#WashingtonState: Lawmakers “Accidentally” Legalize Warrantless Invasion Of #Gun Owners’ Homes.

Lawmakers “Accidentally” Legalize Warrantless Invasion Of Gun Owners’ Homes.
(WesternJournalism).

Lawmakers in Washington State have accidentally written a bill permitting police to invade private homes for the purpose of confiscating “illegal” guns and accessories, such as magazines that hold over 10 rounds.

According to Senate Bill 5737, introduced on February 13th by Democrat State Senators Murray, Kohl-Welles, and Kline, no one may possess an “assault weapon” or the combination of a semi-automatic pistol or rifle capable of using a detachable magazine AND any magazine that can hold more than 10 rounds of ammo.
Happily, however, you ARE allowed to possess an UNLOADED assault weapon “…for the purpose of permanently relinquishing it to a law enforcement agency of the state.” (Pg. 6)
Naturally, the statute would NOT apply to police, members of law enforcement in the state, or to federal authorities; in short, the oft-referred to “only ones.” That is, the only ones, the political ruling class tells us, who can be trusted with firearms. However, if one happens to own an “assault weapon” prior to the effective date of the legislation, he may keep it IF he agrees to “safely and securely store the assault weapon.” And by the way, “THE SHERIFF OF THE COUNTY MAY, NO MORE THAN ONCE PER YEAR, CONDUCT AN INSPECTION TO ENSURE COMPLIANCE…” Not surprisingly, safe and secure storage is not defined in the bill. (Pg. 7) Also not surprisingly, this language was quickly deleted from the bill immediately upon lawmakers learning of the public outrage their little foray into dictatorship had spawned.
Yet, in order to provide cover for the bill’s sponsors and fellow liberals, duplicitous “journalist” Danny Westneat is hoping to sell Washington gun owners on the laughable story that the whole thing was just an unfortunate mistake! According to Westneat, one of the bill’s sponsors, Democrat Adam Kline “…did not know the bill authorized police searches because he had not read it closely before signing on.” Naturally, ALL prospective laws should be written without paying much attention to what’s in them! And the PRIME sponsor, Democrat Ed Murray, admitted that the language was “probably unconstitutional.” “I have to admit that shouldn’t be in there,” allowed the munificent liberal.
PROBABLY unconstitutional? Here is the 4th Amendment to the Constitution:

"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 persons or things to be seized."

And by the way, MR. Murray, how were your “only ones” to know which homes to enter and search? Could it be that mandatory, statewide gun registration was to become the next in your series of “common sense” gun laws?
But even with the Orwellian language now removed, SB 5737 is an affront to the God-given rights of the American people. After all, the bill still states that, should one inherit an “assault weapon,” he must either dispose of it by allowing law enforcement to confiscate it or permanently disable it. It is government literally authorizing the theft or destruction of personal property. Anyone who objects will be subject to one year in prison.
As for the claim by the bill’s authors that it was a mistake, a misstep? “It’s a “misstep” because they said what they want to do. They gave away what their plan is.” The truth is, “it’s not a misstep, it’s the next step.”Read the full story here.

via mfs-theothernews.com

Marxist Democrat Patrick Leahy reworking ‘privacy’ bill that gives government authority to read your e-mails with no warrant behind closed doors

So not only is Patrick Leahy working on a bill that gives government the authority (without warrant)  the ability to read your private e-mails, but he’s doing so behind closed doors. This reminds me of the ObamaCARE bill when Democrats put things into the bill behind closed doors. Leahy is a typical Marxist Democrat, from a state Vermont that has also elected a socialist for a Senator.

Iowa Republican Sen. Chuck Grassley’s office leveled charges of working behind closed doors at Senate Judiciary Committee Chairman Patrick Leahy and his office following allegations and denials that he is aiming to allow law enforcement’s push for warrantless surveillance.

