4th Amendment Challenged at SCOTUS

SCOTUS TO TAKE UP 4TH AMENDMENT ISSUES

THIS TUESDAY 

While "We The People" have been quietly kept unaware by media on both sides of the isle, two very important issues have been slowly making their way through the American Judicial System. Both hinge on the 4th Amendment and specifically, the people's rights to feel safe from the Government in their possessions against unwarranted searches and seizures and to maintain a reasonable expectation of privacy.

 

According to the article published over the weekend,  "President Barack Obama's administration and prosecutors from states across the country have lobbied for police officers to be able to search arrestees' gadgets—at or about the time of arrest—without a warrant." 

 

As stated in the article, in both cases, the individuals had been lawfully detained.  Both suspects were then arrested. In both cases, the government (police) searched the contents of the suspects electronic devices without warrants or any obvious probable cause.  Lower courts in both cases have held that the searches were violations of the suspects rights and classified them as unlawful searches and seizures. 

 

If the government had reason to believe that evidence of the crimes for which either party had been detained was present on either of the devices in question, the law is clear that they should have moved for a warrant to search those devices for additional evidence. 

 

In one case, the evidence located in the search subject to arrest had nothing to do with the original crime and it seems that a reasonably prudent individual could not have assumed that evidence of the crimes in question could be secreted on the devices.  In the second case, the suspect was arrested for selling drugs from his car.  One could make an obvious argument that drug dealers routinely use their cell phones to set up both sales and purchases of illegal substances however, the "Plain View Doctrine" should not apply to the contents of the phone and certainly nothing on the phone's surface could be directly connected to the sale or distribution of control dangerous substances. 

 

More importantly in the case of the drug dealer, there were no exigent circumstances which would tend to show that if the arresting officers did not immediately search the suspect's phone, would have led to the loss or destruction of evidence in the matter.  Quite the opposite is true, the phone was safely taken into police custody as was the suspect.  It could have been properly safeguarded until a warrant based upon probable cause was presented to a Judge who might have issued a legitimate search warrant for the contents of the phone and the officers would have found the suspect's home and thus the additional drugs.

 

In that case, it is important to note that "Fruit of the Poison Tree" doctrine should be applied and any and all evidence obtained following the unwarranted search of the suspect's chattels should have been excluded from the trial. 

 

The other case is a bit more complex as to the issue of the suspects vehicle being searched and the police then locating illegal firearms inside the engine compartment.  The suspect was lawfully stopped and found to be driving a vehicle with expired tags and with an expired license.  In California, there is a great deal of history of the Police impounding vehicles under these exact circumstances.  It is routine to inventory a vehicle prior to impounding it so there is a strong possibility that the firearms would have been located whoever, there is a strong argument that under normal inventory procedures, the engine compartment may not have been gone through as this was an inventory not a search.  The discussion about the officers going through the electronic device of the suspect holds the same arguments as previously stated with the exception that the suspect may have been cited and released and therefore his property would have been released as well. 

 

The issue remains that these both appear to be unlawful searches and invasions of a person's reasonable expectation of privacy.  Remember that neither suspect had been tried in a Court of Law and should therefore have been presumed innocent until proven guilty.  They still maintain their Constitutional Rights and those rights appear to have been impinged by the Government.

I AM MY BROTHERS KEEPER

I AM MY BROTHER'S KEEPER

 

I am one of the plaintiff's in the case regarding the government's blatant violations of the 4th Amendment Rights to Reasonable Expectation of Privacy within homes and possessions.  That case, Civil Action No. 1: 13-cv-00851 being heard in The United States District Court for the District of Columbia has been quietly progressing with little to no media attention because in part the press either does not wish to bring this matter to the forefront or they have been intimidated by the White House to remain as close to mute on the matter as is possible.

  

As I have noted in previous entries here, the Government's complete disregard for the 4th Amendment in it's data collection efforts is not only unprecedented by completely unconscionable. 

According to Wikipedia:

 

"The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights that prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. It was adopted in response to the abuse of the writ of assistance, a type of general search warrant issued by the British government and a major source of tension in pre-Revolutionary America."

