Tag Archives: Fourth Amendment

Civil Liberties, Edward Snowden, Featured, Politics, Privacy, States Rights, US

Five Years After Snowden, Michigan Set to Be First State to Impede NSA’s Warrantless Surveillance

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On the heels of the fifth anniversary of whistleblower Edward Snowden’s disclosure of classified National Security Agency (NSA) documents to journalists, one state legislature has recently taken steps to hold the government agency accountable for its warrantless surveillance programs by making it illegal for state and local governments, including law enforcement and public utilities, to support the NSA’s warrantless spying on American citizens.

According to Michigan’s Fourth Amendment Rights Protection Act, also known as Public Act 71 of 2018, state and local governments can only assist or provide support to the federal government’s collection of data if there is a search warrant or the informed consent of the targeted party. The bill is set to take effect in just a few weeks on June 17th.

While the NSA has no publicly disclosed facility in the state, the bill’s proponents have asserted that it sends a clear message to the federal government regarding the lack of popularity for its warrantless wiretapping of millions of Americans in violation of the legal protections granted to them by the Constitution.

“It hangs up a sign on Michigan’s door saying, ‘No violation of the Fourth Amendment, look elsewhere’,” said Republican state Rep. Martin Howrylak, the bill’s author, according to the Washington Examiner. “Democrats as well as Republicans would certainly stand very strong in our position on what this law means.”

“This new law guarantees no state resources will be used to help the federal government execute mass warrantless surveillance programs that violate the Fourth Amendment protections enshrined in the U.S. Constitution,” Howrylak said soon after the bill was first passed earlier this year in March.

“Michigan will not assist the federal government with any data collection unless it is consistent with the constitution,” he added.

The Michigan law seeking to condemn the NSA’s most controversial program is not the first of its kind. However, it is the first to have been passed successfully without having been  subsequently watered down. For instance, in 2014, state lawmakers in Maryland sought to shut off power and water to NSA headquarters but many of its sponsors dropped their support of the bill after a powerful political backlash. A similar bill was floated in Utah’s state legislature at the same time, but went nowhere after it was rejected by the state’s governor.

“It hangs up a sign on Michigan’s door saying, ‘No violation of the Fourth Amendment, look elsewhere.'”

The only state to have passed a bill similar to Michigan’s is California, which passed the Fourth Amendment Protection Act in 2014. However, that piece of legislation protects the Fourth Amendment in name only as it bans local assistance “in response to a request from a federal agency” and “if the state has actual knowledge that the request constitutes an illegal or unconstitutional collection.”

Despite the efforts being made by state legislatures to restore the Fourth Amendment, such efforts have been largely absent at the national level in recent years. Earlier this year, in January, Congress voted to extend the government’s warrantless surveillance of American citizens for another six years. However, Congress’ reauthorization of the program was more than a mere extension of the program as it actually helped expand the NSA’s authority by codifying some of the more controversial aspects of the program, suggesting that interest in protecting and restoring the Constitution is largely found at the state and local levels of government.

Civil Liberties, Election, Videos

Paul, Christie Clash Over NSA Spying at GOP Debate

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Kentucky Senator Rand Paul and New Jersey Governor Chris Christie got into a heated and emotional exchange over the National Security Agency’s illegal and unpopular bulk phone records spying program at the first Republican presidential primary debate of the 2016 campaign season on Thursday night.

[RELATED: Chris Christie: Blame Rand Paul For Next Terror Attack]

During the Fox News GOP debate, moderator Megyn Kelly asked Chris Christie, “Governor Christie. You’ve said that Senator Paul’s opposition to the NSA’s collection of phone records has made the United States weaker and more vulnerable, even going so far as to say that he should be called before Congress to answer for it if we should be hit by another terrorist attack… Do you really believe you can assign blame to Senator Paul just for opposing he bulk collection of people’s phone records in the event of a terrorist attack?”

Christie, a former federal prosecutor, doubled down on his position. “Yes, I do. And I’ll tell you why: because I’m the only person on this stage who’s actually filed applications under the Patriot Act, who has gone before the federal — the Foreign Intelligence Service court, who has prosecuted and investigated and jailed terrorists in this country after September 11th,” he said.

