Tag Archive for: Fourth Amendment

UH-OH! Could A States’ Rights Battle Be Emerging?

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This is a call for State governments to assert themselves. States Rights was/is a big issue in the South and the Southern Cross battle flag kind of stood for that.

Michael Patrick Leahy for Breitbart Writes:

A new Rasmussen Poll indicates that a growing number of Americans want state governments to tell the Supreme Court to get out of the business of rewriting laws and telling American citizens how to live their lives.

In a new poll, Rasmussen reported the percentage of Americans who want states to tell the Supreme Court it does not have the power to rewrite the Affordable Care Act or force sovereign states to authorize gay marriages has increased from 24 percent to 33 percent after last week’s Constitution-defying decisions by the court.

A closer look at the poll results indicates that popular sentiment for state defiance of the federal government extends beyond just the Supreme Court’s latest decisions.

“Only 20% [of likely voters] now consider the federal government a protector of individual liberty,” the Rasmussen Poll finds. “Sixty percent (60 %) see the government as a threat to individual liberty instead,” it adds.

“Take this regulation and shove it,” and “take this grant and shove it,” are two additional battle cries which appear to resonate with a growing popular sentiment, especially in “flyover country,” those 38 states outside the dozen in which President Obama won more than 56.2 percent of the vote in 2012.

(In descending order of support for Obama, those twelve states are: Hawaii, Vermont, New York, Rhode Island, Maryland, Massachusetts, California, Delaware, New Jersey, Connecticut, Illinois, and Maine. Arguably, three additional states where President Obama won between 54 percent and 56.2 percent of the vote in 2012 could be added to this list: Washington, Oregon, and Michigan.)

CONTINUE READING HERE:

Time for the States to Declare Independence From the Federal Government – Breitbart

EDITORS NOTE: This column originally appeared on Allen West Republic.

Supreme Court to DoJ: Fourth Amendment Is Not a “Useless Piece of Paper”

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A big win for personal liberty and the Bill of Rights EVAN BERNICK.

Any news that the Fourth Amendment is still being actively enforced by the courts is good news. At oral argument in Rodriguez v. United States, a case involving drug-sniffing dogs, Justice Sotomayor urged that if the arguments made by the Justice Department’s lawyer were accepted, the Fourth Amendment would become “a useless piece of paper.”

On Monday, in an engaged opinion written by Justice Ginsburg, the Supreme Court rejected those arguments and breathed some life into an essential check on government power.

The facts of the case: On March 27, 2012, Nebraska police officer Morgan Struble stopped Dennys Rodriguez for swerving once towards the shoulder of the road. After questioning Rodriguez and issuing him a written warning, Struble asked permission to walk his drug-sniffing dog around the outside of Rodriguez’s vehicle.

When Rodriguez refused, Struble made him exit the vehicle and wait for backup to arrive. Roughly eight minutes later, a second officer showed up, and Struble led his dog around the car. The dog gave an “alert” for illegal drugs, and a subsequent search turned up a bag of methamphetamine.

The Supreme Court held in Illinois v. Caballes (2005) that the use of drug-sniffing dogs during routine traffic stops does not violate the Fourth Amendment if the stop is not “prolonged beyond the time reasonably required to complete that mission.” In this case, however, the “mission” was already complete because Officer Struble had finished all of the inquiries and paperwork associated with the traffic stop itself.

The question for the Court was thus whether police can begin another mission — that is, an investigation not associated with the violation that occasioned the stop — without reasonable suspicion that the driver (or a passenger) has committed some separate offense.

At oral argument, the Justice Department’s lawyer, Ginger Anders, contended that the fact that the initial mission (writing Rodriguez up for crossing the white line) was complete should not preclude the officer from embarking on another mission. She added, “From the officer’s perspective, I think there’s an interest in officers having some leeway to sequence the stop.”

Such unwarranted “leeway” was not forthcoming.

In her opinion for the Court, Justice Ginsburg drew a principled distinction between “highway and officer safety” interests implicated by routine traffic stops and interests in “detect(ing) crime in general or drug trafficking in particular.” She determined that the dog sniff was not related to the former interests and, therefore, was not within the scope of the initial traffic stop.

Ginsburg summarized the government’s arguments thus: “(B)y completing all traffic-related tasks expeditiously, an officer can earn bonus time to pursue an unrelated criminal investigation.” But pursuit of the unrelated investigation, as Ginsburg explained, would be unreasonable if it were not supported by individualized suspicion because it would extend the seizure beyond the amount of “time reasonably required to complete (the stop’s) mission.”

The Fourth Amendment has not weathered the past half-century well. The Court’s embrace of balancing tests tied to “reasonable expectations” of privacy that “society” is “prepared to recognize as legitimate” has resulted in an an expanding zone of government intrusion.

Although the Fourth Amendment was designed to act as a bar against searches and seizures absent individualized suspicion, it has been construed to permit precisely such searches and seizures in the context of so-called “administrative inspections,” a broad category which encompasses inspections of buildings and workplaces, “administrative searches” of people and their possessions, and searches of businesses in “closely regulated” industries.

The Fourth Amendment’s decline has been abetted as well by the Court’s reflexive deference to law enforcement and its willingness to create doctrines out of whole cloth to ensure that police officers enjoy far more leeway than doctors, pilots, and others who routinely make life-or-death decisions under stressful conditions. The judicially-created doctrine of qualified immunity has effectively insulated police from liability for Fourth Amendment violations and ensured that victims bear the burden of their own injuries.

