Are we losing out Fourth Ammendment rights?

[Johnny_L.A]

New photo of “virtual strip search”. I had a thread about this before.

Now Michigan has passed a law giving police the poser to search your home without telling you why.

Asset seizure laws have resulted in several cases of abuse, including the death of Donald Scott.

Have we given up too much freedom for the sake of security? If not, then how much is too much? Do you agree, or disagree with “If you haven’t done anything wrong, then you have nothing to worry about.”?

[Violet]

It’ll be interesting to see what the Supremes have to say about that insane Michigan law. Not to live in anxiety, but one must always look over his or her shoulder, have a basic understanding of rights in whichever country one is in, & hopefully have a good attorney to contact if there is a problem. I also like the ACLU pocket card:

Stopped by Police

[Munch]

Johnny, you should check out any info the ACLU has on the USA PATRIOT Act. There are many instances of our 4th Amendment rights being eroded. For instance, “knock and announce” has been suspended (like the Michigan law, law enforcement agents can charge into your house to do their search without telling you, as long as they have a warrant), trap & trace and pen registry wiretaps have been given out much more leniently, etc.

[Nacho4Sara]

Re: The USA PATRIOT Act

I have been working on a paper about this for a few weeks; here is an excerpt that pertains to how this act has infringed upon our Fourth Amendment rights:

The USA PATRIOT Act sacrifices our civil liberties in several major ways. Nancy Chang, the senior litigation attorney for the Center for Constitutional Rights, writes in her article, “What’s So Patriotic About Trampling on the Bill of Rights?”:

First, the Act places our First Amendment rights to freedom of speech and political association in jeopardy by creating a broad new crime of “domestic terrorism,” and by denying entry to non-citizens on the basis of ideology. Second, the Act will reduce our already lowered expectations of privacy under the Fourth Amendment by granting the government enhanced surveillance powers. (Chang 2).

The USA PATRIOT Act broadly defines “domestic terrorism” as “acts dangerous to human life that are a violation of the criminal laws [and that] appear to be intended…to influence the policy of a government by intimidation or coercion” (H.R. 3162 Section 802). This vague definition includes terrorists, but it also includes political dissenters, “environmental activists, anti-globalization activists, and anti-abortion activists” (Chang 2) who non-violently vocalize their issue with the US government. As Chang comments, this Section of the USA PATRIOT Act ultimately criminalizes legal political dissent and assembly.

Similarly, our right to privacy, detailed in the Fourth Amendment which prohibits search and seizures without probable cause, is tread heavily upon. The USA PATRIOT Act promises hugely unchecked surveillance powers such as “sneak and peek” searches without judicial warrants; investigators are given “authority for delaying notice of the execution of a warrant” (H.R. 3162 Section 213). In other words, the government can enter your home without probable cause or a warrant, perhaps based on your ethnicity or a letter you wrote to a newspaper that expressed political dissent; search your home; and leave without notifying you that this illegal search took place until afterwards. Section 215 of the USA PATRIOT Act grants the government complete access to records in international investigations without a court order, though this is in direct opposition to the Foreign Intelligence Surveillance Act (FISA) of 1978. In the final blow to our privacy, the government will have complete freedom to use its internet tracking program, Carnivore, to listen in on phone calls and follow internet activity when such information is deemed “relevant” (H.R. 3162 Sect. 216) to an investigation. Thus the government can read your e-mails, visit the web pages you frequent, tap and trace your phone calls, and listen in on your phone conversations as they please.