Christie noted the fact that former President George W. Bush appointed him as a federal prosecutor the day before the September 11, 2001 terror attacks. “This is not theoretical to me. I went to the funerals. We lost friends of ours in the Trade Center that day. My own wife was two blocks from the Trade Center that day, at her office, having gone through it that morning. When you actually have to be responsible for doing this, you can do it, and we did it, for seven years in my office, respecting civil liberties and protecting the homeland. And I will make no apologies, ever, for protecting the lives and the safety of the American people. We have to give more tools to our folks to be able to do that, not fewer, and then trust those people and oversee them to do it the right way. As president, that is exactly what I’ll do,” he added.

Paul seized the opportunity to respond to the criticism and asked Megyn Kelly for a chance to provide a rebuttal. “I want to collect more records from terrorists, but less records from innocent Americans. The Fourth Amendment was what we fought the Revolution over! John Adams said it was the spark that led to our war for independence, and I’m proud of standing for the Bill of Rights, and I will continue to stand for the Bill of Rights,” he replied.

[RELATED: Federal Appeals Court Ruling: NSA Data Collection Is Illegal]

Christie blasted back, “And — and, Megyn? Megyn, that’s a — that, you know, that’s a completely ridiculous answer. ‘I want to collect more records from terrorists, but less records from other people.’ How are you supposed to know [who is a terrorist], Megyn?”

Tempers began to flare as the two shouted over each other. Paul yelled, “Use the Fourth Amendment! Get a warrant!”

“Listen, Senator, you know, when you’re sitting in a subcommittee, just blowing hot air about this, you can say things like that,” quipped Christie.

Paul then accused Christie of misunderstanding the Fourth Amendment to the U.S. Constitution and angrily referenced a post Hurricane Sandy photo op, which some Republicans felt hurt Mitt Romney’s 2012 presidential chances, in which Chris Christie was seen hugging President Obama. “I don’t trust President Obama with our records. I know you gave him a big hug, and if you want to give him a big hug again, go right ahead,” said Paul.

[RELATED: Christie Tells Colo. Pot Smokers to “Enjoy It” Now As He Will Bust Them As President]

Christie retorted, “Senator Paul, you know, the hugs that I remember are the hugs that I gave to the families who lost their people on September 11th. Those are the hugs I remember, and those had nothing to do — and those had nothing to do with politics, unlike what you’re doing by cutting speeches on the floor of the Senate, then putting them on the Internet within half an hour to raise money for your campaign… and while still putting our country at risk.”

The Atlantic’s Conor Friedersdorf wrote that the exchange reminded him of Rudy Giuliani’s dust-up with former Congressman Ron Paul during the 2008 Republican presidential debates, “A GOP debate stage hasn’t witnessed such naked exploitation of the emotions surrounding 9/11 since Rudy Giuliani used the same manipulative tactic in 2008. Then, as now, there are plenty of people who stood every bit as close to the Twin Towers as they fell and drew opposite conclusions about how to fight the war on terror. Invoking physical proximity to the attacks is an irrational appeal made to avoid the need for a more substantive analysis.”

CNN’s Donna Brazile called Paul and Christie the debate’s “biggest losers” on account of “their bitter clash over NSA surveillance and terrorism” and added that “they offered testosterone with a bit of Tabasco.”

During Fox News’ post-debate coverage, anchor Chris Wallace said that he feels that the Christie-Paul exchange hurt Paul, but at the expense of damaging Christie’s 2016 chances.

On the other hand, CNN contributor Buck Sexton said, “The biggest surprise of the night came from Rand Paul, who showed up ready to fight. The usually laid-back libertarian came out fiery, getting into squabbles with Donald Trump and Christie (winning the latter exchange). If nothing else, Senator Paul reminded America that he’s still in this thing in a meaningful way.”

For more 2016 election coverage, click here.

Civil Liberties, Drug War, Government Accountability, Police Accountability, Police State, Politics, Privacy, US

SCOTUS: Police Violated Fourth Amendment By Using Drug Dog To Prolong Traffic Stop

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On Tuesday, the United States Supreme Court ruled 6-3 that a Nebraska police officer violated the Fourth Amendment in the case of Rodriguez v. United States, when he made a driver wait an extra eight minutes during a traffic stop while a drug dog sniffed the outside of his car. 

