Tag Archives: Fourth Amendment

(…the most important thing I can tell you is…) Invoke Your Rights During Police Encounters

(THIS APPLIES TO ALL FIFTY+ STATES)

Keary Prophet·Tuesday, November 7, 2017

STOP: TO ALL POLICE, LAW ENFORCEMENT, OFFICERS AND/OR AGENTS OF THE LOCAL, STATE OR FEDERAL GOVERNMENT’S PLEASE TAKE NOTICE AND BE ADVISED.

I DO NOT AGREE NOR CONSENT TO THIS CONTACT WITH YOU.

*PLEASE DO NOT ASK ME ANY QUESTIONS OR REQUEST ANY INFORMATION FROM ME THAT COULD LATER BE USED AGAINST ME.

*PLEASE DO NOT ASK ME ANY QUESTIONS OR REQUEST ANY INFORMATION FROM ME WITHOUT MY COUNSEL AND/OR LAWYER PRESENT, OR UNTIL I HAVE CONSULTED THE SAME.

*PLEASE DO NOT ASK ME TO LEAVE OR EXIT MY CAR, OR TO OTHERWISE COME WITH YOU UNLESS UNDER LAWFUL ARREST OR DETENTION.

*PLEASE INFORM ME AS SOON AS I AM FREE TO LEAVE SO THAT I MAY DO SO WITHOUT ANY FURTHER INTERFERENCE FROM YOU.

I HEREBY INVOKE AND REFUSE TO WAIVE ANY AND ALL OF MY NATURAL, LAWFUL AND UNALIENABLE RIGHTS INCLUDING BUT NOT LIMITED TO THE FOLLOWING:

*I INVOKE AND REFUSE TO WAIVE MY 2nd AMENDMENT RIGHT TO BEAR ARMS.

*I INVOKE AND REFUSE TO WAIVE MY 4th AMENDMENT RIGHT. I DO NOT CONSENT TO ANY SEARCH OF MYSELF, MY PROPERTY OR OTHER BELONGINGS.

*I INVOKE AND REFUSE TO WAIVE MY 5th AMENDMENT RIGHT TO REMAIN SILENT. PLEASE DO NOT ASK ME ANY QUESTIONS. I WANT AND HEREBY REQUEST MY COUNSEL OR LAWYER BE PRESENT DURING ANY AND ALL QUESTIONING OR CONVERSATIONS THAT WOULD REQUIRE MY INPUT OR PARTICIPATION IN ANY WAY SHAPE OR FORM.

*I INVOKE AND REFUSE TO WAIVE MY 6th AMENDMENT RIGHT TO A COUNSEL AND/OR A LAWYER, TO BE INFORMED OF THE NATURE OF THE ALLEGED CRIME I AM BEING, OR HAVE BEEN CHARGED WITH.

*I INVOKE AND REFUSE TO WAIVE MY 9TH AMENDMENT RIGHT, THE RIGHT TO ALL UNENUMERATED RIGHTS. PLEASE DO NOT ASK ME ANY QUESTION OR MAKE ANY REMARKS TO ME ABOUT MY DECISION TO INVOKE THESE RIGHTS.

AGAIN, I DO NOT AGREE NOR CONSENT TO THIS CONTACT WITH YOU AND IF I AM NOT UNDER LAWFUL ARREST OR BEING LAWFULLY DETAINED PLEASE ADVISE ME OF MY RIGHT TO LEAVE, THEN ALLOW ME TO DO SO WITHOUT ANY FURTHER DELAY.

IF AT THIS TIME I AM NOT FREE TO GO PLEASE ADVISE ME OF THE NATURE OF MY LAWFUL ARREST OR DETENTION. IF UNDER ARREST I HEREBY REQUEST AND DEMAND TO BE TAKEN IMMEDIATELY BEFORE A LAWFUL, SWORN AND COMPETENT JUDGE OF A LAWFULLY CONVENED AND COMPETENT COURT OF LAW AND RECORD.

OFFICER OR AGENT YOU ARE OFFICIALLY NOTIFIED

Download this document here: Invoke Your Rights https://lookaside.fbsbx.com/file/MI…

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U.S. Supreme Court places new limit on use of drug dogs during routine traffic stops

By Lawrence Hurley, Reuters on Apr 21, 2015 at 9:01 p.m.