Monday’s decision, with its insistence upon individualized suspicion, is a welcome return to first principles. Public officials are our servants, not our masters, and they must be held accountable for the responsible exercise of the limited authority delegated to them. Any intrusion upon a person’s liberty without a rational, evidence-based justification is one that that the Constitution does not tolerate.

Justice Sotomayor’s criticism of the government at oral argument brought to mind the words of James Madison, who argued in Federalist 48 that mere “demarcation on parchment” of constitutional limits would be insufficient to secure liberty. InRodriguez, the Court adhered to its duty to give effect to those barriers.

Evan Bernick

Evan is the Assistant Director of the Center for Judicial Engagement at the Institute for Justice, a libertarian public interest law firm.

A President, Not a Potentate

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In 2010, before the midterm elections, President Obama said, “We’re gonna punish our enemies and we’re gonna reward our friends.”

Instead, it was the Democratic Party that got punished as voters rejected its candidates, rendering it some of its biggest losses since the Great Depression. The Republican Party gained 63 seats in the House of Representatives, recapturing the majority, the largest seat change since 1948.

In November 2014, the voters gave complete control of Congress to Republicans for the first time in eight years as they retained every one of the GOP Senate seats up for reelection and added six more to ensure a Republican majority.

What was apparent before the 2010 election and since has been a President who regards himself and his powers as that of a potentate, a monarch scornful of the Congress in the same way English kings scorned their parliament until forced to relinquish total power and grant individual freedom to their subjects.

In the twenty-two months before Obama’s second and final term ends, I am, I confess, increasingly fearful of what he has in mind for America. The voters have already made it clear they oppose his gun control efforts, his views on illegal immigration and they want ObamaCare repealed.

As this is written, Americans are growing increasingly concerned over the outcome of the negotiations with Iran. Obama’s chief of staff, Denis McDonough, has written to Bob Corker (R-TN), the chairman of the Senate Foreign Relations Committee, harshly criticizing the notion that the Senate should have anything to say regarding the negotiations and suggesting that Obama has the authority to lift the sanctions imposed by Congress on Iran. He doesn’t.

A White House that believes it has powers that a simple reading of the Constitution tells them are limited is dangerous place. Obama’s White House has been gaining a reputation for lawlessness and we have seen this in the way the IRS denied conservative groups the right to tax-exempt status to which they were entitled. Then, not so mysteriously, the emails that would reveal this were “lost.”

In the wake of the Benghazi tragedy in which our ambassador and three other staff were killed on September 12, 2012—the anniversary of the attack on the World Trade Center and the Pentagon—the emails of the then-Secretary of State Hillary Clinton have gone missing along with all the rest of those wiped clean from her personal server. I still recall seeing her stand beside the President when he blatantly lied to Americans and the world that the attack was the result of a video no one had ever seen.

Cover - Our Lost ConstitutionIn his book, “Our Lost Constitution: The Willful Subversion of America’s Founding Document”, by Sen. Mike Lee (R-Utah) he devotes a chapter to the Fourth Amendment:

“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 probably cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Colonial Americans had watched a famous case in England in which John Wilkes had led the fight to ensure that the King could no longer arbitrarily search and seize the property of anyone. They had fought a Revolution to be free of such tyranny. In the effort to secure the ratification of the Constitution, in 1789 James Madison began drafting the Bill of Rights that several of the states said had to be part of the Constitution if they were to ratify it. It was introduced to the First Congress that same year.

Sen. Lee expresses concern that “for the past eight years, the federal government has relied on an excessively broad interpretation of an excessively broad provision of the USA Patriot Act to collect and, in some circumstances, search through vast amounts of information that most Americans would consider both private and entirely unrelated to national security.”

Noting the intelligence agencies such as the National Security Agency that routinely gather enormous information about all our electronic communications, telephone calls and email, Sen. Lee says that “One could argue, however, that that far greater threat to government of the people, by the people, and for the people is the near certainty that those who wield this power will eventually use it to identify and punish anyone whom may disagree with them. This type of abuse could weaken or even destroy constitutionally limited government as we know it.”

That’s what has me worried specifically about Barack Obama. I have no doubt at all that he would and probably has used the vast information gathering capacity at his disposal to “punish” those he regards his enemies.

Consider what he did to Iraq War hero Gen. David Petraeus who he had appointed as Director of the CIA. He drove him from that post and threatened him with jail for an infraction that likely was discovered by monitoring his private communications. By contrast, Hillary Clinton’s email server was, according to intelligence experts, likely hacked to the point where our enemies knew exactly what she and the State Department was doing. And she wants to be your next President.

My ultimate concern is that Obama might declare martial law for whatever spurious reason he would give. It would suspend the Constitution and leave us with no rights at all, subject to arrest for resisting his takeover of the nation. It would also mobilize the largest army in the world…America’s hunters and gun owners!

Obama has been working to federalize police authorities around the nation. He has purged the military of any officer that was deemed to disagree with his policies. All that stands between us and him is the Constitution and Congress. And the fact that millions of Americans, thanks to the Second Amendment, are armed in the event he tries to assert dictatorial powers.

© Alan Caruba, 2015