Tag Archives: 4th Amendment

Filmmaker Brian Knappenberger on FBI vs Apple Controversy: ‘Do You Trust Our Government?’

In an exclusive interview with Truth In Media’s Joshua Cook, filmmaker Brian Knappenberger breaks down the issues surrounding the FBI/Apple controversy and explained what the media is missing as it relates to civil liberties in the U.S. and the safety of global activists.

One episode in Knappenberger’s series, Truth and Power, focuses on oppressive governments that target activists by spying on their cell phones and computers.

Cook noted that many of these activists are tortured, and some are even killed because these government use “backdoors” to spy on people’s cells phones and computers. Cook asked Knappenberger about how opening these “backdoors,” if Apple complies with the FBI, would affect the safety of global activists.

“Apple sells its products all over the world… and so if there exists this back door, this magic key that the government wants… I bet those regimes are salivating at the prospects of this,” said Knappenberger. 

Knappenberger discussed how the American government uses surveillance and other tactics to disrupt innocent protesters who seek social and political change. He believes that filming police officers and police abuse is making a positive difference and should be protected under the 1st Amendment.

On the FBI/Apple controversy Knappenberber poses this question: “Do you trust the government?”

Watch the entire interview below:

https://youtu.be/uVDexx-euCQ

Follow Joshua Cook on Facebook and Twitter.

Suspect Accuses NY Detectives Of Stealing Cash In Warrantless Search

Albany, NY- An Albany man who was arrested last summer for allegedly selling crack cocaine to a police informant in 2013 has accused detectives of stealing thousands of dollars in cash from his apartment in a warrantless search.

Joshua Horne, 37, was arrested on a sealed indictment on June 18th, 2014 near an apartment building where he was living. Before Horne was transported to booking, detectives seized his wallet and keys. According to the Albany Times Union, surveillance footage showed detectives using Horne’s keys to try several doors on the block trying to find a building that would be unlocked by the keys. Once the door matching Horne’s key was found, a separate surveillance video showed a detective using one of Horne’s keys to open his mailbox. After the detectives checked Horne’s mail, they entered his apartment and were reportedly inside for about 20 minutes. The police did not have a warrant to search Horne’s apartment.

A piece of one of the surveillance videos released by the Times Union shows three investigators entering Horne’s apartment and exiting with a shoebox. Horne claimed that the shoebox contained $3,300 in cash.

Detectives Scott Gavigan and Anthony Scalise and Sgt. Richard Gorleski denied there was any cash and reported that the box contained crack cocaine and marijuana. According to the Times Union, police records revealed that the detectives had violated department policy in seizing the drugs and failing to photograph and properly document the evidence. A police report showed drugs being listed, but not the shoebox itself, and the report did not include a location where the drugs were collected. Police never charged Horne with possession of the drugs.

“There are procedural issues because they didn’t seize this as evidence and they chose to do the computerized property report with missing information,” Albany Police Chief Steven Krokoff said. “They’ve all received refresher training on what the (criminal procedure law) dictates in terms of search warrants, and leaving receipts at the location of searches. It’s also time for us to refresh everybody on the current policies and procedures.”

“The police had no right whatsoever to go into that apartment. When they went into that apartment, therefore, they committed a crime,” said Cheryl Coleman, Horne’s attorney.

Gavigan testified in a separate case two weeks ago that Horne was not charged with drug possession because of the “lack of the warrant.” Gavigan also testified that he and the other detectives entered Horne’s residence out of concern that there may have been an injured person inside, and that Horne was “sweating profusely” when his apartment door was unlocked. None of the video footage shows Horne anywhere near the apartment during the search; Coleman said that Horne was being transported to booking while the search was taking place and that Gavigan’s testimony is false.

Coleman further stated that Gavigan’s testimony about a possible injured person in Horne’s home conflicts with earlier claims. Coleman said that during Horne’s pre-trial hearing last year, the Albany County assistant district attorney in charge of the case told Judge Thomas Breslin that detectives claimed they entered Horne’s residence without a warrant because he was lying about where he lived and the detectives were concerned Horne would get someone to remove drugs before they could return with a search warrant, and they wanted to see if anyone was inside. No mention of an injured person was made at the time, said Coleman.

“You’re talking about the integrity of a whole unit. Why doesn’t this bother anybody?” Coleman said.

