Last week’s top stories on Law Street included SCOTUS ruling that evidence obtained illegally can be used in court, new FAA rules for commercial drones, and RantCrush’s top stories from June 23. ICYMI, check out the top stories below.

1. Utah v. Strieff: SCOTUS Narrows Fourth Amendment Protections

A verdict in Utah v. Strieff was handed down by the Supreme Court yesterday, weighing in on how the Fourth Amendment applies to illegal searches. In a 5 to 3 decision, the Supreme Court reversed a ruling from the Utah Supreme Court, concluding that evidence obtained in violation of the Fourth Amendment can be used in court. Read the full article here.

2. FAA Issues New Rules for Commercial Drones

The U.S. government issued new rules on Tuesday regarding the flying of commercial drones, opening up a ton of business opportunities. Drones–small, unmanned aircraft–can be used for taking photos, to survey damage done by natural disasters, and plenty more. But using drones for delivering packages, as e-commerce giant Amazon plans on doing, will not be possible under the new rules. Read the full article here.

3. RantCrush Top 5: June 23, 2016

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post ICYMI: Best of the Week appeared first on Law Street.

A verdict in Utah v. Strieff was handed down by the Supreme Court yesterday, weighing in on how the Fourth Amendment applies to illegal searches. In a 5 to 3 decision, the Supreme Court reversed a ruling from the Utah Supreme Court, concluding that evidence obtained in violation of the Fourth Amendment can be used in court.

The case began when a narcotics detective in Salt Lake City, Utah stopped Edward Strieff after he exited a house that was being monitored for potential drug activity. The detective had seen multiple people making brief stops at the house, calling Strieff’s activities into suspicion. When the detective stopped Strieff, he asked him what he was doing and to provide some identification. He relayed Strieff’s information to a dispatch officer who found that Strieff had an outstanding arrest warrant for a traffic violation. Strieff was arrested for this violation and promptly searched upon arrest.

So, what’s the Fourth Amendment question? The search revealed that Strieff had methamphetamine and a pipe on him, which were later used as evidence against him. Strieff challenged the case to the District Court, arguing that the evidence should not be used because it was obtained from an illegal search. The District Court and the Court of Appeals both ruled against Strieff, but when he appealed once again to the Utah Supreme Court, the ruling turned in his favor. Finally, the Utah Attorney General appealed to the U.S. Supreme Court.

In his majority opinion, Justice Clarence Thomas argues that the evidence used to convict Strieff was legally gathered. Thomas writes that, although the original stop may not have been constitutional, the fact that the officer later obtained an arrest warrant meant that the evidence was collected legally. As Thomas puts it,

The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff.

Three justices–Sotomayor, Ginsburg, and Kagan–dissented from the majority opinion. In her dissent, Justice Sonya Sotomayor destroyed the opposing argument. She eloquently described exactly why police powers should not be so broad and how the court’s decision, and the unlawful stops that will likely follow, will have disastrous effects on the public. The end of her dissent is a chilling reminder of how far we have to go as a country when it comes to liberty and equality:

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives.

Several groups were also deeply disappointed with the case’s outcome and the effects it may have in the future. The ACLU tweeted its disapproval:

We are deeply disappointed. #SCOTUS got it wrong on the 4th Amendment in Streiff, with terrible repercussions, esp. for people of color.

— ACLU National (@ACLU) June 20, 2016

Regardless of the circumstances of this case, the decision gives unprecedented power to police under the Fourth Amendment. People may now be stopped on the streets without having committed a crime. Even worse, any incriminating evidence that results from an unlawful stop may be legally used against you in court. This decision has the power to lead to more and more unconstitutional searches by police.

In the words of Justice Sotomayor, people who are targeted by the police in the way that this decision will now expand, are a warning to us all. They point to injustice in our justice system and show us where we need to improve in order to ensure the liberty for all that is promised in our Constitution. She concluded her dissent saying,

“Until their voices matter too, our justice system will continue to be anything but.”

Alexandra Simone

Alex Simone is an Editorial Senior Fellow at Law Street and a student at The George Washington University, studying Political Science. She is passionate about law and government, but also enjoys the finer things in life like watching crime dramas and enjoying a nice DC brunch. Contact Alex at ASimone@LawStreetmedia.com

The post Utah v. Strieff: SCOTUS Narrows Fourth Amendment Protections appeared first on Law Street.

Drunk driving has left parents childless, spouses widowed, and siblings as only children. In 2013 alone, 10,076 people were killed in drunk driving crashes. It has claimed the lives of thousands of people over the years and sparked lobbyist action, which has forced stricter regulation of drunk driving on both the federal and state levels. Most recently, the Supreme Court has agreed to hear a group of three cases, a sequel per se to its 2013 drunk driving decision, in an effort to review warrantless drunk driving tests as a violation of Fourth Amendment rights and the criminalization of a refusal to take a drunk driving test. Read on to learn more about the development of drunk driving as a crime and what the new cases hold for the future.

History of Regulating Alcohol Consumption

Despite its widely accepted consumption, alcohol is still a drug and one that not only endangers the drinker, but in some cases the lives of others. The federal government and state governments have long been involved with the regulation of alcohol. Mothers Against Drunk Drivers, or MADD, incorporated in September 1980, has been a forefront lobbyist in terms of pressuring the government for stricter and more consequential laws for drunk drivers. Following MADD’s influence, the federal government signed into law the Federal Uniform Drinking Age Act of 1984, which established a uniform drinking age of 21 in the United States and governed state implementation of the Act through apportionment of funding for highway construction, repair, and maintenance. While states have flexibility and control over alcohol policy development and enforcement, the federal government maintains regulation over whether alcohol is sold in the state, whether it can be imported into the state, its distribution, and its possession.

