Would the suspicion have to be announced to me, when I’m asked to unlock my phone, or would it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone? If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”?
The latter is only meaningful if the case goes to court, which feels like a stretch. There are many forms of punishment that can be meted out without having to go to court. Vexatious detention, confiscation of property, etc.
The former seems silly — surely I can’t impede law enforcement because they haven’t justified their authority to me?
But yes, it's good that you can't be simultaneously nailed in court with illegally collected evidence.
> they need to show a good-faith belief...
That's not how being a plaintiff works, which is what is frustrating about this type of situation.
They do some action which is legally questionable. You have to show standing and potentially damages to be able to bring the suit, then you have to prove that what they did was not a good faith belief that their actions were legal. The onus is on the person without the power with (typically) minimal resources.
> But the problem with that argument, the appeals court ruled, is that courts have long held that police cannot be on the hook for property damage caused in the process of trying to make an arrest.
In that case it was incompetence, gross negligence, and so on. Naturally it's hard to prove in court that the court's enforcement arm is at fault.
And at first the guy tried to sue for damages but that was thrown out - because it's so well established - but still that's the point that should be hammered.
Honest question: can illegally obtained evidence be used to get a search warrant?
Parallel construction happens way less frequently than people think it does, since it requires that there be an actual parallel path to the evidence that would have been available at the time the evidence was improperly obtained. It's basically only upheld when evidence was collected improperly through one means (i.e., a confession without Miranda disclosure), but could have been collected properly through other means available at the time of the improper collection (i.e., if the contents of the confession would have been revealed by a standard CSI search).
This seems like a rather vague claim
Including the two neighboring counties, out of nearly 750,000 criminal cases during that time, only about 3 or 4 dozen involved parallel construction, and most of those were gang cases in which the parallel construction involved one of the gang members turning on his homies.
It's big news in local legal circles when the prosecution tries to use parallel construction to get evidence into the record because it happens so rarely.
It does happen more frequently at the federal level, but they also have significantly more resources to conduct investigations along parallel paths.
I believe it depends on context. If you're in police custody and being questioned, you need to be read your Miranda rights. If the police show up to your door and you suddenly blurt out a confession, I don't think it matters.
However, once the police start asking questions, they have to show they had not created a "custodial" situation in which the suspect was not free to leave (or in this case, to close the door and tell the police to fuck off). In most states, the burden is on the defendant to show that a custodial situation was created; in some states, that is presumed and the police have to show that a custodial situation was not created.
For the record--I am former public defender. And I successfully used the failure to properly Mirandize a client successfully many times to block the prosecution from introducing evidence.
In the specific case you're talking about, always.
This is not strictly correct. If law enforcement violates your rights via an illegal search, they cannot use that evidence against you. However, they may be able to use the evidence against others.
For example, suppose the police illegally search your house and find drugs and a list of customers. You may be able to exclude that evidence from being used against you but your customers may not be so lucky because it was not their 4th Amendment rights that were violated by the illegal search.
You can win a Supreme Court case about a search being illegal, and still have that evidence be used to nail you on the original charge.
Unless you've broken the law (and certain special cases), they have no authority over you. Because of the nature of their jobs, which requires them to sometimes take away a person's freedom or life, they must be held to a much higher level of accountability than your average person.
You cite fear of harassment as a reason for not standing up to police, and to me that says something is deeply wrong with our current system.
This is not true at the border. They can seize your property, and delay you for what the law would say is temporary, but is long enough to be a major inconvenience.
> Would the suspicion have to be announced to me, when I’m asked to unlock my phone[?]
No. Officers don't have to disclose to you their reasons. It's helpful, but not constitutionally required.
>[W]ould it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone?
Not necessarily. In a criminal prosecution violations of the Fourth Amendment can be excluded by the court. The theory underlying the exclusion is that without the exclusion there would be nothing to stop cops from violating your Fourth Amendment rights. A criminal defendant must challenge the use of the evidence found, and the officer must give their reason when the judge is trying to determine whether to allow the testimony.
