absence of a demonstrated emergency or other extraordinary circumstance. See County of Riverside v. McLaughlin, 111 S.Ct. 1661, 670 ('91). However, the Supreme Court arrived at this rule by considering the time it takes to complete administrative steps typically incident to arrest. See id.

Unreasonable Searches And Seizures.

Non-consensual extraction of blood implicates Fourth Amendment privacy rights. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 16 ('89) ('this physical intrusion, penetrating beneath the skin, infringes [a reasonable] expectation of privacy'); Schmerber v. California, 384 U.S. 757, 67 ('66) (compulsory blood test 'plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment').' '[f]or the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.' Skinner, 489 U.S. at 619; accord Vernonia School Dist. 47J v. Acton, No. 95-590, 1995 WL 373274, at *3 (June 26,'95) ('the ultimate measure of the constitutionality of a governmental search is `reasonableness''). A search's reasonableness under the Fourth Amendment generally depends on whether the search was made pursuant to a warrant issued upon probable cause. U.S. v. Place, 462 U.S. 696, 701 ('83).

Even in the law enforcement context, the State may interfere with an individual's Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. E.g., Michigan State Police Dept v. Sitz, 496 U.S. 444, 450 ('90); Terry v. Ohio, 392 U.S. 1, 20 ('68).

The gathering of fingerprint evidence from 'free persons' constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person's connection to the offense. See Hayes v. Florida, 470 U.S. 811, 813-18 ('85); Davis v. Mississippi, 394 U.S. 721, 726-28 ('69).

Nevertheless, everyday 'booking' procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. See Smith v. U.S., 324 F.2d 879, 882 (D.C. Cir.'63) (Burger, J.) ('it is elementary that a person in lawful custody may be required to submit to . . . fingerprinting . . . as part of the routine identification processes'); Napolitano v. U.S., 340 F.2d 313, 314 (1st Cir.'65) ('Taking fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights.'). Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.

Although the drawing of blood from free persons generally requires a warrant supported by probable cause to believe that a person has committed a criminal offense and that his blood will reveal evidence relevant to that offense, see Schmerber, 384 U.S. at 768-71; U.S. v. Chapel, ___ F.3d ___, slip op. at 5753-54 (9th Cir.'95) (en banc), the absence of such a warrant does not a fortiori establish a violation of the plaintiffs' Fourth Amendment rights.

The Supreme Court has noted repeatedly that the drawing of blood constitutes only a minimally intrusive search. Skinner, 489 U.S. at 625 (blood tests do not 'infringe significant privacy interests'); Winston v. Lee, 470 U.S. 753, 62 ('85) (not 'an unduly extensive imposition'); Schmerber, 384 U.S. at 771 ('commonplace'); Breithaupt v. Abram, 352 U.S. 432, 36 ('57) ('routine' and 'would not be considered offensive by even the most delicate').

'An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.' Skinner, 489 U.S. at 421-2 (holding that a warrant was not required in part because 'in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate'). The Supreme Court recently reaffirmed and expanded the principle first enunciated in Skinner, stating that, in some contexts, 'testing based on `suspicion' of [wrongful activity] would not be better, but worse' than suspicionless testing. Acton, 1995 WL 373274, at *8. In Acton, the Supreme Court upheld as constitutional a school district's practice of conducting random, suspicionless urine testing of school athletes for drug use. The Court rejected the proposition that the school district could conduct such testing only if school officials had suspicion that a specific athlete was using drugs, holding that this alternative 'entails substantial difficulties -- if it is indeed practicable at all.' Id. Accusatory drug testing would 'transform[] the process into a badge of shame' and would increase the risk that school officials would impose testing arbitrarily upon disfavored, but not drug-using, students. Id.

Except in certain narrowly limited cases, the Court repeatedly has stated its 'insist[ence] upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.' Chambers v. Moreny, 399 U.S. 42, 51 ('70). Because '[t]he integrity of an individual's person is a cherished value in our society,' searches that invade bodily integrity cannot be executed as mere fishing expeditions to acquire useful evidence: 'The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.' Schmerber, 384 U.S. at 772, 769-70.