via fireandreamitchell.com

Feds Argue Using a Fake Name Can Deprive You of Rights

(WSJ) Does using a fake name when you sign up for a cellphone plan mean the government can get information from your phone without a warrant?
That’s one argument the Department of Justice is making in an Arizona case – that using a false name is fraud and means you don’t have a reasonable expectation of privacy.
Such a stance might raise questions about the widespread practice of using pseudonyms to sign up for services online. But legal experts said it’s unlikely a court would take the argument that far.
The case, which the Journal first covered in an article last year, involves the use of a cellphone-tracking device called a stingray to find a mobile broadband card that the government says was being used to file fraudulent tax returns.
The government conceded in the case that the use of the stingray was intrusive enough qualify as a search under the Fourth Amendment, which protects against unreasonable searches and seizures. But in a court filing on Jan. 27, the government argues that the defendant, Daniel David Rigmaiden, doesn’t have standing to bring a Fourth Amendment claim because the broadband card, service and computer were purchased under false names and the apartment was rented using the name of a dead person and a fake ID.
Courts recently have found that a warrantless search is OK if the person used fraud to get the thing being searched, said Susan Freiwald, a professor at the University of San Francisco School of Law. In one example, the defendant had bought a computer with a stolen credit card and the person who actually owned the card consented to the search. In another, the defendant was receiving mail addressed to an alias he used only as part of a fraud.
But other cases have found that people still have a reasonable expectation of privacy – and thus can’t have their property searched without a warrant – even if they are using an alias.
“It’s not against the law to use a fake name,” said Adam Candeub, director of the Intellectual Property, Information and Communications Law Program at Michigan State University. The use of a fake ID and signing of a lease might be a different matter, though. “It can be fraudulent if you are entering into a contract under a fake name, but if it is a simple retail transaction the law is not clear,” he said.
Ms. Freiwald said that although prosecutors have argued repeatedly that using an alias diminishes a person’s Fourth Amendment rights, “it would be too large an encroachment on both privacy rights and the rights of free speech if the mere use of a pseudonym were enough to deprive someone” of Fourth Amendment protections.

they do have a point. if the property can not be proven to be owned by the alleged then how is it unlawful search and seizure... and another problem would be what if a mistake is made? It would seem that the loophole the FEDS think they have could really self destruct on them.

Obama Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants

(Techdirt via eye) Back in August, we wrote about the (somewhat surprising) appeals court ruling in the District of Columbia circuit saying that longterm GPS tracking of someone by law enforcement required a warrant. The issues at play here certainly aren't entirely clearcut. After all, it does make sense that when you're in a public space, you have little expectation of privacy. But is that true when it comes to tracking everywhere you go in public? That seems a little more questionable, and it's clearly the part that the court had trouble with, noting that short bursts of surveillance don't require a warrant, but sustained surveillance gets past the expectation of privacy barrier and requires a warrant. While some worry that this is too vague, it does have a certain amount of logic to it.

Either way, the Justice Department wants none of that, and is asking the full circuit to rehear the case and reverse the original ruling, saying that it should not require a warrant, suggesting that the sum of all our public travel does not deserve any privacy. While I do agree that the initial "rules" are vague, I have to agree that sustained, long-term tracking through a secretly installed GPS devices does seem to cross a line on the "expectation of privacy" spectrum.

California Governor Veto Allows Warrantless Cellphone Searches

California Gov. Jerry Brown is vetoing legislation requiring police to obtain a court warrant to search the mobile phones of suspects at the time of any arrest. Because of that January ruling from the state’s high court, the California Legislature passed legislation to undo it — meaning Brown is taking the side of the Supreme Court’s seven justices instead of the state Legislature. The U.S. Supreme Court denied cert last week in Diaz v. California, a Fourth Amendment case from California’s Supreme Court which held that a cell phone can be searched incident to arrest. The Assembly approved the bill 70-0 and the state Senate, 32-4. The bill’s sponsor, Sen. Mark Leno (D-San Francisco), was flummoxed by Brown’s action. “It was a curious veto message suggesting that the courts could resolve this more effectively than the state Legislature,” he said in a telephone interview. Under California statehouse rules, neither Leno nor any other lawmaker may introduce the legislation for at least a year.

Northrop v. Trippett (6th Cir. 2001) 265 F.3d 372, 379: When conducting a search incident to arrest, police may search items within the “immediate control” of the person arrested.

(Wired) Cops Need Warrant for Cellphone Location Data, according to Judge Terrence McVerry of the Western Pennsylvania U.S. District Court on September 11, 2008. The Obama administration’s position that the government can force mobile carriers to hand over cellphone tower location information on their customers without a warrant is wrong, two legal scholars say. scholars Susan Freiwald, of the USF School of Law, and Peter Swire, of Ohio State University wrote: "Because CSLI acquisition is hidden, indiscriminate and intrusive, and because it reveals information over a period of time, it should be subject to the highest level of Fourth Amendment oversight (the same procedures used for wiretapping and video surveillance)," Their words, published by the American Constitution Society, came a month after the Justice Department made its claim in a little-noticed case that the Fourth Amendment right to be free from unreasonable searches and seizures did not apply. In April 20, 2009 Scholars Rejected Obama’s Stance on Warrantless Cell-Phone Records

Northrop v. Trippett (6th Cir. 2001) 265 F.3d 372, 379: Governor Brown Vetoes Bill on Searching Cell Phones Incident to Arrest

Northrop v. Trippett (6th Cir. 2001) 265 F.3d 372, 379: When conducting a search incident to arrest, police may search items within the “immediate control” of the person arrested. Id. at 763, 89 S.Ct. 2034. The Supreme Court has construed the area within a person’s immediate control to include the “area from within which he might gain possession of a weapon or destructible evidence.” Id.
However, the right to search an item incident to arrest exists even if that item is no longer accessible to the defendant at the time of the search. So long as the defendant had the item within his immediate control near the time of his arrest, the item remains subject to a search incident to arrest.

