• Tag Archives 4th Amendment
  • The FBI’s Lawless Raid on U.S. Private Vaults Shows Why the Founders Created the Fourth Amendment

    A squad of FBI and Drug Enforcement Administration agents in March 2021 raided the Beverly Hills location of a company, U.S. Private Vaults, suspected of criminal activity.

    Over several days, agents wearing masks photographed evidence, seized jewels, gold bullion, and coins, and confiscated some contraband (mostly drugs) from 1,400 safe-deposit boxes rented by an array of people, including a retired doctor, a saxophone player, a retired floor contractor, and at least two attorneys. 

    The grand total seized by the FBI was $86 million in cold cash, as well as Rolex and Cartier watches, rare coins, and more silver and gold than even Yukon Cornelius could imagine.

    U.S. Private Vaults, which was headquartered in Nevada, pleaded guilty to charges of money laundering and conspiracy the following year. (No one went to prison, and the company is no longer in business.) But it turns out U.S. Private Vaults wasn’t the only party that broke the law. 

    Last month, the U.S. 9th Circuit Court of Appeals ruled that the bureau violated the constitutional rights of safe-deposit box holders whose property was seized without probable cause, something the warrant explicitly prohibited.

    To understand just how far the FBI overstepped its authority, it’s worth examining the case of Don Mellein, a retired civil servant from California. 

    Mellein was one of hundreds of people who had a safe-deposit box at U.S. Private Vaults, where he kept hundreds of thousands of dollars of coins for safekeeping. 

    When the FBI raided U.S. Private Vaults, it didn’t just search Mellein’s safe-deposit box. It seized his coins, something the FBI had explicitly said it wouldn’t do when it requested a warrant to raid U.S. Private Vaults (more on that in a minute).

    Numerous other plaintiffs such as Mellein had their property taken simply because they were unlucky enough to have entrusted it to a company that was involved in some degree of criminal activity.

    That the FBI had the chutzpah to ignore the judge’s warrant, which explicitly “d[id] not authorize a criminal search or seizure of box contents,” did not sit well with the court. 

    Judges called the seizures “egregious” and “outrageous” during oral arguments, comparing them to the Revolutionary War practices of the British, who would search and seize the property of colonials without probable cause.

    “It was those very abuses of power,” the 9th Circuit Court noted, “that led to adoption of the Fourth Amendment in the first place.”

    The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” but it’s something for which the FBI agents had little regard.

    Indeed, depositions from FBI agents suggest that “forfeiting” the property of safe-deposit box holders — some would call it “stealing” — was the FBI’s plan from the very beginning. 

    Excerpts of those depositions, which can be read at the Los Angeles Times and Reason, make it clear that the FBI had been planning a massive asset forfeiture operation months prior to filing its affidavit with U.S. Magistrate Judge Steve Kim.

    They also reveal that the FBI had been planning all along to seize the contents of all safe-deposit boxes, so long as they contained at least $5,000 (the minimum established by the Justice Department’s Asset Forfeiture Policy Manual). Testimony makes it clear the FBI was not particularly concerned whether these people were actually criminals, or that the agent who submitted the affidavit had assured Kim that the property rights of customers would be respected.

    We only know all of this because a judge denied a request from the U.S. attorney’s office — surprise, surprise — to block disclosure of those depositions, laying “bare the government’s deception,” in the words of the Los Angeles Times reporter Michael Finnegan. 

    To call the FBI’s actions deceptive is an understatement. 

    Finnegan’s reporting shows FBI agents and U.S. attorneys behaving in almost mafialike fashion, demanding bank records, tax returns, and sworn statements from safe-deposit box holders and their family members — just to get their own money back!

    When you read how a U.S. attorney asked a glassmaker’s lawyer how much his client was willing to pay the feds to give him his money back, you realize the 9th Circuit was not engaging in hyperbole. The FBI’s raid is not dissimilar to the “writs of assistance” that permitted Red Coats “to break open doors, Chests, Trunks, and other Packages” to find contraband or “stolen” items, a practice despised by the Colonials. 

    “It is a power that places the liberty of every man in the hands of every petty officer,” the 18th century statesman James Otis said in a famous speech against the writs, which led to the eventual adoption of the Fourth Amendment. 

    The question now is: Who will be held accountable for the FBI’s lawless, shameless raid?

    This article first appeared in The Washington Examiner.


    Jon Miltimore

    Jonathan Miltimore is the Editor at Large of FEE.org at FEE.

    This article was originally published on FEE.org. Read the original article.


