Thursday, December 9, 2010

Civil Liberties: The Erosion of the 4th Amendment to the U.S. Constitution

by Paul C. Wright
 

The civil liberties of U.S. citizens, their Fourth Amendment rights in particular, are being eroded at a rapid pace. The pretext for the destruction of Americans’ civil liberties is the “global war on terror,” which – according to all three branches of government – requires that Americans surrender their liberties for security and protection from foreign and domestic threats. The nine-year erosion of civil liberties has been spearheaded by federal agencies, but individual states of the U.S.A. are now following in the federal government’s wake as local law enforcement agencies are increasingly becoming a tool of state authority and state security rather than performing functions as civil service agencies designed to protect and serve citizens. The trend will soon lead to a new framework for law enforcement activities. Without a reversal of this trend, law enforcement will soon exist primarily to protect the interests of government.

The Fourth Amendment, enacted in 1791, is designed to protect both individual and property rights by recognizing and affirming that that citizens are endowed with the right to be free from tyrannical government intervention in their personal lives. It respects the individual and requires law enforcement to be subservient to individual rights by barring law enforcement from conducting unreasonable searches and seizures. Further, it clearly states that search warrants that enable the government to enter a person’s property and seize property pursuant to a criminal investigation must be based on probable cause [1] not the mere discretion or desire of law enforcement agencies to assume an entitlement to conduct a search for the mere fact that they hold police power. This amendment is rooted in 17th century English law designed to prevent the King from exercising unchecked authority over landowners, and it is what has separated the United States from totalitarian nations in the 19th and 20th centuries. Under U.S. law, the doctrine of probable cause was eventually expanded to include all citizens from the intrusive police powers of the state.

At the federal level the USA PATRIOT Act, passed soon after the events of September 11, 2001, is the keystone of America’s new security state apparatus. The law originally required third party holders of private personal information to turn that information over to federal authorities upon request. This meant that doctors, libraries, bookstores, universities, and internet service providers [2] would have to provide the government with information on the actions, purchases, health, or activity of private citizens without anything more than a demand from federal authorities. Moreover, secret searches of personal residences and other property could be conducted without notice to the owner that such a search has ever occurred. [3] This expansion of federal power was a clear and unambiguous violation of the Fourth Amendment and fortunately portions of the PATRIOT Act, including its “sneak and peek” provision, were struck down as unconstitutional violations of the Fourth Amendment. This did not, however, prevent the federal government from continuing to press for the ability to obtain private information or conduct secret searches by other means under the guise of national security. Efforts to mine data and track citizens’ activities are ongoing as are efforts to undermine court authority to review the application of these police powers.

One of law enforcement’s newest tools is the GPS tracking device, and recent court decisions have said that police can enter your property and place a tracking device on your vehicle without showing probable cause or obtaining a warrant. One of the most visible cases is United States of America v. Juan Pineda-Moreno. [4] In this case, DEA agents snuck onto Pineda-Moreno’s property at night and attached a tracking device to his car which was parked in his driveway. The agents, who suspected Pineda-Moreno of drug trafficking, did not demonstrate probable cause nor obtain a warrant from a court to attach the device. They merely decided they had the right and the power to do so without judicial oversight. They tracked Pineda-Moreno’s movements for a four month period until the tracking devices eventually led them to a suspected marijuana grow site. Pinedo-Moreno was then arrested.

Traditionally, one of the keys to whether or not law enforcement is violating a citizen’s rights under the Fourth Amendment relates to whether or not the person’s property to be searched is on public or private property. Historically, one’s driveway is considered private property, part of a person’s “curtilage,” and therefore subject to the protections of the Fourth Amendment. Curtilage is defined as “the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and privacies of life,’ and therefore has been considered part of the home itself for Fourth Amendment purposes.” [5] Clearly, a person’s driveway is a part of their curtilage, and the government in the case even conceded the point that Pineda-Moreno’s driveway is in fact curtilage. The court disregarded the concession as well as the concept of private property and ownership and decided that it was not curtilage. The court stated that one’s driveway is “semi-private” unless enclosed or blocked with a barrier or other feature. The fact that Pineda-Moreno had a “No Trespassing” sign posted on his property was inconsequential. The court went even farther in saying that one has no reasonable expectation of privacy to the undercarriage or exterior of their car – which is where the GPS device was placed.