In the US, you can also sue the officers when they violate your rights and win money damages. That's what this case is. The officer as part of their defense must give their reasons to defend they didn't violate any constitutional rights.
>If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”?
Probably. Some courts may additionally require the officer to give a basis of why you fit that profile, or why someone who fits that profile reasonably is likely to carry illegal things. Typically just saying it matches a profile is sufficient.
 Almeida Sanchez vs United States
Do they get punished? Are they put under extra monitoring now?
This is not a democracy people, this is not "trias politica". Police brutality rampant, this merely being one more case. These court rulings seem rather useless, when the same govt keeps illegal torture prisons (Guatanamo) open, where people's lives are ruined without due process.
Sounds like the Court got it right.
It sounds like this recent ruling may have rendered that page out of date.
From your link:
> According to the government, however, these basic constitutional principles do not apply fully at our borders. For example, at border crossings (also called "ports of entry"), federal authorities do not need a warrant or even suspicion of wrongdoing to justify conducting what courts have called a "routine search," such as searching luggage or a vehicle.
From the OP:
> In a major victory for privacy rights, a federal court in Boston today ruled that the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment. The ruling came in a lawsuit, Alasaad v. McAleenan, filed by the American Civil Liberties Union, Electronic Frontier Foundation, and ACLU of Massachusetts, on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry.
Not exactly. Here, the only change is related to digital devices being searched. Everything else that happens at the border regarding searches is unchanged. So the limitation of the 4th amendment is still largely unaltered. But the protections have now been extended to digital devices only at border searches.
The article doesn't go into it (maybe the actual USSC does?) but I assume the logic here is that the reasoning behind the 4th amendment border search exception in the first place is to monitor what's coming across the border in terms of physical contraband (drugs, guns, animals, foods, etc.). There aren't really any concerns with digital devices. They are legal and anything done with them that might be illegal isn't related to the device crossing the border. And much of what can be done with them can also be done with any cheap device purchased in the states or using a cloud service (in the modern era). So randomly searching the devices doesn't really do much of anything related to border protection.
> Part of a Broader Problem: The spread of border-related powers inland is inseparable from the broader expansion of government intrusion in the lives of ordinary Americans. For example, CBP claims the authority to conduct suspicionless searches of travelers' electronic devices—such as laptops and cell phones—at ports of entry, including international arrivals at airports. These searches are particularly invasive as a result of the wealth of personal information stored on such devices. At least one circuit court has held that federal officers must have at least "reasonable suspicion" prior to conducting such searches and recent Supreme Court precedent seems to support that view.
There's no evidence, for instance, that the fourth amendment was meant to prevent customs checks at the border. Inside the US, customs checks would be unreasonable searches, but at the border they have always been legal.
Phone searches are nasty, invasive, and not like a customs check at all. That's why we have courts to distinguish them.
The only reason it doesn't say that is that it's inherent in the term "warrant". A warrant is exactly the legal authority to use force on behalf of the government contrary to the rights which the law would normally guarantee, which is a prerequisite for performing any search or seizing any property (absent the owner's consent, of course). Any law purporting to authorize searches is a warrant, though not necessarily a constitutional one. There is no such thing as a legal search or seizure without a warrant. There are only unauthorized, and thus illegal, searches and seizures, and unconstitutional warrants.
If "reasonableness" were enough on its own—in other words, if obtaining a warrant were not a necessary part of the process of conducting a search—there would never have been any reason to place further restrictions on the issuance of warrants, and the entire second half of the 4th Amendment would be void.
I understand the pragmatic argument, but not the implicit presumption that an upstanding citizen would come home with contraband.
Here's an explanation of reasonable suspicion in comic form (part of a larger chapter on 4th amendment law): https://lawcomic.net/guide/?p=1833
In the United States, such an act would clearly be against the 4th Amendment. It was less clear here.