 

In his recent disclosure of how the President was going to fix the current NSA debacle, President Obama stated in a Speech at the Justice Department;

  

"Obama directed that from now on, the government must obtain a court order for each phone number it wants to query in its database of records"

 

Perhaps I am still just a dumb ol' country boy from small town USA, but it seems to me that the 4th Amendment was exceptionally clear in requiring the Government to obtain a Search Warrant issued by a Judge based upon Probable Cause before violating a citizen's reasonable expectation of privacy.

 

I am not a Constitutional Lawyer.  I do not profess to know all of the case law that has transpired over all the years with regards to the 4th or any other Amendment to the Bill of Rights, but I am positive that I have a clear understanding of the fears of our Founding Fathers when they determined that it was necessary to draft and ratify the 4th Amendment.  The entire purpose of the 4th Amendment was to limit the Government's ability to conduct unwarranted searches and seizures and to guarantee the citizen's reasonable expectation of privacy in their persons and possessions. 

 

For the Administration to so flagrantly disregard the intent of the 4th Amendment on such a broad scope as is being conducted under the veil of secrecy and the Foreign Intelligence Surveillance Court without shining the light of day on their complete lack of probable cause to secretly gather, store, manipulate and farm your records and mine is the epitome of the violations our Founding Fathers set out to protect us from. 

 

Perhaps this all becomes a bit more clear when we evaluate the President's position of being "my brother's keeper". 

 

In his Easter address, President Obama stated:

 

"The common thread of humanity that connects us all – not just Christians and Jews, but Muslims and Hindus and Sikhs – is our shared commitment to love our neighbors as we love ourselves.  To remember, I am my brother’s keeper. I am my sister’s keeper.  Whatever your faith, believer or nonbeliever, there’s no better time to rededicate ourselves to that universal mission." 

 

Most good God fearing folk were raised to know the story of Cain and Able as it is told in the Bible.  The Bible reports in Genesis 4:9  "Then the LORD said to Cain, "Where is Abel your brother?" And he said, "I do not know. Am I my brother's keeper?"

 

 



A PERFECT DAY

I think that it is important to report the good as well as the bad.  Many have no idea that besides being a Retired Military Police SSG, a licensed California Private Investigator, a registered Process Server and yes, even a licensed Lock Smith that a little more than five years ago, I formed a small but effective private foundation that gives back just a bit to the families of the men and women who so bravely serve our country.  Over the past five years, the North Pole Foundation has gathered literal truck loads of toys which are delivered to the Family Readiness Officers on Camp Pendleton to be given to the children of those who were deployed in harms way or were otherwise in need to "keep the dream alive".

So yes Virginia and all those other boys and girls, there is a Santa Claus and he never sees you and never watches you open the gifts that you receive for the holidays, but it would pain him and everyone that supports his cause if you did not get those small tokens of appreciation from your unnamed benefactors.  The North Pole Foundation has also sent thousands of DVD's to the men and women serving in Afghanistan and other parts unknown because attempting to use their laptops on the Internet to pass time could result in the enemy reverse engineering their locations through the satellites and thus targeting them and their brothers and sisters in arms. 

We are doing wonderful things for the children in shelters in Orange and Los Angeles Counties and our friends are making differences to those in need in Arizona as well. 

There is more, much more but that isn't the point today.  Today was a perfect day.  Several days ago I received a phone call from the 1st Marine Logistics Group Family Readiness Officer.  He asked if I would be able to meet him on Camp Pendleton this morning because the base was honoring those who volunteered over the past year.  As always, without a moment's hesitation, I informed Gloria that we had plans and needed to be out the door by 07:30 this morning to meet Mr. Bradford.  We arrived a bit early but in my defense, I was taught that five minutes early was ten minutes late and judging traffic in southern California is never exactly easy. 

Upon our arrival at the Pacific Views Event Center, I donned my coat and tie and waited patiently with Gloria until Mr. Bradford arrived.  He greeted us with a smile and a genuine embrace and then escorted us to our table, stage center and politely informed us that 1st MLG, Brigadier General Vincent A. Coglianese and his wife Mary would be seated with us as well as the 1st MLG Sergeant Major Thrasher and his wife.  There were light refreshments and when Eric returned with a beverage, I observed that he had a program which I had not seen.  I quickly went and found the young Family Readiness Officer who was passing them out and ask for one for myself and one for Gloria.  As I returned to my seat, I opened the program and realized that I was listed as a nominee for the Civilian Volunteer of the Year Award. 

