WASHINGTON, DC —The U.S. Supreme Court has declined to protect homeowners from warrantless searches by police based merely on a suspicion that a person on probation or parole resides on the premises.
In refusing to hear an appeal in Bailey v. Arkansas, the Supreme Court let stand a lower court ruling that could, as Rutherford Institute attorneys warned in their amicus brief, establish a slippery slope that allows police to carry out warrantless searches when police merely suspect but do not know or have probable cause to believe that a probationer lives on the premises.
“This case is about a creeping erosion of our Fourth Amendment rights that threatens every homeowner in America,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “We’re on a slippery slope towards a society where police can invade any home based on nothing more than a hunch. It’s an affront to the Constitution and a danger to us all.”
Under Arkansas Code § 16-93-106, persons who are placed on supervised probation or parole are required to agree to a waiver that allows any law enforcement officer to conduct a warrantless search of their person, residence, electronic device, or motor vehicle at any time, day or night, whenever requested by the law enforcement officer, and the search does not need to be based on an articulable suspicion that the person is committing or has committed a new criminal offense. If a person refuses to waive their Fourth Amendment rights, then they will not be eligible for supervised release. The Rutherford Institute’s amicus brief noted that nearly four million individuals across the country are subject to supervised probation or parole, and about 65% of jurisdictions require similar waivers while many other jurisdictions are in states, like Arkansas, which impose the waiver as a condition of supervised release. This raises a concern, potentially affecting millions of innocent third parties throughout the country, when police officers mistakenly suspect that a probationer who has waived his Fourth Amendment rights is living at another’s residence, and then use that waiver as justification to search the home without a warrant or any indication of criminal activity.
The Arkansas Supreme Court ruled that police officers merely need reasonable suspicion to believe that the home is the probationer’s residence in order to conduct a search. But because police will often have reason to suspect a probationer or parolee is residing with a parent, sibling, or friend, The Rutherford Institute’s amicus brief warned that those relatives and friends will then lose their right to security in their homes. The brief highlighted many cases where the rights of innocent third parties have been violated by police searching their homes based on a mistaken suspicion that a family member or friend who was on probation or the subject of an arrest warrant lived there—in one case the police shot and killed the owner’s dog, and in other cases police drew guns in front of children and traumatized a parolee’s mother who then went to the hospital and took several days to recover. The Institute’s brief argued that police officers must at least establish the higher standard of probable cause that a home is actually the probationer’s residence to avoid such reckless and damaging searches.
Derek C. Reinbold, Brenna L. Darling, and Sven E. (Trip) Henningson of Kellogg, Hansen, Todd, Figel & Frederick P.L.L.C. advanced the arguments in the Bailey v. Arkansasamicus brief.
The Rutherford Institute, a nonprofit civil liberties organization, defends individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.
This present menace comes from the government and its army of bureaucratized, corporatized, militarized mercenaries who are waging war on the last stronghold left to us as a free people: the sanctity of our homes.
The weapons of this particular war on our personal security and our freedoms include an abundance of laws that criminalize almost everything we do, a government that views our private property as its own, militarized police who have been brainwashed into believing that they operate above the law, courts that insulate police from charges of wrongdoing, legislatures that legitimize the government’s usurpations of our rights, and a populace that is so ignorant of their rights and distracted by partisan politics as to be utterly incapable of standing up to the government’s overreaches, incursions and power grabs.
This is how far the mighty have fallen.
Government agents—with or without a warrant, with or without probable cause that criminal activity is afoot, and with or without the consent of the homeowner—are now justified in mounting home invasions in order to pursue traffic violators, seize lawfully-owned weapons, carry out knock-and-talk “chats” with homeowners in the dead of night, “prevent” individuals from harming themselves, provide emergency aid, intervene in the face of imminent danger, serve as community caretakers, chase down individuals suspected of committing misdemeanor crimes, and anything else they can get away with.
This doesn’t even begin to touch on the many ways the government and its corporate partners-in-crime may be using surveillance technology—with or without the blessing of the courts—to invade one’s home: with wiretaps, thermal imaging, surveillance cameras, and other monitoring devices.
However, while the courts and legislatures have yet to fully address the implications of such virtual intrusions on our Fourth Amendment, there is no mistaking the physical intrusions by police into the privacy of one’s home: the toehold entry, the battering ram, the SWAT raid, the knock-and-talk conversation, etc.
Whether such intrusions, warranted or otherwise, are unconstitutional continues to be litigated, legislated and debated.
The spirit of the Constitution, drafted by men who chafed against the heavy-handed tyranny of an imperial ruler, would suggest that one’s home is a fortress, safe from almost every kind of intrusion. Unfortunately, a collective assault by the government’s cabal of legislators, litigators, judges and militarized police has all but succeeded in reducing that fortress—and the Fourth Amendment alongside it—to a crumbling pile of rubble.
At a time when red flag gun laws are gaining traction as a legislative means by which to allow police to remove guns from people suspected of being threats, it wouldn’t take much to expand the Fourth Amendment’s “community caretaking” exception to allow police to enter a home without a warrant and seize lawfully-possessed firearms based on concerns that the guns might pose a danger.
At issue in Lange is whether police can justify entering homes without a warrant under the “hot pursuit” exception to the Fourth Amendment.
The case arose after a California cop followed a driver, Arthur Lange, who was honking his horn while listening to music. The officer followed Lange, supposedly to cite him for violating a local noise ordinance, but didn’t actually activate the police cruiser’s emergency lights until Lange had already arrived home and entered his garage. Sticking his foot under the garage door just as it was about to close, the cop confronted Lange, smelled alcohol on his breath, ordered him to take a sobriety test, and then charged him with a DUI and a noise infraction.
Lange is just chock full of troubling indicators of a greater tyranny at work.
Overcriminalization: That you can now get pulled over and cited for honking your horn while driving and listening to music illustrates just how uptight and over-regulated life in the American police state has become.
Make-work policing: At a time when crime remains at an all-time low, it’s telling that a police officer has nothing better to do than follow a driver seemingly guilty of nothing more than enjoying loud music.
Warrantless entry: That foot in the door is a tactic that, while technically illegal, is used frequently by police attempting to finagle their way into a home and sidestep the Fourth Amendment’s warrant requirement.
The definition of reasonable: Although the Fourth Amendment prohibits warrantless and unreasonable searches and seizures of “persons, houses, papers, and effects,” where we run into real trouble is when the government starts dancing around what constitutes a “reasonable” search. Of course, that all depends on who gets to decide what is reasonable. There’s even a balancing test that weighs the intrusion on a person’s right to privacy against the government’s interests, which include public safety.
Too often, the scales weigh in the government’s favor.
End runs around the law: The courts, seemingly more concerned with marching in lockstep with the police state than upholding the rights of the people, have provided police with a long list of exceptions that have gutted the Fourth Amendment’s once-robust privacy protections.
Exceptions to the Fourth Amendment’s warrant requirement allow the police to carry out warrantless searches: if someone agrees to the search; in order to ferret out weapons or evidence during the course of an arrest; if police think someone is acting suspiciously and may be armed; during a brief investigatory stop; if a cop sees something connected to a crime in plain view; if police are in hot pursuit of a suspect who flees into a building; if they believe a vehicle has contraband; in an emergency where there may not be time to procure a warrant; and at national borders and in airports.
In other words, almost anything goes when it comes to all the ways in which the government can now invade your home and lay siege to your property.
Thus we tumble down that slippery slope which might have started out with a genuine concern for public safety and the well-being of the citizenry only to end up as a self-serving expansion of the government’s powers that makes a mockery of the Fourth Amendment while utterly disregarding the rights of “we the people.”
Frankly, it’s a wonder we have any property interests, let alone property rights, left to protect.
Think about it.
That house you live in, the car you drive, the small (or not so small) acreage of land that has been passed down through your family or that you scrimped and saved to acquire, whatever money you manage to keep in your bank account after the government and its cronies have taken their first and second and third cut…none of it is safe from the government’s greedy grasp.
At no point do you ever have any real ownership in anything other than the clothes on your back.
Everything else can be seized by the government under one pretext or another (civil asset forfeiture, unpaid taxes, eminent domain, public interest, etc.).
The American Dream has been reduced to a lease arrangement in which we are granted the privilege of endlessly paying out the nose for assets that are only ours so long as it suits the government’s purposes.
And when it doesn’t suit the government’s purposes? Watch out.
This is not a government that respects the rights of its citizenry or the law. Rather, this is a government that sells its citizens to the highest bidder and speaks to them in a language of force.
Under such a fascist regime, the Fifth Amendment to the U.S. Constitution, which declares that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation,” has become yet another broken shield, incapable of rendering any protection against corporate greed while allowing the government to justify all manner of “takings” in the name of the public good.
What we are grappling with is a government that has forfeited its purpose for existing.
What we have been saddled with is a government that has not only lost sight of its primary reason for being—to protect the people’s rights—but has also re-written the script and cast itself as an imperial overlord with all of the neo-feudal authority such a position entails.
Let me put it another way.
If the government can tell you what you can and cannot do within the privacy of your home, whether it relates to what you eat, what you smoke or whom you love, you no longer have any rights whatsoever within your home.
If government officials can fine and arrest you for growing vegetables in your front yard, gathering with friends to worship in your living room, installing solar panels on your roof, and raising chickens in your backyard, you’re no longer the owner of your property.
If school officials can punish your children for what they do or say while at home or in your care, your children are not your own—they are the property of the state.
If government agents can invade your home, break down your doors, kill your dog, damage your furnishings and terrorize your family, your property is no longer private and secure—it belongs to the government.
If police can forcefully draw your blood, strip search you, probe you intimately, or force you to submit to vaccinations or lose your so-called “privileges” to move about and interact freely with your fellow citizens, your body is no longer your own—it is the government’s to do with as it deems best.
Likewise, if the government can lockdown whole communities and by extension the nation, quarantine whole segments of the population, outlaw religious gatherings and assemblies of more than a few people, shut down entire industries and manipulate the economy, muzzle dissidents, and “stop and seize any plane, train or automobile to stymie the spread of contagious disease,” then you no longer have a property interest as master of your own life, either.
This is what a world without the Fourth Amendment looks like, where the lines between private and public property have been so blurred that private property is reduced to little more than something the government can use to control, manipulate and harass you to suit its own purposes, and you the homeowner and citizen have been reduced to little more than a tenant or serf in bondage to an inflexible landlord.
If we continue down this road, the analogy shifts from property owners to prisoners in a government-run prison with local and federal police acting as prison guards. In such an environment, you have no rights.
So what can we do, short of scrapping this whole experiment in self-government and starting over?
At a minimum, we need to rebuild the foundations of our freedoms.
What this will mean is adopting an apolitical, nonpartisan, zero tolerance attitude towards the government when it oversteps its bounds and infringes on our rights.
We need courts that prioritize the rights of the citizenry over the government’s insatiable hunger for power at all costs.
We need people in the government—representatives, bureaucrats, etc.—who honor the public service oath to uphold and defend the Constitution.
Most of all, we need to reclaim control over our runaway government and restore our freedoms.
After all, we are the government. As I make clear in my book Battlefield America: The War on the American People, “we the people” are supposed to be the ones calling the shots. As John Jay, the first Chief Justice of the United States, rightly observed: “No power on earth has a right to take our property from us without our consent.”
John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact staff@rutherford.org to obtain reprint permission.
WASHINGTON, D.C. —Rejecting the idea that some violations of the Constitution are insignificant, the U.S. Supreme Court ruled today that police may not extend the time needed to conduct an ordinary traffic stop in order to subject the vehicle and its occupants to an examination by a drug-detecting dog unless they have specific reasons to suspect the car is carrying contraband. In its 6-3 ruling in Rodriguez v. United States, the Court held that a police officer violated the Fourth Amendment rights of motorist Dennys Rodriguez and his passenger when, after giving Rodriguez a written warning for a minor driving infraction, he continued to make them wait while a drug-sniffing dog patrolled the exterior of the vehicle.
“While this ruling is certainly a step in the right direction, as long as the courts continue to bend the Constitution to favor the police, there is little to celebrate. After all, the police are still empowered to stop cars based on anonymous tips, carry out warrantless searches of cars using drug-sniffing dogs, and subject Americans to virtual strip searches, no matter the offense,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author ofBattlefield America: The War on the American People. “Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching innocent motorists on the side of the road, these instances of abuse are continually validated by a judicial system that kowtows to virtually every police demand, no matter how unjust, no matter how in opposition to the Constitution.”
In March 2012, police officer Morgan Struble was on early-morning patrol in Nebraska when he observed a vehicle momentarily veer onto the shoulder of the highway. Struble, who is a K-9 officer and had his dog with him at the time, pulled the vehicle over and upon approaching it determined that the driver was Dennys Rodriguez and that there was a passenger in the front seat. After Rodriguez explained that he had swerved in order to avoid a pothole, Struble obtained Rodriguez’s license, registration and proof of insurance and ran a check to determine if all the paperwork was valid and whether there were any outstanding arrest warrants for Rodriguez. After the officer determined that everything was in order and that neither Rodriguez nor the passenger were wanted, he wrote up a warning ticket for Rodriguez for violating a state law prohibiting driving on highway shoulders. Upon returning to the vehicle and giving Rodriguez back the papers, Struble asked Rodriguez for permission to allow his dog to walk around the vehicle. Rodriguez refused to give permission. Struble then ordered Rodriguez to turn the car off and exit the vehicle. Rodriguez complied and Struble led the dog around the vehicle. Although the dog did nothing during the first pass, on the second pass the dog alerted. Based on this alert, Struble and another officer searched the vehicle and found methamphetamine. This evidence was the basis for a federal indictment against Rodriguez.
Before his trial, Rodriguez moved to suppress evidence of the methamphetamine, arguing that the officer violated the Fourth Amendment’s prohibition on unreasonable searches and seizures by holding him after all matters related to the driving infraction had been completed. However, Rodriguez’s argument was rejected by the trial court, which ruled that the additional seizure of Rodriguez for the seven to eight minutes the dog sniff took was a “de minimis intrusion on Rodriguez’s Fourth Amendment rights” and was not a sufficient basis to order suppression. The court of appeals affirmed the ruling on Rodriguez’s appeal, but the U.S. Supreme Court agreed to review the case. In reversing the lower courts’ decisions, the Supreme Court adhered to prior cases holding that a traffic stop can become unlawful in prolonged beyond the time required to meet the mission of issuing a ticket.
WASHINGTON, D.C. — Citing a fundamental right to privacy, travel and association, The Rutherford Institute has asked the U.S. Supreme Court to prohibit police from gaining unfettered access to motel and hotel guest registries.
In an amicus curiae brief filed in City of Los Angeles v. Patel, et al., Rutherford Institute attorneys are asking the Court to declare unconstitutional a Los Angeles ordinance that allows police to inspect private hotel and motel records containing information about the persons who are staying there without a warrant or other judicial review. The Institute’s brief argues that the ordinance, which is similar to laws on the books in cities across the nation, flies in the face of historical protections affording hotel guests privacy in regards to their identities and comings-and-goings and burdens the fundamental rights of travel and association, which the Court has long safeguarded from arbitrary government scrutiny.
“This practice of giving police officers unfettered, warrantless access to Americans’ hotel records is no different from the government’s use of National Security Letters to force banks, phone companies, casinos and other businesses to secretly provide the FBI with customer information such as telephone records, subscriber information, credit reports, employment information, and email records and not disclose the demands,” said John W. Whitehead, president of The Rutherford Institute and author of the award-winning A Government of Wolves: The Emerging American Police State. “Both ploys are merely different facets of the government’s campaign to circumvent, by hook or by crook, the clear procedural safeguards of the Fourth Amendment and force business owners to act as extensions of the police state.”
Section 41.49 of the City of Los Angeles Municipal Code requires all hotel owners to maintain a registry that collects information about persons staying at the hotel, including their names, addresses, vehicle information, arrival and departure dates, room prices, and payment methods. Under this law, it is a crime for a guest to provide false or misleading information in registering at the hotel.
The law also requires that hotels make these records available to any officer of the Los Angeles Police Department for inspection on demand, thereby allowing law enforcement officers to inspect this information at any time regardless of whether there is consent to the inspection or a warrant allowing it. Additionally, police need not have any measure of suspicion in order to review hotel registries under the ordinance and there need not be any history of criminal activity at the hotel. A hotel operator is guilty of a crime if he or she refuses to allow inspection.
In 2005, the Los Angeles Lodging Association and various owners and operators of hotels and motels in the city filed a lawsuit challenging the requirement of the ordinance that they grant unfettered access to their guest registries, arguing that the ordinance is a patent violation of the Fourth Amendment’s protection of persons’ houses, papers and effects against “unreasonable searches and seizures.”
In December 2013, the U.S. Court of Appeals for the Ninth Circuit upheld the hotel owners’ claims, ruling that the inspection of hotel registries by police is clearly a search for purposes of the Fourth Amendment. The Ninth Circuit also rejected the claim that hotels are a “closely regulated” industry that should expect government inspections, thereby holding that police are not excused from the general search warrant requirement.