The District Attorney’s office said on Tuesday that the agency will not pursue further investigation of the officers until the Albany Police Department finishes their internal probe. Coleman said she will not be representing Horne in civil proceedings on the matter, but will use this incident to request that Albany County District Attorney David Soares appoint a special prosecutor and investigate the officers involved in the accusations. Horne is currently free on bond, and will be facing a trial for drug-dealing charges.

Supreme Court rules an officer’s misunderstanding of a law is protected

A Supreme Court ruling on Monday found police officers who pull over a car for a traffic stop can search and seize the vehicle, even if the officer does not have a full understanding of the law used to pull the vehicle over.

The ruling comes after Nicholas Heien, a North Carolina resident, was pulled over in 2009 on the premise of a single broken taillight.  After being pulled over, the officer searched the vehicle and found a baggie of cocaine, and the officer then arrested Heien.

However, North Carolina law only requires one working taillight, so when the officer pulled over Heien, it would appear he had no legal right to do so.

The case was brought up to a North Carolina appeals court who, according to VOX, agreed the stop was unlawful.  The case was then heard by the state’s highest court and the Supreme Court, who both ruled in favor of the officer, saying even if the officer does not know the technical aspects of a law, a search and seizure is still constitutional.

“This Court held  that reasonable mistakes of law, like those of fact, could justify a certificate of probable cause,” reads the Court’s ruling.  The vehicle search, therefore, does not violate the Fourth Amendment, as was argued by Heien, which protects citizens from unlawful searches and seizures without probable cause.  The Court said, “a search or seizure may be permissible even though the justification for the action includes a reasonable factual mistake.”

Ultimately, the Court found the Fourth Amendment requires officers to act reasonably, but not perfectly, since officers are human and make mistakes as well.  Chief Justice John Roberts said, according to the AP, an officer’s mistake of fact can rightly justify a traffic stop and therefore that misunderstanding can also satisfy the Constitution.

Justice Sonia Sotomayor was the only member of the Court to disagree with the decision, saying an officer’s mistake or misunderstanding of a law, “no matter how reasonable, cannot support the individualized suspicion necessary to justify a seizure under the Fourth Amendment.”

Supreme Court Authorizes Warrantless Stops & Searches Based on Anonymous Tips

Washington, D.C., April 24, 2014- On Tuesday the U.S. Supreme Court issued a ruling that allows police to stop and search a driver based exclusively on an anonymous tip.

In a 5-4 split decision, the court ruled that the reliance on an anonymous call is reasonable due to the fact that “a 911 call has some features that allow for identifying and tracking callers.” The justices atypically didn’t split along standard ideological lines as two of the most conservative justices, Justice Clarence Thomas and Justice Antonin Scalia, respectively wrote the majority opinion and dissent.

The Supreme Court has previously given the police the authority to act on anonymous tips, but requires sufficient detail so that law enforcement has a basis of reasonable suspicion of criminal activity.

 Justice Scalia decried this ruling as “A freedom-destroying cocktail.”

In the case, Prado Navarette v. California, an anonymous tip of reckless driving was called in to 911. Officers responded but didn’t see any evidence of the alleged reckless driving, which was interpreted as implying drunken driving, after following the truck for a number of miles. The subsequent stop and search resulted in officers finding marijuana.

Justice Thomas claimed in the majority opinion that the 911 tip, that a pickup truck ran the caller off the road, was reliable enough for a traffic stop to be allowed without violating the constitutional rights of the driver.

In Justice Scalia’s scathing dissent he asserts:

“The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness.”

He goes on to state that:

“Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures.”

Justice Scalia was joined in his dissent by Justice Ruth Bader Ginsburg, Justice Elana Kagan, and Justice Sonia Sotomayor.

Here are a few of the other key points from the dissent:

“Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.”

“All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences even if 911 knows his identity.”

The implications of this ruling will most likely be far reaching. With the current ruling in effect, someone with a vendetta can simply make an anonymous call to 911 and that will be sufficient to pull a person over and search. This ruling is a serious blow to liberty and what was left of the 4th Amendment.

 

Follow Jay on Facebook and on Twitter @SirMetropolis

Do you live in a “Fourth Amendment Free Zone?”

Americans continue to lose their Constitutional rights in the name of “security” at a rapid pace.  The Second Amendment has been the most obvious, but the First, Fifth and Tenth Amendment are being usurped by the U.S. government in a disturbing trend.

The Fourth Amendment is the most recent in this series.  Increasing surveillance – such as New York’s proposal to monitor the streets by camera and save the data, Bloomberg’s “stop and frisk,” the NSA’s snooping programs, and PRISM revelations – has drawn this accusation, and now the Department of Homeland Security has become involved.

In the name of “border security,” a recent report defended the idea of so-called “Fourth Amendment Free Zones” within 100 miles of every border and the ocean.

In these areas, DHS agents can search and examine electronic devices, search through peoples’ belongings, and shake them down, all without probable cause.  This effectively suspends the rights of 197 million Americans based on residence alone.  This was questioned in 2009, and the DHS agreed to investigate the “civil rights impact” of the practice, but the full report wasn’t released until nearly four years later.

In February 2013, the DHS released an executive summary by its civil rights watchdog concluding that “imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.”  In other words “it’s easier this way.”  According to the report, there were 685 electronic device searches from 2009-2010, with a total of 41 seizures.  All in all, about 6,500 travelers (2,995 of whom were citizens) have been searched since 2008.

As the DHS had initially released only the two-page executive summary of the report, the ACLU also filed a Freedom of Information Act request for the full DHS report, hoping, according to attorney Catherine Crump, “to establish that the Department of Homeland Security can’t simply assert that its practices are legitimate without showing us the evidence, and to make it clear that the government’s own analyses of how our fundamental rights apply to new technologies should be openly accessible to the public for review and debate.”  The full report contained arguments such as the importance of following “hunches,” and concrete data about numbers of seizures, but was no more convincing than the initial summary.  See report here.

It’s long been argued that Fourth Amendment rights don’t apply at the border.  This is why cars can be searched crossing from Canada or Mexico to the US, and why customs and security searches are allowed at airports.  Essentially the DHS has expanded the definition of the border to include everything within 100 miles of it and any ocean.  Instead of simply enforcing the border, the DHS has allowed for agents to patrol thousands of square miles within the United States, something which is neither more efficient nor constitutional.

It isn’t difficult to see how this precedent could easily be expanded.  If federal agents have permission to search a defined set of property – such as a computer or on someone’s person – there is nothing to prevent them searching any property they deem appropriate.  Geographically, there’s little difference between 100 miles and 200 from the border.  Even if 100 miles remains the threshold, and airports – which are already considered the “border” – are added to borders and beaches, there will be virtually nowhere within the US in which Fourth Amendment rights remain.  Neither of these is fundamentally different than the DHS’s current definition of “border.”

ConstitutionFree

The DHS’s argument that retaining the Fourth Amendment would be “operationally harmful” is also somewhat disingenuous.  It has always been the case that not having to obtain a search warrant would make finding criminals easier, but it has also always been the case that having to obtain a search warrant reduces the opportunity for corruption and unfair law enforcement practices.  Virtually no one is doing everything right all the time, but with the Fourth Amendment people are still free to go about their business with some degree of confidence, and police officers can focus on important legal violations.

For people worried about racial profiling, removing the Fourth Amendment is the single most damaging action which can be taken.  For people worried about political targeting, the same is true.  There’s nothing stopping the DHS from going through Houston, Charleston, Chicago or Anchorage searching the electronic devices of everyone with a third party bumper sticker – something which is already listed as a possible indicator that someone is a domestic terrorist – or someone who just looks a little different.

When Americans call for “securing the border,” they mean sending agents to patrol the border, not removing the rights of hundreds of millions of Americans.  This DHS definition alone is damaging, but combined with the extraordinarily dangerous legal precedent it sets, it sets the stage for further destroying American citizens’ Constitutional Rights.

Constitutional attorney Ed Mazlish told Benswann.com,  “while Americans are being asked/required at every turn to surrender their liberties in the name of security, the (real) terrorists are not … the unifying theme is that if you are truly an American citizen or if you are in fact no threat to America, then your constitutional rights are in jeopardy and expendable – but if you are not an American citizen or if you are antagonistic toward America, every indulgence is made to ensure that your right (presumably, your right to destroy and/or defile America) is protected.”