  • Biden Administration Argues for Warrantless Home Entry and Gun Seizures Before the Supreme Court a Year After Breonna Taylor’s Death

    In a case argued before the US Supreme Court on Wednesday, the Biden Administration, along with attorneys general from nine states, submitted arguments asking the justices to uphold warrantless home entry and gun confiscation by police.

    The case stems from a domestic dispute between an elderly married couple, Edward and Kim Caniglia. After an intense argument between the two that led to Edward dramatically telling his wife to shoot him with one of his handguns, Kim left the home to spend the night in a hotel. The next day she was unable to reach her husband and became concerned.

    She reached out to police for a wellness check and an escort back to the home. But upon their arrival, police manipulated Edward into a psychiatric evaluation even though officers admitted in their incident report that he “seemed normal” and “was calm for the most part.” The police officers then lied to Mrs. Caniglia and told her Mr. Caniglia agreed to confiscation of his weapons. Even though Edwards was promptly released from the hospital, he was only able to regain his property after filing a civil rights lawsuit.

    Police in the case relied upon a narrow exception to the Fourth Amendment called “community caretaking.” This exception is a half-century old Supreme Court-created doctrine designed for cases involving impounded cars and highway safety. Essentially it was meant to give law enforcement a legal way to remove cars from the side of the interstate or clear wrecks.

    While the First Circuit US Court of Appeals acknowledged the doctrine’s reach outside the context of motor vehicles is “ill-defined,” it upheld the arguments in this case and allowed the exception to extend to private homes. In its finding the Court states that this exception is “designed to give police elbow room to take appropriate action.”

    But attorneys for Caniglia argue that extending the community caretaking exception to private homes would be an assault on the Fourth Amendment and would grant police a blank check to intrude upon the home.

    An amicus brief filed by the ACLU, the Cato Institute, and the American Conservative Union agreed with the attorneys and pointed to jurisdictions that have extended such provisions leading to warrantless invasions of homes for things like loud music or leaky pipes.

    One does not need to have a long memory to understand exactly how such permissions could go awry. For anyone who has paid attention to the news cycle over the past year, it is jarring to see a Democratic administration argue for warrantless home entry and gun seizures merely one year after Breonna Taylor’s death.

    Taylor was killed in her home by police after a no-knock entry (tied to a falsified warrant) led to cops spraying her apartment (and surrounding ones) with bullets. Taylor’s boyfriend, believing the home was being broken into by criminals during the middle of the night, fired in defense and was originally charged in the case (all charges were later dropped and he is suing the department).

    The case created a national firestorm that elevated conversations around Second Amendment rights and self-defense, no-knock warrants, Fourth Amendment protections, and the need for policing reform and accountability. If such atrocities occurred under our current laws, it is pretty scary to imagine what law enforcement might get away with should the Biden administration get its way in this case.

    Such arguments before the Supreme Court show that for many progressives their admirable instinct to restrict police power quickly goes out the window when they see an opportunity to chip away at gun rights.

    This is severely misguided. A cursory overlook of the justice system’s operations reveals that the expansion of police powers almost always impacts marginalized communities more harshly— communities the Democrats claim to stand for.

    In a 2016 speech on the senate floor, Senator Tim Scott (R, SC) spoke about his own experience with racial bias in policing as a black man in this country. “In the course of one year, I’ve been stopped seven times by law enforcement,” Scott said. “Not four, not five, not six, but seven times in one year as an elected official.”

    There is no reason to think that an extension of the community care exception would not have the same effect on communities of color.

    To cite just one study out of hundreds, the US Sentencing Commission found that when it comes to federal gun crimes, black people are more likely to be arrested, more likely to get longer sentences for similar crimes, and more likely to get sentencing enhancements. If the Supreme Court upholds the administration’s argument, it is not difficult to predict which communities will be impacted the most by this new expansion.

    Progressives are not the only ones experiencing a disconnect in principles at the moment either. Many Republicans were surprised in recent months to see police departments readily enforce unconstitutional lockdowns—carting business owners off to jail and fining law-abiding people who simply wanted to go to work. Likely, the majority on the right will be aghast at the arguments presented in this case and their clear violation of both our Second and Fourth Amendment rights. But it should not escape them who is arguing for these violations, nor who would ultimately enforce them.

    In another amicus brief filed by the public interest litigation giant, the Institute for Justice, attorneys argued “The Fourth Amendment protects our right to be secure in our property, which means the right to be free from fear that the police will enter your house without warning or authorization. A rule that allows police to burst into your home without a warrant whenever they feel they are acting as ‘community caretakers’ is a threat to everyone’s security.”