“We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures,” wrote Justice Ruth Bader Ginsburg, on behalf of the Court.

The ruling states that without reasonable suspicion, “police extension of a traffic stop in order to conduct a dog sniff” violates the Fourth Amendment.

The incident surrounding the case occurred in 2012 when Dennys Rodriguez was pulled over for driving on the shoulder of a Nebraska highway by Officer Struble and issued a warning. The traffic stop was then prolonged when Struble asked to let a drug dog sniff around the car. Rodriguez refused, and Struble called for back up.

The Hill reported that while the entire traffic stop lasted less than 30 minutes, the dog did detect drugs in Rodriguez’ vehicle, and he was indicted for possessing methamphetamine.

According to the Supreme Court’s ruling, an officer’s mission during a traffic stop should include deciding whether or not to issue a traffic ticket, checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance, and because it does not have the same “close connection to roadway safety as the ordinary inquiries,” letting a drug dog sniff the vehicle “is not fairly characterized as part of the officer’s traffic mission.”

Justice Clarence Thomas was one of the three who disagreed with the ruling, and in his dissenting opinion, he said that the ruling takes a view on the Fourth Amendment that “makes little sense,” because it states that Struble “committed a constitutional violation” when he “made Rodriguez wait for seven or eight extra minutes until a dog arrived.”

“Had Officer Struble arrested, handcuffed, and taken Rodriguez to the police station for his traffic violation, he would have complied with the Fourth Amendment,” Thomas wrote.

Reason.com noted that Justice Sonia Sotomayor “previewed the Court’s skepticism towards the police officer’s approach” during an oral argument in the case in Jan. 2015.

“We can’t keep bending the Fourth Amendment to the resources of law enforcement,” Sotomayor said. “Particularly when this stop is not incidental to the purpose of the stop. It’s purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper.”

 

 

Featured, Police State, Politics

EXCLUSIVE: Sheriff Stands Up to IRS, Cancels Land Sale

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WASHINGTON, February 7, 2015—New Mexico’s Eddy County Sheriff Scott London notified the Internal Revenue Service (IRS) via letter that the sale of county resident Kent Carter’s property is canceled until Carter receives due process of law and his appeal is heard. The certified letter dated February 4 received an immediate response from the Undersecretary of the Treasury’s office. According to the Treasury’s website, however, the public auction is still slated for February 19.

“Many officers have stood up over the years for the rights of citizens being victimized by the federal government,” said Sheriff Mack, founder of the Constitutional Sheriffs and Peace Officers Association, “But Sheriff London is the first one to stand up to the IRS since the early 1990s.” Mack said, “His actions show courage and humility. London is setting a good example for the rest of our sheriffs.”

Approximately ten days before Christmas, U.S. Marshals broke in the door of Carter’s rental property with their guns drawn. The tenant was a young mother with a new baby—home alone while her husband was at work. Sheriff London was called to the property to intervene. He advised the Marshals that Carter’s case was in appeal and he deserved due process. They threatened to arrest London, but he stood his ground and they backed off.

Carter has battled the IRS for decades over taxes on the earnings of his modest construction business. One court document listed his debt at $145,000, a figure Carter says an assessing agent “pulled out of thin air.” Every time he challenged them, his bill would shoot up a few hundred thousand dollars. His legal complaints state that the IRS failed to adhere to its own tax code, did not use proper accounting methods, and that the collection activity was unlawful because no notices of deficiency were given. Carter says his private and confidential information, including his social security number, was filed in public records and given to third parties. The IRS countered that it can publish and disperse the private information of Americans if it is trying to collect their money or property. A judge agreed.

Carter says the IRS is currently claiming he owes $890,000, a figure that “doubled with the stroke of a pen.”

The Taxation & Revenue Department ordered Carter to cease “engaging in business in New Mexico” until his arbitrary tax debt was paid. Carter appealed this injunction on the grounds that it was both unconstitutional and vague, as it deprived him of his right to make a living and also prohibited him from, “carrying on or causing to be carried on any activity with the purpose of direct or indirect benefit.”

“The IRS fabricates evidence against citizens by pulling numbers out of a hat and adding fees,” said Mack, “They wear people down emotionally and financially until they can’t take it anymore. No citizen should ever have to fight the IRS for decades in order to keep his land.”