Furthermore, states control the laws pertaining to drunk drivers and the potential consequences and punishment suffered by those charged with drinking and driving. In a breaking development on Friday, December 11, the Supreme Court agreed to review three cases all dealing with the same ultimate issue–“whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test.” The upcoming Supreme Court decision will have a nationwide effect regarding drunk driving roadside manner as 13 states make it a crime to refuse to take a drunk driving test. The three cases chosen for review were picked out of 13 submitted because they involved 3 different scenarios regarding drunk testing and hail from both North Dakota and Minnesota.

The Important Legalities of Drunk Driving

While the evolution of drunk driving policy and law-making has a rich history on both a state and federal level, we will focus on post-2000 development. One of the most noteworthy nationwide implementations was finalized in 2004 with the adoption, by all 50 states, of the .08 blood alcohol concentration (BAC) standard and implementation of the per se laws. Such laws establish that if an individual is tested and their BAC is .08 or over, no additional evidence of intoxication is required–that individual is considered intoxicated by law.

Image courtesy of [Ashleigh Jackson/KOMUnews via Flickr]

However, in 2013, the Supreme Court reviewed Missouri v. McNeely which found that in a routine drunk driving investigation where no additional factors existed which created a special circumstance, exception, or emergency situation, save for the natural dissipation of alcohol within one’s body, a non-consensual and warrantless forced blood test violated the Fourth Amendment right to be free from unreasonable searches of one’s person. The facts of McNeely were straightforward–Tyler McNeely was stopped shortly after 2AM, had admitted to having a few beers, failed a field sobriety test, smelled of alcohol, declined to take a breathalyzer test, and was placed under arrest. The officer did not secure a search warrant prior to taking McNeely to the local hospital where he asked for signed consent for a blood test, which McNeely denied. A lab technician, under the direction of the officer, was told to collect a blood sample from McNeely despite not obtaining consent to do so. McNeely’s BAC was 0.154, almost double the legal limit, and he was subsequently charged with driving while intoxicated.

The Court in McNeely recognized that Fourth Amendment precedent allows for warrantless searches of a person only if the search falls within a recognized exception. A number of exceptions give rise to an exigent circumstance including an emergent need to provide assistance to someone in a home, chasing and pursuing a fleeing suspect, to enter a burning building or investigate a fire, or to prevent the destruction of evidence, among other factors. While the time restraint on testing a blood alcohol level could present an exigent circumstance not only because of the natural dissipation of alcohol, but also for the time required to obtain a warrant, the Court had to analyze the full picture regarding McNeely’s specific situation. They ultimately decided that the State’s argument–that the natural dissipation of alcohol from a driver’s body is considered an exigent circumstance in every case–was unsupported and unfounded on a Fourth Amendment basis. Essentially, the fact that the test may not be accurate hours later after the alcohol wore off was not a good enough reason to perform a warrantless test.

The Statistics of Drunk Driving 

Despite the legal disputes around drunk driving policies, statistics have come to show a significant decline in the number of drunk driving deaths from 1982 to 2014. The rate of drunk driving is highest among individuals between the ages of 21-25 with drunk driving costs reaching an upward of $199 billion a year. Furthermore, over 1.2 million people were arrested in 2011 for driving drunk and approximately one-third of those arrested or convicted of drunk driving were repeat offenders. Needless to say, there is work to be done to further drop those statistical reports.

The Supreme Court’s Upcoming Drunk Driving Review

Despite the ruling in Missouri v. McNeely, the Supreme Court is tackling the warrantless blood or breathalyzer test again in addition to assessing the constitutionality of criminalizing the refusal of a driver to submit or consent to a test. Of the three cases taken up for review, two come from North Dakota where it is a crime to refuse a blood, breath, or urine test, one punishable to the same extent as a conviction for drunk driving.  The lead appeal comes from Danny Birchfield, who in 2013, drove his car off the road, failed a breathalyzer test, and subsequently refused to take a blood test. Birchfield pled guilty to a misdemeanor charge, but reserved his right to appeal.

The third case operates under Minnesota law, which makes it a crime to refuse an officer’s request to take a blood test, if a valid arrest has been made for drunk driving. William Bernard Jr. was arrested and charged with two felony counts of refusing to submit to a sobriety field test, blood, or breath test. Witnesses reported Mr. Bernard after his truck was struck trying to pull a boat out of the water. Police requested he submit to a test because he smelled strongly of alcohol and was driving the truck–he denied the test and was arrested under Minnesota’s “implied consent law,” agreed to when a driver obtains his or her drivers license and criminalizes a refusal to take a test. Ultimately, Bernard was convicted–a conviction that is in conflict with Missouri v. McNeely because it allowed for warrantless drunk testing and an arrest without the presence of additional factors or emergent circumstances.

Image Courtesy Of [grendelkhan via Flickr]

Conclusion

The Supreme Court review of the upcoming cases is expected to clarify the issues that McNeely did not, such a bright line rule pertaining to warrantless demands for drunk testing and exigent circumstances, as well as addressing the criminalization of refusal through implied consent laws. Although the Supreme Court may be wary of completely controlling process and punishment of drunk driving, a long-term power of the states, it will have to develop a more clear requirement since the number of cases challenging drunk driving test procedures under Fourth Amendment claims continues to grow, particularly in the 13 states with implied consent laws. Many state rulings allowing for warrantless testing are in direct conflict with McNeely–it is therefore imperative, for continuity and consistency, that the Court create a bright line rule for drunk driving test procedures. Whether it will or not in the upcoming case review is to be determined.

