United States v. Zodhiates

admin Constitutional Law, U. S. Court of Appeals, Second Circuit

Today we filed an amicus brief in the Second Circuit in support of a petition for rehearing en banc, asking the Court to reconsider its decision which misapplied the Supreme Court’s decision in Carpenter v. United States, 138 S.Ct. 2006 (June 22, 2018). The trial court allowed the government to introduce evidence of “Cell Site Location Information” (“CSLI”) obtained without a warrant, which the Carpenter decision affirmed was protected by the Fourth Amendment. (This is our second amicus brief that we filed in this case, the first being filed on July 26, 2017) Read More

Article: Washington Examiner — “Brett Kavanaugh will be very good for property rights”

admin Press Coverage

This article by Dick Patten of the American Business Defense Council  in the Washington Examiner about the appointment of Judge Kavanaugh references our article in Case Western School of Law Journal of Law, Technology & the Internet.  There, we discussed Judge Kavanaugh’s important dissent to the denial of a petition for rehearing en banc in a case that became United States v. Jones in the U.S. Supreme Court.  We analyzed Judge Kavanaugh’s dissent in our amicus brief in Jones, and Justice Scalia’s decision embraced the originalist property-based foundation for the Fourth Amendment. Read More

United States v. Ackerman

admin Constitutional Law, U. S. Court of Appeals, Tenth Circuit

Today we filed our second amicus brief in the Ackerman case. Our first brief was filed in the U.S. District Court for the District of Kansas, and today’s brief was filed in the Tenth Circuit. This case involves the power of the government to conduct searches and seizures of email and attachments to email. The District Court decision upholding the search was entirely based on the “reasonable expectation of privacy” atextual judicial construct. When this case was before the Tenth Circuit previously, that Court raised the property basis of the Fourth Amendment set out in United States v. Jones in 2012, but this issue was not addressed by the District Court.
In the third section of our brief, we explain the history of the property foundation of the Fourth Amendment from before its ratification, through its abandonment, and now through its return to primacy in Fourth Amendment jurisprudence. (Now-Justice Gorsuch authored the earlier Tenth Circuit opinion focusing on the property principle.)

Link to brief

Ulbricht v. United States

admin Constitutional Law, U. S. Supreme Court

Today we filed an amicus brief in support of a petition for certiorari in the U.S. Supreme Court addressing important Fourth And Sixth Amendment issues.  The investigation into Ross WilliamUlbricht, the founder of the “Silk Road” website, involved numerous Fourth Amendment violations in the search and seizure of his Internet Communications records.   Additionally, Ulbricht had been sentenced to life imprisonment, and there is now no parole in the federal system, based on a judge’s findings of fact based on the preponderance of the evidence, in violation of his right to a jury trial.

Link to brief

Collins v. Virginia — Merits Brief

Jeremiah Morgan Constitutional Law, U. S. Supreme Court

Today, we filed an amicus brief in the U.S. Supreme Court in a case involving a warrantless search of a motorcycle under a tarp located in the “curtilage” of a home, or the area immediately surrounding it.  Under the deeply flawed rule the Virginia Supreme Court applied, the Fourth Amendment has no bearing at all whenever an automobile or anything that resembles an automobile is being searched, irrespective of where the automobile is located. Read More

United States v. Seerden

Michael Harless Constitutional Law, U.S. District Court, Eastern District of Virginia

Today we filed an amicus brief in the U.S. District Court for the Eastern District of Virginia in defense of a service member whose cell phone was searched and seized by the military in an unlawful manner.  As we have in the Jones case, the Graham case, the Zodhiates case, and others we explain how the Fourth Amendment first and foremost protects property rights, not some vague “reasonable expectation of privacy.” Read More

United States v. Zodhiates

Michael Harless Constitutional Law, U. S. Court of Appeals, Second Circuit

Today we filed a brief in the Second Circuit challenging the Government’s use of cell phone location information obtained from a cell phone provider in response to a grand jury subpoena.  We explain that under the Jones and Jardines textual/historic analysis that the cell phone user has a protected privacy interest in these records.

Accordingly, under the Fourth Amendment, the Government must seek them by warrant issued from a judicial officer issued “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Read More

United States v. Ackerman

Michael Harless Constitutional Law, U. S. District Court, District of Kansas

Today, we filed an amicus brief in support of a motion to suppress evidence in a criminal case in the U.S. District Court for the District of Kansas.  The case is on remand from an appeal to the Tenth Circuit which resulted in a decision written by Judge (now Justice) Neil Gorsuch.  Gorsuch had pointed out that the search of an email with its attachments could constitute a violation of the email owner’s property interest protected by the Fourth Amendment, applying the Supreme Court’s United States v. Jones principle.  Our amicus brief pointed out that the Jones property principle is primary, but also, the search of the email violated the defendant’s privacy interest in the communications. Read More