 

WASHINGTON — The U.S. Supreme Court on Tuesday placed a new limit on when police can use drug-sniffing dogs, ruling the dogs cannot be employed after a routine traffic stop has been completed if there is no reasonable suspicion about the presence of drugs in the vehicle.

The court ruled 6-3 in favor of a driver, Dennys Rodriguez, who was stopped in Nebraska and found to be transporting a large bag of methamphetamine following a dog sniff.

In an opinion by Justice Ruth Bader Ginsburg, the court held that a traffic stop lengthened purely to conduct a dog sniff without reasonable suspicion would violate the U.S. Constitution’s Fourth Amendment, which protects against unreasonable searches and seizures.

Conservative Justices Clarence Thomas, Samuel Alito and Anthony Kennedy dissented. Thomas said the ruling conflicted with a 2005 decision in which the court held that using drug-sniffing dogs is lawful when conducted as part of a routine traffic stop.

A police officer pulled over Rodriguez just after midnight on March 27, 2012, after Rodriguez’s car was seen veering onto the road’s shoulder.

After the initial stop, in which Rodriguez said he swerved to avoid a pothole, the officer wrote a written warning. But before allowing Rodriguez to drive away, the officer asked if the police dog could walk around the vehicle. That added about eight minutes to the stop.

Rodriguez declined, but the officer insisted. The dog then detected the drugs. Rodriguez was indicted on one count of possession with intent to distribute 50 grams or more of methamphetamine. He pleaded guilty pending his appeal and was sentenced to five years in prison.

The ruling on Tuesday does not mean Rodriguez is off the hook. Ginsburg noted that lower courts had not determined whether the officer in fact had reasonable suspicion to allow the dog sniff.

In a dissenting opinion, Alito said the ruling would have little practical effect because police officers just need to learn the correct procedure for conducting a lawful dog sniff.

"I would love to be the proverbial fly on the wall when police instructors teach this rule to officers who make traffic stops," Alito wrote.

The case is Rodriguez v. United States, U.S. Supreme Court, No. 13-9972.

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US Supreme Court decision allows police to commit “reasonable mistakes” in detaining suspects

By Nick Barrickman
18 December 2014

In a blow to the Fourth Amendment’s protection against unreasonable searches and seizures, the Supreme Court ruled on Monday that a police officer detaining someone under a mistaken reading of the law could cite having made a “reasonable mistake,” and thus avoid having the court disregard all evidence obtained under such circumstances, provided that a law was “‘so doubtful in construction’ that a reasonable judge could agree with the officer’s view.”

The ruling was made regarding Heien v. North Carolina, a case in which an officer pulled over a driver while under the mistaken belief that the latter’s driving with a single inoperable brake light constituted a violation of state law. After consenting to a vehicle search which revealed narcotics, the defendant, Nicholas Heien, sought to have the evidence suppressed by invoking the Exclusionary Rule, a component of the Fourth Amendment.

In an act which demonstrates a high level of political calculation, the Supreme Court seized upon a lower court’s ruling which found the police officer’s search to be illegal in order to overturn the decision. “The Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials ‘fair leeway for enforcing the law,’” Chief Justice John G. Roberts stated in remarks supporting the majority’s opinion.

Expanding on the view of the majority, Justice Elena Kagan, an appointee of the Obama administration, stated “If the statute is genuinely ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the officer has made a reasonable mistake.” Kagan stressed that such circumstances would be “exceedingly rare.”

Rather than being confined to traffic stops, the Court’s decision can be reasonably interpreted to give police the right to detain and search individuals under practically any circumstances.

In the lone dissenting opinion, Justice Sonia Sotomayor raised fears that this sort of conclusion would be drawn from the decision. “[The decision] means further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down,” she said, adding that the concept of the law being “definite and knowable sits at the foundation of our legal system…” and that if officers are given leeway in such cases it may work to undermine the legitimacy of the court.

Reflecting this position, an amicus brief filed by the American Civil Liberties Union (ACLU) noted that “The rule creates new and unjustified burdens on private citizens by sanctioning an expansive new category of traffic stops, together with the ‘physical and psychological intrusion’ such stops necessarily entail.” It added that the ruling ran the risk of “diminishing the public perception of law enforcement officials’ knowledge and authority.”