Resources

Primary

98th Congress: Federal Uniform Drinking Age Act of 1984

FindLaw: Per Se DUI Laws

Justia: Missouri v. McNeely

Additional

SCOTUSblog: Court to Rule on Drunk-Driving Tests

National Institute on Alcohol Abuse and Alcoholism: Alcohol Policy

Foundation for Advancing Alcohol Responsibility: .08 BAC Legal Limit

Mothers Against Drunk Drivers

 Mothers Against Drunk Drivers: Drunk Driving Deaths 1982-2014

Mothers Against Drunk Drivers: Drunk Driving Statistics

 Bring Me the News: No Warrant Needed: Ruling OKs Arrest if You Refuse Drunk Driving Test

The Chicago Tribune: Supreme Court to Review Blood-Test Requirement for DWI Cases

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Drunk Driving on Trial at the Supreme Court appeared first on Law Street.

The death penalty has long been a topic of contention in the United States. Some states, like Texas, make heavy use of the ability to enact capital punishment against its worst offenders. Others have banned the practice altogether. Read on to find out about the arguments for and against the death penalty in the United States.

What does the death penalty look like in the US?

The death penalty is legal in the United States–although it is up to the state’s discretion to determine whether or not to make it permissible within its borders. Currently 32 states have capital punishment laws on the books. The death penalty was, briefly, rendered essentially illegal in the United States by the 1972 Supreme Court case Furman v. Georgia but was reinstated in 1976 with the case Gregg v. Georgia. Between when the death penalty was reinstated in 1976, and the end of 2014, almost 1,400 prisoners have been executed.

The United States’ perspective on the death penalty is unique among many of its allies and peer nations. Japan is often described as the only other industrialized nation to use the death penalty. A full 140 other nations have abolished the practice. In 2013, the United States killed the fifth most people in the world, ranking only behind China, Iran, Saudi Arabia, and Iraq. Pakistan, Yemen, North Korea, Vietnam, and Libya round out the rest of the top ten.

What does the legal argument surrounding the death penalty look like?

The debate over the death penalty in America typically rests on the Fifth and Eighth Amendments.  The Fifth Amendment established due process in the American legal system, stating that a person shall not “be deprived of life, liberty, or property, without due process of law.”  On the other hand, the Eighth Amendment prevents the use of “cruel and unusual punishment.” Judges have interpreted these two amendments to mean that the death penalty is constitutional as long as it is carried out as humanely as possible and only after due process.

The juxtaposition of those arguments is actually what led to the de facto four-year stoppage of the death penalty between 1972 and 1976. In Furman v. Georgia, it was decided that particular death penalty statues were unconstitutional, not the act of capital punishment itself. The focus of Furman was on the arbitrariness of the statutes, rendering them unconstitutional. States rewrote the laws, a new suit called Gregg v. Georgia made it to the Supreme Court, and was ruled constitutional. Currently, the death penalty is viewed as constitutional, if states decide to use it.

What are the arguments against the death penalty?

Opponents of the death penalty claim that such punishment is immoral and violates the sanctity of life, while others argue that those claims are based on faith and religion, which should not be the basis of American law. Although there has been a trend in opposition to capital punishment, the majority of Americans are still in favor of such a penalty.  Deterrence statistics generally promote the effect of the death penalty, but a lot of doubt still remains. Certain organizations, like the European Union, have taken strong stances in opposition to the penalty citing issues of human rights.

Those who don’t believe in the death penalty also bring up concerns about the history of racism within American capital punishment. Forty-two percent of inmates on death row are black, despite the fact that black people are only around 14 percent of the American population. Particularly there’s concern that black defendants are sentenced to death at a disproportionate rate when their alleged victims were white. As Amnesty International points out:

A 2007 study of death sentences in Connecticut conducted by Yale University School of Law revealed that African-American defendants receive the death penalty at three times the rate of white defendants in cases where the victims are white. In addition, killers of white victims are treated more severely than people who kill minorities, when it comes to deciding what charges to bring.

In addition, arguments against the death penalty point out that sometimes those executed are exonerated after the fact, after new evidence, re-tested evidence, or changing testimony is made clear. While exact numbers are almost impossible to quantify, a study in 2014 estimated that more than 4 percent of prisoners on death row were probably innocent.

What are the arguments for the death penalty?

Those who believe in the death penalty argue that it’s a fair sentence, reserved for those who commit only the most heinous crimes. It prevents them from ever committing a horrible crime again with a finality that no other method of punishment could possibly guarantee. It can also act as a deterrent to others who would consider committing such crimes. In addition, it provides a level of closure for the family and loved ones of the victim. Many Americans do believe that some people deserve the death penalty. As Rick Perry put it in the lead-up to the 2012 elections:

No, sir. I’ve never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which — when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that’s required.

But in the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you’re involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is, you will be executed.

Conclusion

The arguments for and against the death penalty in the United States are far from over. Politicians will still be asked their opinions on the controversial practice, passionate appeals will continue to be made, and states will still be free to make their own laws regarding the punishment. While the legality may no longer be as strong a point of contention as it used to be, the arguments over the death penalty are sure to continue.

Resources

Primary

Constitution: Fifth Amendment of the United States Constitution

Constitution: Eighth Amendment of the United States Constitution

European Union: EU Policy on Death Penalty

Additional

Boston: Execution Saves Innocents 

Heritage Foundation: The Death Penalty Deters Crime and Saves Lives 

LA Times: The Death Penalty: Valid Yet Targeted 

Washington Post: Md. Judge Advocates for Death Penalty, Says Convict May be Greeted by Devil 

Washington Post: Do We Need the Death Penalty?

DeathPenalty.org: California’s Death Penalty: All Cost and No Benefit

ACLU: The Case Against the Death Penalty

The New York Times: More Evidence Against the Death Penalty

US News: Conservative Case Against the Death Penalty

Columbia Law: Capital Punishment: Deterrent Effects & Capital Costs

Penal Reform: Key Facts

PBS: Is the Death Penalty Unjust? 

Gallup: Death Penalty

ProCon: Should the Death Penalty be Allowed?