In the old days, it was routine for customs officers to search ships coming in to harbor, including the effects of their passengers, to enforce importation laws. If customs couldn't do this, then importation laws would have no teeth, which is clearly not the intention of the constitution, which gives Congress the explicit power to enact and enforce them.
CBP argues that their smartphone and laptop searches were just an extension of that old custom, the court disagreed, ruling that a smartphone or laptop is fundamentally different from a ship's log or traveler's trunk, such that a higher expectation of privacy exists.
Yes, but electronic devices can't digitally contain physical substances that might be subject to customs laws. It's not comparable. It's probably still today reasonable to search ships in the harbor and passengers for physical substances (like banned animals or fruits/vegetables), but it's not obvious to me how searching electronic devices achieves any reasonable objective related to customs law.
Child porn is prohibited to be imported in any form, including digital. Customs isn’t about just physical objects.
The rights granted under the constitution were provided explicitly under the knowing assumption that they could be used to conceal actual crimes or criminal intent. That's the point of them needing protection from the authorities. The mere possibility of committing a crime isn't enough grounds to invade a person's privacy to that degree. You need actual reason to suspect it in an individual case to go that far.
AFAICT, that’s the practical effect of a holding of an single intermediate appellate court this year on an issue that while important on its own was kind of a side issue in a campaign finance case, and the rationale seems a bit wobbly; and it's logic actually assumes as a starting point hat non-immigrant visa holders having the same 2A rights as everyone else.
While it is for the moment binding precedent within the 9th Circuit, I wouldn't draw any broad generalizations from it, or, even, assume it will hold up on the future.
There are a variety of federal laws that codify that as well, and I think they're all unconstitutional also.
Hm. Page 27: https://fas.org/sgp/crs/misc/R44618.pdf
I'm ignoring FFL's because it's not directly relevant.
Another thing that I just learned it is actually still illegal to borrow a gun at a shooting range if you have a non-immigrant visa (unless you have a hunting license). Even if he hadn't lost his visa he'd still be breaking a different law. It's illegal for people visiting with tourist visas to go to shooting ranges, but for tourists visiting from countries that don't require visas it's OK.
Huh; do you have a citation for this? I used to bring scientists from other countries to the shooting range for the cultural experience, and almost brought a pal from Europe hunting a year or two ago (on my license). Never realized I might have been putting them in legal jeopardy.
If your friend was visiting from a European country that didn't require a visa to visit the US (most of them) you'd be in the clear.
Some discussion for non-immigrant visas about halfway down this article: https://reason.com/2019/01/12/illegal-aliens-guns-and-strict...
Weird quirk with the huntling license, so that second example is a state law?
It is true in practice.
One example: the children of illegal immigrants are legally entitled to public education, even though they aren't citizens.
1) People who aren’t citizens are still entitled to public education. Many green card holders go to US public schools, for instance
2) Anyone born on US soil is a US citizen regardless of their parents immigration status
Which is to say, the constitutional rights of non-citizens are hardly as obvious as they are for citizens.
You are of course correct that the rules do not apply evenly for immigrants and nonimmigrants, especially since nonimmigrants convicted of a crime are largely seen out as soon as their sentence is served. The same isn't true of immigrants.
This argument makes sense, but I think it proves too much: states already have plenty of laws that restrict certain rights or privileges to citizens only. Your argument, as I understand it, is that since immigration status is a matter of federal law, states cannot deny a right (to K-12 education) on the basis of immigration status -- but it is commonly accepted that they can and do deny such a right in other circumstances, e.g. to serve as a police officer, for example, which I'm quite sure state laws deny to illegal immigrants.
are largely seen out as soon as their sentence is served
What do you mean by "seen out", exactly?
Committing a crime of moral turpitude as a non-immigrant (and even some green card holders) makes you eligible for deportation. 
You can't legally work in any job as an illegal immigrant - it's a Federal law: https://www.law.cornell.edu/uscode/text/8/1324a
As a bonus (malus?), the very same malicious process can be used against kids of homeless parents.
