September 19, 2018

How YOU are re-STUFFING the Fourth Amendment

It’s time to build off of our success in Carpenter, with an amicus in Zodhiates Retweet  

We’ll be blunt. This is a fundraising appeal. If you don’t care about the Fourth Amendment, close this message. We’re seeking funding to capitalize on a victory!

We just told you about two big wins in Supreme Court cases, where we filed amicus briefs: Collins & Carpenter. Indeed, the victory we just reported in (Timothy) Carpenter v. United States appears to be of landmark value. Supreme Court appointee Brett Kavanaugh called it a “game changer” during his confirmation hearing. And…

We have a chance to apply this Carpenter win directly and immediately!

The new opportunity is United States v. Zodhiates. This case could be the very first test of the Carpenter ruling, if you’ll…

Help us grab this opportunity

It was your support of Downsize DC’s amicus activities that got us here.

We’ve repeatedly told you about the landmark result we achieved in U.S. v. (Antoine) Jones, a Fourth Amendment case. We guided the Supreme Court to a restoration of the property rationale. This was a huge deal!

Property was the key to interpreting the Fourth Amendment until early in the 20th century. Simply, the Fourth Amendment is about “stuff” — YOUR person, house(s), papers, and effects.

But for decades, the Supreme Court knocked the stuffing out of the Fourth Amendment. Then, in…

1966: Justice Harlan’s concurring opinion in Katz v. United States (1967) invented the “reasonable expectation of privacy” standard.
1968: Justice Brennan delivered the death blow to a more objective and historical property-based interpretation of the Fourth Amendment, suggesting that it only protected privacy in Warden v. Hayden (1968).

Notice the word “reasonable.” It was used to limit and erode your rights.

Get-tough-on-crime judges, who think cops can do no wrong, invented “reasonable” exceptions to the Fourth Amendment. Indeed, in our last two cases, we dealt with two of these…

  • In Collins, it was the automobile exception. The privacy rationale had fallen so far that the government assumed it was “reasonable” to walk onto someone’s property and lift a tarp to inspect a motorcycle — no warrant necessary.
  • In Carpenter, the supposedly reasonable exception to the Fourth Amendment was the so-called “third-party doctrine.” If you shared anything of value with a vendor (a third party), the government thought they could open it with a prosecutor’s request (instead of a warrant).

Indeed, each advancement in technology has killed a bit more of your privacy and thus eroded your Fourth Amendment protections. Your stuff could now be surveilled and studied, both in real time and long after the event is over.

After all, the Fourth Amendment was not about your property!

The Jones case changed that! And it was likely a wake-up call to some on the Supreme Court. The pro-cop, tough-on-crime faction realized things had gone too far, and they brought back the property basis that has, ALL ALONG, been the basis of the Fourth Amendment.

This meant we had a way to make a civil libertarian case to the right side of the Court. But the left side still retained a bias against “stuff,” because…

  • They see property as the province of the privileged. They ask, “Do property owners have greater rights than the poor?”
  • Privacy doctrine is tied to abortion choice. If we’re only talking property, perhaps the fetus has rights. But the relationship between a woman and her doctor has the expectation of privacy.

Nevertheless, the left side of the Court realized that privacy was shrinking as rapidly as technology was expanding. They saw that the right wing was responding to this by “putting the stuffing back!” in the Fourth. They’ve responded by reinvigorating the privacy standard. This is what they attempted to do in Carpenter

The majority, led by Chief Justice Roberts, vastly re-expanded the “reasonable” expectation of privacy and put “third party doctrine” on life support in the process. Certainly, the Court reasoned, we’re not required to trade away our Fourth Amendment rights in order to live in the 21st century! Conclusion: the police needed a warrant to access Timothy Carpenter’s CSLI (cell-site location information).

Now, we have two ways to win!

Our Fourth Amendment rights now have two protections — property and privacy rights. Since Jones, the Supremes have indicated that, in matters of surveillance, property applies first and privacy STILL applies second.

However, most lawyers don’t yet understand Jones, and some have feared arguing for it because they felt they needed to win-over some justices on the left wing of The Court. But Justices Gorsuch and Thomas, along with potential Justice Kavanaugh, have indicated a deep interest in property-based arguments in Fourth Amendment cases.

It’s our job to apply our unique experience to reach these Justices. And we cannot do it without you.

We’re seeking new pledgers and generous donations to file another amicus brief, to build upon our successes. But we’d be remiss if we didn’t tell you that locating at least one patron with $1,000 or more worth of enthusiasm is basically a necessity. You might be that person. Please…

Be Enthusiastic


Likewise, Carpenter’s privacy standard must be tested. The sooner, the better. And we have an ideal case to do that.

United States v. (Philip) Zodhiates

This case might look familiar to you. We filed a brief in it last summer using the same arguments that prevailed in Carpenter. At issue again was CSLI — our attorneys think it’s more accurate to call it “private individual location information.”

Zodhiates private individual location information was…

  • gathered without a warrant.
  • a significant piece of circumstantial evidence in his conviction.

The court refused to wait for the results in Carpenter even though they knew it was pending. And when they did get that ruling, they still declined to give Mr. Zodhiates a hearing on the matter. Instead…

They dismissed the matter. They said law enforcement used “good faith” and thought they were following the case law at the time, so the Carpenter ruling didn’t apply.

Apparently, Mr. Zodhiates should be comforted that his Fourth Amendment rights were only snagged by officials who meant well.

And what was the law upon which those law enforcement officials drew? Two 1970s cases called Smith and Miller. If only the Supreme Court had addressed these two cases in Carpenter. Oh wait, they did and by name!

They ruled that relying on these two cases would be a “significant extension” of them. In other words…

There NEVER was a point where the Smith and Miller rulings were applicable!

We’re filing an amicus in support of a petition for rehearing. And we expect to secure it. Zodhiates is…

Perhaps the most “open and shut” case we’ve ever had partners with the Downsize DC Foundation (home of the Zero Aggression Project) so that your contributions can be tax-deductible. When you click that button, you’ll be taken to the Zero Aggression Project contribution form.

Thank you for your support and for being an ACTIVE DC Downsizer,

Jim Babka & Perry Willis, Inc.
& Downsize DC Foundation (home of the Zero Aggression Project)

P.S. The Second Circuit’s decision to affirm the Zodhiates conviction essentially asserts that the Constitution imposes no restraint on law enforcement until or unless an appellate court says so. Isn’t that special? The Constitution doesn’t matter, but judges do. Thus, ALL police searches and seizures are ALWAYS conducted in GOOD FAITH until an appeals judge says otherwise!

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