The court’s attack on the Fourth Amendment has been a continuous one. Other Supreme Court rulings of note have allowed for police to enter private residences without search warrants, citing “exigent circumstances” after the fact, as well as the proliferation and institutionalizing of “no-knock” raids, which involve militarily-armed SWAT team members forcing down doors on suspicions of illegal doing.

The decision occurs as mass protests have swept the country in recent weeks in opposition to police killings and the militarization of law enforcement and erosion of basic democratic rights.

In the aftermath of the August police killing of unarmed African American teenager Michael Brown in Missouri, protesters were confronted by police officers toting military-grade weapons and equipment and subjecting demonstrators to mass arrests for failing to obey arbitrary orders.

The decision to award police departments the power to detain drivers based upon what amounts to uninformed guesswork demonstrates the contempt that the US ruling class holds for the working population. Rather than reversing the process of police militarization and the undermining of fundamental democratic rights, the Democratic and Republican parties, the Obama Administration, and the Supreme Court all support the process in the name of “law and order.”

The Obama Administration, which sided with the Supreme Court’s decision, has been deeply involved in the process of militarization of police. In a review of the federal government’s programs which have been used to facilitate police militarization that was released early this month, the administration asserted that not only would such programs continue, but that they “have been valuable and have provided state and local law enforcement with needed assistance as they carry out their critical missions in helping to keep the American people safe.”

The author also recommends :

Obama’s paramilitary police: The “war on terror” comes home [03 December 2014]

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GPS, The FBI, and the Fourth Amendment

 

 

In 2004, Antoine Jones, owner and operator of a nightclub in D.C. was suspected of trafficking in narcotics. Various investigative leads were used by the DC police and the FBI, including visual surveillance, use of a camera focused on the front door of his club, and a pen register.

Based on information gathered from the sources, the investigators sought a search warrant allowing them to install an electronic tracking devise on a vehicle Jones used, a Jeep Grand Cherokee. The United States District Court for the District of Columbia issued a warrant authorizing the investigators to install the GPS tracking device in the District of Columbia within ten days. Then agents installed the device on the undercarriage of the Jeep on the 11th day, and while the jeep was in a public parking lot in Maryland.

After 28-day’s surveillance, Jones’ associates and stash houses were identified. District Police seized a total of 97 kilos of cocaine and $850,000. Jones and several of his co-conspirators were indicted, tried, and convicted in 2007.  They were sentenced to life in prison.

On appeal, the government had to concede they did not comply with the terms of the warrant, so they argued that a warrant was not needed. All 9 justices disagreed, for three different reasons. The main argument was that Jones’ vehicle was on a public street and there was no reasonable expectation of privacy.

The Justices also took the position that police already had probable cause (which they needed for the warrant).  This probable cause was usually sufficient to search a car on the roadway, but that argument failed as it was not made to the lower court. Another position argued below was that it was not Jones’ car, as it was registered to his wife.  That argument was also waived as not being raised in the Supreme Court.  What was the ruling?

Five justices said the government trespassed upon private property (the undercarriage), similar to a constable hiding in the baggage compartment to see where it was going, or to overhear the conversations of the passengers, something which would have violated the constitution at the time it was first adopted.

Four others felt Jones did have a reasonable expectation of privacy in the use of the long term GPS tracking of his movements. One of the five, agreeing with the trespass holding, was more concerned with short term tracking, finding it invasive to see if a person visited a psychiatrist, an abortion clinic, a criminal defense attorney, a gay bar, an AIDS treatment center, which house of worship you go to or a pay by the hour motel.

What do we learn from this case? Comply with the conditions of the warrant. Serve it in the jurisdiction, and within the time frame. The court left open the question of the modern technology that would also allow tracking without actually placing a device on the car, with or without a warrant. U.S. v. Jones, January 23, 2012

David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with of the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigations, and Criminal Law, at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida.  He also taught for twenty years at the Homicide Seminar for the Southern Police Institute. His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first degree murder. He is the author of the Search and Seizure Handbook, 3/ed.  It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall.

