Center for Individual Liberty
By Sean Brian
Editor’s Note: The issues at heart of the cases described below were the subject of pioneering legislation in Utah that now protects stored and transmitted data on electronic devices such as a cell phone. Of course, federal law—and laws in other states—must still be elevated to the same Fourth Amendment standard.
The following is an abridged version of the author’s 33-page article, available as a free download.
Next week, the U.S. Supreme Court will hear arguments in Reily v. California and United States v. Wurie to resolve the deepening division of authority on how the incident to arrest exception should be applied in the context of cell phones. But in such a fast-paced industry, the Court must also consider how the rule will apply as innovators blur the lines between cell phones and other devices that raise the same Fourth Amendment concerns.
The Fourth Amendment guarantees the right to be secure in our persons and possessions by protecting citizens from unreasonable searches and seizures. Usually, this means that police must first obtain a search warrant in order for the search to be considered reasonable. The incident to arrest exception is an exception to the warrant requirement for searches of an arrestee’s person and area within the arrestee’s control (including any containers) by virtue of a lawful arrest. The reasons for this exception were spelled out in Chimel v. California: to ensure officer safety and preserve evidence that the arrestee might destroy, discard, or conceal. However, these justifications are not requirements to be met in order to justify searches on a case-by-case basis, but rather underlying rationales for the exception’s existence. The only requirement for the exception to apply is a lawful arrest.
In his 2014 State of the State Address, Utah Governor Gary Herbert said:
Addressing population growth also involves improving our criminal justice system and providing structure for individuals to become productive members of society. There has been a great deal of discussion about relocating the state prison. This is a discussion worth having, but it must be done in the larger context of reforming our criminal justice system as a whole.
I have asked for a full review of our current system to develop a plan to reduce recidivism, maximize offenders’ success in becoming law-abiding citizens, and provide judges with the tools they need to accomplish these goals. The prison gates through which people re-enter society must be a permanent exit, and not just a revolving door.
In light of the Governor’s priority to address criminal justice reform he has instructed Director Ron Gordon and the Utah Commission on Criminal and Juvenile Justice (CCJJ) to make reforms by the end of the calendar year. This will include reviewing and changing policy as well as proposing legislative reforms for next year’s session. CCJJ has adopted this review project as its priority study item for this year and has been conducting town-hall style public hearings around the state to obtain feedback and suggestions from the public on criminal justice reform.
“The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.” —H.L. Mencken
Henry Louis Mencken likened the scare tactics used to advocate for more government to imaginary “hobgoblins.” From the galleries of the halls of government we often play audience to the terrifying narratives that accompany sage warnings of these menacing “hobgoblins” that threaten our safety. One such hobgoblin is the “future thief.” You may not have realized before that there hides in the shadows a brigand who will swoop in and pilfer future government expenditures if we do not quickly create a program designed to “save money” in the future in a related current program. Each new expenditure, you see, is a way to make more efficient our future expenditures.
This line of reasoning—that we need more government now in order to save future spending via new efficiencies, or by preventing future expensive problems—is similar to the point we made in our recent post where we explained that arguments over fiscal conservatism allow the debate to be shifted from the proper role of government to the “effectiveness” of government programs. This argument circumvents discussion as to whether the government should even be involved in an activity, and subsequently ignores the increasing amount of force vested in bureaucracy. James Madison once warned that “free men must guard against the old trick of turning every contingency into a resource for accumulating force in government.” Each new problem the government seeks to solve presents a contingency that elected officials rush to solve with more government force. We are all witness to the result of this pernicious cycle.
“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 probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” —Fourth Amendment to the U.S. Constitution
Imagine government authorities monitoring your every movement in addition to your every word. Of course, this is now easier to imagine in our post-Snowden world. Fiction meets reality in local law enforcement, for example with technology allowing police officers to indirectly tap your cell phone by fooling it into thinking that their suitcase-sized surveillance device was the nearest cell phone tower. Taking a page out of the NSA playbook, law enforcement agencies around the country are acquiring and using this new technology.
The device mentioned above—one of many technological tools enabling surveillance of the citizenry—is known as a “Stingray.” This telecommunications device intercepts mobile communications by funneling all nearby connections through itself before passing them on to actual cell phone towers. It is highly portable and can be deployed anywhere. It has the ability to allow law enforcement to not only obtain cell phone location data—something they already obtain quite routinely from telecom service providers—but also call records and text message logs. While the specific devices known to the public are not supposed to be able to obtain call or text content, the reality is that we live in an age when such capabilities exist, even if not currently used. While some police agencies and investigators recognize the need to obtain a warrant for this activity, many do not; research indicates that warrants are not being obtained consistently for the implementation of this technology.
“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 probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” —4th Amendment, United States Constitution
Search warrants are critical documents that must be open to public oversight in order to ensure the protection of fundamental Fourth Amendment protected rights.