    The Breonna Taylor case should have been a turning point in our nation’s history and spurred legislation that would strengthen and uphold our essential individual rights and restrict police power. Many hoped it would be the final straw that brought an end to egregious practices like no-knock warrants. Instead, despite much public outcry and demand, we continue to see politicians on both sides of the aisle push for increased police power and an erosion of our right to be secure in our homes and our property.

    Former Congressman Justin Amash (L-MI) said protection from warrantless searches is central to the Bill of Rights.

    “The warrant requirement isn’t optional; it’s at the heart of the Fourth Amendment,” Amash told FEE. “Treating the Fourth Amendment as though it flatly permits searches and seizures that seem ‘reasonable’ in the eyes of government officials, regardless of whether a warrant has been obtained, drains it of its purpose: protecting the right of the people to be secure in their persons and property.”

    Make no mistake, this is among the most appalling attacks on our fundamental rights and way of life currently occurring. It is an attack on property rights, on our right to self-defense, and on our right to privacy, and if it is allowed there will be gross violations of individuals as a repercussion.

    It is vitally important to remember that police brutality is a direct consequence of a government that has grown too big and powerful. The more power we give to the government and its agents, the more prone it is to abuse. It’s time we address the root cause of the problem and put the government back in its place.

     Hannah Cox


    Hannah Cox

    Hannah Cox is a libertarian-conservative writer, commentator, and activist. She’s a Newsmax Insider and a Contributor to The Washington Examiner.

    This article was originally published on FEE.org. Read the original article.


  • Congress, Remember the 4th Amendment? It’s Time to Stop the U.S.-UK Agreement.


    Unless Congress stops it, foreign police will soon be able to collect and search data on the servers of U.S. Internet companies. They’ll be able to do it without a probable cause warrant, or any oversight from a U.S. judge. This is all happening because of a new law enforcement deal between the U.S. and the United Kingdom. And while it seeks to exclude purely domestic correspondence between U.S. citizens and residents, plenty of Americans’ data will get swept up when they communicate with targeted individuals located abroad.

    This is all happening because, for the first time, the U.S. executive branch is flexing its power to enter into law enforcement agreements under the CLOUD Act. We’ve been strongly opposed to this law since it was introduced last year. The recently signed deal between the U.S. Department of Justice and the U.K. Home Office will allow U.K. police easy access to data held by American companies, regardless of where the data is stored. These U.K. data requests, including demands to collect real-time communications, do not need to meet the standards set by U.S. privacy laws or the 4th Amendment. Similarly, the deal will allow U.S. police to grab information held by British companies without following U.K. privacy laws.

    This deal, negotiated by American and British law enforcement behind closed doors and without public input, will deal a hammer blow to the legal rights of citizens and residents of both countries. And the damage won’t stop there. The U.S.-U.K. Cloud Act Agreement may well become a model for further bilateral deals with other foreign governments and the United States. Earlier this month, Australian law enforcement agencies began negotiating their own deal to directly access private information held by U.S. Internet companies.

    There’s still one possible path to put the brakes on this disastrous U.S.-UK deal: Congress can introduce a joint resolution of disapproval of the agreement within 180 days. This week, EFF has joined 19 other privacy, civil liberties, and human rights organizations to publish a joint letter explaining why Congress must take action to resist this deal.

    No Prior Judicial Authorization

    In the U.S., the standard for when law enforcement can collect stored communications content is clear: police need to get a warrant, based on probable cause. If police want to wiretap an active conversation, they have to satisfy an even higher standard, sometimes called a “super warrant,” that limits both the timing and use of a wiretap. Perhaps most importantly, stored communications warrants and wiretap warrants have to be signed by a U.S. judge, which adds an extra layer of review to whether privacy standards are met. At EFF, a core part of our work is insisting on the importance of a warrant in many different scenarios.

    Judicial authorization is a critical step in the U.S. warrant process. When police search people’s private homes, offices, or devices, they must justify why the search for specific evidence outweighs the presumption that individuals remain free from government intrusion. Judicial authorization acts as a safeguard between citizens and law enforcement. Further, history has shown that police can and will abuse their powers for intimidation, or even personal gain. In colonial times, the British military used general warrants to search through colonists’ houses and seize property—actions that helped fuel a revolution, and formed the basis for the 4th Amendment to the U.S. Constitution.

    Incredibly, the DOJ has just thrown those rights away. Instead of relying on probable cause, the new agreement uses an untested privacy standard that says that orders must be based on a “reasonable justification based on articulable and credible facts, particularity, legality, and severity.” No judge in any country has decided what this means.