“The IRS is a lie. The income tax is a lie,” said Carter. “Why should they be able to take anything? They’re worse than the mafia.”

The Carter properties have liens placed against them. A locksmith was instructed to change the locks. The IRS authorized the United States Marshal Service to arrest/evict anyone found on the premises. London, however, physically stood in front of Carter’s gate until the Marshals backed down. A public auction on the front steps of the Eddy County Courthouse is scheduled, but the local county sheriff—trained in the Constitution—resisted.

Carter voluntarily vacated his property and relocated his mobile home to an undisclosed location. “I chose to leave to keep it from escalating to something ugly—like Ruby Ridge, Idaho,” he said. Carter said he advised the Marshals and IRS Agents who publicly claimed he had armed friends on his land, “If there is going to be any violence, it is going to be you who starts it.”

Carter says 100% of his Social Security benefits is seized each month by the IRS, in addition to $2,800 the agency drained from his bank account. Legally, the IRS can take no more than 15% of Social Security benefits.

Mack says banking institutions quiver when faced with the IRS’ gestapo tactics and generally hand over customers’ personal banking information, including access to accounts, without requiring a warrant or even any documentation. He encourages county sheriffs to brief every bank in their jurisdiction to refer inquiries from IRS agents to them.

Sheriff Mack is calling for the IRS to start following the law, including no “random” audits without probable cause, as they violate the Fourth Amendment. He asks them to stop committing crimes and rewarding IRS employees with bonuses for cheating on their personal taxes. “I agree with Senator Ted Cruz and others who say the IRS should be abolished,” said Mack. “It’s time they got off the backs of the American people.”

Carter says he prays daily for wisdom, and that he is surviving to be able to look into his grandchildren’s eyes and tell them he fought for their future and for America.

London is the first Republican to ever be elected sheriff in Eddy County. He distributes Bibles on behalf of Gideon International and met his wife in choir practice.

Featured, Police Accountability, Police State, Politics, US

Two Albuquerque Officers Charged With Murder Of Homeless Camper

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Albuquerque, NM- Albuquerque officers Dominique Perez and Keith Sandy were charged with murder on Monday in the shooting of homeless camper James Boyd.

Boyd, who had been accused by police of illegally camping in the foothills of the Sandia Mountains, was ultimately shot and killed by Sandy and Perez, a SWAT team member, on March 16th, 2014 during a standoff lasting several hours. The shooting provoked national criticism of the Albuquerque Police Department after video was released that appeared to show Boyd, who was in possession of two small knives, surrendering just before he was shot by Sandy and Perez. The video is available below (graphic content):

Audio from Sandy’s dash camera had also been released of Sandy’s conversation with State Police Officer Chris Ware regarding Boyd from the scene of the standoff before the shooting:

Sandy: What do they have you guys doing here?

Ware: I don’t know. The guy asked for state police.

Sandy: Who asked?

Ware: I don’t know.

Sandy: For this f***ing lunatic? I’m going to shoot him in the penis with a shotgun here in a second.

Ware: You got uh, less-lethal?

Sandy: I got…

Ware: The Taser shotgun?

Sandy: Yeah. Ware: Oh, I thought you guys got rid of those?

Sandy: ROP’s got one…here’s what we’re thinking, because I don’t know what’s going on, nobody has briefed me…

The APD denied that Sandy said “I’m going to shoot him in the penis with a shotgun here in a second” and claimed he had said “I’m going to shoot him with a Taser shotgun in a second”. However, the APD’s denial conflicted with Sandy’s acknowledgement to investigators that he had made the “shoot him in the penis” remark as a joke. “Just kind of locker room banter,” Sandy had told investigators. “[I] just told him, you know, ‘don’t worry; I’ll shoot him in the pecker with this and call it good.’”

Sandy abruptly recanted that admission after a break during the interview.

Second District Attorney Kari Brandenburg said Monday that Perez and Sandy each face one open murder count. In an open murder charge, prosecutors may push for either first-degree or second-degree murder charges.

According to the Albuquerque Journal, the case was not brought before a grand jury and Brandenburg “filed the counts via criminal information, which allows her to charge the officers without presenting evidence to a grand jury.” The FBI is currently investigating the shooting, but it’s unknown if the officers will face federal charges.