Pineda-Moreno’s petition to have the full Ninth Circuit Court of Appeals hear his case was denied, leaving a new definition of curtilage and privacy rights in place. In a blistering dissenting opinion, Chief Judge Kozinski, a former citizen of communist Romania, blasted the court for destroying a fundamental American civil right, stating that “[t]he very rich will still be able to protect their privacy with the aid of electric gates, tall fences, security booths, remote cameras, motion sensors and roving patrols, but the vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel’s ruling. . . . Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it.” [6] Kozinski closed his dissenting opinion by warning that there “is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.” [7]

Since the ruling, other agencies have used the ruling to justify aggressive police activities. The FBI, in Santa Clara, California conducted a warrantless tracking of a young community college student and computer salesman’s car by placing a tracking device on it - as in the Pineda-Moreno case. Yasir Afifif, who was emotionally devastated by the operation that targeted him, noticed the tracking device hanging from his car when a mechanic at an oil changing station brought it to his attention. [8] The day after the mechanic removed the strange device from the car, FBI agents showed up at Afifi’s apartment door demanding the return of the device.

These are just two examples of many surrounding the proliferation of GPS tracking devices and the erosion of the Fourth Amendment protections historically granted to U.S. citizens. Police powers are supplanting Constitutional rights all across the United States and a number of lawsuits challenging the violation of rights are being heard in courts across the country. While some states have followed the U.S. Ninth Circuit Court of Appeals, courts in other jurisdictions like Massachusetts and Washington D.C. have not. The variance of rulings from state to federal jurisdictions has set the stage for an eventual U.S. Supreme Court decision on the matter. The Supreme Court decision, if it falls on the side of law enforcement, will effectively rewrite the Constitution and forever change the interface between police power, individual liberty, and private property.

The issues of unlawful search and seizure and invasion of privacy have become extremely urgent matters, particularly with respect to recent scandals involving Transportation Security Administration (TSA) agents’ application of radiation body scanners and aggressive frisking techniques at the many of the nation’s airports. A groundswell of grass roots opposition is lashing back against the technology and TSA techniques, and many lawsuits have been filed challenging the implementation of procedures that target every American citizen as a prospective threat.

The direct and heavy application of government police power in a manner that challenges Constitutional limits on power is a trend that will continue until the courts resolve the limits of power this new age. The coming court decisions promise to alter the American legal landscape for decades to come.

Paul C. Wright is an attorney, business consultant, and legal researcher who has practiced both military and civil law. His legal practice areas have included criminal, international, corporate, and consumer law.

Notes

[1] See “U.S. Constitution: Fourth Amendment, Search and Seizure,” Findlaw.com, “The concept of ‘probable cause’ is central to the meaning of the warrant clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define ''probable cause; ‘the definition is entirely a judicial construct. An applicant for a warrant must present to the magistrate facts sufficient to enable the officer himself to make a determination of probable cause. ‘In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.’ http://caselaw.lp.findlaw.com/data/constitution/amendment04/02.html

[2] ACLU, “Surveillance under the USA PATRIOT Act,” April, 2003, http://www.aclu.org/national-security/surveillance-under-usa-patriot-act

[3] Ibid.

[4] No. 08-30385, D.C. No. 1:07-CR-30036-PA OPINION; motion for rehearing en banc denied, 591 F.3d 1212, 1214-15 (9th Cir. 2010).

[5] Oliver v. United States , 466 U.S. 170, 180.

[6] Op. Cit. Footnote 4.