Only when law enforcement faces an exigent circumstance, such as a need to preserve evanescent blood alcohol evidence, and has probable cause to link the sought-after information to a crime under investigation is it constitutional to conduct nonconsensual blood testing without a warrant. Id. at 770-71. Therefore, forced extraction of blood not only 'implicates the Fourth Amendment,' as the majority notes, but also falls squarely within the area of privacy interests for which the traditional probable cause requirement determines reasonableness in the law enforcement context. Forced blood extraction intrudes on the private personal sphere and infringes upon an individual's 'most personal and deep-rooted expectations of privacy.' Winston v. Lee, 470 U.S. 753, 60 ('85).

Searches Involving Intrusions Beyond The Body's Surface.

Schmerber v. California, 384 U.S. 757, 69 ('66). The Schmerber Court posed two questions: (1) whether the police were justified in imposing a nonconsensual blood test and (2) whether the procedures themselves were reasonable. Id. at 768. In answering the first question, the Court recognized that it was 'writ[ing] on a clean slate' regarding the treatment of searches that involve intrusions into the human body. Id. at 767-8. It concluded that such searches require probable cause. Id. at 770-1.

Similarly, the Supreme Court in Winston v. Lee, 470 U.S. 753 ('85), recognized that Schmerber's threshold standard was a requirement of probable cause 'where intrusions into the human body are concerned,' which implicate 'deep-rooted expectations of privacy.' Id. at 761, 760. The Winston Court then acknowledged `other factors'' eyond these standards' that must be considered in determining whether a particular intrusion is reasonable: whether 'the procedure threatens the safety or health of the individual' and 'the extent of the intrusion upon the individual's dignitary interests.' Id. at 761 (emphasis added). In regard to the additional 'dignitary' factor (beyond the threshold inquiry of invasion of bodily integrity), the Winston Court noted Schmerber's recognition that blood extraction is not 'an unduly extensive imposition.' Id. at 762. The Court contrasted this lesser bodily invasion, which the Schmerber Court had upheld upon demonstration of probable cause, with the more drastic measure of dangerous surgery to recoup criminal evidence, which the Winston Court concluded would violate the individual's Fourth Amendment rights even when supported by probable cause. Thus again, the context of the quotation demonstrates that the Court places blood extraction squarely within the probable cause requirement because it is an invasion of bodily integrity, while at the same time acknowledging that it is a less extensive imposition on dignitary interests than surgical removal of a bullet.

Investigatory Stops Of Motorists At Sobriety Checkpoints.

The unique situation in which the Supreme Court has approved suspicionless searches in the traditional law enforcement context. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444 ('90). The Sitz Court relied on well-settled law that motorists have a lessened expectation of privacy regarding stops and visual searches of automobiles on the nation's roadways. Id. at 450 (explaining the importance of the context of 'police stops of motorists on public highways'). At these sobriety checkpoints, which motorists may choose to avoid, only the initial brief stop and preliminary questioning may take place without individualized suspicion: 'more extensive field sobriety testing' requires justification. Id. at 450-2.

Like the highway sobriety checkpoints, the 'special needs beyond normal law enforcement' rationale supports searches on lesser grounds than probable cause only in a very few, carefully tailored regulatory contexts that do not involve apprehension of criminal perpetrators. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 65-66 ('89) (applying the special needs exception to suspicionless quasi-consensual drug testing of Customs Service employees seeking transfer to positions having a direct involvement in drug interdiction).

The special needs exception covers testing which 'is not designed to serve the ordinary needs of law enforcement [because] . . . results may not be used in criminal prosecution.' Von Raab, 489 U.S. at 666 (emphases added). Even so, a search in the special needs context almost always requires individualized suspicion. See, e.g., Portillo v. U.S. Dist. Court, 15 F.3d 819, 823 (9th Cir.'94) (requiring individualized suspicion for urinalysis testing under the probationer special needs exception). The rare special needs cases which do not require individualized suspicion involve persons who voluntarily participate in a highly regulated context. See, e.g., Von Raab, at 671, 677 (noting that 'certain forms of employment may diminish privacy expectations' for the 'employees who seek to be promoted' to certain positions); Vernonia School Dist. v. Acton, 1995 WL 373274, *6-*7 (U.S. June 26, '95) (noting that schools are highly regulated and 'like adults who choose to participate in a `closely regulated industry,' students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy').