Albuquerque has become well known for excessive force used by police. In May of last year, more than 40 residents effectively shut down a city council meeting and attempted to serve Police Chief Gorden Eden with a warrant for a citizen’s arrest while calling for the APD to stop its violent tactics. APD Officer Jeremy Dear was fired last month for repeatedly refusing to use his body camera; in the last instance of Dear either failing to turn on or disabling his camera, he had fatally shot 19-year-old Mary Hawkes.

A Justice Department letter from April 2014 informed the APD- that had killed 23 people and wounded 14 over a four-year period- that its department “engages in a pattern or practice of use of excessive force, including deadly force, in violation of the Fourth Amendment” and the Justice Department later demanded reforms to correct the APD’s practices. Last October, the Justice Department and APD reached an agreement to engage in “wide-ranging reforms”.

 

Police State, Politics, US

Amid Protests, Sheriff Ends Participation in “No Refusal” Blood-Draw Checkpoints

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An article posted last week on BenSwann.com noted that police in Clark County, OH were planning to and, on Friday, eventually did conduct “no refusal” checkpoints at which drivers suspected of driving under the influence could be forced to submit to a blood test against their will if they refused to consent to a breathalyzer test. According to WHIO-TV, Clark County Sheriff Gene Kelly recently announced that his office would no longer be participating in future “no refusal” checkpoints after Friday’s program drew protesters from across Ohio. Sheriff Kelly, responding to a volley of complaints that he received via social media and email, said, “If this is not a positive event then we need to find another way to do our job and create an environment of public safety, and I’m intending to do that.”

WHIO-TV NewsCenter 7‘s video coverage of the controversy credited a blog published on Infowars with inspiring state-wide activists to gather at the checkpoints in protest, waving signs with slogans like, “Vampire cops ahead, they will take your blood! Turn now!” Though 464 drivers passed through last Friday’s checkpoint, no search warrants were issued for involuntary blood extractions.

Protesters complained that the “no refusal” checkpoints violate Fourth Amendment privacy protections found in the Bill of Rights to the Constitution, as the program targets drivers for investigation on the basis of their geographical location, rather than their driving, and because many feel that forced blood extractions are an unreasonable type of search.

Springfield Police Division Lieutenant Tom Zawata told WHIO-TV that he is uncertain whether or not more “no refusal” checkpoints will be conducted this year. “We chose to use it at this checkpoint as a way to make the public aware there is an opportunity and existing ability to obtain a search warrant,” said Zawata, implying that the checkpoints were intended as a promotional and educational event, rather than a serious effort to apprehend known drunk drivers. Since the Clark County Operating a Vehicle Impaired Task Force is made up of officers from several police agencies, the fact that Sheriff Gene Kelly’s office is not participating in the program in the future does not necessarily mean that there will be no more “no refusal” checkpoints in the county.

Behind the scenes, the federal government recently decreased its financial contributions to Clark County’s OVI checkpoints program, leading police to conduct fewer of them this year than in previous years.

 

Politics, US

CHP Officer Accused Of Stealing Explicit Photos Of Arrestees Called Thefts A “Game”

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The investigation of a California Highway Patrol officer accused of stealing nude photos from a female DUI suspect’s cell phone has led to the discovery that officers of the CHP’s Dublin station have been allegedly trading stolen photos of female suspects for “several years”.

Last week, it was reported by the Contra Costa Times that CHP officer Sean Harrington was accused by a 23-year-old unidentified female of stealing and forwarding photos from her iPhone in August while she was being booked into jail following a DUI arrest. The woman allegedly discovered that “explicit” photos from her iPhone had been forwarded to a phone number with a 707 area code. The woman then reportedly traced the phone number back to Harrington, her arresting officer.

On October 16th Harrington was served with a search warrant, which uncovered photos, text messages, and instant messages on Harrington’s iPhone and laptop that had been taken from the woman’s phone.

Harrington told investigators that he and other officers have been swapping stolen cell phone photos of arrested females for years and referred to the acts as a “game” among the Dublin officers, according to Inside Bay Area. Harrington allegedly confessed that he has taken photos from females in police custody “a half dozen times in the last several years,” court documents stated.