No, I was not the selected recipient of the award and honestly I think that everyone else who was nominated deserved the award far more than I.  In true military fashion, I just herd the cats that make everything happen and although it was a huge honor to be nominated, I am thrilled to have not won the award.  It is however infinitely important to recognize the efforts of so many who volunteer with the North Pole Foundation and who donate items to be auctioned off and who give toys to be delivered or spend money at events that allow us to purchase the gifts that we give. 

This was a perfect day.  I was able to listen to Mary Coglianese talk with me about her amazing spirit.  She has had diabetes for a very long time and her sight is impaired greatly.  She shared with me as if she had known me for years not moments.  As we were ending our conversation and preparing to sit down for the ceremony, Mary made a comment to me about her outlook on life and simply stated she said "At least it isn't cancer." 

This amazing woman has refined the importance of her challenges to the mantra "At least it isn't cancer."  I know that that is her version of "Retreat Hell, we just got here." and I knew instantly that her spirit is unstoppable. 

As the ceremony concluded, the General and the Sergeant Major both addressed me as if they knew me forever.  They asked about my son the Marine who was the catalyst for all of this and they were truly concerned.  When I told the General that  my son had boarded a ship on Sunday, the General said oh yea and named the vessel and then said that he had gone down to see them off yesterday. 

The questions shocked me that they remembered so much about why The North Pole Foundation was started and they impressed upon me the gratitude of so many Marines, Sailor's their wives and children who have been touched by our willingness to give just a bit of ourselves and our time and money.  I have spoken hundreds of times about how our gifts impact those we never meet but it was not until today as I was shaking the General's hand and he quietly and unceremoniously slipped me his Challenge Coin, that I realized the real gift of giving.

We make a difference.  Our small tokens of gratitude and appreciation remind those who would walk through the fires of hell for us, people they have never met and probably will never meet, understand that there service and sacrifice is noted.  In turn, the small token of a Commander's Challenge Coin slipped into an empty palm during a handshake returned the message that what we do, what we give is noted and matters.  What a perfect day.

AT WHAT PRICE?

AT WHAT PRICE?

 

 

As the Beetles song goes, "I read the news today, Oh Boy".  Once again lives are forever destroyed and irrevocably altered on Fort Hood.  The facts are vague at best but what seems to be confirmed is that a troubled young soldier, father and husband returned from war and had been assessed with depression and "behavioral and mental" maladies.   It is confirmed that he was on anti-depression medicine and the "system" was evaluating him for possible PTSD.  The short version is that he snapped.  He killed three other patriots, injured 16 more and then when confronted by a Military Police Patrol Woman, took his own life.

 

In short, the system had an epic failure once again.  This young man arrived on Fort Hood less than three months ago.  His prior command, although treating him for his mental issues, allowed him to PCS (Permanent Change of Station) to Ft. Hood and somewhere, somehow in all of the budget cuts and bull, this kid became so messed up that he found no other solution than to claim lives, injury others and then end his own existence.

 

Even if this soldier who claimed to have suffered TBI (Traumatic Brain Injury) while deployed to a combat zone had chosen to end only his own life this would be a tragic event.  The fact that the White House, Congress the Senate and yes, even senior military leaders are talking about budget cuts including those that fund veterans benefits which include assessment and treatment at the V.A. Hospitals in the face of the ever increasing post deployment struggles our young patriots are facing is, in my humble opinion, unconscionable if not at least border line criminal.

 

We are taking 18 year old kids who think that they have a clue what it is like to witness death because of the graphic nature of their video games and thrusting them in to real world horrors of war.  They are seeing sights no one should have to endure.  They are engaged by enemies who use hit and run tactics from hardened positions and then they are forced to radio up the Chain of Command and wait for authorization to return fire and defend themselves while their comrades and friends are being decimated right in front of them.  By the time the authorization comes back down the Chain of Command, the fight is over and the enemy is gone. 