Taking A Computer Out of Screensaver Mode to See Suspect’s Facebook Wall Is a Fourth Amendment Search

(Volokh) The legal question: When a computer is in screensaver mode, does a police officer’s touching a key or moving the mousepad in order to reveal the contents of the screen constitute a Fourth Amendment “search”?
The facts: The local police received a few citizen calls about a threat posted on Craigslist regarding possible planned violence at a local shopping mall. The police contacted Craiglist and obtained contact information for the person who posted the threat. They visited the man at his home, and the man invited the officers inside. While the officers were present in the home, an officer saw a laptop computer that was either off or in screensaver mode. The officer touched a key or moved the mousepad, and the computer came out of screensaver mode. The officer could then see the contents of the screen, and those contents revealed the suspect’s Facebook wall. The Facebook wall contained a “status update” in which the suspect discussed the mall and wrote that another mall was next, and it also showed that the defendant had “liked” a group about the need to change the mall. The police arrested the suspect and took a way the computer. After being charged with making a threat, the suspect-turned-defendant moved to suppress the information relating to the threat found on the computer. He argued, among other things, that taking his computer out of screensaver mode to see the Facebook Wall was a “search” that required some sort of justification under the Fourth Amendment. The ruling: In United States v. Musgrove, 2011 WL 4356521 (E.D.Wis. 2011) (Joseph, M.J.): Whether there is a search here is a close call because the officer did not actively open any files. A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a “search” for Fourth Amendment purposes. Arizona v. Hicks, 480 U.S. 321, 328 (1987). However, this is not such a case. By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the Court concludes that this was a search, however minimal, which required further authority, a warrant or consent. The government submits that the officer’s manipulation of the computer was for the purpose of seizing the computer, not to conduct a preliminary search. However, intent is not generally relevant in assessing whether a search ensued. See, e.g., United States v. Mann, 592 F.3d 779, 784 (7th Cir.2010)(citing Platteville Area Apt. Ass’n v. City of Platteville, 179 F.3d 574, 580 (7th Cir.1999)). The Court therefore recommends that the defendant’s Facebook wall be suppressed.(MORE)

Close call? I agree with the finding and not the reasoning. Files most certainly were opened by ending the screen saver. There is a level of discretion that the court was allowed to decide what is a file and what is not in this finding. The court does not seem to be aware of this. The right decision would of been to decide the intent of the officer. how was the machine bumped? I suppose if I were this police man I would of lied.

Destroying Hard Drive Leads to Conviction for Obstructing Federal Investigation

One wonders what the suspect's lawyer was thinking? Why would the police not have rights to evidence once a suspect was arrested? There would of been other ways to protect the defendant... mostly involved in making up a lie. The extent of what lawyers can do unethically is better then what a lawyer could do within the system.

(Thanks to FourthAmendment.com for the link. Orin Kerr • July 18, 2011 1:02 pm via computerdevices.org via volokh.com) The case is United States v. Hicks, an unpublished decision by the Fourth Circuit in which a child pornography suspect destroyed his hard drive in response to learning of the investigation.

According to the government’s brief, the defendant used an e-mail account to communicate with a suspected child pornography website and to purchase videos from it. Federal agents traced the e-mail account to the suspect, and they then went to the suspect’s home to ask questions. The suspect wasn’t there, but they left a business card with the suspect’s father, together with the request that the suspect contact them about his computer. The business card stated that the lead agent’s job position was as a “Child Pornography Team Leader.” The suspect called the next day and agreed to meet with the agents. During the subsequent meeting, the suspect admitted that he had seen some child pornography online and that he was familiar with some websites under investigation, but he denied having sought out child pornography or having saved any to his computer.
The agents asked the suspect if they could see his computer to confirm his story, but the suspect replied that they could not: When the suspect learned that the feds had dropped by, and when he realized that they were investigating him for child pornography, he had decided to destroy his hard drive. He “didn’t want to take any chances” of going to jail, he said. According to his brief, he had smashed his hard drive with a hammer, ran a magnet over it, and “thr[ew] the pieces out of his car window while driving.”
The feds apparently lacked the evidence to charge the suspect with possessing child pornography, but instead they charged and convicted him under a 2002 statute passed as part of the Sarbanes-Oxley Act, 18 U.S.C. 1519:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

On appeal, the Fourth Circuit affirms in a per curiam opinion. First, the defendant argues that the 2002 law should not apply to him because it was intended to apply to financial crimes not individuals and personal hard drives. The court dismisses this in a footnote (see fn1) on the ground that the statute is unambiguous. The defendant then makes a Due Process challenge. Although it’s somewhat hard to follow, the argument seems to be that the computer was his own private property and that interfering with his control of the property somehow violated Due Process. The court disagrees, concluding that the passage of the statute and the notice given to him as to his charges satisfied the Due Process clause.
Finally, the suspect makes a Fourth Amendment argument, although the court muddles its brief analysis. The defendant argued that it violated his Fourth Amendment rights to convict him of destroying the computer given that it was his computer. According to the defendant, the Fourth Amendment gave him a right to control his property that was taken away when the law took away his right to destroy it, constituting an unlawful seizure. The court disagrees, stating that “there was no meaningful interference with Hicks’s possessory interests [and therefore no seizure] because he did not have a property right in the images of child pornography. See Helton v. Hunt, 330 F.3d 242, 247 (4th Cir. 2003).”
For what it’s worth, that’s not quite right. A possessory interest has nothing to do with a property right. Indeed, the whole point of contraband crimes is that they are crimes for having a possessory interest in what one cannot lawfully possess — that is, for possessing something for which one cannot have a valid property right. Helton v. Hunt says nothing to the contrary. Further, the defendant’s claim was as to the seizure of his physical hard drive, not contraband images which may or may not have been stored inside it. The court is right that there was no seizure, but it’s for a different reason: the government never took control of the property that the defendant elected to destroy. A seizure requires an actual submission to law enforcement control, see California v. Hodari D, which never occurred here. Anyway, it’s not a big deal: This is a non-precedential opinion, and the court was right that there was no seizure — and even if there was a seizure, there is no possible remedy here. Still, I thought I would point it out anyway.

Four Justices on the Fourth Amendment

An interesting statement respecting the denial of certiorari today in Huber v. N.J. Dep’t of Environmental Protection:

Statement of Justice Alito, with whom the Chief Justice, Justice Scalia, and Justice Thomas join, respecting the denial of certiorari.
Our cases recognize a limited exception to the Fourth Amendment’s warrant requirement for searches of businesses in “closely regulated industries.” See, e.g., New York v. Burger, 482 U. S. 691, 699–703 (1987) (internal quotation marks omitted). The thinking is that, other things being equal, the “expectation of privacy in commercial premises” is significantly less than the “expectation in an individual’s home.” Id., at 700. And where a business operates in an industry with a “long tradition of close government supervision” — liquor dealers and pawnbrokers are classic examples — the expectation of privacy becomes “particularly attenuated.” Ibid. (internal quotation marks omitted).
In this case, a New Jersey appellate court applied this doctrine to uphold a warrantless search by a state environmental official of Robert and Michelle Huber’s backyard. No. A–5874–07T3, 2010 WL 173533, *9–*10 (Super. Ct. N. J., App. Div., Jan. 20, 2010) (per curiam). The Hubers’ residential property contains wetlands protected by a New Jersey environmental statute. See N. J. Stat. Ann. §13:9B–1 et seq. (West 2003 and Supp. 2010). According to the court below, the presence of these wetlands brought the Hubers’ yard “directly under the regulatory arm” of the State “just as much” as if the yard had been involved in a “regulated industry.” 2010 WL 173533, *10. This Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment’s warrant requirement. But because this case comes to us on review of a decision by a state intermediate appellate court, I agree that today’s denial of certiorari is appropriate. See this Court’s Rule 10. It does bear mentioning, however, that “denial of certiorari does not constitute an expression of any opinion on the merits.” Boumediene v. Bush, 549 U. S. 1328, 1329 (2007) (Stevens and KENNEDY, JJ., statement respecting denial of certiorari).

The reason the four Justices did not vote to grant certiorari (it only takes four votes to grant) is likely that, as Rule 10 suggests, the Justices rarely grant simply because of an erroneous decision of a state intermediate court of appeals; they generally wait until there is a disagreement among federal circuit courts of appeals or state supreme courts. But they are trying to signal to lawyers that this is an issue worth litigating.

via volokh.com

image via e-discoveryissues.blogspot.com

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