Learn more about this article here:

http://www.amazon.com/David-M.-Waksman/e/B001JRV3Q8

– See more at: http://www.lawenforcementtoday.com/2012/09/24/gps-the-fbi-and-the-fourth-amendment/#sthash.w0UcIBKb.dpuf

CONTINUE READING THRU THIS LINK….

Probable Cause: Linchpin of the 4th Amendment

 

 

Except for the definition and mechanism of proving treason, no area of the Constitution addressing the rights of all persons when the government is pursuing them is more specific than the Fourth Amendment. The linchpin of that specificity is the requirement that the government demonstrate probable cause to a judge as a precondition to the judge issuing a search warrant. The other specific requirement is identity: The government must identify whose property it wishes to search or whose behavior it wishes to monitor, because the Fourth Amendment requires that all warrants specifically describe the place to be searched or the person or thing to be seized.

The principal reason for these requirements is the colonial revulsion over general warrants. A general warrant does not specifically describe the place to be searched or the person or thing to be seized, and it is not based on the probable cause of criminal behavior of the person targeted by the government.

With a general warrant, the government simply gets authority from a judge to search a haystack looking for a needle, and in the process, it may disturb and move all the straw it wants. Stated differently, a general warrant permits the government to intrude upon the privacy of persons as to whom it has no probable cause of criminal behavior and without stating what it is looking for.

The Foreign Intelligence Surveillance Act (FISA) court has been issuing general warrants to the National Security Agency (NSA) since 1978, but it was not until last June that we learned that these general warrants have been executed upon the telephone calls, text messages, emails, bank records, utility bills and credit card bills of all persons in America since 2009.

The constitutional requirement of probable cause is not political fancy; rather, it saves us from tyranny. Probable cause is a quantum of evidence that is sufficient to lead a neutral judge to conclude that the person about whom the evidence has been presented is more likely than not to possess further evidence of criminal behavior, or has more likely than not engaged in criminal behavior that is worthy of the government’s use of its investigatory tools such that the government may lawfully and morally invade that person’s natural right to privacy.

Last week, Robert S. Litt, general counsel for the Office of the Director of National Intelligence, which runs the NSA, engaged in a curious colloquy with members of the president’s Privacy and Civil Liberties Oversight Board. Litt complained that presenting probable cause about individuals to judges and then seeking search warrants from those judges to engage in surveillance of each of those individuals is too difficult.

This is a remarkable admission from the chief lawyer for the nation’s spies. He and the 60,000 NSA employees and vendors who have been spying on us have taken oaths to uphold the Constitution. There are no loopholes in their oaths. Each person’s oath is to the entire Constitution — whether compliance is easy or difficult.

Yet the “too difficult” admission has far-reaching implications.

This must mean that the NSA itself acknowledges that it is seeking and executing general warrants because the warrants the Constitution requires are too difficult to obtain. Stated differently, the NSA knows it is violating the Fourth Amendment to the Constitution, because that amendment expressly forbids general warrants.

In my career as a lawyer, judge, law professor, author and television commentator, I have heard many excuses for violating the Constitution. I reject all of them when they come from one who has sworn to uphold the Constitution, yet I understand the intellectually honest excuses — like exigent circumstances — when they are based on duty. The NSA’s excuses are not intellectually honest, and they are not based on duty. They are based on laziness.

But there was more than met the eye in Litt’s testimony last week. Two days after Litt admitted to the use of general warrants, and while the president was in Europe, the White House leaked to the press its plans to curtail the massive NSA spying. Those plans, which would change only the appearance of what the NSA does but not its substance, have three parts.

The first change relieves the NSA of the need for general warrants to require delivery of massive amounts of data about innocent Americans as to which the NSA has no probable cause, because the second change requires the computer servers and telecoms to preserve their records — instead of the NSA preserving them — and make them “immediately” available to the NSA when it comes calling. And the third is the requirement of a warrant from a FISA judge before the NSA may access that stored data. But because that warrant is not based on probable cause but rather on NSA whim, it is a foregone conclusion that the general warrants for examination, as opposed to delivery, will be granted. The FISA court has granted well in excess of 99 percent of the general warrants the NSA has sought.

