Fourth Amendment

The Fourth Amendment and the Fruit of the Poisonous Tree

The USA Freedom Act provides cover for unconstitutional searches of citizens.

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Would all of our lives be safer if the government could break down all the doors it

Fruit of the Poisonous Tree
Wikimedia Commons

wishes, listen to all the conversations it could find and read whatever emails and text messages it could acquire? Perhaps. But who would want to live in such a society?

To prevent that from happening here, the Framers ratified the Fourth Amendment, which is the linchpin of privacy and was famously called by Justice Louis Brandeis "the right to be let alone — the most comprehensive of rights and the right most valued by civilized men." He wrote those words in his dissent in the first wiretapping case to reach the Supreme Court, Olmstead v. United States, in 1928.

Roy Olmstead had been convicted for bootlegging on the basis of words he used in overheard telephone conversations. Because he had used a phone at his place of work that the government had tapped without breaking and entering his workplace, the high court ruled — despite the fact that the government had not obtained a warrant — that he had no right to privacy. Brandeis dissented.

Over time, the Brandeis dissent became the law. The Fourth Amendment, which protects the privacy of all in our "persons, houses, papers, and effects," was interpreted to cover telephone conversations and eventually emails and text messages. So today, if the government wants information contained in those communications, it needs to obtain a search warrant, which the Fourth Amendment states can only be given by a judge — and only upon a showing of probable cause of evidence of a crime contained in the communications it seeks.

If the government does not obtain a search warrant and listens to phone conversations or reads emails or text messages nevertheless and attempts to use what it heard or read to acquire other evidence or directly in the prosecution of a defendant, that is unlawful. That type of information is known as the fruit of the poisonous tree.

Evidence procured that is the fruit of the poisonous tree has been inadmissible in federal criminal prosecutions in the United States for the past 100 years and in state criminal prosecutions for the past 50 years.

Until now.

Now comes the super-secret court established by the Foreign Intelligence Surveillance Act (FISA), reaffirmed by Congress last year under the so-called USA Freedom Act. Beware the names of federal statutes, as they often produce results that are the opposite of what their names imply; and this is one of them.

Congress has unconstitutionally authorized the FISA court to issue search warrants on the basis of governmental need — a standard that is no standard at all because the government can always claim that it needs what it wants. The FISA court does not require a showing of probable cause for its warrants, because it accepts the myth that the government is listening to or reading words by foreign people for foreign intelligence purposes only, not for prosecutorial purposes.

Never mind that Congress cannot change the plain meaning of the Constitution. Never mind that the Fourth Amendment protects all people in the United States, American or foreign, from all parts of the government for all purposes, not just criminal prosecutions.

Yet the FISA court still grants general warrants — look where you wish and seize what you find — exposing our innermost thoughts to the prying eyes of the intelligence community in direct contravention of the Fourth Amendment.

Enter the USA Freedom Act. One of its selling points to Congress was that it would permit the FISA court to appoint a lawyer to challenge, hypothetically, some of its behavior. The court recently made such an appointment, and the lawyer appointed challenged the policy of the National Security Agency (NSA), the federal government's domestic spying agency, of sharing data it acquires via the unconstitutional FISA warrants with the FBI. She argued that the data sharing goes far beyond the stated purpose of the FISA warrants, which is to gather foreign intelligence data from foreign people, not evidence of domestic crimes of anyone whose emails might be swept up by those warrants.

The challenge revealed publicly what many of us have condemned for years: The NSA actually makes its repository of raw data from emails and text messages available for the FBI to scour at will, without the FBI's obtaining a warrant issued by a judge pursuant to the Fourth Amendment.

In an opinion issued in November but kept secret until last week, the FISA court rejected the hypothetical challenge of its own appointee and ruled that the NSA could continue to share what it wants with the FBI.

There are several problems with this ruling. The first is the hypothetical nature of the challenge. Federal courts do not exist in a vacuum. They do not render advisory opinions. They can only hear real cases and real controversies involving real plaintiffs and real defendants, not hypothetical ones as was the case here.