In weighing in on the case before the U.S. Supreme Court, Rutherford Institute attorneys argue that police should not be given carte blanche to rummage through records containing highly personal information because this could chill the exercise of other constitutional rights, such as the right to travel and the right of association.
Affiliate attorneys Anand Agneshwar and Grace K. Chang of Arnold & Porter, LLP, assisted The Rutherford Institute in advancing the arguments in the amicus brief before the U.S. Supreme Court.
Warning that a texting law approved by the Virginia General Assembly is vague and overly broad and has been drafted in such a way as to give police officers leeway to carry out fishing expeditions on drivers’ cell phones, thereby opening the floodgates to a broad range of civil liberties violations, The Rutherford Institute is asking Governor McDonnell not to sign the legislation. House Bill 1907 allows police officers to pull over anyone suspected of texting or reading emails or text messages while driving. However, as I pointed out in a letter to McDonnell, any marginal safety benefits gained by passage of this law will be wholly eclipsed by the threats it poses to critical Fourth Amendment rights.
If the General Assembly wishes to discourage dangerous driving habits, they must do so in a manner that does not run afoul of the Constitution. In an age in which police officers have shown themselves to be increasingly aggressive and willing to discard Fourth Amendment prohibitions on unreasonable searches and seizures, even going so far as to perform invasive roadside cavity searches on female travelers without any probable cause of wrongdoing, this legislation renders the Fourth Amendment null and void and leaves Virginia drivers with virtually no civil liberties protection.
House Bill 1907, passed by both houses of the General Assembly and now before Governor McDonnell for his signature, allows police officers to stop and arrest drivers whom they suspect are engaging in texting or reading emails and/or text messages while driving. The law also makes texting while driving a primary offense and levies a $250 fine for the first offense and $500 fines for any offenses thereafter. Under current law, although texting while driving is illegal, it is a secondary offense, meaning police cannot pull you over simply for texting. Cautioning the governor against signing the bill into law, Rutherford Institute attorneys warn that the broad language of the law places far-reaching powers in the hands of law enforcement agents, and any marginal safety benefits gained by passage of the law will be wholly eclipsed by the threats it poses to critical Fourth Amendment rights. Paramount among the Institute’s concerns are that it expands police powers to search individuals’ private property without a warrant, does away with the need for probable cause, and fails to provide police with adequate standards for determining whether there is sufficient cause to believe a driver is texting as opposed to numerous other activities that are not a basis for a stop of the vehicle, among other things.
Specifically, I pointed out that HB 1907 contains insufficient enforcement standards to ensure that officers are not empowered to stop drivers who are not, in fact, using handheld devices while driving. Additionally, the legislation will presumably justify an officer’s intrusive search of a citizen’s private cell phone if the officer alleges that he or she witnessed the citizen texting while driving. And finally, the bill contains an unjustifiable, blanket exemption for law enforcement officers, which undermines the legislation’s putative purpose of protecting the public. Institute attorneys advise that until the General Assembly is able to identify and articulate clear standards to guide police in enforcing a no-texting-while-driving law, McDonnell should refuse to sanction an approach that places fundamental civil rights at the mercy of government officials. — John W. Whitehead
WASHINGTON, D.C. —Rejecting the idea that some violations of the Constitution are insignificant, the U.S. Supreme Court ruled today that police may not extend the time needed to conduct an ordinary traffic stop in order to subject the vehicle and its occupants to an examination by a drug-detecting dog unless they have specific reasons to suspect the car is carrying contraband. In its 6-3 ruling in Rodriguez v. United States, the Court held that a police officer violated the Fourth Amendment rights of motorist Dennys Rodriguez and his passenger when, after giving Rodriguez a written warning for a minor driving infraction, he continued to make them wait while a drug-sniffing dog patrolled the exterior of the vehicle.
Warning that a texting law approved by the Virginia General Assembly is vague and overly broad and has been drafted in such a way as to give police officers leeway to carry out fishing expeditions on drivers’ cell phones, thereby opening the floodgates to a broad range of civil liberties violations, The Rutherford Institute is asking Governor McDonnell not to sign the legislation. House Bill 1907 allows police officers to pull over anyone suspected of texting or reading emails or text messages while driving. However, as I pointed out in a letter to McDonnell, any marginal safety benefits gained by passage of this law will be wholly eclipsed by the threats it poses to critical Fourth Amendment rights.
John W. Whitehead, Constitutional Attorney 