Nonetheless, routine searches that intrude into prisoners' bodies without probable cause may be upheld only when the search is undertaken pursuant to a valid prison regulation that is reasonably related to a legitimate penological objective. Turner v. Safley, 482 U.S. 78, 87-91 ('87); see, e.g., Walker v. Sumner, 917 F.2d 382, 387 (9th Cir.'90) (remanding for evidence of a specific penological objective because 'general protestations of concern for the welfare of the citizens of Nevada and the prison community are simply insufficient to render the involuntary seizure of blood specimens, even from prison inmates, constitutionally reasonable').

Individuals have a categorically different and lesser expectation of privacy in their fingerprints, visual images, or voice prints -- even when their production is compelled -- because they are personal attributes that are routinely exposed to the public at large in daily life. Katz v. U.S., 389 U.S. 347, 51 ('67) (finding a lesser expectation of privacy in personal effects that 'a person knowingly exposes to the public, even in his own home or office').

The Fourth Amendment provides no protection for what 'a person knowingly exposes to the public'. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.

The required disclosure of a person's voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber . . . . Rather, this is like the fingerprinting in Davis, . . . [which] 'involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.' U.S. v. Dionisio, 410 U.S. 1, 14-15 ('73) (quoting Katz v. U.S., 389 U.S. 347, 51 ('67), and Davis v. Mississippi, 394 U.S. 721, 27 ('69)) (emphases added).

'Fingerprinting' - like the compelled production of other aspects of an individual's identification that are routinely exposed to and superficially observable by the public at large, such as voice prints, handwriting exemplars, and photographs - simply belongs to a different category of search that 'represents a much less serious intrusion upon personal security than other types of searches and detentions.' Hayes v. Florida, 470 U.S. 811, 14 ('85).*fn10 The majority's analysis obliterates this critical constitutional distinction between coerced fingerprinting and blood extraction for DNA genetic pattern analysis.

Blanket Searches.

Blanket searches are unreasonable, however 'evenhanded' they may be, in the traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91-2, 92 n.4 ('79) (invalidating a blanket patdown search of all patrons in a tavern, even though there was probable cause to search the bartender and the premises). The ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but 'evenhanded' general police searches.

In Zurcher, the Supreme Court held that a search of the offices of a university newspaper, which was not involved in any criminal activity, for photographs of demonstrators who had assaulted police officers did not offend the Fourth Amendment's ban against unreasonable searches and seizures. The court concluded: '[T]he Amendment has not been a barrier to warrants to search property on which there is probable cause to believe that fruits, instrumentalities, or evidence of crime is located, whether or not the owner or possessor of the premises to be searched is himself reasonably suspected of complicity in the crime being investigated.' Zurcher v. Stanford Daily ('78) 436 U.S. 547, 549-50.

Fourth Amendment protects the 'right of the people to be secure in their persons . . . against unreasonable searches and seizures.' The essence of that protection is a prohibition against some modes of law enforcement because the cost of police intrusion into personal liberty is too high, even though the intrusion undoubtedly would result in an enormous boon to the public if the efficient apprehension of criminals were the sole criterion to be considered. 'The easiest course for [law enforcement] officials is not always one that our Constitution allows them to take.' Wolfish, 441 U.S. at 595 (Stevens, dissenting).

A permanent resident alien is entitled to constitutional protection. See Landon v. Plasencia, 459 U.S. 21, 32-4 ('82) ('

• nce an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.'). In particular, to Fourth Amendment protection against unlawful seizures. See Benitez-Mendez v. INS, 760 F.2d 907, 09-10 (9th Cir.'85) (finding that INS seizure of alien violated Fourth Amendment); see also INS v. Delgado, 466 U.S. 210, 213 n.1, 215-21 ('84) (considering whether questioning of resident aliens by INS agents amounted to seizure for purposes of Fourth Amendment); Martinez v. Nygaard, 831 F.2d 822, 824, 826-28 (9th Cir.'87) (analyzing whether seizures of three resident aliens complied with Fourth Amendment).

[G M]

http://hotair.com/greenroom/archives/2009/11/05/there-is-no-freedom-without-law/

There Is No Freedom Without Law
posted at 4:08 pm on November 5, 2009 by Doctor Zero

Senator Roland Burris (D-Illinois) was recently asked by CNS News to specify which part of the Constitution authorizes Congress to legally compel individuals to purchase health insurance, a key component of the last dozen versions of the twelve hundred page ObamaCare proposal. Burris replied:
“Well, that’s under certainly the laws of the–protect the health, welfare of the country. That’s under the Constitution. We’re not even dealing with any constitutionality here. Should we move in that direction? What does the Constitution say? To provide for the health, welfare and the defense of the country.”
This is not a new sentiment. Burris is stating one of the core principles of American liberalism: the belief that the Constitution lays out a series of general directives, rather than imposing specific restrictions on the power of government… as if “promote the general welfare” and the interstate commerce clause were deliberately written into the Constitution as secret ingredients that would vaporize the rest of the document and give the government unlimited power, once some future generation of clever liberals combined them.
Many conservatives respond to the occasional RINO stampede, such as the one which tore through New York congressional district 23 in the recent special election, by suggesting the Republicans should advance a solid conservative platform, and require all candidates to swear allegiance to it. I understand this desire, but I’ve always been uncomfortable with the notion of threatening candidates with excommunication, unless they agree to support a list of positions stapled to their foreheads.  We should all be able to come together around the defense of the Constitution, however. We need no other set of principles to guide us in repairing the damage of the past century. If the government is not restrained by loyalty to the Constitution, then its citizens are not free.
Freedom cannot exist in the absence of law. People living in a state of anarchy are not free. They live under the random tyranny of any warlord, gang, or predator who can overpower them. They also live within the prison of their own distrust for their fellow men. A code of clear, fairly administered laws enhances our ability to trust, and cooperate with, people we don’t know personally. Of course, laws restrict our actions, by punishing us for engaging in illegal activities… but they also enhance our freedom, by allowing us to work more easily with each other, and trade with confidence.
You submit to a fairly involved code of laws, backed up by steep financial penalties and the threat of deadly force, every time you climb into your car. Those very same laws make it possible for you to drive long distances quickly and easily – compared to foot or horse travel, anyway. Without those laws, the fast-moving and complex system of roads and highways would become so deadly that everyone would be afraid to use them.
This same principle applies to government. A lawless government is a tyranny, and its citizens are not free. It doesn’t matter if the lawless state was reached through a brutal thirst for power, or high-minded compassionate ideals. We wouldn’t indulge reckless defiance of the traffic laws by someone in a mad rush to make a large donation to the local Salvation Army chapter. Even ambulance drivers are expected to obey certain rules of the road, and would not be allowed to run down pedestrians in their race to the local emergency room.
Government cannot derive its legitimacy entirely from the approval of a democratic majority, as asserted by the demand that President Obama should be granted virtually limitless power over the lives of American citizens because he won the last election. This would be no less offensive to liberty if Obama had won with seventy, eighty, or ninety percent of the popular vote, instead of 52%. The need to assemble majority support cannot be the sole limit on the power of the State. If the male castaways of “Gilligan’s Island” decide to hold a purely democratic vote to enslave the women, then Mrs. Howell, Ginger, and Mary Ann are in deep trouble.
Some Democrats have responded to the Tea Party movement by whining that noisy minorities should not be allowed to interfere with governance. These are the same people who assert the power to nationalize the health insurance industry because 20, 30, or 47 million people lack adequate insurance. Freedom cannot be reduced to a struggle between whichever noisy minority puts on the biggest demonstration in Washington D.C. How much time, energy, and money has already been expended, fighting over a gigantic, ever-changing health care bill that never should have existed in the first place?
A strict adherence to the Constitution would “promote the general welfare” far more effectively than any program cobbled together in the back rooms of Congress, by saving us the waste of money and passion expended in arguing about those programs. A properly respected Constitution would be a peerless tool for bringing people together, because it would prevent government from tearing them into warring factions by offering fabulously expensive benefits to some, at the expense of others. It would reduce the level of anger and venom in our society, because no one would have to fight a desperate last-ditch battle to preserve his liberty in the voting booth. It would improve the civic pride of citizens, by giving them meaningful input into local policies, instead of demanding they submit to the agenda of distant politicians they will never be allowed to vote against, from states they might never even visit.
For too long, the Left has interpreted the Constitution as an ever-expanding warrant for the arrest of all those who dissent from its agenda. The glorious truth of that incredible document is exactly the opposite: it was designed to restrain the central government, with chains equally impervious to threats and pleading. A just government has very few laws its citizens cannot change by voting locally, or escape by moving to a different state. It cannot require the level of trust that free citizens extend only to each other. Reasoned deliberation can never involve blind votes on thousand-page bills written last week.
The Founding Fathers gave their descendants a luminous gift: a set of laws that transform a potentially tyrannical State into a mighty champion of liberty. Those laws are written on a sheet of antique parchment, which can be easily ignored by fallible men… unless other men have the courage and discipline to hold it up, and insist it be obeyed. That’s a job that every strain of conservative should be eager to rally around. Slicing our bloated, delusional government back down to something in line with the Constitution would be the work of a lifetime… and we’ve only got a few years to get it done, before its heart gives out, and we are crushed beneath it. If the Declaration of Independence was a challenge to foreign conquerors, then the Constitution is a challenge we issue to ourselves. Both documents await the signature of anyone who expects my vote.

