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Tag: 4th amendment

Supreme Court to Decide Whether Border Patrol Agent Can Be Sued for Killing Mexican Teen

border patrol 3By Steve Neavling
ticklethewire.com

Can a Border Patrol agent be sued for shooting and killing a Mexican teenager?

The Supreme Court decided Tuesday it will take up the case of a Border Patrol agent who shot and killed a Mexican teenager who was playing with friends, the Los Angeles Times reports. 

The victim of the 2010 shooting was an unarmed 15-year-old named Sergio Hernandez.

The central question: Does the 4th Amendment extend beyond the U.S. border patrolled by Border Patrol agents?

Lawyers for the parents of the teenager argue that the 4th Amendment’s ban on unreasonable seizures and the unjustified use of deadly force extends beyond the border where agents patrol.

Hernandez “was killed in a culvert the U.S. officials patrol and effectively control,” the lawyers wrote in their appeal to the high court.

The FBI and Drugs in the Beginning

Cocaine/ticklethewire.com file photo

By Greg Stejskal
ticklethewire.com

Webster Bivens may have been a drug dealer, but his place in law enforcement history is not proportional to his status as an alleged dealer.

In the fall of 1965, Federal Bureau of Narcotics agents raided Bivens’ Brooklyn apartment. The FBN agents had neither an arrest warrant nor a search warrant. The agents arrested Bivens and handcuffed him in front of his family. They also allegedly threatened his family and in the terminology of Bivens’ later law suit searched his apartment from “stem to stern.” No drugs were found, and the charges filed after Bivens’ arrest were dismissed.

Bivens apparently had a litigious streak and brought a civil action against the “six unknown agents” of the FBN based on the violation of his rights under the 4th Amendment: “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 person or things to be seized.”

Up until that time, a cause of action could not be brought against the US or its agents except as specifically authorized under certain statutes, and that was the ruling of the lower courts in Bivens’ action. But the Bivens case made it to the US Supreme Court, and in 1971, the Court decided that the US could be sued if the acts of its agents violated the Constitutional rights of a person. This not only created a cause of action, it fostered a perception that federal drug agents were running amok and were incapable of doing more than simple “buy-bust” investigations.

As the Bivens case worked its way through the courts, the whole approach to the federal war on drugs was being evaluated. The FBN agents who arrested Bivens were part of the Department of the Treasury. Presumably because drugs like alcohol were viewed as taxable commodities even though the principal drugs being targeted at that time were heroin, cocaine and marijuana, and were illegal per se.

Bureau of Narcotics and Dangerous Drugs Was Created

In order to unify the federal effort against illegal drugs, one agency was created in 1968, the Bureau of Narcotics and Dangerous Drugs (BNDD), and it would now be an investigative agency in the Department of Justice. Then in 1973 the BNDD was renamed the Drug Enforcement Administration, and it remained in the DOJ. Although the perception of drug agents out of control was mostly inaccurate, DEA did have limited resources and was under pressure to produce results in terms of arrests and drug seizures. This made it difficult to dedicate their limited resources to long-term investigations targeting the upper echelons of drug trafficking organizations.

In the meantime the FBI was learning to utilize tools provided by the Omnibus Crime Act of 1968. This lengthy act was intended to provide means for federal law enforcement to investigate organized crime. For the FBI that meant La Costa Nostra, the Mafia. One particular part of the act (Title III) prescribed the process to legally intercept wire, oral or electronic communications – electronic surveillance or elsur for short. It included telephone wiretaps and surreptitiously placed microphones or bugs – generally referred to as a “wire.”

The probable cause required to get judicial approval for elsur was by design a difficult standard to meet. The affidavit documenting this “special “ probable cause often ran well in excess of 100 pages. Among other things, there had to be a showing that other investigative techniques wouldn’t work. For example if a drug dealer would only deal with someone he has known for years, it would be very difficult to get him to deal with an undercover agent.

Once the affidavit & accompanying order are written, they have to be submitted to the Attorney General of the US or a specifically designated Assistant AG for approval. If they are approved, they then have to be authorized by a US District Court Judge in the district where the elsur is to be conducted. The elsurs are limited to 30 days, but can be renewed based on an updated affidavit.

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Parker: Supreme Court Effortlessly Throws Out Warrantless Cell Phone Searches

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office

Ross Parker

 
By Ross Parker
ticklethewire.com

Guessing the correct result and even the basic rationale of the Supreme Court’s cell phone case could be considered a minor achievement, but not even the most ardent defense attorney would have predicted that the opinion would be a unanimous 9-0 decision authored by the normally pro-law enforcement Chief Justice. Chief Justice Roberts’ opinion held, without a single dissent, that the warrantless search of an arrestee’s cell phone incident to his arrest was in violation of the 4th Amendment. It’s embarrassing to miss the ease with which the Court made the decision.