Collins v. Commonwealth of Virginia

Michael Harless Constitutional Law, U. S. Supreme Court

Today we filed an amicus brief urging the U.S. Supreme Court to review a deeply flawed decision of the Virginia Supreme Court involving the Fourth Amendment.  The cased involved different ways that courts evaluate the constitutionality of searches and seizures.  The search in this case was of a motorcycle under a tarp located what is known as the “curtilage” of a home, or the area immediately surrounding it.  Under the deeply flawed rule the Virginia Supreme Court applied, the Fourth Amendment has no bearing at all whenever an automobile or anything that resembles an automobile is being searched, irrespective of where the automobile is located. Read More

Graham v. United States

Michael Harless Constitutional Law, U. S. Supreme Court

Today our firm filed an amicus brief in the U.S. Supreme Court in support of a petition for certiorari in a case involving a Fourth Amendment violation where a person’s whereabouts were tracked for months by seizing his cell site location information. We argued against the Supreme Court’s “third-party doctrine,” which holds that a person does not have a “reasonable expectation of privacy” if he voluntarily gives information to third parties. Further, the brief relied on the Court’s recently reinvigorated property rights basis of the Fourth Amendment, urging the Court to consider a person’s cell phone data and location as his property even though not a physical object. Read More

Article: “Manuel v. Joliet: Blocking the Courthouse Door to Victims of Police Misconduct”

Michael Harless Publications

This morning, the American Thinker published Jeremiah Morgan’s article about the amicus brief we filed in Manuel v. City of Joliet.  The U.S. Supreme Court will hear oral argument in this case on Wednesday, October 5.  The article explains why victims of police misconduct should be able to bring a Fourth Amendment based suit when police fabricate evidence to obtain an indictment.

Link to article Read More

Wikimedia Foundation v. National Security Agency

Michael Harless Constitutional Law, U. S. Court of Appeals, Fourth Circuit

Today,we filed our third brief opposing NSA’s program of “Upstream” Internet surveillance of Americans.  Our brief urges the Fourth Circuit to reverse the decision of the District Court in Maryland which found that neither Wikimedia Foundation — which runs Wikipedia — nor the other plaintiffs in the case, had standing to challenge that surveillance.

Link to brief

Birchfield v. North Dakota

Michael Harless U. S. Supreme Court

Today we filed a brief in the U.S. Supreme Court urging the High Court to reverse decisions from the Supreme Court of North Dakota and Minnesota which authorized police to force drivers to submit to warrantless blood and breath tests.  We urge the Court to apply to principles of its prior decisions in United States v. Jones, and Florida v. Jardines, which re-established the property basis of the Fourth Amendment.  We oppose reliance on the modern notion that the Fourth Amendment only protected a nontextual “expectation of privacy” — a false notion on which the two state supreme courts relied. Read More

United States v. Graham

Jeremiah Morgan Constitutional Law, U. S. Court of Appeals, Fourth Circuit

Today our firm filed a brief supporting a Fourth Amendment challenge to the warrantless use of cell site location information.

The brief was filed on behalf of DownsizeDC.org, Downsize DC Foundation, United States Justice Foundation, Gun Owners of America, Inc., Gun Owners Foundation, Conservative Legal Defense and Education Fund, and Institute on the Constitution.

Link to brief

Herb Titus Speaking at CLE on Fourth Amendment

Michael Harless Appearances, Constitutional Law

Today, Herb Titus spoke at a Conference on Eminent Domain and Land Value Litigation sponsored by the American Law Institute in San Francisco, California.

Herb’s topic was the reemergence of the private property principle in the Fourth Amendment, as reflected in two recent decisions of the U.S. Supreme Court. In United States v. Jones and Jardines v. Florida, the Court ruled that the rights protected by the ban on unreasonable searches and seizures is foremost a protection against trespass against property interests in one’s person, house, paper and effect without regard for the property owner’s expectation of privacy, reasonable or otherwise. Read More

Los Angeles v. Patel — Amicus Brief

Michael Harless Constitutional Law, U. S. Supreme Court

Our firm filed yet another amicus curiae brief in our continuing effort to revitalize and extend the property basis of the Fourth Amendment. Here the case involved applying the Fourth Amendment to protect certain commercial records of hotels — guest registers.

Our brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Downsize DC Foundation, DownsizeDC.org, Conservative Legal Defense and Education Fund, and Policy Analysis Center. Read More

SCOTUSBlog discusses our Brief in Rodriguez v. United States

Michael Harless Press Coverage

SCOTUSblog published a preview of the oral argument in Rodriguez v. United States, and discussed our amicus brief:
“One amicus brief was filed in support of each side. While the parties avoid the question whether a dog sniff is a “search,” the U.S. Justice Foundation argues in support of Rodriguez that the Jardines and Jones decisions should call Caballes into question on this point, and that a dog sniff of one’s car should not be allowed without independent Fourth Amendment justification. Pitching a portion of its argument, apparently, at common-law enthusiasts such as Justice Scalia and Justice Clarence Thomas, this amicus brief cites political philosopher John Locke from 1690 (about property rights, not cars, of course).” Read More