Search And Seizure Documentation Administrators Form And Guide: Fill & Download for Free

No, it’s not illegal.The Fourth Amendment to the U.S. Constitution guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Before 1985, doubt existed about whether this right applied to students in the public schools. Schools argued that administrators acted in loco parentis—in the place of the parent—while students were at school. In 1985, the U.S. Supreme Court determined that the Fourth Amendment applies to students in the public schools (New Jersey v. T.L.O., 1985). The Court concluded, however, that the school environment requires an easing of the restriction to which searches by public authorities are normally subject. School officials, therefore, do not need probable cause or a warrant to search students.The Court articulated a standard for student searches: reasonable suspicion. Reasonable suspicion is satisfied when two conditions exist: (1) the search is justified at its inception, meaning that there are reasonable grounds for suspecting that the search will reveal evidence that the student has violated or is violating the law or school rules, and (2) the search is reasonably related in scope to the circumstances that justified the search, meaning that the measures used to conduct the search are reasonably related to the objectives of the search and that the search is not excessively intrusive in light of the student's age and sex and the nature of the offense.In New Jersey v. T.L.O., a teacher's report of a student smoking in the bathroom justified a search of the student's purse. Since this landmark decision, several cases have debated what constitutes reasonable suspicion:Four students huddled together, one with money in his hand and another with his hand in his pocket, does not provide reasonable suspicion (A.S. v. State of Florida, 1997).An anonymous phone call advising an administrator that a student will be bringing drugs to school, coupled with the student's reputation as a drug dealer, creates reasonable suspicion to search the student's pockets and book bag (State of New Hampshire v. Drake, 1995).A report made by two students to a school official that another student possesses a gun at school constitutes reasonable suspicion to search the student and his locker (In re Commonwealth v. Carey,1990).An experienced drug counselor's observation of a student who appears distracted and has bloodshot eyes and dilated pupils justifies taking the student's blood pressure and pulse (Bridgman v. New Trier High School District No. 203, 1997).The fact that the search of all but one student in a class fails to reveal allegedly stolen property gives school officials reasonable suspicion to search that student (DesRoches v. Caprio, 1998).The odor of marijuana in the hall does not provide reasonable suspicion to search all students' book bags, purses, and pockets (Burnham v. West, 1987).Although the legal standard for reasonable suspicion is clear, the application of it in different contexts is not always as clear. The Court has even noted thatarticulating precisely what reasonable suspicion means . . . is not possible. Reasonable suspicion is a commonsense, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. (Ornelas v. United States, 1996, at 695)Probable Cause and Student ConsentSchool officials need only reasonable suspicion to search students in public schools, but sworn law enforcement officials normally must have probable cause to search students. Probable cause to search exists when "known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband . . . will be found" (Ornelas v. United States, 1996, at 696). But are law enforcement officials assigned to schools to maintain safety subject to the reasonable suspicion standard or the higher probable cause standard? The answer depends on whether the court views law enforcement personnel assigned to the school as school officials or law enforcement officials.When the police or school administrators act at one another's request, they run the risk of becoming one another's agents. Such a relationship could change the standard necessary to conduct a student search. Some courts treat police officers as school officials subject to the lower standard of reasonable suspicion when they search students at the request of school administrators (In the Interest of Angelia D.B., 1997). Other courts hold that school officials conducting a search on the basis of information from the school resource officer are acting as agents of the police and are, therefore, subject to the higher standard of probable cause (State of New Hampshire v. Heirtzler, 2000). The mere presence of a sworn law enforcement officer during a search by a school administrator does not trigger the need for probable cause (Florida v. D.S., 1996).School officials and sworn law enforcement officers may conduct a search without reasonable suspicion or probable cause if the student voluntarily consents to the search. Voluntariness is determined on the basis of the circumstances—including the student's age, education level, and mental capacity—and the context of