Litt must have known what the White House planned to leak when he made his “too difficult” complaint, as it fits nicely with this new scheme. Yet the scheme itself, because it lacks the requirement of probable cause that the Constitution requires, is equally as unconstitutional and morally repugnant as what the NSA has been doing for five years. Moreover, the NSA will not exactly go hat in hand to the computer servers and telecoms once it wishes to hear telephone calls or read emails or credit card bills. Its agents will simply press a few buttons on their computers when they wish, and the data they seek will be made available to them.

These so-called changes should be rejected by Congress, which should overhaul the NSA instead. Hasn’t Congress seen enough? The NSA and the CIA spy on the courts, Congress, the military, the police and everyone in America. This keeps none of us safer. But it does lessen our freedom when those in whose hands we repose the Constitution for safekeeping look the other way. What other freedoms are slipping because Congress, too, thinks upholding the Constitution is too difficult?

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Uphold the Third Amendment

 

Glenn Harlan Reynolds 2:14 p.m. EDT July 7, 2013

It’s our right as American citizens to have privacy in our own homes.

 

 

Everyone has heard of the Bill of Rights. The First Amendment gets a lot of discussion, and so does the Second. On Independence Day this year, many people rallied in support of the Fourth Amendment in response to the National Security Agency spying scandal.

Several government officials — like embattled IRS official Lois Lerner — lately seem particularly enamored of the Fifth Amendment’s right not to testify. But how many Americans could even tell you what the Third Amendment protects?

Even among those who could, many would consider it a bit of a joke. But they just may be wrong about that. The Third Amendment may be coming into its own. It provides: "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."

I often tell my constitutional law students that the Third Amendment is the only part of the Bill of Rights that really works — because there are almost no cases of troop-quartering. If only the rest of the Bill of Rights were so effective.

In an article published in the William & Mary Bill of Rights Journal last year, however, Prof. Tom W. Bell points out that such violations, while perhaps rare, are not unknown. In 1942, for example, inhabitants of the Aleutian Islands were forced out of their homes, and in some cases troops were actually quartered there, but it took the federal government decades to admit wrongdoing or pay damages.

Likewise, in a 1982 case in the U.S. Court of Appeals for the Second Circuit, prison guards evicted from their quarters and replaced with National Guard troops during a strike sued, and the Court of Appeals found that this action implicated their rights under the Third Amendment, which it characterized as "designed to assure a fundamental right of privacy."

Now we see another Third Amendment case, from Henderson, Nev., in which the plaintiffs, the Mitchell family, claim that Henderson police seized their home — battering the door open with a battering ram — so as to secure an advantageous position in addressing a domestic violence report involving a neighboring house. The police were quite rude — calling the inhabitants "assholes" and shooting both Anthony Mitchell and his dog with a pepper-ball gun — before setting up a lookout post in the house.

Should the Third Amendment have something to say about this? Well, it speaks only to "troops," not police — but then, professional police in the modern sense hadn’t been invented at the time of the framing. And given the extreme militarization of police nowadays — with Nomex coveralls, body armor, AR-15 rifles, grenades, armored vehicles, etc., all documented in Radley Balko’s new book, The Rise of the Warrior Cop, — maybe that’s a distinction without a difference anyway. Armed minions of the state seizing your home by force seem close enough to "troops" for me.

Personally, I think we need to return to the sense of one’s home as a castle, a "fundamental right of privacy" that the Third Amendment was intended to protect. Police, except in those rather rare cases where they reasonably think someone inside is being held hostage or the like, should have to knock politely at the door and — unless they have a warrant — should have to depart if the homeowner doesn’t want them to come in. Those who violate this rule should be prosecuted as criminals, and opened up to lawsuits without benefit of official immunity.

Some may protest that this rule will make it harder to go after drug dealers and such, who may flush their drugs away before police can get in. To which I respond, tough. Protecting Americans’ homes from invasions by armed hooligans is more important than protecting prosecutions under the drug war. One would think, in fact, that preventing such invasions is the first duty of police. It’s unfortunate that so many in law enforcement seem to have forgotten that.

Glenn Harlan Reynolds is professor of law at the University of Tennessee. He blogs at InstaPundit.com.

In addition to its own editorials, USA TODAY publishes diverse opinions from outside writers, including our Board of Contributors.

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