[Crafty_Dog]

A state court ruled on Thursday that the state could not use
eminent domain on behalf of Columbia University to obtain a
17-acre site in West Harlem, dealing a major blow to the
university's plans to build a $6.3 billion satellite campus.

Read More:
http://cityroom.blogs.nytimes.com/2009/12/03/court-rules-against-columbia-university/?emc=na

[Body-by-Guinness]

Lying and the Federal Government

Posted by David Boaz

Speaking of White House gate-crashers Tareq and Michaele Salahi (as we were trying to think of an excuse to do, to increase blog traffic), Slate says they might be guilty of a federal crime. What crime? Well, possibly trespassing on federal property. Or maybe the “broad prohibition on lying to the federal government.” Title 18, section 1001 of the U.S. Code

can be used to prosecute anyone who “knowingly and willfully … falsifies, conceals, or covers up by any trick, scheme, or device a material fact” or “makes any materially false, fictitious, or fraudulent statement or representation” to the government. That could include lying about your arrest record on a government job application, claiming a fake deduction on your taxes, or telling someone you’re on the White House invite list when you’re not.

I can’t help wondering, is there any equally broad prohibition on lying by the federal government? If the federal government, or a federal agency, or a federal official “knowingly and willfully … falsifies, conceals, or covers up” information or “makes any materially false, fictitious, or fraudulent statement or representation” — about the costs of a new entitlement, or how a candidate for reelection will act in his next term, or case for going to war — is that prohibited? Or are the rules tougher on the ruled than the rulers?

http://www.cato-at-liberty.org/2009/12/03/lying-and-the-federal-government/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29

[DougMacG]

There is a lot of parsing going on with the gate crashers.  IMO they were waved in by someone, maybe a czar.  Hopefully we will find out.  Maybe the Obama'a were comfortable with the breach but another major world leader should not be put in that situation.  BTW, when did state dinners drop to the level of picnic in a tent...
----
NY is not one of the states that passed further restrictions after Kelo so that decision will be interesting to look at.
----
Regarding the privacy of garbage: Considering other decisions like Roe and Kelo standing the test of time, I'm not surprised to find I disagree with the court over garbage.  If someone sees a couch discarded at the curb and picks it up, that is one thing.  No harm done.  If someone combs for account numbers and personal correspondence maybe a well organized militia could be the remedy or deterrent.    I shouldn't need to shred everything when I pay a private company to dispose of it.

Once again, LE with serious reason to believe is another thing IMO. What they see and what they find still remains private (just my view) except for how it may apply toward solving a case.