The whole apparatus of hypothetical challenge and hypothetical ruling is constitutionally meaningless. It was the moral and legal equivalent of a law school moot court oral argument. Yet federal and soon state law enforcement will interpret it as giving cover to the NSA/FBI practice of data sharing, which is clearly unconstitutional because it is the use of fruit from a poisonous tree.

FISA and the USA Freedom Act were enacted under the premise — the pretense — that the data collected under them would be used for foreign intelligence purposes only so that attacks could be thwarted and methods could be discovered. Yet the use by the FBI of extraconstitutionally obtained intelligence data for ordinary criminal prosecutions defies the stated purposes of the statutes and contradicts the Fourth Amendment.

If this is keeping us safe, who or what will safeguard our freedoms? Who will keep us safe from those who have sworn to uphold the Constitution yet defy it?

COPYRIGHT 2016 ANDREW P. NAPOLITANO | DISTRIBUTED BY CREATORS.COM

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  1. Only four question marks? Who are you and what have you done with the Judge?

    1. The answer to the first question is “no”.

    2. Judge Nap did use 2 of them starting out the box, then had his ghost writer finish the article. Great article by the way Judge! (Don’t mind mind sarcastic first sentence, standard commenting procedure.)

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  3. BRANDEIS – of all people!!!! – came up with the “right to be let alone”. Amazing! Thus, people forget what a statist utopianist he was…

    1. Broken clocks are right twice a day.

      1. Unless you’re looking to have a drink, then they’re always right somewhere.

      2. If it’s a military clock it’s only right once a day.

        1. Lol….just saw this.

      3. Only once, if its Military.

  4. The final question is unfortunately rhetorical and the shameful answer is no one.

    1. Well, at least one person ? the CEO of Apple ?. is trying to shield us from their prying eyes. To our knowledge they haven’t hacked the newer version of the iPhone, yet.

  5. Congress cannot change the plain meaning of the Constitution.

    Citation needed.

    1. No unilaterally, they need the collusion of the judiciary.

    2. True, it’s the SCOTUS that changes the plain meaning of the Constitution to suit their desires.

    3. Uhh…you could reference any of the Amendments to it?

  6. “the National Security Agency (NSA), the federal government’s domestic spying agency”…

    That would come as news to the people that work there. The NSA is a FOREIGN intelligence agency. Got problems with domestic surveillance, take it up with the FBI. But calling the NSA a “domestic spying agency” is FACTUALLY incorrect.
    Though maybe it is politically correct…

    1. Snowden exposed the NSA for spying on Americans, in violation of the Constitution and the law? The problem is they are not supposed to be a domestic spying agency, yet that is what they do: “In July 2014, The Washington Post reported on a cache previously provided by Snowden from domestic NSA operations consisting of “roughly 160,000 intercepted e-mail and instant-message conversations…”

      The fact they were spying on Americans was the problem. I’m sure it still is a problem, since Snowden is a “traitor” who must be vilified and his revelations ignored.

      1. IF you think Snowden is being vilified by the media you should watch the trailer for the movie “Snowden”.

        1. I can’t see where WTF said anything about Snowden “being vilified by the media”. But are you claiming that Snowden is not being vilified at all by anyone?

          1. As he doesn’t think the NSA has been doing any domestic spying he’s not really someone who could have an opinion on that.

  7. If you put all search warrants in a big pile (local, state, federal) and came up with how many were signed and how many refused, my cynicism tells me the numbers would show a miniscule amount are rejected.

    If I am correct, we’re to believe that the process is not some rubber stamp deal?and only a small speed bump in the road for some jackwad cop to screw with us?

    Maybe I’m wrong, but for now, I don’t think so.

    1. That’s because LEO’s only request warrants that are really, really justified and slam-dunkish.

    2. It was newsworthy when the FISA Court actually rejected something some years back. It was literally the first time in the 2-3 decades that court had been around.

  8. And people continue to blindly post their entire lives on facebook, twitter, Youtube, text messages and phone calls. They want fame more than privacy. But act surprised when they tell an off colored joke to a friend and get fired from your job or expelled from school.

    The flip side of that is to keep a low profile, which oddly enough, raises flags that you’re up to something.

    Can’t win either way.

    1. The flip side of that is to keep a low profile, which oddly enough, raises flags that you’re up to something.

      Indeed. It’s akin to bank “structuring”.