A search warrant affidavit from a Contra Costa District Attorney inspector revealed text messages between Harrington and two other CHP officers discussing the photos being stolen and shared between them. “Taken from the phone of my 10-15x while she’s in X-rays. Enjoy buddy!!!” Harrington texted to officers Robert Hazelwood and Dion Simmons on August 7th after forwarding photos of a 19-year-old DUI suspect.

On August 29th, Harrington forwarded an explicit photo of another DUI suspect to Hazelwood. “Nudes are always better with the face,” Hazelwood texted to Harrington. “Maybe she knows she has a jacked up horse face?!?!?” replied Harrington.

CHP Commissioner Joe Farrow released a statement late Friday responding to the allegations. “The allegations anger and disgust me. We expect the highest levels of integrity and moral strength from everyone in the California Highway Patrol, and there is no place in our organization for such behavior,” said Farrow. “We have active and open investigations and are cooperating with the Contra Costa County District Attorney’s Office. If the allegations are proven true, we will take appropriate action, up to and including dismissal and criminal prosecution.”

Harrington has since been assigned to other duties. The decision of whether or not to charge Harrington and the other officers is expected to be made this week.

Featured, US

NSA Defends Collecting nearly 90% of Data from Internet Users with No connection to Terrorism

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A four-month long investigation by the Washington Post has found that National Security Agency data mining collects much more from non targets, both American and foreign, than known targets in its spying on U.S. data networks.

Nine of 10 account holders found in a large cache of intercepted conversations, which former NSA contractor Edward Snowden provided in full to The Washington Post, were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.

Many are Americans. Nearly half of the surveillance files contained names, e-mail addresses or other details that the NSA marked as belonging to U.S. citizens or residents.

“Among the most valuable contents — which The Post will not describe in detail, to avoid interfering with ongoing operations — are fresh revelations about a secret overseas nuclear project, double-dealing by an ostensible ally, a military calamity that befell an unfriendly power, and the identities of aggressive intruders into U.S. computer networks,” wrote the Washington Post.

Despite not being a threat, the daily lives of more than 10,000 account holders who were not targeted are still cataloged and recorded. Many files, which are described as useless by analysts but still retained, are shockingly intimate. They tell of love and heartbreak, illicit sexual liaisons, mental-health crises, political and religious conversions, financial anxieties and disappointed hopes. In other words, private information users thought was between themselves and the e-mail’s recipient, not the NSA.

The newspaper reviewed about 160,000 intercepted e-mail and instant messages, some of them hundreds of pages long, and 7,900 documents taken from more than 11,000 online accounts. The dates on the material span President Obama’s first term, from 2009 to 2012, a period of exponential growth for the NSA’s domestic spying and collection program.

The NSA responded to the Washington Post’s claim defending their practice.

 “NSA’s authority under Section 702 is limited to targeting foreigners outside of the U.S. for foreign intelligence purposes. “As we have always said, we also incidentally intercept the communications of persons in contact with valid foreign intelligence targets,” NSA spokeswoman Vanee Vines.

Are Senators calling this practice unconstitutional and a violation of the Fourth Amendment? No.

According to the TheDailyBeast.com, some Senators are not aware of the Washington Post’s article.

Sen. Lindsey Graham who sits on the Senate’s armed services, appropriations, and judiciary committees said, “I don’t really know the details about what they’re saying in the paper. I know [NSA intelligence-gathering] is necessary. We’re at war with radical Islam.”

Last year Graham told Fox and Friends, “I’m a Verizon customer, I don’t mind Verizon turning over records to the government if the government’s going to make sure that they try to match up a known terrorist phone with somebody in the United States.”

Graham continued, “I’m glad the activity’s going on but it is limited to tracking people who are suspected to be terrorists and who they may be talking to.”

When host Brian Kilmeade asked him if he was sure about that, Graham said “I am sure that that’s what they’re doing.”

Host Gretchen Carlson tried to clarify that it was only limited to those suspected of terrorism by citing the 100 million customers in the original report.

Graham responded, “I’m sure we should be doing this.”

As it turns out, Lindsey Graham was wrong. Watch the video below.