…

The bottom line is that the USA PATRIOT Act broadens the scope of “domestic terrorism” to the degree that the term is meaningless, then compromises our First and Fourth Amendment rights in its hunt for offenders. The USA PATRIOT Act is far-reaching and wide-sweeping, casting a dragnet that could easily pinpoint innocent people as terrorists. If you work with a suspect, for instance, or if you use a public computer terminal that a suspect has used previously, you may be investigated. If you are an American citizen from a Middle Eastern country, you may be investigated. If you have relatives or friends from Middle Eastern countries visiting you on legal visas, you may be investigated. If you protest the United States’ military campaign in the Middle East, you may be investigated. If you have worked with or donated money to an international organization that the American government deems suspicious, you may be investigated. You are being targeted not for alleged activity, not for actual terrorist violence, but for your ideologies. The government may investigate you without your knowledge: they may enter your home, search your computer, listen in on your phone conversations, and then detain you without charge legally. Before the USA PATRIOT Act was signed, you were protected from these actions by judicial review and by the Fourth Amendment. Now you have no protection. Another act passed quietly by Congress and signed by President Bush on November 13, 2001, allows for secret military tribunals – meaning may be deprived of your right to a fair, public trial. Barbara Olshansky argues in her article “American Justice on Trial: Who Loses in the Case of Military Tribunals”:

With a single swipe of his pen, President Bush replaced the democratic pillars of our legal system with that of a military commission system in which he, or his designee, is rule-maker, investigator, accuser, prosecutor, judge, jury, sentencing court, reviewing court, and jailer or executioner. This system is a radical departure from the key constitutional guarantees that we view as the heart of American democracy: the rights to a presumption of innocence, an independent judiciary, trial by jury, unanimous verdicts, public proceedings, due process, and appeals to higher courts. All of these safeguards against injustice are gone (Olshansky 1).

The government may be successful in finding terrorists and preventing future terrorist activities. But they are doing so at the expense of our civil liberties, and there is no justification as to why our civil liberties must be suspended in order to achieve these goals. Indeed, Attorney General Ashcroft made clear his view on sacrificing our civil liberties when he said that, “those who scare peace-loving people with phantoms of lost liberty. . . only aid terrorists” (Tomorrow 1), which renders anyone who questions Ashcroft, Bush, or the USA PATRIOT Act a criminal. We are criminals for embracing the most important Constitutional rights upon which this nation is founded: freedom to think, speak, and act as individuals possessing unalienable personal liberties exempt from government consideration or interference. Village Voice columnist Nat Hentoff warns us all: “you are not immune” (Hentoff 3). It bears repeating: we are not immune.

Hope that helps. Personally, I am outraged that our civil liberties are being tossed to the wind based on the questionable promise of national security.

[Nacho4Sara]

Munch: they don’t even need a warrant these days.

[Bricker]

*Originally posted by Nacho4Sara *
**In other words, the government can enter your home without probable cause or a warrant, perhaps based on your ethnicity or a letter you wrote to a newspaper that expressed political dissent; search your home; and leave without notifying you that this illegal search took place until afterwards. **

Those are other words, all right.

Unfortunately, I don’t find support for them in the bill. The delayed notice provision applies to the execution of a warrant, which must be based on probable cause:

SEC. 213. AUTHORITY FOR DELAYING NOTICE OF THE EXECUTION OF A WARRANT.

`(b) DELAY- With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if–

`(1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705);

`(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and

`(3) the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.’.

I think you’re confusing different sections of the bill with your “in other words” summary.

In any event, the bill does not say that your home may be entered without notice to you and without probable cause.

• Rick

[The_Tim]

Stop helping terrorists with your claims of lost freedoms.

[Nacho4Sara]

Bricker - Yup, you’re right. You still need a warrant. Thank you for pointing that out though, I will change it before I turn the paper in next week.

I still think it’s an outrageous, especially considering that it has no expiration date (second bolded part) and is in direct opposition to standard police/government search parameters.

From the Center for Constitutional Rights, here is an actual analysis of Section 213:

http://www.ccr-ny.org/whatsnew/usa_patriot_act_3.asp

Section 213 of the Act authorizes federal agents to conduct “sneak and peek searches,” or covert searches of a person’s home or office that are conducted without notifying the person of the execution of the search warrant until after the search has been completed. Section 213 authorizes delayed notice of the execution of a search warrant upon a showing of "reasonable cause to believe that providing immediate notification… may have an adverse result."17 Section 213 also authorizes the delay of notice of the execution of a warrant to conduct a seizure of items where the court finds a “reasonable necessity” for the seizure.