      1. Yup, withdraw/deposit $10k or more, get reported to the feds. Withdraw/deposit somewhat less than $10K, get reported to the feds for “structuring”. Because FYTW.

      2. Therefore keeping a low profile should be punishable by 15 months in prison. No doubt someone in Congress is already working on it.

  9. In an opinion issued in November but kept secret until last week, the FISA court rejected the hypothetical challenge of its own appointee and ruled that the NSA could continue to share what it wants with the FBI.

    How do you know this is what it decided? If you have a secret court issuing secret opinions based on secret arguments, how do you know they haven’t secretly agreed that they should be free to publish entirely fictitious opinions? Has Nap thought of that? For that matter, how do you know the FISA court and its justices even exist? What if it’s just Clapper issuing this stuff and pretending there’s a FISA court for “national security” purposes?

    1. You’re joking, but we actually wouldn’t know, would we?

      1. Is he joking? If he is, should he be? (Pardon me while I channel the Judge’s style).

    2. This is a big part of the reason I don’t buy into Kurzweil’s singularity.

      Remember when the idea of a shadow government disappearing people was somewhere between laughable and pure fiction? Way back when the notion that our elected representatives were just figureheads was de facto crackpot?

      It’s weird how much of that craziness had root in facts and that people now just kinda accept it as true or just how the government works. Like the scene from Back To The Future where ’50s-era Doc expects to be able to pick up plutonium at the local drug store and is flabbergasted at the idea of Ronald Reagan, the actor, being president.

  10. Would we be safer? Oh, hell, no. Not under any government ever.

  11. and the people lose again

  12. On Fire ? In Decline

    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.” -The Constitution of the United States of America, Article IV

    “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” -Benjamin Franklin (1706-1790)

    See “Can . . . Will” under …
    http://nationonfire.com/catego…..nt/page/4/ .

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  14. One of its selling points to Congress was that it would permit the FISA court to appoint a lawyer to challenge, hypothetically, some of its behavior.

    Fox, henhouse….

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  16. Most of America now believes that the government not only has the power but the constitutional duty to determine which American citizens may have second amendment rights, that government may require citizens to obtain permission and pass tests in order to take advantage of their constitutionally no longer so guaranteed and protected second amendment rights. Why would anyone be surprised that every other right is now a mere privilege too? If government may strip that citizen of his rights for the ‘right’ reason then all it needs to strip every citizen of every right is a reason.

  17. but this Fox News judge is still pushing that the states sue the Feds = UNCONSTITUTIONAL

    They are no longer limited in their scope and power – the epitomy of a government
    who has no limitations in its power.. The US is not a Kingdom, not a democracy
    but a Constitutional Republic where the states delegate the power of the Feds..
    THE STATES ARE THE HIGHER AUTHORITY – AND THE FEDERAL GOVT
    IS THE SUBJECT..
    https://www.youtube.com/watch?v=FmS5nmsRRp0

    1. No longer true circa 1865

  18. Given that the congress, the courts and government in general have all been involved in making hash out of constitutional rights, with some exceptions, it is amazing that the people have not risen up, and told the above mentioned to FUCK OFF, pardon my use of a crude expression.

  19. Would all of our lives be safer if the government could break down all the doors it
    Fruit of the Poisonous Tree wishes, listen to all the conversations it could find and read whatever emails and text messages it could acquire? Perhaps. But who would want to live in such a society?

    That ignores the fact that more people have been killed by their own government than by any other cause.

    1. hmmm not sure about this one. ANY other cause? Like more than heart disease or cancer? Would be interesting to look at some numbers, but I would think that, even providing you mean more than any single specific cause, the long term historical view would be important to such a claim, but also make data extremely unreliable. Benefit of the doubt: maybe if you counted each type of heart disease separately?

  20. I think it’s time we moved the Capitol from state to state each year. Apparently, our three branches of government still feel like targets in D.C. Fear has greatly impaired their senses of context and rational thought. A little geographic distance might help them gain some common sense.

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    Robert Lewis Dear
    Ted Cruz
    Hillary Whatzername
    Harry Anslinger
    Other drug czars
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