In doing so the Court resolved a split in lower courts and rejected a line of cases which compared the cell phone search to be analogous to the previously authorized search of an arrestee’s papers, diaries and the like. That had been the rationale of one of the two cases reviewed, the California Court of Appeals decision in Riley v. California, which had upheld the police search of a man’s cell phone when he was stopped on a traffic charge and then arrested for illegal firearm possession. The search had produced data linking him to a gang shooting, and he was convicted of attempted murder. Instead the Court followed the other decision reviewed, U.S. v. Wurie, in which the Court of Appeals threw out drug and firearm convictions for a defendant whose cell phone was searched incident to his arrest.

The Court rejected the Justice Department position and reasoned that the invasion of privacy was not comparable to the other cases involving the search of notes, private documents and the like. The extent of private material exposed in a modern cell phone is of an entirely different magnitude than that which could be kept in such papers. The extra-legal consideration was perhaps left between the lines. Everyone including Supreme Court Justices has a cell phone and increasingly relies on it for a variety of private and extensive purposes.

The opinion found a clear distinction in the latest cell phone technology and its ever-expanding capacity to store a vast trove of private information. From a legal analysis standpoint (and foreseeable only with 20-20 hindsight), the case was a logical extension of the Court’s increasing propensity to rein in law enforcement’s use of advanced technology. Thermal imaging, DNA, and transponders are a few of the techniques which had been found to be “unreasonable searches” without prior judicial authorization.

So what does the case portend? The loss of free rein to investigate the secrets of those arrested without prior judicial authorization will be an inconvenience to law enforcement, especially since nearly every person arrested possesses a smart phone. But enterprising agents will mitigate this loss in many cases by imaginative considerations of probable cause to present to a judge. Other advanced tools of the expanding sources of technology should probably be second-guessed in terms of the need for a warrant. But most prosecutors and case agents were already aware of this trip for the unwary.

Does it mean a cutting back from the wide scope of non-cell phone searches incident? Probably not since the prior cases in this category set forth a fairly well defined course of action by arresting officers.

On the other hand, being presumptuous about who your friends are on the High Court can be a humbling experience.

 

Parker: Supreme Court to Consider Warrantless Cell Phone Searches

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office. 
 
By Ross Parker
ticklethewire.com

The U. S. Supreme Court will hear argument today on two cases involving warrantless searches of cell phones. The case is probably the most important and most difficult 4th Amendment case of the term. Lower courts are split on the issue, and the number and tone of the appellate briefs in the cases illustrate the future ramifications of the case in the Cyber Age.

In U.S. v. Wurie the Court of Appeals threw out drug and firearm convictions for a defendant whose cell phone was searched incident to his arrest. The California Court of Appeals went the other direction in Riley v. California, upholding the police search of a man’s cell phone when he was arrested on firearms charges. The search produced data linking him to a gang shooting, and he was convicted of attempted murder.

Warrantless searches of all materials on the person of one lawfully arrested have traditionally been upheld without serious controversy. Isn’t the cell phone just a 21st Century version of a personal notebook or photo album? That is why many, perhaps most, commentators are predicting that the conservative majority of the Court will hand down a decision sometime before the end of the term in June which upholds the law enforcement position in these cases.

However, several factors seemingly unconnected to traditional 4th Amendment theory make this a much closer question. First, everyone including Supreme Court Justices has a cell phone and increasingly relies on it for a variety of purposes. Second, the latest cell phone technology has an ever-expanding capacity to store all kinds of private information. Finally, the Court has shown an increasing propensity to rein in law enforcement’s use of advanced technology. Thermal imaging, DNA, and transponders are a few of the techniques found to be “unreasonable searches” without prior judicial authorization. Traditionally conservative Justice Anton Scalia has surprised many by his views in this area.

Prediction: 5-4 vote requiring warrants for cell phone searches incident to arrests.

Colorado Woman Sues ATF for Entering Home without a Warrant, Pointing Guns at 8 Year Old

Shoshanna Utchenik
ticklethewire.com

Linda Griego of Colorado has filed a lawsuit against the ATF for entering her home without a warrant and threatening her and her 8-year-old  son, Colby Frias, reports the WND.

Griego was already cautious about opening the door to her apartment due to a restraining order against her estranged ex-husband when a SWAT team came knocking, early on the morning of June 15, 2010, pulling Griego out of the shower and her son out of bed. The WND recounts that the agents were looking for a previous tenant who Griego explained didn’t live there anymore.

The SWAT team allegedly cuffed Griego, restraining her from comforting her child, and seemed to ignore her efforts to identify herself while they busted down the door of the child’s room.

In the meantime, Griego said they held her son at gunpoint with laser sights visible on his body. She says that two years later, he is afraid of all police and startles easily, often sleeping in her bed out of fear.

The agents finally let them go after emptying Griego’s purse and finding her ID. They left without apology.

The Indiana Supreme Court recently ruled that “there is no right to reasonably resist unlawful entry by police officers.” Though admitting it was dismissing hundreds of years of Supreme Court decisions and the Magna Carta, it said, “We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence.”

To read more click here.