Economist: Democracy and the Death Penalty: an Evolving Debate

Santa Clara University: Capital Punishment: Our Duty or Our Doom?

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

The post Death Penalty in the United States: Why We Still Have It appeared first on Law Street.

In June 2013, Edward Snowden changed the course of American history when he released thousands of classified documents to the media. He has since fled the country, and remains on the run. His choice to disclose those documents fundamentally altered the perceptions that Americans have about the ways in which the government monitors them. It sparked national conversations about the role that the Patriot Act and other legislation have played in our national security landscape. A year and a half after these revelations, the United States is still collectively reeling from the information that Snowden provided. And a year and a half later, it’s easy to wonder where all of that info is today.

What exactly did Snowden leak?

Leaked by Edward Snowden, PRISM is the code name for a data-mining program operated by the National Security Agency (NSA) since 2007. It accesses user audio and video chats, photographs, e-mails, documents, and connection logs from nine internet companies: Microsoft, Yahoo, Google, Apple, Facebook, Skype, YouTube, AOL, and Paltalk. Government officials involved with the program claim that PRISM is only used to focus on foreign communications that are potentially dangerous to the security of the United States. Foreign communication often flows through American servers even when sent from one overseas location to another overseas location; however, experts who analyzed the most recently leaked slides of the operation claim that PRISM guidelines require NSA analysts to be only 51 percent confident to reasonably believe that a potential “target” is a foreigner. A 51 percent confidence level can leave ample room for Americans to inadvertently become targets of this operation.

PRISM is still in operation, although there are pending legal cases against the Obama Administration over it. Since the first disclosure of information by Edward Snowden, more revelations have come to light that show very specific targeting. In addition, PRISM, has raised criticism from our international allies. President Obama has, in many cases, had to go on the defensive, and explain that PRISM is intended for legitimate intelligence collection, not Big-Brother style spying.

Courtesy of BackgroundChecks.org

Prism – Everything you need to know. [Infographic]

What is the argument against PRISM?

Opponents of the PRISM program claim that it is unconstitutional under the Fourth Amendment of the 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.

They argue  that the collection and surveillance of data by the NSA is too broad and “akin to snatching every American’s address book.” Yahoo initially fought the order to participate in PRISM in 2008. It argued that even if PRISM’s main goal is to focus on foreign communication, the incidental collection and gathering of American data is unconstitutional because such surveillance violates the “warrant clause” and “unreasonable searches clause” of the Fourth Amendment. Yahoo lost the case.

What is the argument in favor of PRISM?

Proponents of the PRISM program claim that cases in which the goal is to gain foreign intelligence are exempt from being subject to the Fourth Amendment’s “warrant” and “unreasonable searches” clauses. For the warrant clause, the Supreme Court has recognized a general “special needs” exception in cases like Vernonia School District v. Acton, where insisting upon a warrant would interfere with the accomplishment of that purpose. Proponents argue that there is a high degree of probability that requiring a warrant would hinder the NSA’s ability to collect time-sensitive information, and therefore would impede national security interests.

For the unreasonable searches clause, the Foreign Intelligence Surveillance Act (FISA) Court, in Yahoo’s case, held that PRISM’s operations were not unreasonable in light of the extremely important goal of national security. It found that PRISM’s procedures for targeting, minimization, and ensuring existence of a surveillance purpose to obtain foreign intelligence information serve to mitigate potential abuse of this power and risk of error to a reasonable level. Proponents also point to United States v. Miller to argue that people have no Fourth Amendment rights after they have already divulged their personal information to third parties, such as the internet companies participating in PRISM.

Conclusion

PRISM’s depth and extensiveness were a huge revelation for the American public after the secret documents were leaked by Edward Snowden. It raises a few important questions, first and foremost: is it constitutional? That will have to be decided by the courts, but it also raised interesting questions about the tradeoff between privacy and protection. As our technological abilities continue to increase, it will be fascinating to see the steps that this administration and any future administrations take to stem or expand PRISM.

Resources

Primary

ProPublica: NSA Surveillance Lawsuit Tracker

Additional

The New York Times: Secret, Court Vastly Broadens Powers of NSA

Huffington Post: America’s Take on the Fourth Amendment and the NSA

Concurring Opinions: Does the Fourth Amendment Regulate the NSA’s Analysis of Call Records? The FISC Might Have Ruled it Does

Assasination Archives: The National Security Agency and Fourth Amendment Rights

The Peoples’ View: A Crash Course in the NSA and the Fourth Amendment

Reason: Why the NSA’s Snooping Supposedly Complies With the Fourth Amendment

Washington Post: U.S., British Intelligence Mining Data from Nine U.S. Internet Companies in Broad Secret Program

Washington Post: NSA Slides Explain the PRISM Data-Collection Program

Brennan Center for Justice: Are They Allowed to Do That? A Breakdown of Selected Government Surveillance Programs

Cato Institute: NSA Spying, NSA Lying, and Where the Fourth Amendment Is Going

Washington Post: The Foreign Intelligence Surveillance Court

POLITICO: NSA Memo Pushed to ‘Rethink’ 4th Amendment

Salome Vakharia

Salome Vakharia is a Mumbai native who now calls New York and New Jersey her home. She attended New York School of Law, and she is a founding member of Law Street Media. Contact Salome at staff@LawStreetMedia.com.

The post Eighteen Months After Snowden Leak, What’s Next for PRISM? appeared first on Law Street.

The Supreme Court has an exciting new term ahead of it, and today’s case is no exception. This week the justices will hear arguments in Heien vs. North Carolina, a case that at its core poses one very simple question: should police officers be held to a higher standard? It’s a timely question, given the events of this summer, and one whose answer may hold some interesting ramifications.

In 2009, a man named Nicholas Heien was with another man who was driving his car in North Carolina when he was pulled over for having a busted tail light. Officers ended up searching the car — which belonged to Heien — and discovering a relatively substantial amount of cocaine. Heien was arrested and charged with drug trafficking.