 

They come home and they are mailed packets of questions that are supposed to raise flags if that service man or woman might have lingering issues from their exposure to the spoils and ravages of war.  Are you kidding me?  No one can go to war and come back the same as when they left home.  If you have never had to take a live or faced the reality of your life being taken, you have idea how to assess, treat or even establish common ground with someone who has.  In our father's father's days, the old war horses went to the VFW's and AM-VET's where they talked with others who had been there and done that.  Today, we ask our young warriors to fill in the blanks of a pre-printed form and give them no real outlet to deal with their very true and raw emotions. 

 

Yes, some have returned and feigned PTSD as a way to get out of the armed forces.  Yes, the powers that be should be cautious and complete in assessing our military members and ensuring that they get proper treatment for whatever malady they bring back with them from war. 

 

But at what price are we cutting the budgets that deal with these issues?   We have epic numbers of brave souls returning from deployments who are committing suicides or acting out in manners that most cannot understand and simply chalk up as bad behavior.  It is possible that these are their cries for help and because the powers that be are making conscious choices to cut the funding to help these veterans return to as close to a normal way of life as is possible, they are dying.  Dying literally and figuratively. 

 

So I ask you, at what price are the budget cuts coming?   Personally I would rather see a Congressman or Senator's  aide be force to drive their own car and pay the same high prices for gas as I do and send that money back into the system to treat the mental wounds of our warriors.  I would gladly witness the President taking one or two less fund raising trips a year and having the costs of Air Force One, the pilots, ground crews, security, hotels etc.. conveyed to the V.A. for the proper diagnosis and treatment of even one or two additional returning hero's.  Why not stop the White House Press Diner and take those funds to pay for a year's salary for just one true mental health professional to assess whatever additional percentage of returning service members properly without worrying about running out of funds? 

 

Lastly, I heard the banter of the news about why not allow service men and women carry concealed weapons on base.  As a retired Military Police Officer I can assure you that that would be an even bigger epic failure on the part of the Government and the Military.  Set up an additional duty roster to have soldiers actually secure their perimeters domestically as if they were abroad and in harms way, absolutely.  If you have ever made a felony traffic stop, pulled someone over who you knew was armed and dangerous, imagine being that poor young MP on patrol knowing that potentially every time you pulled someone over they might be more heavily armed than you and it is easy to see the flaws in that line of thought.  The men and women of our armed forces are highly trained in the art of war including marksmanship.  Let's protect them with common sense and place additional armed guards on the bases who may have been able to respond in a more timely manner then did the MP;s in this latest incident.  Remember that the ratio of on-duty MP's to soldier's on a standard base is minute.  The "Good Order and Discipline" of the military ensures that generally we don't need one patrol person to every hundred people on base.  Ft. Hood is 300 square miles in size.  The MP's are spread thin to say the least so the response time under the conditions was more than reasonable.  What was unreasonable was the fact that this young man was failed by the system and one or two less budget cuts within the military may have made a difference and saved lives.

WHAT IS HAPPENING TO THE 4TH AMENDMENT?

 

We The People have lost our minds.  We are all aware of the transgressions of the Government and specifically the NSA with regards to our reasonable expectations of privacy and our right to feel secure in our homes against unreasonable searches and seizures.  Recently, the Obama administration and the President himself announced sweeping reforms that were being proposed to stop the perceived violations of the peoples rights by the government. 

 

In a March 24th New York Times article entitled "Obama to Call for End to N.S.A.’s Bulk Data Collection" the following "changes" were proposed.

 

Under the proposal, they said, the N.S.A. would end its systematic collection of data about Americans’ calling habits. The bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would. And the N.S.A. could obtain specific records only with permission from a judge, using a new kind of court order.

 

Following my long career in Law Enforcement in the Military, I recalled being taught and having had to follow the requires set forth in the 4th Amendment to obtain a Search Warrant.  A Search Warrant is what law enforcement are required to have in order to search you, your possessions or chattels, and / or your car and home UNLESS under exigent circumstances waiting for the issuance of a warrant would cause the lass of evidence or life etc..