 

Featured, US

Federal Appeals Court: Driving With Upright Posture and Acne Is Sufficient Evidence For Traffic Stop

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New Mexico-  A federal appeals court has unanimously ruled that acne scars and driving with a stiff upright posture are reasonable grounds for being pulled over.

The ruling was made after Cindy Lee Westhoven filed a motion to suppress evidence of marijuana possession resulting from her encounter with Border Patrol Agent Joshua Semmerling. Westhoven challenged the arrest: “She argued the initial stop, her subsequent detention, and her de facto arrest all violated her Fourth Amendment rights,” the ruling stated. Westhoven had been pulled over by Semmerling in April 2012. Preceding the incident, Semmerling and Westhoven passed one another driving in opposite directions on Highway 80 in southern New Mexico.

Semmerling noticed that Westhoven’s arms were “straight and locked out” at a “ten-and-two position on the steering wheel” as she was driving by. Semmerling decided that this was unusual behavior, and made a U-turn to stop Westhoven “for an immigration check to determine the citizenship of the driver and any passengers.” Upon stopping Westhoven he observed that her vehicle, a Ford F-150, had tinted windows and Arizona license plates. Semmerling was convinced that this was suspicious.

Semmerling found Westhoven’s facial complexion suspicious as well; noting acne scars on her face, he believed that she might be a methamphetamine user. He began questioning Westhoven about where she was coming from and where she was heading. Westhoven was visibly anxious during the stop; Semmerling stated that he had  “never seen somebody shaking like that before”.

Westhoven told Semmerling that she had been shopping in Douglas, Arizona and was heading to Tucson. Semmerling believed that her response was odd because “Tucson had better shopping opportunities than Douglas”, and driving on Highway 80 in New Mexico between Douglas and Tucson was an indirect route. During his questioning Semmerling saw that Westhoven had two cell phones in the truck, which he considered to be further evidence that she was smuggling illegal immigrants.

After Semmerling ran Westhoven’s Arizona driver’s license and found no warrants, he requested to search her truck, and she refused. He then called in a canine unit to check her vehicle, and marijuana was found inside the truck. Westhoven was arrested and charged with possession of marijuana with intent to distribute.

Westhoven argued that driving with a stiff posture was no justification for being pulled over. Having facial acne, two cell phones, and tinted windows were not in violation of any law. Judge Scott M. Matheson, Jr. of the United States Court of Appeals for the Tenth Circuit stated that none of these characteristics are suspicious on their own. “But when taken together along with driving a vehicle with out-of-state plates in a mountainous smuggling corridor 40-45 miles away from the border, we conclude Agent Semmerling had reasonable suspicion Ms. Westhoven was involved in smuggling activity.”  The three judges of the Tenth Circuit U.S. Court of Appeals upheld the search and threw out Westhoven’s motion to suppress the evidence of marijuana.

Follow Annabelle on Facebook and Twitter.

 

Politics, US

Pennsylvania Supreme Court: No Warrant Needed to Search Citizens’ Vehicles

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Philadelphia, May 2, 2014- The Pennsylvania Supreme court, in a 4-2 decision, has issued a ruling that police officers are not required to obtain a search warrant before searching a vehicle. This decision overturns the protections offered by the Pennsylvania state constitution as well as those enumerated in the Fourth Amendment of the U.S. Constitution.

The court opinion, issued by Justice Seamus McCaffery concluded that, “the prerequisite for a warrantless search of a motor vehicle is probable cause to search.”

The case stemmed from a 2010 traffic stop by the Philadelphia police department, for a vehicle having dark tinted windows. The police subsequently found two pounds of marijuana under the hood of the car.

Prior to this decision police were not allowed to search a vehicle without driver consent, illegal substances in plain view or a search warrant. Drivers had the ability to refuse a search request, which would then require the officer to produce a warrant signed by a judge for the search to take place. Based on this ruling the standard to search has now been lowered to an officers belief of reasonable probable cause.

The police applauded the decision. According to Lancaster Online, New Holland Police Lt. Jonathan Heisse said, “It is a ruling that helps law enforcement as they continue to find people in possession of illegal drugs,” as reported by Brett Hambright.

However not all parties felt this was a wise decision.

In the dissent, Justice Debra McCloskey concluded that the ruling, “heedlessly contravenes over 225 years of unyielding protection against unreasonable search and seizure which our people have enjoyed as their birthright,” and went on to state that the decision was “diametrically contrary to the deep historical and legal traditions.”