Now under North Carolina law, if Heien was pulled over because he was breaking a law, and the subsequent search yielded the cocaine discovery, that would have been legal. The problem is that he wasn’t actually breaking a law when he was pulled over — technically, as long as you have one functioning tail light, you’re operating within the law in North Carolina. The officer who pulled him over was simply wrong about the law.

The Fourth Amendment reads:

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

The Fourth Amendment requires that searches are lawful — and there’s significant evidence to suggest that the search of Heien’s car was not. There needs to be reasonable suspicion that a law has been violated in order to conduct that search. A non-functioning brake light, which is not even illegal, is simply not enough.

Heien lost his original trial. He then won an appeals case, but lost in the North Carolina State Supreme Court. The case will now be making its way to the Supreme Court, which will have to figure out whether the North Carolina Supreme Court made the right decisions saying that Heien’s arrest was fair, even though the cop who pulled him over was ignorant of the laws in the state in which he worked.

The State Supreme Court held that requiring officers to be walking encyclopedias of the states’ laws is ridiculous and creates much higher standards than the Fourth Amendment mandates. But the dissenters pointed out that allowing that kind of subjectivity could create a sort of slippery slope. In the dissent, Justice Robin Hudson wrote:

The danger in adopting a new constitutional rule here is that this particular case seems so innocuous: Of course it is reasonable that an officer would pull over a vehicle for a malfunctioning brake light. But this new constitutional rule will also apply in the next case, when the officer acts based on a misreading of a less innocuous statute, or an incorrect memo or training program from the police department, or his or her previous law enforcement experience in a different state, or his or her belief in a nonexistent law.

Then there’s the context of this August to discuss. The events in Ferguson propelled a national dialogue, one that was opened by stop-and-frisk laws, militarization of our police departments, and dozens of other issues around the country about the power of our police departments. Obviously, none of these examples are about the same kind of issue — the cops in Heien’s case obviously did not shoot anyone. But it does hark back to that question: what leniency do we give to our cops?

In the United States, not knowing a law is no excuse for breaking it. Should not knowing it also be an excuse for incorrectly enforcing it? Now, that’s up to the Supreme Court to decide.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Police Decisions Up for Debate in Today’s SCOTUS Case appeared first on Law Street.

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In Arizona, if you are within 75 miles of the Mexican border, you might just come across a “temporary” border control checkpoint. The goal of these checkpoints is to help control drug trafficking and stop illegal immigration. But the legality of these checkpoints and what the border control agents are actually allowed to do is far from clear.

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In Arizona, if you are within 75 miles of the Mexican border, you might just come across a “temporary” border control checkpoint. The goal of these checkpoints is to help control drug trafficking and stop illegal immigration. But the legality of these checkpoints, and what the Border Patrol agents are actually allowed to do is far from clear. The American Civil Liberties Union has now filed an administrative complaint with the Department of Homeland Security on behalf of 15 individuals who claim that their constitutional rights have been violated at checkpoints in Arizona.

Of the individuals involved in the ACLU complaint, the majority say they were never asked about their identity, the supposed purpose of the checkpoints. Some of the complainants claim they were held for over half an hour for not giving the Border Patrol officer consent to search their cars. Other complaints include a gun being pulled on a individual, and the Border Patrol agents attempting to take someone’s cell phone. If these allegations are true, they most likely violate the existing laws on checkpoints.

The highest court of the land has only ruled on interior checkpoints once, almost forty years ago, in United States v. Martinez-Fuerte. Amado Martinez-Fuerte was transporting two illegal immigrants when he was stopped at a fixed interior checkpoint in Southern California. When asked, the two illegal immigrants admitted to their status. Martinez-Fuerte reacted by suing, saying that the checkpoint violated his Fourth Amendment right to not be subject to unreasonable searches. SCOTUS ruled that his rights were not violated, because if there is a reasonable collective suspicion, then individuals can be searched in the interest of public safety. The court stated that Border Patrol agents could briefly question and ask people for identification, without individual suspicion, if they’re at reasonably located checkpoints. The court did not give the Border Patrol the right to search vehicles or occupants without probable cause. The question in Arizona today is if the Border Patrol is abiding by this ruling.

It seems like this administrative complaint may lead to a new look at our laws. These checkpoints have expanded their focus to include more work in drug control, instead of just looking for illegal immigrants. This is problematic because Martinez-Fuerte only serves as a precedent for checkpoints searching for illegal immigrants. Currently at checkpoints, vehicles are examined by drug-sniffing dogs. In Illinois v. Caballes, the Supreme Court ruled that a drug-sniffing dogs could be used during a routine traffic stop, but no court has explicitly ruled that they can be used at Border Patrol checkpoints.

Furthermore, in 2000, the Supreme Court ruled that using these checkpoints for general law enforcement acts violates the Fourth Amendment. James Duff Lyall, the attorney who filed the complaint stated:

The restrictions in the Martinez-Fuerte ruling don’t mean that agents have to turn a blind eye to obvious evidence of drugs or crime, but if you have cases where people are not even being asked about residency status, it raises serious questions about the legitimacy of these checkpoints.

In 1976, the Supreme Court made the Martinez-Fuerte ruling because they felt that in an area with a high number of illegal immigrants, it was not unreasonable to have ID checkpoints on major roads. Using that logic as precedent, I think that it could be argued that due to the large amount of narcotics crossing the border, it is not unreasonable to have cars drive through a checkpoint where drug-sniffing dogs are present. However, there’s no legal basis for that argument yet, and this is not an excuse for the unreasonable searches that the ACLU is alleging are taking place. If the point of these checkpoints is to find drugs, a car should only have to stop for a few moments while the dog sniffs, and then be allowed to move on. Anything beyond that, or a simple examination of a person’s ID, is a violation of the Fourth Amendment. The Border Patrol in Arizona needs to realize this if they want to keep operating their checkpoints.