[7] Ibid.

[8] Elias, Paul, “FBI’s warrantless GPS tracker on car becomes privacy issue; judge cites Orwell’s ‘1984,’” Cleveland.com, October 17, 2010, http://www.cleveland.com/nation/index.ssf/2010/10/fbis_warrantless_gps_tracker_o.html

Saturday, December 4, 2010

Truth, Lies and the Price of Distraction

Redirecting the attention of a fickle and dissatisfied public is nothing new in the history of politics. From the bread and circus days of the Roman Empire through the media driven diversions of 21st century America, the masses have always been corralled from the serious to the trivial when it suited those in power to do so.
Americans, who watch on average more than 30 hours of television per week, often know more details about reality shows, Hollywood scandals and sports statistics than they know of world affairs and the activities of their own government. Coupled with radio and television hosts who whip up fervor for or against one cause or another, the ability of the public to sift through information determines the quality and behavior of their political leadership.
Nevertheless, in order to make a meaningful contribution toward the so-called democratic process, there must be a willingness and ability to think against the grain. In other words, to resist “group think,” a condition that fosters conformity for fear of social disapproval, those who demand truth and accountability often clash with those whose ideas are defined and popularized by media.
For instance, after 9/11, through Bush administration assertions that saturated the airwaves for months, the American public was led to believe that if not stopped, Saddam Hussein would arm terrorists with weapons of mass destruction.  While the public for the most part bought into this argument, those opposing such allegations were labeled unpatriotic as voices of restraint were drowned out by those for war.
However, in the midst of this debate, a sizable portion of the American public was distracted not only through patriotic zeal, but also from a media that exploited the inconsequential. According to Nielsen ratings, only weeks before the start of the Iraq War, top programs on basic cable television, for 18 to 49-year-olds, included WWE wrestling and two MTV reality shows: The Osbournes and The Real World.
An example that American viewing habits had been focused on the trivial and the frivolous during a time of international crisis, the American electorate permitted unwise policymakers to act with impunity.  Leading not only to the deaths of American soldiers, but also to the death and displacement of hundreds of thousands of innocent civilians, a misinformed American public allowed for a war of which the long-term effects remain to be seen. 
Today, with an economy in shambles, high unemployment and a falling dollar, conservatives were reelected to solve the very problems they helped to create. As a deeper economic crisis looms on the horizon and the potential for additional conflict spreads, it is doubtful the incoming Congress will offer better ideas or solutions than what have already been suggested or tried.
       In the meantime, while America attempts to reduce its footprint in Iraq, there is no end in sight to the fighting in Afghanistan. As Yemen, Somalia and Pakistan remain global hotspots for covert intervention, military options regarding Iran and North Korea remain on the table threatening to spark another world war. 
While these realities continue to unfold, sport and play remains high on the list of American priorities. As knowledge of the trivial and inconsequential dominates that of the serious and substantive, it is not hard to see that America is in a state of disrepair. If the future belongs to those who have mastered the disciplines of a high civilization and America’s grasp of such disciplines is waning, then it is safe to conclude that America may very well lose her place, not only as a technological innovator, but also as the leader of the so-called free world.
Like the fall of other great nations and empires before, corruption is contributing to the decline of the American people. As “greed, the lust for power and inordinate self-interest” guides the thinking of policymakers, one of their most effective tools of influence remains the corporate mass media.
While the consequences may not show immediately, there is a high price to pay for failing to hold government accountable. A public more concerned with entertainment than with reality allows the interests of the few to be served over the interests of the many.
In light of this fact, media consumers have a responsibility to be not only intelligent, but also wise as they learn to distinguish what is or isn’t in their best interests. As critical thinking and thoughtful analysis competes with entertainment oriented programming, America’s distracted citizenry, while influenced by propaganda, invests too much of its time in the world of make-believe. Now is the occasion for reassessing priorities in order to mitigate the rude awakening that is surely coming.