USA > U.S. Constitution
Fourth Amendment >
the Fourth Amendment’s promise of protection
from government invasion of privacy
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
and particularly describing the place to be searched,
and the persons or things
to be seized
Smartphones and the 4th Amendment
The Fourth Amendment requires,
as a general
that police officers obtain a warrant
based on probable cause
“persons, houses, papers, and effects.”
This was a central concern
of the framers of
the Constitution and Bill of Rights,
who knew well the danger of “general warrants”
that allowed government
to enter a home and rummage around
looking for incriminating evidence.
Under the Fourth Amendment,
police officers can legally stop and detain a person
only when they have a reasonable suspicion
that the person is committing,
has committed or is about to commit a crime.
2 Patriot Act Provisions
September 27, 2007
Filed at 6:34 a.m. ET
The New York Times
By THE ASSOCIATED PRESS
PORTLAND, Ore. (AP) -- Two provisions of the USA Patriot Act are
unconstitutional because they allow secret wiretapping and searches without a
showing of probable cause, a federal judge ruled Wednesday.
U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance
Act, as amended by the Patriot Act, ''now permits the executive branch of
government to conduct surveillance and searches of American citizens without
satisfying the probable cause requirements of the Fourth Amendment.''
Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the
federal government after he was mistakenly linked by the FBI to the Madrid train
bombings that killed 191 people in 2004.
The federal government apologized and settled part of the lawsuit for $2 million
after admitting a fingerprint was misread. But as part of the settlement,
Mayfield retained the right to challenge parts of the Patriot Act, which greatly
expanded the authority of law enforcers to investigate suspected acts of
Mayfield claimed that secret searches of his house and office under the Foreign
Intelligence Surveillance Act violated the Fourth Amendment's guarantee against
unreasonable search and seizure. Aiken agreed with Mayfield, repeatedly
criticizing the government.
''For over 200 years, this Nation has adhered to the rule of law -- with
unparalleled success. A shift to a Nation based on extra-constitutional
authority is prohibited, as well as ill-advised,'' she wrote.
By asking her to dismiss Mayfield's lawsuit, the judge said, the U.S. attorney
general's office was ''asking this court to, in essence, amend the Bill of
Rights, by giving it an interpretation that would deprive it of any real
meaning. This court declines to do so.''
Elden Rosenthal, an attorney for Mayfield, issued a statement on his behalf
praising the judge, saying she ''has upheld both the tradition of judicial
independence, and our nation's most cherished principle of the right to be
secure in one's own home.''
Justice Department spokesman Peter Carr said the agency was reviewing the
decision, and he declined to comment further.
The ruling probably won't have any immediate affect on enforcement under the
Patriot Act, according to legal experts who predicted the government would
''But it's an important first step,'' said Jameel Jaffer, director of the
American Civil Liberties Union's national security project.
Jaffer noted that the Patriot Act carries dozens of provisions and that several
have been challenged -- but that this is one of the first major rulings on
Fourth Amendment rights.
''This is as clear a violation of the Fourth Amendment as you'll ever find,''
Garrett Epps, a constitutional law expert at the University of Oregon, said the
ruling adds to the poor record that the Bush administration has piled up in
defending the Patriot Act.
''It's embarrassing,'' Epps said. ''It represents another judicial repudiation
of this administration's terrorist surveillance policies.''
A federal judge in New York this month handed the ACLU a victory in a challenge
to the Patriot Act on behalf of an Internet service provider that was issued a
''national security letter'' demanding customer phone and computer records. The
judge in that case ruled the FBI must justify to a court the need for secrecy
for more than a brief and reasonable period of time.
Mayfield, a Muslim convert, was taken into custody on May 6, 2004, because of a
fingerprint found on a detonator at the scene of the Madrid bombing. The FBI
said the print matched Mayfield's. He was released about two weeks later, and
the FBI admitted it had erred in saying the fingerprints were his and later
apologized to him.
Before his arrest, the FBI put Mayfield under 24-hour surveillance, listened to
his phone calls and surreptitiously searched his home and law office.
The Mayfield case has been an embarrassment for the federal government. Last
year, the Justice Department's internal watchdog faulted the FBI for sloppy work
in mistakenly linking Mayfield to the Madrid bombings. That report said federal
prosecutors and FBI agents had made inaccurate and ambiguous statements to a
federal judge to get arrest and criminal search warrants against Mayfield.
Congress passed the Patriot Act with little debate shortly after the Sept. 11,
2001, attacks to help counter terrorist activities. It gave federal law
enforcers the authority to search telephone and e-mail communications and
expanded the Treasury Department's regulation of financial transactions
involving foreign nationals. The law was renewed in 2005.
In early August, the Bush administration persuaded lawmakers to expand the
government's power to listen in on any foreign communication it deemed of
interest without a court order, even if an American was a party. The expanded
surveillance authority expires early next year. As Congress takes a closer look
at the law, many Democrats want to rein in language that many consider overly
2 Patriot Act Provisions
http://www.nytimes.com/aponline/us/AP-Patriot-Act-Lawsuit.html - broken link
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