    Furthermore, it’s debatable whether UK law even satisfies that standard. As our coalition letter states, “U.K. law on the production of stored content data and live wiretaps do not raise to the standards in the U.S.-U.K. Agreement and indeed at points may be weaker, emphasizing the need for strong safeguards to be written into CLOUD Act Agreements.”

    That’s why we believe any agreement should include prior judicial authorization. The current deal just says that the U.K. must have “review or oversight” by an independent authority. Oversight is much different than prior judicial authorization. That means when a U.S. tech software company is asked to hand over communications and other sensitive data to UK police, the police don’t have to go to an impartial third-party to first review and see if the request complies with the U.S.-UK agreement. This takes away an important check before data is turned over to make sure that privacy rights are not harmed. Importantly, this hurts the rights of non-U.S. people as well because it takes away protections and recourse under U.S. domestic privacy laws.

    No Required Notice to People Under Surveillance

    The U.S.-UK agreement also doesn’t create safeguards the provide notice to the target of a law enforcement order, or any other affected people.

    Without notice, a person won’t be aware that they are under foreign surveillance, won’t be able to hire a lawyer, and won’t be able to examine the evidence against them. Further, the agreement allows U.K. police to request U.S.-based data under U.K. law. People subject to unlawful surveillance won’t be able to exercise legal or constitutional rights they have under U.S. law.

    Unfair and Unequal “Minimization” Procedures

    National police agencies are trying to soft-pedal their demand for this new power by pointing out that it won’t be applied to U.S. persons. But foreign police will be getting Americans’ data. First of all, U.K. police will inevitably scoop up the information of Americans who have been in contact with foreigners who are the official subjects of U.K. police requests. That’s why there are mandatory “minimization” procedures to make sure U.K. police don’t get too much data about U.S. persons, or distribute it too widely.

    As for U.K. citizens and residents, what happens to their data under this agreement isn’t clear.  When U.S. police go to British information providers, there are no clear requirements for how the U.S. should even perform minimization. The only requirement on the U.S. is that the agreement be reciprocal, including limitations on targeting people within British territory. But that doesn’t mean that the U.S. won’t still get information about U.K. persons, as long as they’re in communication with a non-U.K. target—just as U.K. police will get from the U.S.

    U.K. Police Can Secretly Gather Evidence to Pursue Low-Level Crimes 

    U.S. Attorney General William Barr has claimed that offering extraordinary access to foreign police is the right thing to do because of the awful crimes they’re pursuing, citing terrorism and crimes against children.

    However, the deal will allow U.K. police to comb through the data of U.S. companies for relatively low-level crimes, including fraud, assault, and simple theft. The only justification U.K. police will have to come up with is that they’re investigating a crime that holds at least a three-year prison sentence in their own country. They could even be investigating acts that aren’t crimes in the U.S. Again, the same holds true for U.S. law enforcement gathering information held in the U.K.—there’s no requirement that a similar crime exists in both countries. It’s worth noting that under U.K. law, a 10-year sentence can also be handed down for criminal copyright infringement.

    No Safeguards for Free Expression

    Under the current system, if a foreign law enforcement agent wants access to protected information in the U.S., both the DOJ and a judge will review the request to make sure it doesn’t violate human rights, or U.S. laws like the First Amendment. This review is a part of the long-standing mutual legal assistance process that lets governments access data stored in other territories, but with procedural safeguards. Under this agreement, there won’t even be a cursory review. In some situations, U.S. authorities won’t even be notified about the foreign agent’s request.

    The CLOUD Act and U.S.-U.K. agreement specifically say that foreign governments shouldn’t be allowed to file requests that “impinge freedom of speech.” But “freedom of speech” has a different meaning in U.S. and in UK law. The U.K. has several laws that potentially violate article 19 of the International Covenant on Civil and Political Rights, as we pointed out last year in a letter signed by EFF and other free expression organizations.

    Under this agreement, it will be up to U.S. tech companies to challenge requests that aren’t compatible with human rights or free speech. As we have seen time and time again, tech companies are not in the best position to understand the nuance of free speech law.

    Congress didn’t give proper thought to the CLOUD Act when it passed last year, and it let fundamental U.S. privacy and speech protections fall to the wayside. Now, Congress shouldn’t double down on its mistake by letting an executive agreement negotiated behind closed doors pass through its halls without review. The 180-day clock is already ticking to protect our privacy. Congress should initiate a joint resolution of disapproval of the U.S.-U.K. agreement, as soon as possible.

    Source: Congress, Remember the 4th Amendment? It’s Time to Stop the U.S.-UK Agreement. | Electronic Frontier Foundation