Of Drones, Phones and Privacy Zones

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Back when I started in the privacy advocacy community -- about 20 years ago, at the ACLU -- we used to talk about the incredible shrinking Fourth Amendment.  It was a riff on the Lilly Tomlin movie – The Incredible Shrinking Woman.  In the movie, Tomlin’s character shrank because she was exposed to an experimental perfume.  The question we face today is whether the zone of privacy protected by the Fourth Amendment will shrink on account of our use of technology.

Heien v. North Carolina: Is a Reasonable Mistake Enough to Warrant a Traffic Stop?

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Hein v. United States

Docket No.  13-604

Argument Date:  Oct. 6, 2014

HOLDING:    

On December 15, 2014, the Supreme Court of the United States decided that a police officer’s reasonable mistake of law was enough to establish reasonable suspicion to justify a traffic stop and that it did not violate the Fourth Amendment of the United States Constitution.

    

Cops and Robbers

On January 16, 2015, Attorney General Eric Holder made promising changes to the policies regarding federal adoption of property seized by state or local law enforcement under state law in order for the property to be forfeited under federal law (“federal adoption”). Prior to this press release, federal law enforcement agencies could adopt property seized by state or local law enforcement agencies to prevent property from being returned to criminals. However, in order to seize the property, law enforcement officers only need to show that the property is related to criminal conduct by the preponderance of the evidence. Permitting law enforcement agencies to keep these assets potentially incentivizes many asset forfeitures. This may explain the findings of a recent Washington Post investigation, which revealed that law enforcement agencies have seized $2.5 Billion since 2001 from people who were never charged with a crime.

The Need to Seize the Abuse: Civil Asset Forfeitures and the Efforts at Reform

At a time when the public is becoming more aware and informed of law enforcement related abuse, some have begun to take note of one of the most common, and most profitable, forms of abuse: civil asset forfeitures.

In the aftermath of the September 11 attacks, the federal government encouraged state and local police departments to play a more active role in searching for both suspicious people and suspicious activity. This encouragement, reinforced with millions of dollars on training and education, has resulted in an environment in which police officers routinely confiscate money and property from individuals who have not been, nor are, accused of a crime. The government need only show by preponderance of the evidence that the property was being used for illegal purposes.