Wikipedia has an excellent reference on this. See the "Experience in America prior to the U.S. Constitution" section: https://en.m.wikipedia.org/wiki/Second_Amendment_to_the_Unit...
Regulate is a form that appeared in Middle English that means “to control by rules”.
I’m all for guns and appreciating the inscrutable nature of the 2nd amendment. But words mean things.
There's obviously a middle ground where regulation is allowed. There's no world where artillery, or arming the insane isn't acceptable in a civilized society. Conversely, the overreach of prohibition of arms in places like DC or NYC is not in alignment with the ideals of nation.
To me, the notion of armed civil insurrection against a modern state apparatus is absurd, and has been since the late 19th century. Civil disobedience and disruptive protest, including protest that undermines control of the armed forces, is the only check on the state's ability to wield force. Even a 3rd rate army is able to control civil unrest.
A: Soldiers were trained to follow rules (aka regulations) and obey. Line up shoulder to shoulder and fire 3-5 volleys a minute in a prescribed manner. A rabble would get 1-2 off and die.
There’s a very real possibility that a teenager with an AR15 is literally part of a well-regulated military group protecting the county.
The following source gives examples from the Oxford English Dictionary of how the idiom was used from 1709 through 1894, demonstrating how the idiom 'well-regulated' has meaning beyond 'regulations' i.e. laws.
> 1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."
> 1714: "The practice of all well-regulated courts of justice in the world."
> 1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."
> 1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."
> 1862: "It appeared to her well-regulated mind, like a clandestine proceeding."
> 1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."
The sense of the term above is something like 'normal', 'well-ordered', 'regular'. Indeed the word 'regular' also shares the same origin as the word 'regulations', yet its common meanings are unrelated to the concept of regulations.
Parsing the 2nd Amendment, the US Supreme Court wrote that "the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training", and elaborated (quoting another scholar, Thomas Cooley):
> The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”
The phrase "a well-regulated militia" in this context consequently means a militia that's learned, proficient, and effective in firearm use. In any case, what we're discussing is the preface of the amendment, which announces a purpose for the amendment and does not limit it. As the court wrote:
> The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
The military calls rules that impose proper discipline and training "regulations". Such as Army Regulation 670-1, which states “While in uniform, personnel will not place their hands in their pockets, except momentarily to place or retrieve objects.”
The word "regulation" is perfectly compatible with the "well-regulated" idiom.
the right of the people to keep and bear Arms shall not be infringed.
> By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” and “the right of having and using arms for self-preservation and defence,”. Other contemporary authorities concurred. Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.
> And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”
> There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, (...) [citations omitted]
> ... the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. ...
> Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia — if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee — it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny ...
> Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limitations. Concerning the Second Amendment it said: (...)
> “It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. (...) The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”
They even had 2 canine units circle my car and jump in and out of it at least 10 times each.
Talk about a heavy handed approach.
As long as you know you're not actually carrying contraband or is a terrorist, just smile, comply when reasonable, and then say politely that you'd like to see their manager to file a complaint.
And I have Canadian citizenship.
Signed and donated. It happens to me every, single, fucking, time, losing 1 hour every trip back home.
Since August 15, US border agents in Canada are now able to prevent you from withdrawing if they detain you. (Bill C-23)
'People' have rights:
> the right of the people peaceably to assemble
> the right of the people to keep and bear Arms,
> the right of the people to be secure in their persons, houses, papers, and effects
> other [right]s retained by the people.
> [powers] are reserved to the States respectively, or to the people.
'People' usually means 'voters':
> chosen every second Year by the People of the several States
> The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof,
> the people fill the vacancies by election as the legislature may direct.
Government is made of 'citizens':
> No Person shall be a Representative who shall not have ... been seven Years a Citizen of the United States,
[etc for Senator, President]
and 'citizens' are covered by Federal Judiciary in interstate cases and interstate rights:
> judicial Power shall extend to all Cases ... between Citizens and ...