the search. When consent is granted, officials may conduct the search only within the boundaries of the consent. If a student consents to the search of her purse, for example, an administrator may not search her locker unless the search of the purse provides probable cause or reasonable suspicion to search the locker. School officials and law enforcement officers are not required to advise students that they have a right to refuse to give consent to search. Some school policies or state regulations, however, may require that they advise students of their rights.Some school policies require students to provide consent to a search or risk discipline. In at least one federal circuit, the court has upheld this policy (DesRoches v. Caprio, 1998). In this case, all but one student consented to a search of their personal belongings. The search of the consenting students revealed nothing. Pursuant to school board policy, DesRoches was suspended for 10 days for failure to consent to the search. The student claimed that his Fourth Amendment rights were violated because the administrator did not have reasonable suspicion to search him. The court held that when the search of all other students in the class failed to reveal the stolen item, the administrator had reasonable, individualized suspicion to search DesRoches. Therefore, his discipline for failing to consent to a legal search was upheld.Individual Versus Random SearchesSchool officials conduct individual searches when they suspect that a student or a small group of students possesses evidence of a violation of the law or school rules. Such searches are subject to the reasonable suspicion standard. Officials conduct random or blanket searches not because of individualized suspicion, but as a preventive measure. Examples of random searches include the use of metal detectors in school entrances and sweeps of parking lots and lockers. The legality of a random search depends on whether the school has a compelling interest or special need that warrants the use of a search without suspicion. The most common need articulated by schools is the prevention of drug abuse.Perhaps the most controversial random search is the use of drug-sniffing dogs in schools. The right of school officials or police to use dogs to detect drugs in students' belongings is well established. In fact, most courts conclude that such detection is not a search because the dogs merely sniff the air around the property and that students do not have an expectation of privacy in the air around their belongings.One federal court has recently held that the use of drug-sniffing dogs on a student's person requires individualized, reasonable suspicion. Prevention of drug abuse, according to this court, does not justify the dog sniffing the person because it intrudes on the expectation of privacy and security (B.C. v. Plumas Unified School District, 1999). This case changed practices in many school districts—those schools no longer use the dogs to sniff around students.Drug-testing programs are another form of a random search. In 1995, the Supreme Court upheld a drug-testing program for student athletes because the school had a documented drug epidemic; participation in athletics was optional; the athletes had a lessened expectation of privacy because they participated in communal showering; the athletes had a heightened risk of injury; the athletes were the leaders of the drug culture; the testing procedure was minimally intrusive; and the consequence of a positive test was not discipline but treatment (Vernonia School District 47J v. Acton, 1995).As schools try to expand drug-testing programs beyond the facts in Vernonia, courts have struggled in a number of cases to determine what is constitutional:Todd v. Rush (1998) and Miller v. Wilkes (1999) upheld drug testing for students participating in any extracurricular activity.Willis v. Anderson (1998) struck down drug testing for students suspended for certain disciplinary infractions such as fighting.Joy et al. v. Penn-Harris Madison School Corporation(2000) upheld a drug testing program for students who drive to school or engage in extracurricular activities.Earls v. Board of Education of Tecumseh Public School District (2001) struck down a drug-testing policy for students participating in extracurricular activities because no special need existed other than for athletes. The opinion notes, however, that schools need not wait until drug use is epidemic before implementing a testing program.Tannahill v. Lockney Independent School District (2001) struck down a drug-testing policy for all middle and high school students for lack of a compelling state interest (there was no documented drug abuse program for students in this locality).Until the Court provides guidance on drug-testing programs beyond the facts of Vernonia, schools should consider the following questions before instituting a drug-testing program: How serious is the drug problem in the tested population? Have less intrusive means to combat the problem been exhausted? Did parents give consent to the search? Is the testing procedure reliable and