Section 213 contravenes the “common law ‘knock and announce’ principle,” which forms an essential part of the Fourth Amendment’s reasonableness inquiry.18 When notice of a search is delayed, one is foreclosed from pointing out deficiencies in the warrant to the officer executing it, and from monitoring whether the search is being conducted in accordance with the warrant. In addition, Section 213, by authorizing delayed notice of the execution of a warrant to conduct a seizure of items, contravenes Rule 41(d) of the Federal Rules of Criminal Procedure, which requires that, "The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken."

Under Section 213, notice may be delayed for a “reasonable period.” Already, DOJ has staked out its position that a “reasonable period” can be considerably longer than the seven days authorized by the Second Circuit Court of Appeals in United States v. Villegas,19 and by the Ninth Circuit Court of Appeals in United States v. Freitas.20 DOJ states in its Field Guidance on New Authorities (Redacted) Enacted in the 2001 Anti-Terrorism Legislation21 that “[a]nalogy to other statutes suggest [sic] that the period of delay could be substantial if circumstances warrant,” and cites in support of this proposition a case that found a 90-day delay in providing notice of a wiretap warrant to constitute “a reasonable time.” Notably, Section 213 is not limited to terrorism investigations, but extends to all criminal investigations, and is not scheduled to expire.

[Johnny_L.A]

And what if the warrant is obtained with fraudulent testimony, as happened in the Scott case linked at the top? The innocent Scott is still dead. It seems to me that there is the potential for more abuses when there is more secrecy.

[medstar]

I don’t have any cites for this information, but I read in the Washington Post newspaper a few months ago, that police in certain jurisdictions had the ability to use sophisticated equipment that could sense heat buildup in homes. Presumably, they would ask the power company to provide addresses where power consumption was quite high compared to neighbors. It turned out in one instance that the police caught someone growing a large quantity of marijuana plants and the extra power was used by grow lights. What concerns me is what if this person was growing orchids, or just simply used a lot of power? I feel that scenario illustrates erosion of privacy as well. The police should not be able to go on vague fishing expeditions.

[3waygeek]

*Originally posted by medstar *
**I don’t have any cites for this information, but I read in the Washington Post newspaper a few months ago, that police in certain jurisdictions had the ability to use sophisticated equipment that could sense heat buildup in homes. Presumably, they would ask the power company to provide addresses where power consumption was quite high compared to neighbors. It turned out in one instance that the police caught someone growing a large quantity of marijuana plants and the extra power was used by grow lights. What concerns me is what if this person was growing orchids, or just simply used a lot of power? I feel that scenario illustrates erosion of privacy as well. The police should not be able to go on vague fishing expeditions. **

Last year, the US Supreme Court ruled that such searches are legal only with a warrant, which presumably rules out “fishing expeditions”; of course, there are judges who grant warrants at the drop of a hat.

[Riboflavin]

Yes, definately, and it has little to do with the ‘patriot’ act. We’ve had roadblocks and random searches under the justification of preventing drunk driving for years, and they’ve been upheld by the supreme court. I’m sure someone can list a number of other drug-war related destructions of the 4th amendment (aside from searches, ‘asset forfeiture’ laws are a rather large assault on ‘due process’ protections), but IMO the drug war is the biggest threat to liberty in the US today.

Then there are other places where you can see it being weakened; while the 4th amendment specifically states that a person shall be secure in his papers unless a warrant is issued for probably cause, what do you do in April of every year? You send off copies of your financial records to the IRS despite their lack of a search warrant for your records. If the constitution was being respected, you would instead take your 1040 form, do all of the calculations, then pay/get refunded the correct amount and it would be up to the IRS to determine whether you appeared to be lying about the amount, then put that evidence before a judge and get a warrant before being allowed access to your financial records. (Note that I don’t dispute the legitimacy of having an income tax, and certainly don’t think that you will be able to make a court challenge on these grounds, I simply dispute the the ‘guilty until proven innocent’ method used to collect the tax today).