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Matt DeWilde (@matt_dewilde25) is a member of the American University class of 2016 majoring in politics and considering going to law school. He loves writing about politics, reading, watching Netflix, and long walks on the beach. Contact Matt at staff@LawStreetMedia.com.

Featured image courtesy of [Ken & Sharon Lotts via Flickr]

Matt DeWilde

Matt DeWilde is a member of the American University class of 2016 majoring in politics and considering going to law school. He loves writing about politics, reading, watching Netflix, and long walks on the beach. Contact Matt at staff@LawStreetMedia.com.

The post Interior Checkpoints in Arizona Draw Complaints appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/news/interior-checkpoints-arizona-draw-complaints/feed/ 0 21142 https://legacy.lawstreetmedia.com/news/scotus-rules-warrantless-cellphone-searches-unconstitutional/ https://legacy.lawstreetmedia.com/news/scotus-rules-warrantless-cellphone-searches-unconstitutional/#comments Mon, 30 Jun 2014 17:17:42 +0000 http://lawstreetmedia.wpengine.com/?p=18826

In a unanimous decision, the Supreme Court ruled last Wednesday that law enforcement officials must obtain warrants to search the cell phones of those under arrest. This is a definite departure from previous policies, which allowed police officers to collect evidence through warrantless cellphone searches.

The post SCOTUS Rules Warrantless Cellphone Searches Unconstitutional appeared first on Law Street.

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In a unanimous decision, the Supreme Court ruled last Wednesday that law enforcement officials must obtain warrants in order to search the cell phones of those under arrest. Chief Justice John Roberts wrote in the majority opinion, “the fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely.” This is a definite departure from previous policies, which allowed police officers to collect evidence through warrantless cellphone searches.

The Chief Justice stated:

The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought, our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.

In this decision, Roberts dismissed law enforcement officials’ claims that searching a cell phone is no different than searching a suspect’s pockets, which has never required a warrant. Roberts addressed this by saying, “that is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Modern cell phones, with their vast capabilities, bring about entirely new privacy concerns that transcend a simple pocket search.

Warrantless searches have been justified, and sometimes are necessary. They are often conducted in order to protect police officers from hidden weapons, and to prevent suspects from destroying evidence. However, the court found that neither of those rationales applied to searching through the data on someone’s cell phone.

Understandably, police officers are concerned with the impact that this ruling will have on fighting crime. If a police officer must take the time to obtain a warrant before they can search someone’s phone, then that person will have the opportunity to erase any incriminating data. Roberts wrote:

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

However, according to Roberts, “remote wiping can be fully prevented by disconnecting a phone from the network.” He says that police officers can also remove a phone’s battery or simply turn the phone off.

This ruling was built on several privacy rulings in recent years, particularly the cases of United States v. Wurie and Riley v. California.

Police in Boston arrested Birma Wurie on drug trafficking charges in 2007. Police went through the call log on Wurie’s flip phone without first obtaining a warrant, and found several calls from a number labeled as “my house”. They then used reverse trajectory to trace the address, obtained a warrant, and found illegal drugs and firearms. While they did have a warrant to search the home, they never obtained one to search the phone that led them there.

In 2009, San Diego police detained David Riley for driving with expired tags. In their search of his car, police discovered two concealed firearms and seized Riley’s smartphone without a warrant. Stored text messages, photos, and videos on the phone led the police to believe that Riley had gang connections and was involved in several prior gang-related crimes.

In both of these cases, the defendants sought to suppress the evidence that was obtained without a warrant, and neither succeeded. The evidence was let in and they were both convicted, leading to a series of appeals that eventually reached the Supreme Court. The court addressed the privacy issues in both cases, but seemed less worried about police officers searching limited-capacity flip phones than smart phones that can hold large quantities of personal data. Justice Elena Kagan commented that, “most people now do carry their lives on cell phones,” so it is important that peoples’ Fourth Amendment rights are protected when it comes to personal information on smartphones.

In the age of constantly changing technology, the protections set out by the Fourth Amendment are unwavering. These technological advances raise many questions about one’s right to privacy when information is becoming more accessible. This Supreme Court decision is an important step in assuring that peoples’ rights are protected, despite these rapid changes in technology.

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Brittany Alzfan (@BrittanyAlzfan) is a student at the George Washington University majoring in Criminal Justice. She was a member of Law Street’s founding Law School Rankings team during the summer of 2014. Contact Brittany at staff@LawStreetMedia.com.

Featured image courtesy of [dalioPhoto via Flickr]

Brittany Alzfan

Brittany Alzfan is a student at the George Washington University majoring in Criminal Justice. She was a member of Law Street’s founding Law School Rankings team during the summer of 2014. Contact Brittany at staff@LawStreetMedia.com.

The post SCOTUS Rules Warrantless Cellphone Searches Unconstitutional appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/news/scotus-rules-warrantless-cellphone-searches-unconstitutional/feed/ 1 18826 https://legacy.lawstreetmedia.com/news/mayoral-parody-account-leads-twittergate-illinois/ https://legacy.lawstreetmedia.com/news/mayoral-parody-account-leads-twittergate-illinois/#comments Thu, 19 Jun 2014 20:47:05 +0000 http://lawstreetmedia.wpengine.com/?p=17960

I, for one, find parody accounts on Twitter hilarious. However, it is obvious that Jim Ardis, the mayor of Peoria, Illinois, disagrees. After discovering that someone had created a parody Twitter account in his name, rather than laugh it off, Ardis took extreme measures that ultimately led to a police raid of the creator’s home.

The post Peoria Mayor Sends Police to Raid Home of Twitter Parody Account Creator appeared first on Law Street.

