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If the most disturbing, if underreported, news from yesterday, was Obama’s “modification” of NSA capabilities, which contrary to his earlier promises, was just granted even greater powers as phone recording will now be stored for even longer than previously, then this latest development from the Supreme Court – one which some could argue just voided the Fourth amendment – is even more shocking. RT reports that the US Supreme Court has ruled that police may search a home without obtaining a warrant despite the objection of one occupant if that occupant has been removed from the premises. With its 6 to 3 decision in Fernandez v. California on Tuesday, the Court sided with law enforcement’s ability to conduct warrantless searches after restricting police powers with its 2006 decision on a similar case.
In 2009, the Los Angeles Police Department sought suspect Walter Fernandez, believed to have stabbed someone in a violent gang robbery. When police first arrived at the suspect’s home, they heard yelling and screaming before Fernandez’s live-in girlfriend Roxanne Rojas answered the door, appearing “freshly bruised and bloody,” and with an infant in hand, according to argument recap by SCOTUSblog.
Fernandez was spotted by police, and said, “Get out. I know my rights. You can’t come in.” Yet police arrested him on charges of domestic violence. Later, once Fernandez was out of the home, police asked Rojas for permission to conduct a search, which yielded evidence implicating Fernandez in the robbery.
Probable cause or probable loss of all civil rights?
The Court’s decision justified the police actions, with Justice Samuel Alito writing the majority’s position.
“A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant,” Alito wrote. He added that “denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence.”
Alito was joined in the majority by Justices Breyer, Kennedy, Roberts, Scalia, and Thomas.
Justice Ruth Bader Ginsburg – joined in the minority by Justices Kagan and Sotomayor, marking a gender divide among the Justices in the case – wrote the dissenting opinion, calling the decision a blow to the Fourth Amendment, which prohibits “unreasonable searches and seizures.”
“Instead of adhering to the warrant requirement,” Ginsburg wrote, “today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.” Tuesday’s ruling, she added, “shrinks to petite size our holding in Georgia v. Randolph.”
Georgia v. Randolph was a similar case the Supreme Court addressed in 2006, in which a domestic violence suspect would not allow police to enter his home, though his wife did offer police consent. The police ultimately entered the home. The Court ruled in the case that the man’s refusal while being present in the home should have kept authorizes from entering.
“A physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant,” the majority ruled in that case.
In addressing Randolph in the majority opinion, Alito wrote that the difference between that case and Fernandez was the physical presence of the suspect.
“Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present,” he wrote.
“We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.”
Prior to Randolph and Fernandez, the Court ruled in the 1974 case United States v. Matlock that any one of the co-tenants in a home can consent to a police search of the premises.
Well there goes the fourth amen… oh look, over there: it’s another all time high in the S&P 500. On paper, those who hold stocks have never been richer. Everyone else, barricade your doors, and the police come knocking, don’t even bother answering – they will come in anyway. And also prepare your guns for return to the government: that particular “constitutional” amendment is the next to go.
Federal Judge Strikes Down NSA’s Bulk Metadata Program: “I Cannot Imagine a More ‘Indiscriminate’ and ‘Arbitrary Invasion’ Than This Systematic and High-Tech Collection and Retention of Personal Data On Virtually Every Single Citizen” Washington’s Blog
Federal Judge Strikes Down NSA’s Bulk Metadata Program: “I Cannot Imagine a More ‘Indiscriminate’ and ‘Arbitrary Invasion’ Than This Systematic and High-Tech Collection and Retention of Personal Data On Virtually Every Single Citizen” Washington’s Blog.
“The Government Does Not Cite A Single Instance In Which Analysis Of The NSA’s Bulk Metadata Collection Actually Stopped An Imminent Attack”
A federal court has just struck down the NSA’s bulk metadata spying program today.
The court notes:
The Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.
There is no indication that these revelations were immediately useful or that they prevented an impending attack.
I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.
The Fourth Amendment typically requires “a neutral and detached authority be interposed between the police and the public,” and it is offended by “general warrants” and laws that allow searches to be conducted “indiscriminately and without regard to their connection with [a] crime under investigation.”
I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on “that degree of privacy” that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware “the abridgement of freedom of the people by gradual and silent encroachments by those in power,” would be aghast.
The judge is right:
- Mass surveillance has not stopped a single terrorist attack
- Top counter-terror experts say that the government’s mass spying doesn’t keep us safe; moreover, they say that mass spying actually hurts U.S. counter-terror efforts (more here and here), andweakens digital security
- Experts say (including congress members) say that the spying program is illegal, and is exactly the kind of thing which King George imposed on the American colonists … which led to the Revolutionary War
- Two American presidents and a vice president say that NSA spying is turning the U.S. into a dictatorship
- Indeed, most Congress members had no idea what the NSA is doing. Even staunch defenders of the NSA – and congress members on the intelligence oversight committees – now say they’ve been kept in the dark
- The FISA court provides no real oversight. Even the current judges on the secret spying court now admit that they’re out of the loop and powerless to exercise real oversight
Judge Rules NSA’s “Indiscriminate & Arbitrary” Invasion Of Privacy Likely Unconstitutional | Zero Hedge
A federal judge ruled Monday that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely to be unconstitutional. As Politico reports, Judge Richard Leon blasted, “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval.” This is the first significant legal setback for the NSA’s surveillance program since Edward Snowden exposed it.
U.S. District Court Judge Richard Leon found that the program appears to run afoul of the Fourth Amendment prohibition on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the so-called metadata had helped to head off terrorist attacks.
“Plaintiffs have a very significant expectation of privacy in an aggregated collection of their telephone metadata covering the last five years, and the NSA’s Bulk Telephony Metadata Program significantly intrudes on that expectation,” wrote Leon, an appointee of President George W. Bush. “I have significant doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.”
Leon’s ruling is the first significant legal setback for the NSA’s surveillance program since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. The metadata program has been approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court and at least one judge sitting in a criminal case.
The Blog of Legal Times adds:
A federal magistrate judge in Washington today released a 157-page report detailing evidence and testimony in a dispute over the handling of evidence from mass arrests of protesters in downtown Washington in 2002.
U.S. District Magistrate Judge John Facciola did not, however, offer his conclusions on the central issue of whether city or police officials mishandled, concealed or destroyed evidence.
Facciola, who was appointed by U.S. District Judge Emmet Sullivan to probe the evidence-related allegations as a special master, wrote that he wasn’t clear on the scope of his authority at this point.
“As I am reluctant to speculate as to Judge Sullivan’s intentions, particularly when the sanctions sought are so severe,” Facciola wrote.
The underlying litigation involves mass arrests by the Metropolitan Police Department during protests around Pershing Park in 2002. In recent years, the arrest litigation has been put on hold as lawyers for the plaintiffs and the city fought over allegations that officials mishandled evidence and withheld information from the court.
Facciola’s report didn’t include a time frame for when Sullivan might decide how the case should proceed. “I will instead issue the following findings of fact but defer issuing conclusions of law until Judge Sullivan indicates the nature of the authority he wishes me to exercise,” Facciola wrote, “assuming he intends me to have additional responsibilities once he reviews my findings.”
Full judge’s report: