Fourth Amendment

Warrants May Not Be Enough to Make Stingrays Lawful Under the Fourth Amendment

Published on: November 10, 2015 | by Zalkind Duncan & Bernstein LLP

As I discussed in my last post, the U.S. Department of Justice recently published a new policy that generally requires federal law enforcement agencies to obtain a search warrant before using a cell-site simulator device, otherwise known as a stingray. But the policy itself does not create grounds for someone to bring a lawsuit for improper use of a cell-site simulator. People will have to look to the courts, and to the protections against unreasonable search and seizure offered by the Fourth Amendment and by individual state constitutions. While warrantless use of cell-site simulators likely violates the Fourth Amendment, it may be that even warrant-based searches inherently violate our constitutional Fourth Amendment right against unlawful searches because such warrants are, necessarily, general warrants that have long been prohibited.

The Fourth Amendment protects people from unreasonable searches and seizures. Typically, a person’s body, home, and belongings cannot be searched unless the government has first obtained a warrant from the court. The warrant has to be supported by probable cause—in other words, a particular and reasonable basis for believing that a crime was committed, and that a search will turn up evidence of that crime. Of course, Fourth Amendment protections are more complicated than that. For one thing, a person can be subject to a brief seizure and search if a law enforcement officer has “reasonable suspicion” that the person has or is about to commit a crime, or that the person has a weapon on them or in their vehicle. For another thing, law enforcement can use the “exigent circumstances” exception to conduct a search without a warrant, when they think they will not have time to get one. In practice, these exceptions can be abused, sometimes systematically and discriminatorily, by law enforcement (my colleague has discussed this here; the report on stop and frisk practices in Massachusetts, published by ACLU Massachusetts, provides additional insight into the issue). But the Fourth Amendment—and similar rights afforded by state constitutions—continues to be a valuable protection against unreasonable searches and seizures.

Supreme Court: Fourth Amendment Protects Against Electronic Monitoring… Sometimes.

Published on: April 3, 2015 | by David Russcol

In Grady v. North Carolina, the United States Supreme Court unanimously decided that the government conducts a “search” implicating the protection of the Fourth Amendment when it monitors someone’s movements electronically without their consent. This ruling may have some implications for the government’s use of electronic surveillance techniques, but ultimately the reasoning for the decision is fairly narrow. It seems unlikely to significantly affect, for instance, the various widely reported NSA programs that monitor information about the American public.

Grady is an unsigned summary decision, issued without full briefing or oral argument, indicating that the Court viewed it as a minor clarification of existing law that caused no controversy among the Justices. Torrey Dale Grady is a twice-convicted sex offender who has served the sentences for his crimes. Under applicable North Carolina law, after Grady was released, the State obtained a civil court order that, because he is considered a recidivist sex offender, he must wear a GPS monitoring ankle bracelet (or similar monitoring device) for the rest of his life. Grady challenged this monitoring requirement as an unreasonable search under the Fourth Amendment. The North Carolina state courts determined that it was not a search, and so the Fourth Amendment was not implicated.

“I Think What You Did Was Illegal”: Stops and Searches Based on Mistakes of Law

Published on: January 30, 2015 | by David Russcol

The Fourth Amendment protects against “unreasonable” searches and seizures, but what the courts consider “unreasonable” has evolved and shifted over time. One overarching trend over the last few decades is that police officers have been given significant leeway, and usually the benefit of the doubt, to stop and search individuals in various ways. Under federal law, police can search people and their property under warrants that turn out to be invalid, as long as they are acting in the good faith belief that the warrants are valid. The Supreme Court has held that police can validly arrest someone under a law that is later ruled unconstitutional. And police can stop or search someone whom they suspect of illegal activity, even, in some circumstances, if the suspicion was based on inaccurate or faulty information.

One common area where Fourth Amendment rights come into play is traffic stops. The police cannot stop a driver for no reason; such a stop must generally (with narrow exceptions such as sobriety checkpoints) be based on a reasonable suspicion that the driver has violated the law. However, courts routinely uphold stops under the Fourth Amendment when an officer’s attention is drawn to a car based on a hunch (or even racial profiling). A common police tactic is to follow a car until it commits some type of traffic violation or other infraction, and then use that as the basis to stop the car and make further inquiries. Courts have routinely refused to look past this gambit, holding that it is permissible to stop someone if there is in fact a traffic violation, no matter what the officer’s “real reason” for a stop was.