A number of defense attorneys viewed the decision as extreme governmental overreach. Jeffrey Conrad, of Clymer Musser & Conrad, in a statement to Hambright, said, “It’s an expanding encroachment of government power,” and followed up by saying, “It’s a protection we had two days ago, that we don’t have today. It’s disappointing from a citizens’ rights perspective.”

Another attorney, Chris Patterson, went on record with Hambright, stating, “I am concerned that we are on a slippery slope that will eliminate personal privacy and freedom in the name of expediency for law enforcement.”

Defense attorney Christopher Lyden told Hambright that he thinks if an officer wants to search without driver consent, that they should be required to get a warrant, saying, “Judicial oversight of vehicle searches, just like residential searches, helps maintain a free society.”

This decision along with the recent U.S. Supreme Court decision we reported on last week, regarding warrantless stops based on anonymous tips, indicates a continual and steady erosion of Fourth Amendment protections nationwide.

 

Follow Jay on Facebook and on Twitter @SirMetropolis

Politics, US

Exclusive: Albany New York’s City Council Attempting To Block NDAA

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Attempts to block or end indefinite detention of U.S. citizens simply suspected of association with terrorism, has come to Albany, New York. For well over a year I have reported on the enormous Constitutional problems with the National Defense Authorization Act’s Section 1021. That section of the bill, which funds military operations, allows for the indefinite detention of any American simply accused of terrorism until the end of the “hostilities between the United States and Al Qaeda, the Taliban or associated forces.”

Despite the lack of political will by the U.S. Congress to intervene and declare this provision of the NDAA as unconstitutional, there is a new battlefront for those who oppose indefinite detention… the local level.

Albany, New York has just become the center of that fight. One week ago, Ward 11 Common Councilman Anton Konev introduced a resolution “OPPOSING THE INDEFINITE MILITARY DETENTION WITHOUT TRIAL OF ANY PERSON, INCLUDING US CITIZENS”

I talked with Konev who says that under this resolution, Albany’s local law enforcement would be banned from assisting federal authorities in enforcing military detention of U.S. and non-U.S. citizens.

“Here in Albany we believe in protecting civil liberties and rights of our residents. The resolution specifically opposes indefinite military detention without trial of any person who is a resident of the city of Albany or is simply visiting the city of Albany.” says Konev.

The resolution has seven co-sponsors and only needs an eighth in order to be passed and become law in the capital of New York. The language would make it the toughest local NDAA ordinance in the nation. The resolution in part reads:

“Instruct all our public agencies to decline requests by federal agencies acting under detention powers granted by the NDAA, or similar law or authority that could infringe upon residents’ freedom of speech, religion, assembly, privacy, or rights to counsel;

Expect all federal and state law enforcement officials acting within the City to work in accordance with local law, and in cooperation with the Albany Police Department, by allowing any detainees not serving “in the land or naval forces, or in the Militia, when in actual service in time of War or public danger” among Albany’s residents or visitors access to a trial, counsel and due process, including under Article III, the Fourth, Fifth, and Sixth Amendments of the Constitution of the United States;”

The due process clause, Councilman Konev says, is what this resolution is all about. He believes that in order to protect the Constitutional rights of the people of Albany, council must be willing to take stand.

“As somebody with a Russian background who was born in the Soviet Union, I know that there is such a thing as “no rights” and I am proud to be an American citizen and proud to be an elected official in the the capital of the state of New York. This is about protecting our residents.”

PANDA

Konev, who has been working with Dan Johnson and the organization PANDA, says that he is encouraged by the number of council members who currently support the resolution. In fact, he expects an eighth member of council will sign on by the time the issue comes up for a vote on October 7, 2013. On October 2nd council will take up this resolution for discussion.

“I believe we have three members who are very close to signing on and I believe that we have only four members who are leaning toward voting against this resolution. Unfortunately, we have some people on council who have bought into the propaganda that the NDAA is constitutional and a right of government to be able to detain somebody somewhere under some special powers and they say that the NDAA is constitutional. But here in the city of Albany it is clear that we must protect these rights.”

You can learn more about this fight over the NDAA at www.takebackalbany.com