minimally intrusive? Are the consequences of a positive search result discipline, denial of privileges, or treatment?The primary purpose of student searches is to maintain a safe learning environment. Discipline and conviction are two secondary purposes. Usually, law enforcement personnel conduct searches to reveal evidence of a violation of the law. The seized evidence then can be used in a criminal trial to convict the student of a crime. School administrators conduct a search to gather evidence for school discipline. At times law enforcement and school administrators may, therefore, have different purposes for a potential search. One crucial difference in their purposes is the ability to use the results of an illegal search in a disciplinary hearing but not in a criminal proceeding.School administrators face severe threats to school safety and are simultaneously held increasingly accountable to the public and policymakers to keep students safe. To keep schools safe, most administrators err on the side of searching rather than not searching. Administrators' judgments are protected by governmental immunity as long as the search is not knowingly or willfully illegal. In fact, an administrator will not incur civil liability unless his or her conduct violates clearly established statutory or constitutional rights (Harlow v. Fitzgerald, 1982). Immunity is not dependent on whether the actual search violated the law but rather on the objective reasonableness of the search. Immunity protects administrators acting in good faith in a gray area of the law.Preventive SearchAs school practitioners navigate the murky waters of school searches, two practices may help successfully avoid legal challenge: debriefing and policy.Debriefing. After a search, administrators should meet with those individuals who are involved. Record and reflect on the crucial areas of the search and learn from the reflection. This exercise may be invaluable if the search is subsequently challenged. Document the names of the people who conducted the search; the background of the student who was searched; the alleged infraction; the way the school learned of the infraction; the basis for the search (for example, how reasonable suspicion, probable cause, or consent was obtained); the time and location of the search; the names of the people who were present at the search; and the school policies that were implicated and followed. School officials should also note whether the police were involved or present during the search.Policy. The best search policies are developed by school boards who work collaboratively with local law enforcement officials, local judges and attorneys, school staff, and community members. A sound policy can make the difference between a legal or illegal search. Sound school search policies should have a mission statement: to maintain a safe learning environment. They should outline techniques for searching students, from the least intrusive to the most intrusive means (metal detectors, canines, breath tests, urine tests, pat downs, strip searches), and they should describe the types of searches students may be subjected to while on school property or at a school function (locker searches, automobile searches, personal belongings, and personal searches). The policies should explain what happens to seized possessions; define consent searches and note how consent may be obtained and the consequences for failing to provide it; state that lockers and other school property are provided for students' use, are under the school's control, and are subject to search at all times; and require that students and parents acknowledge that they have read and understood the school search policy.Good policies can guide educators' actions, but school staff members need to remember that what constitutes a legal student search depends upon the context. Despite the lack of clarity about whether to apply reasonable suspicion or probable cause in different situations, courts are more willing now than ever to find student searches legal to preserve safety. In the final analysis, school personnel should balance the student's expectation of privacy with the school's unique need to create and preserve a safe learning and working environment.ReferencesA.S. v. State of Florida, 693 So. 2d 1095 (Fla. App. 2d Dist. 1997).B.C. v. Plumas Unified School District, 192 F.3d 1260 (9th Cir. 1999).Bridgman v. New Trier High School District No. 203, 128 F. 3d 1146 (7th Cir. 1997).Burnham v. West, 681 F. Supp. 1160 (E.D. Va. 1987).DesRoches v. Caprio, 156 F.3d 571 (4th Cir. 1998).Earls v. Board of Education of Tecumseh Public School District, 242 F.3d 1264 (10th Cir. 2001).Florida v. D.S., 685 So.2d 41 (Fla. App. 3d Dist. 1996).Harlow v. Fitzgerald, 457 U.S. 800 (1982).In re Commonwealth v. Carey, 554 N.E. 2d 1199 (Mass. 1990).In the Interest of Angelia D.B. 564 N.W. 2d 682 (Wis. 1997).Joy et al. v. Penn-Harris Madison School Corporation, 212 F.3d 1052 (7th Cir. 2000).Miller v. Wilkes, 172 F.3d 574 (8th Cir. 1999).New Jersey v. T.L.O., 469 U.S. 325 (1985).Ornelas v. United States, 517 U.S. 690 (1996).State of New Hampshire v. Drake, 662 A.2d 265 (1995).State of New Hampshire v. Heirtzler, No. 00-139 (Sup. Ct. filed May 2000).Tannahill v. Lockney Independent School District, 133 F. Supp. 2d 919 (N.D. Texas 2001).Todd v. Rush, 133 F. 3d 984 (7th Cir. 1998).Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).Willis v. Anderson, 158 F. 3d 415 (7th Cir. 1998).[1]Footnotes[1] The Right to Search Students