> The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Amendment XIV (1868) clarifies the difference between a 'person' and 'citizen', to some [insufficient] extent.
> All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
and makes the most interesting statement about the rights of a 'person'
> nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The reality is that the Constituation does not explain what are the rights of non-citizen persons, wihile at the same time repeatedly stating that not all persons are citizens.
You can split hairs on the wording, and many judges have, but the truth is that the authors just didn't write carefully about visitors and non-citizen immigrants, since international travel was very difficult in the 18th and 19th Centuries so not a big deal (except for slavery, which was a whole different mess).
IMO the BOR should apply to all humans, anywhere in the universe, when subject to US Government jurisdiction. Let's hope courts agree.
Their rights are violated by courts?
It's pretty easy to make the case that nobody knows what the U.S. Constitution actually means.
Court upheld the right of an illegal alien to own a firearm.
> Thus, the Seventh Circuit leaves Meza-Rodriguez with the right to bear arms, but without the ability to exorcise that right under federal law.
What is the point of a theoretical right that can't be exercised in practice? Citizens of the USSR had the right to free speech, free political expression, etc.
It is perhaps a more accurate description to say that Meza-Rodriquez is in the class of people to whom the right applies, but that the right allows restrictions based on conduct, including illegal presence.
To the extent that your speech does not also constitute illegal action, there are no restrictions on speech and those protections do not depend on nationality, citizenship, etc. All that matters is the jurisdiction of the US court system (since they can't enforce First Amendment rights if they don't have jurisdiction).
Some types of speech are also acts, like conspiring to commit a crime, or inciting violent action. In those cases, the content of the speech is protected, but the actions of the speech are subject to prosecution.
> If you make that argument then the customs officers are also NOT on US soil and have no authority to search phones (or do anything) at all
The plaintiffs are 10 U.S. citizens and one lawful permanent resident.
Others are not, like the Tenth Amendment.
The 4th Amendment is probably closer to the first category rather than the second.
EDIT: Note, for example, that the Federalist Papers that drove much of the discussion behind the policies in the Constitution were self-printed by Franklin, et al. Newspapers at that time were highly political and opinionated, like Fox News today, and did very little actual reporting of news. Journalists and "the press" didn't get conflated until much later.
It was not, in any way, intended to refer to "journalists", a group whose only defining characteristic appears to be employment by a certain group of private companies.
But they have a very special position and role that makes them specially vulnerable when dealing with powerful institutions.
On th other hand, we should not think of 1A rights as rights that only specialists or professionals need.
(Much like we shouldn't think of police as relieving civilians of their duty to help maintain law and order and safety. Police augment and assist citizens, as public servants.)
[EDIT:] great link, thanks!
International travelers entering the US (who were subjected to the policy) are not all foreigners.
> part of "the people"?
Yes, "the people" in the Fourth Amendment (and most of the rest of the Constitution) are the people subject to the authority of the United States government, which is basically everyone within US territory, however transitorily, and not exempt from US authority by treaty (e.g., diplomats, etc., are excluded.)
Don't different countries have different views of rights? What happens when those rights are at odds? For example, Turkish people can't speak ill against their governments . This contrasts with countries that have fewer restrictions on speech, like America.
So I think the main issue is, how can all humans have the same protections if different jurisdictions protect different things?
Or is "protections" here more about procedural rights?
And so they would apply their views in their own jurisdiction.
> What happens when those rights are at odds?
Whichever jurisdiction you stand in correspond to the rights that prevail for you.
The way I see it, a country says what the rights of people/humans are, and they defend those beliefs in their own jurisdiction, where they have the absolute power to.
> So I think the main issue is, how can all humans have the same protections if different jurisdictions protect different things?
I think baddox's comment does not necessarily imply all humans in the world. I interpreted it as all humans in a given jurisdiction.
Ah I had not thought of it in this way but that makes sense. I can't disagree that all people in a single jurisdiction should be afforded the same procedural rights (I couch it in procedural rights because substantive rights are stripped from felons for example in many jurisdictions).