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I, for one, find parody accounts on Twitter hilarious; however, it is obvious that Jim Ardis, the mayor of Peoria, Illinois, disagrees. After discovering that someone had created a parody Twitter account in his name, rather than laugh it off, Ardis took extreme measures that ultimately led to a police raid of the creator’s home.

The account used the handle @peoriamayor and portrayed the mayor as a foul-mouthed, frequent drug user who loved going to strip clubs. The creator of the account is 29-year-old Jon Daniel, a writer, line cook, and father of two. Daniel shared with the Associated Press that he started the Twitter account as a joke. He told them, “I thought my friends would find it funny.”

While Daniel’s friends did indeed find the account funny, Ardis did not. Shortly after the account’s creation, the mayor discovered it and immediately started the process of getting it taken down. Just two days after the account’s creation, the city manager contacted the city’s chief information officer, Sam Rivera, and asked for help getting the account taken down. The email, which was sent on March 11, read, “Someone is using the Mayor’s likeness in a twitter account, it’s not him. @Peoriamayor. Can you work to get it shut down today?”

Just an hour later, emails were sent by city manager Patrick Urich to the city’s police chief demanding a police investigation into the account’s creator. While the police were skeptical if a crime had even been committed, Ardis was persistent and demanded that it be looked into further. Eventually, Detective James Feehan dug deep enough and found an obscure Illinois statute that makes it illegal to falsely portray a government official. The police were then able to subpoena Twitter for the IP address behind @Peoriamayor, and then subpoenaed Comcast to trace that IP information back to Daniel’s house.

On April 15, three weeks after the account was suspended, police raided Daniel’s home. Because one of the tweets involved a photo of a “white powdery substance” and a razor blade, the police entered the home armed with a warrant allowing them to search for drugs, paraphernalia, and electronics that could post to Twitter. The police confiscated several electronic devices, but ultimately did not arrest Daniel.

They did, however, arrest his roommate. Police seized a “large gold gift bag with five sandwich bags containing a green leafy substance” and arrested Jacob Elliot, Daniel’s roommate, for possession of marijuana.

Daniel is now fighting back, and suing Ardis and six other city employees for violating his First and Fourth Amendment rights. The account was clearly labeled as a parody account, and therefore should not have been taken down. Typically, spoofs and parodies like this Twitter account are protected by the First Amendment because they are considered a form of political speech and are not intended to deceive anyone.

The 55-year-old mayor is threatening a countersuit for defamation. In an attempt to demonstrate that the tweets were not clearly parody, Ardis “gave a straight-faced reading of Daniel’s most off-color tweets, including messages that voiced enthusiastic support for strippers, tequila and crack pipes.”

Just three days after the raid, Ardis received some detrimental news for his defamation “case” –there may be an internet exception to the impersonating statute. If this is the case, everyone missed it, from the investigators to the State Attorney’s Office to the judges, and it is likely that they will toss his case. In addition, the mayor has received major public criticism for his drastic actions against Daniel. The incident has been labeled “Twittergate” in Illinois, and several other Ardis parody accounts have popped up on social media. It will be interesting to see what, if any, action Ardis takes against these new impersonators. Hopefully he won’t be raiding any more homes.

Ardis has also received many emails from people all over the world mocking him for his actions. One message read: “Just to give you heads up, sir: I will be mocking you at the dinner table this evening, I will await your stormtroopers with some fresh coffee and rolls. Please phone ahead.” While this situation is yet to be resolved, it’s unlikely that things will turn out in Ardis’ favor.

And for your daily laugh, here is a video of Ardis reading some of @peoriamayor’s tweets:

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Brittany Alzfan (@BrittanyAlzfan) is a student at the George Washington University majoring in Criminal Justice. She was a member of Law Street’s founding Law School Rankings team during the summer of 2014. Contact Brittany at staff@LawStreetMedia.com.

Featured image courtesy of [Glenn Halog via Flickr]

Brittany Alzfan

Brittany Alzfan is a student at the George Washington University majoring in Criminal Justice. She was a member of Law Street’s founding Law School Rankings team during the summer of 2014. Contact Brittany at staff@LawStreetMedia.com.

The post Peoria Mayor Sends Police to Raid Home of Twitter Parody Account Creator appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/news/mayoral-parody-account-leads-twittergate-illinois/feed/ 3 17960 https://legacy.lawstreetmedia.com/blogs/culture-blog/youre-being-watched-right-now-heres-what-to-do-about-it/ https://legacy.lawstreetmedia.com/blogs/culture-blog/youre-being-watched-right-now-heres-what-to-do-about-it/#comments Fri, 15 Nov 2013 21:45:39 +0000 http://lawstreetmedia.wpengine.com/?p=8167

SPECIAL REPORT from The F Word! PEN America liked me so much on Tuesday that they invited me to cover another event last night. So all you Law Street readers get to listen to the melodious sound of my voice an extra time this week. Lucky you. Anyway! Together with independent researchers at the FDR […]

The post YOU’RE BEING WATCHED RIGHT NOW: Here’s What To Do About It appeared first on Law Street.

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SPECIAL REPORT from The F Word! PEN America liked me so much on Tuesday that they invited me to cover another event last night. So all you Law Street readers get to listen to the melodious sound of my voice an extra time this week. Lucky you.

Anyway! Together with independent researchers at the FDR Group, PEN published a report this week titled Chilling Effects, which found that writers in the U.S. are self-censoring in response to reports of widespread NSA surveillance. Thanks for scaring the crap out of all of us, Edward Snowden!

According to the report, 85% of surveyed writers are actively worrying about government surveillance, and are watching what they say as a result. Twenty-eight percent have reigned in or eliminated their use of social media, 24% have purposely avoided discussing certain topics via phone or email, and 16% have avoided writing or speaking about sensitive subjects. PEN writers report taking surveillance for granted—they simply assume they’re being monitored—and they’re choosing their words wisely so as to avoid harm.