At the urging of journalists, the Utah court system has recently proposed a change in rules that would end its previous practice of sealing certain search warrants indefinitely. Under the current Utah Rules of Criminal Procedure, rule 40 ensures search warrants are generally sealed for the first 20 days after which they become public. However, the rule also allows sealed search warrants to remain sealed by an application that will maintain the seal indefinitely until the court decides to unseal the warrant for good cause. This unsealing may only be requested by a party who has standing. Thus, warrants that have been sealed longer than necessary will likely remain indefinitely inaccessible to the public.
Yesterday, a group of fathers from around the country filed a federal lawsuit against the state of Utah in federal court for “legalized fraud and kidnapping.” For years, Utah law has allowed biological mothers to leave biological fathers out of the adoption process if the father does not comply with what the suit alleges is a “confusing labyrinth of virtually incomprehensible legal mandates and nearly impossible deadlines in direct contravention of due process, equal protection, and other constitutional rights.” While the suit is being brought by a group of 12 fathers who lost their children with little or no recourse, it is estimated that these practices have also violated the constitutional rights of 300 other similarly situated fathers.
Essentially the process works likes this: two unwed people conceive a child, the father takes an interest in his parental responsibility and desires to raise the child while the mother favors adoption. Over the father’s wishes, the mother secretly travels to Utah where she gives birth and puts the child up for adoption without the knowledge or consent of the biological father. This is usually facilitated by misleading or deceiving the father in some way.
We are pleased by the ruling issued by a federal court judge on Friday to invalidate a key portion of Utah’s anti-polygamy law. Specifically, polygamists are no longer considered felons in Utah for “purporting to marry” and “cohabit” with one another. Pointing to the First Amendment’s free exercise of religion clause, and the Fourteenth Amendment’s due process clause, Judge Waddoups struck down the anti-polygamist portion of Utah’s bigamy clause, leaving intact the portion regarding fraudulently obtaining multiple marriage licenses.
As indicated in our press release, picked up by the Associated Press and others, we view this opinion as a praiseworthy invalidation of an illegitimate law. Further, we recognize it as a welcome affirmation of the key principle that the government has no legitimate authority to punish the peaceful activities of consenting adults. Polygamists should not be deemed felons merely because they are polygamists.
By Gerard P. Howells
I was born 29 years ago in Birmingham in the United Kingdom. I first set my sights on moving to the United States at the age of 16 after reading its founding documents and Thomas Paine’s seminal work, Common Sense. I was attracted, more specifically, by the focus on individual freedom and the enumeration of natural rights that I knew to be essential to the human condition.
It was not, however, until a decade later in the year 2010 when this goal began to become a reality. I was accepted to attend an educational institution in Salt Lake City and hoped to find a way to stay on a permanent basis. Shortly after arriving I was fortunate enough to meet the woman who would become my wife in 2012, after a brief stint back in the UK due to financial difficulties related to being in the United States on a student visa. Under current U.S. law, foreign students are only legally able to work for up to 20 hours per week at the educational institution they are attending, or at a limited number of other institutions approved by the Department of Homeland Security.
On Sunday, Senator Osmond released more specific details of his proposal to reform education law in Utah. The proposal contains three separate pieces of legislation, the first of which interests us the most.
Titled “Parental Right to Educational Freedom,” this first bill would require parents to “choose an educational pathway for each child upon 6 years of age”—the age at which, under Utah law, a child is considered a “school-age minor.” Parents would sign an affidavit indicating whether they will be enrolling their child in a government school, private school, or educating them in the home.
Some parents have voiced concern in social media regarding this requirement, requiring two important clarifications:
This article was written by John W. Whitehead, president of The Rutherford Institute. It is published here with the author’s permission.
“Democracy means that if the doorbell rings in the early hours, it is likely to be the milkman.”—Winston Churchill
It’s 3 a.m. You’ve been asleep for hours when suddenly you hear a loud “Crash! Bang! Boom!” Based on the yelling, shouting and mayhem, it sounds as if someone—or several someones—are breaking through your front door. With your heart racing and your stomach churning, all you can think about is keeping your family safe from the intruders who have invaded your home. You have mere seconds before the intruders make their way to your bedroom. Desperate to protect your loved ones, you scramble to lay hold of something—anything—that you might use in self-defense. It might be a flashlight, your son’s baseball bat, or that still unloaded gun you thought you’d never need. In a matter of seconds, the intruders are at your bedroom door. You brace for the confrontation, a shaky grip on your weapon. In the moments before you go down for the count, shot multiple times by the strangers who have invaded your home, you get a good look at your accosters. It’s the police.
Before I go any further, let me start by saying this: the problem is not that all police are bad. The problem, as I point out in my book A Government of Wolves: The Emerging American Police State, is that increasing numbers of police officers are badly trained, illiterate when it comes to the Constitution, especially the Fourth Amendment, and, in some cases, willfully ignorant about the fact that they are supposed to be peacekeepers working for us, the taxpayer.