 



From Wikipedia, the free encyclopedia    

 

The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights that prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. It was adopted in response to the abuse of the writ of assistance, a type of general search warrant issued by the British government and a major source of tension in pre-Revolutionary America. The Fourth Amendment was introduced in Congress in 1789 by James Madison, along with the other amendments in the Bill of Rights, in response to Anti-Federalist objections to the new Constitution. Congress submitted the amendment to the states on September 28, 1789. By December 15, 1791, the necessary three-quarters of the states had ratified it. On March 1, 1792, Secretary of State Thomas Jefferson announced the adoption of the amendment.

I am not a Rhodes Scholar nor am I the brightest bulb burning on the tree at all times, however, it seems clear to me that the Government's creation of a new kind of court order continues to circumvent the already functional and time tested method to obtain information and / or evidence.  I am all in favor of thwarting terrorist plots.  I am also in favor of stopping criminal plans before they are put fully into motion.  That said, I am still a simple country boy from the Midwest and I don't know crap from apple butter, but I do taste the difference when you spread them on bread and try to force feed them to me. 

The FISA Court is a farce.  It was created to circumvent the legal methods that were set in motion in 1792 to stop the Government from abusing its powers against "We The People".  At present, NSA is not required by the FISA Court or the Government and it's agents to show probable cause as outlined in the Bill of Rights to search your records.  They have a standing "LETTER" that orders the phone companies to turn over your calling history and other information simply because they want it.  They are doing the same with banking transactions and God only knows what else.  Yes, 9-11 was tragic and the loss of American and other lives on our soil was devastating but I had nothing to do with it.  I spent a lifetime in the Military supporting and defending the "Constitution of The United States against all enemies, Foreign AND Domestic."  I have worked in places that don't exist.  I have been entrusted with the security of persons and information that cannot to this day be discussed.  I am not a threat to the United States. 

I am a patriot.  I believe that those who can, MUST stand against injustices for those who themselves cannot or will not.  I believe that a government not kept in check will usurp all of the rights and freedoms its citizens have fought to secure and that if we do not exercise our rights and freedoms they will be forever lost to us.

A system exists that was specifically designed to establish procedures and protocols to ensure that the Government over "We The People" did not grow so big or so powerful that it could forget that it is "OF the People, BY the People and For the People".  As time and technology both advance, We The People need to be even more diligent in our efforts to ensure that Our government does not forget itself or our rights and freedoms.

Semper Vigilantes

 

ROMA "GODMOTHER" SENTENCED IN FLA

For one of the biggest stories effecting the Gypsy / Travel Crime Families, the media on the left coast has been decidedly quiet as Rose Marks, the "God-Mother" of the Marks Rom or clan was sentenced to just over 10 years for her part in the fortune telling fraud cases that she and her family orchestrated.  In addition, a great majority of her family plead guilty to lesser charges and the ironically, the Judge who presided over the case was not really sympathetic towards the victims. 

U.S. District Judge Kenneth Marra indicated that he found it difficult to understand how educated men and women could fall prey to the Marks Rom or family scams.  It is astounding to me that a Federal Judge could not wrap his head around the methods that Gypsies employ to take financial advantage of their victims.  It's simple, they listen.  They listen to what their prey relates and then mold their schemes specifically for each unsuspecting and God fearing subject and then they adapt their stories along the way as the plot of their victim's life unfolds.

They are master manipulators who are trained from birth to take up their roll in the family business.  Instead of attending pre-school and kindergarten, the Roma children are molded from the youngest of ages to listen intently to what their victims say and equally as importantly, to what they don't say and then they play into those needs, desires, weaknesses and all the while, embed themselves into every aspect of their target's life. 

They form an absolute co-dependent relationship where the victim eventually cannot make a single decision without first consulting their "spiritual advisor" and friend.  In many cases, the gypsy convinces their prey that they were related in a prior life and most importantly, they pray together.  They pray for divine intervention and that God will help them with whatever issue is at hand and then, the fortune teller simply tells the unsuspecting yet highly intelligent and highly functional victim that God spoke to them and told them that somehow, money would solve the problem.  That money of course has to be sacrificed or blessed in some way for the psychic to be able to help their "friend" and the con runs for as long as the victim has money and a willingness to part with it.