Thanks PEN America!

Folks, this is what censorship looks like.

And it’s real. As a follow-up to Chilling Effects’ publication, PEN hosted a panel discussion last night in conjunction with the ACLU and the Fordham University School of Law. It was, to put it mildly, chilling.

The panel consisted of four men, all of whom had varying levels of expertise on the NSA and government surveillance. They each addressed the audience with separate, 15-minute presentations. If you want to hear them speak for themselves, you can view the live feed here.

Join us live! http://t.co/6fuvleyjLc #WTHarm pic.twitter.com/ATjoqF3uhg

— PENamerican (@PENamerican) November 15, 2013

But really, who needs to watch an hour and a half video when you’ve got me to recap it for you?

The panelists gave us an incredible look into the world of surveillance, from a historical overview of the NSA’s beginnings, right down to their personal experiences with harassment and persecution. According to James Bamford—the only guy who wore a business suit—the NSA got its start in a Manhattan townhouse back in the 1920s. As a top-secret government agency created to assist the World War I effort, this pre-NSA got a copy of every telegram that went in or out of the country.

That’s a lot of paper.

Fast forward to present day and the NSA isn’t just courting the phone or telegram companies—they’ve got software providers in their back pocket. Not to mention, the technological realities of cloud computing and social media mean the NSA doesn’t really have to ask. As fellow panelist and tech-guru Bruce Schneier remarked last night, “We are all leaving digital footprints throughout our lives,” and they’re anyone’s to follow.

Bruce Schneier – aging hippie extraordinaire. Courtesy of Terry Robinson via Flickr.

So what really happens when the NSA follows our tracks? Ariel Dorfman, a Chilean-American playwright and novelist, knows firsthand—he lived in Chile during Augusto Pinochet’s dictatorship. Dorfman went into exile abroad shortly after Pinochet took office, but was allowed to return in 1983, before the regime’s fall. His poignant description of the Chile he came back to illustrated the fears he had for the future of the U.S.

“People had learned to suspect everyone and everything,” he said, describing friends who had once been open and outspoken as having transformed into guarded strangers. “Chile had become synonymous with silence.”

Indeed, when Dorfman had to dictate a dissenting op-ed over the phone, he was plagued with fear. He described experiencing a panic attack, worrying that the Chilean secret police would arrest and harm his family after eavesdropping on his conversation.

Ariel Dorfman — total bad ass. Courtesy of Robin Kirk via Flickr.

Thankfully, those fears never came true, but American journalist Glenn Greenwald hasn’t been so lucky.  Greenwald is the (in)famous reporter who broke the Edward Snowden leaks, and he spoke on the panel via Skype—an irony he made note of, as the video-calling software is owned by Microsoft, one of the NSA’s most loyal information suppliers.

But there were no other options. A resident of Rio de Janeiro, Greenwald can’t return to the U.S. for fear of being arrested for his NSA coverage. In fact, he’s not travelling at all—and for good reason. This past August, Greenwald’s partner, David Miranda, was detained for nine hours by officials at Heathrow Airport in London. They ultimately let him go, but confiscated his electronics first, claiming to be concerned that he was involved in terrorism and espionage.

Essentially, Greenwald and Dorfman are living proof of the fact that government surveillance is scary as shit. And that’s not just because of dystopian what-if scenarios, where all of us paranoiacs predict a turn towards the terror of Pinochet’s Chile.

It’s because, as Greenwald put it, if you want to challenge the powers that be, “the ability to communicate in private is an absolute prerequisite of that.” Without it, we’re incapable of engaging in dissent.

“The minute you know you’re being watched, the less free you become,” Greenwald said.

He’s right, and the crowd agreed. One audience member, J.L. White, stood up to suggest that we seriously consider impeaching President Obama. And after exacerbating the war in Afghanistan, using drones to kill American citizens, and pumping up the NSA’s surveillance efforts, no one in the room disagreed with her.

“What Bush did, Obama put on steroids,” said Bamford, validating White’s point.

But it’s not a hopeless situation. Dorfman expressed optimism, even as he sees alarming parallels between the Obama administration and Pinochet’s.

“They’re going to screw it up,” he said, reminding us that despite all of the surveillance, the government has still been wrong about important events. No one saw the Arab Spring coming, or the Boston Marathon bombing. At the end of the day, our wardens are laughably incompetent.

And while they blunder about, trying to consolidate all the minutiae of our digital lives into something useful, there are tons of people fighting back.

Ben Doernberg is one of them. Another Brooklyn resident, Ben quit his full-time job to organize for Restore the Fourth, a national coalition of grassroots activists agitating against government surveillance. I approached him after the panel, as he stood near the exit, recruiting people to join him in the good fight.

“I just want people to not fall into the trap of just learning more is all you have to do,” he said of the night’s event. “You have to actually do something.”

Will we? It’s hard to tell. With writers self-censoring, journalists and whistleblowers living in exile, and civilians cowering under the fear of terrorism, it’s easy to see how the surveillance state could continue growing.

But Ariel Dorfman, always looking on the bright side, sees hope.

“Fear is contagious, but so is courage,” he said, urging everyone in the room to take a stand.

So what will you do? Tell us in the comments! (Just remember, the government’s watching.)

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Featured image courtesy of [Truthout.org via Flickr]

Hannah R. Winsten

Hannah R. Winsten is a freelance copywriter, marketing consultant, and blogger living in New York’s sixth borough. She hates tweeting but does it anyway. She aspires to be the next Rachel Maddow. Contact Hannah at staff@LawStreetMedia.com.

The post YOU’RE BEING WATCHED RIGHT NOW: Here’s What To Do About It appeared first on Law Street.

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