Once the prey wises up, they are either too embarrassed that they were so easily manipulated that they cannot or will not report the losses or they are intimidated into remaining silent.  Either way, with profits in the millions, the Rom is not going to let their livelihood go lightly.  The Prosecutors and Judicial Officers of the land need to get in-depth training on the methods of the Travelers and more importantly develop a willingness to understand that these are not victimless crimes.

When more gypsies begin to be successfully prosecuted, these crimes will at last begin to diminish.

See the underlying story here: 

http://www.sun-sentinel.com/news/local/crime/fl-psychic-rose-marks-sentenced-20140303,0,4722066,full.story

What the heck did President Obama say?

Last night I watched and listened to President Obama's 2014 State of the Union Address. 

Today, I found and read the transcript because I was plagued with a burning need to find out if what I thought I heard the President say is really what had been declared by him.  Here is the direct quote from the full transcript:

That's why, working with this Congress, I will reform our surveillance programs because the vital work of our intelligence community depends on public confidence, here and abroad, that privacy of ordinary people is not being violated. (Applause.) And with the Afghan war ending, this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay -- (applause) -- because we counter terrorism not just through intelligence and military action but by remaining true to our constitutional ideals and setting an example for the rest of the world.

I found this of particular interest and simply want to examine it briefly in light of the law suites against the government for the violations of our Constitutionally protected rights to reasonable expectations of privacy and against unwarranted searches and seizures, etc.. as written into the 4th Amendment (see blog below). 

So what the President said again was:

"That's why, working with this Congress, I will reform our surveillance programs because the vital work of our intelligence community depends on public confidence, here and abroad, that privacy of ordinary people is not being violated. (Applause.) And with the Afghan war ending, this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay -- (applause) -- because we counter terrorism not just through intelligence and military action but by remaining true to our constitutional ideals and setting an example for the rest of the world."

Just looking at that first portion, President Obama has said that there is nothing wrong with the surveillance programs currently spying on normal everyday Americans.  Citizens who have never even been a blip on the NSA's radar in the past and now, with no reasonable suspicion and absolutely no probable cause, the Government has devised a system through the FISA Court wherein they can obtain letters authorizing them to force private companies to turn over their information on completely innocent American's. 

If, as the President would have us believe, there is absolutely nothing illegal or immoral about these programs, why then would he have declared in his State of the Union Address:

"That's why, working with this Congress, I will reform our surveillance programs because the vital work of our intelligence community depends on public confidence, here and abroad, that privacy of ordinary people is not being violated. (Applause.)"

If it was not broken, why on earth would he be working with Congress to reform it to ensure that the privacy of ordinary people is not being violated?

The President's closing portion of that train of thought was:

"And with the Afghan war ending, this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay -- (applause) -- because we counter terrorism not just through intelligence and military action but by remaining true to our constitutional ideals and setting an example for the rest of the world."

If this president is truly concerned about remaining true to our constitutional ideals, why has he not suspended this program and demanded that the NSA, the FBI and the Government at large, "support and defend the Constitution of the United States" as sworn and immediately go back to obtaining warrants supported by probable cause to obtain the records of the citizens that the government is there to serve?

Remember that this is the same President who said that American's need to recognize that you can't have 100 percent security and also then have 100 percent privacy. 

Here is the applicable quote as taken from Huffington Post:

"I think the American people understand that there are some trade-offs involved," Obama said when questioned by reporters at a health care event in San Jose, Calif.

"It's important to recognize that you can't have 100 percent security and also then have 100 percent privacy and zero inconvenience," he said. "We're going to have to make some choices as a society. And what I can say is that in evaluating these programs, they make a difference in our capacity to anticipate and prevent possible terrorist activity."

Remember that when asked in open Court to give one single solitary example of this program ever having worked to identify and thwart a pending act of terrorism against the United States or it's citizens' the government was unable to do so. 

Since there is no quantifiable measure of success with this program and in that the President himself says that there must be reform to ensure that the "that privacy of ordinary people is not being violated." shouldn't this government admit that it crossed the lines and take every possible step to bring itself back in check "by remaining true to our constitutional ideals and setting an example for the rest of the world."

Semper Vigilantes