Are the Republicans "The party of No!"?Are the Democrats the party of "It's Bush's fault."?Let's examine that and where that answer takes us.PROLOGUEThere is a Presidential election in 2016, and it is not too early to start thinking about what is happening today. A full throated debate that will begin early in 2014. The Congressional mid-terms occur 04 Nov 2014. Republicans need to prepare. America needs to decide. Maintain course or make an adjustment. Both sides of this debate have their reasons for staying the course or making a hard turn.This map shows the Senate by party and by state. PPACA was passed under some chicanery by the Senate Democrats, with no Republicans voting in the affirmative. More on that in a moment. This type of legislation has been pushed by Republicans in some form, notably Rommey Care in Massachusetts, and in more dynamic forms by Democrats, for over the last 75 years. Since the New Deal under FDR.•••••••••••••••••••••••••••••••••••••••••••••••••••••The bill sent to the Senate, by the House, had the original House language in the bill gutted. The Senate had the language replaced and sent back to the House. All spending must originate in the House, and this bill fundamentally violates the Constitution."A challenge filed by the Pacific Legal Foundation contends that the Affordable Care Act is unconstitutional because the bill originated in the Senate, not the House. Under the Origination Clause of the Constitution, all bills raising revenue must begin in the House.The Supreme Court upheld most provisions of the act in June, but Chief Justice John G. Roberts Jr. took pains in the majority opinion to define Obamacare as a federal tax, not a mandate. That was when the Sacramento, Calif.-based foundation’s attorneys had their “aha” moment.“The court there quite explicitly says, ‘This is not a law passed under the Commerce Clause; this is just a tax,’” foundation attorney Timothy Sandefur said at a Cato Institute forum on legal challenges to the health care act. “Well, then the Origination Clause ought to apply. The courts should not be out there carving in new exceptions to the Origination Clause.”http://www.freerepublic.com/focu...http://cookpolitical.com/file/20...•••••••••••••••••••••••••••••••••••••••••••••••••••••Here is some Senate math on the seats as the 2014 mid-term elections approach.House seats in play:http://www.centerforpolitics.org...Senate seats in playhttp://rothenbergpoliticalreport...•••••••••••••••••••••••••••••••••••••••••••••••••••••15 Democrat Senate seats (*) are competitive, and 2 Republican(**) seats are competitive.(*) Oregon,(*) Alaska,(*) Hawaii,(*) Montana,(*) Colorado,(*) Minnesota,(*) South Dakota,(*) Iowa,(*) Missouri,(*) Louisiana,(*) Michigan,(*) West Virginia,(**) Kentucky(**) Georgia(*) North Carolina,(*) New Hampshire,(*) Massachusetts,http://en.m.wikipedia.org/wiki/U...CHAPTER ONEThe debate on who should be elected, and how to secure a dominate party to ease this country away from the Progressive movement that has been underway since 20 Jan 2009, needs to begin yesterday!Will the Republican's blame Obama, since the Democrats can't blame Bush anymore in 2014? Will the Democrats be blamed for the Patient Protection and Affordable Care Act, since "the bloom was off this rose" before it was jammed down our throats? The Republicans will be blamed for not helping fix something they vehemently disagreed with, never voted for, and tried to compromise on or defeat, but were rebuffed at every opportunity. It was going to be the Progressive's moment, finally, after scores of years. Generations of effort. Now was the chance, with a "Manchurian Candidate" to have a true "Mission Accomplished" moment!What will be the key issues after all the finger pointing is dismissed by both parties, and the media ignores the entire story as Republican obstruction?It should be the economy. It should be jobs. It should be energy; finally—no more "put on a sweater (Jimmy Carter) turn down the thermostat policy", for energy independence. We have the energy, we just have too many modern day "Luddites" who are afraid their "save the planet" jobs and the Earth will be destroyed. We will only be able to "save the planet" when we restore science and remove politics from the debate. Until then, the hateful ads that depict Santa as being melted out of the North Pole, and thus no more Christmas for the kids, is deplorable. This does nothing to advance the Environmentalist's cause.There should be a debate on privacy and the 4th Amendment. "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."It should be about the separation of powers, the "take care clause" in Article 2, Section 1, Paragraph 7"Before he enter on the execution of his office, he shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.""There has been an erosion of the separation of powers under the current administration, and were outline in a Dec.4, 2013 House Judiciary hearing. See below for additional statements from that hearing.Statement of Judiciary Committee Chairman Bob GoodlatteFull Committee Hearing “The President’s Constitutional Duty to Faithfully Execute the Laws”Chairman Goodlatte: Today’s hearing is about the President’s role in our constitutional system.Our system of government is a tripartite one, with each branch having certain defined functions delegated to it by the Constitution. The President is charged with executing the laws; the Congress with writing the laws; and the Judiciary with interpreting them.The Obama Administration, however, has ignored the Constitution’s carefully balanced separation of powers and unilaterally granted itself the extra-constitutional authority to amend the laws and to waive or suspend their enforcement.This raw assertion of authority goes well beyond the “executive power” granted to the President and specifically violates the Constitution’s command that the President is to “take care that the laws be faithfully executed.”The President’s encroachment into Congress’s sphere of power is not a transgression that should be taken lightly. As English historian Edward Gibbon famously observed regarding the fall of the Roman Empire, “the principles of a free constitution are irrevocably lost, when the legislative power is dominated by the executive.” Although the President’s actions may not yet amount to the executive’s powers overtaking the legislative power, they are certainly undermining the rule of law that is at the center of our constitutional design.From Obamacare to immigration, the current administration is picking and choosing which laws to enforce. But the Constitution does not confer upon the President the “executive authority” to disregard the separation of powers by unilaterally waiving, suspending, or revising the laws. It is a bedrock principle of constitutional law that the President must “faithfully execute” Acts of Congress. The President cannot refuse to enforce a law simply because he dislikes it.Certainly, presidents have from time to time made broad claims of executive power. However, assertions of executive authority have traditionally been limited to the area in which presidential powers are at their strongest—foreign affairs.The Obama Administration though has been equally assertive in the realm of domestic policy, routinely making end runs around Congress through broad claims of prosecutorial discretion and regulatory actions that push executive power beyond all limits. Indeed, President Obama is the first President since Richard Nixon to ignore a duly-enacted law simply because he disagrees with it.In place of the checks and balances established by the Constitution, President Obama has proclaimed that “I refuse to take ‘no’ for an answer” and that “where [Congress] won’t act, I will.” Throughout the Obama presidency we have seen a pattern: President Obama circumvents Congress when he doesn’t get his way.For instance, while Congress is currently debating how to reform our immigration laws, the President effectively enacted the DREAM Act himself by ordering immigration officials to stop enforcing the immigration laws against certain unlawful immigrants. When he couldn’t get his preferred changes to the No Child Left Behind education law, he unilaterally waived its testing accountability provisions. When he objected to the work requirements in the bipartisan welfare reform law, he granted waivers that are specifically forbidden by the statutory text. Instead of working with Congress to amend federal drug enforcement policy, he’s instructed prosecutors to stop enforcing certain drug laws in certain states and mandatory minimum sentences for certain offenses.And, most notably, the President has—without statutory authorization—waived, suspended, and amended several major provisions of his health care law. These unlawful modifications to Obamacare include: delaying for one year Obamacare’s employer mandate; instructing States that they are free to ignore the law’s clear language regarding which existing health care plans may be grandfathered; and promulgating an IRS rule that allows for the distribution of billions of dollars in Obamacare subsidies that Congress never authorized.The House has acted to validate retroactively some of the President’s illegal Obamacare modifications. However, rather than embrace these legislative fixes, the President’s response has been to threaten to veto the House passed measures.The President’s far-reaching claims of executive power, if left unchecked, will vest the President with broad domestic policy authority that the Constitution does not grant him.Those in the President’s political party have been largely silent in the face of this dangerous expansion of executive power. But what would they say if a president effectively repealed the environmental laws by refusing to sue polluters or the labor laws by refusing to fine violators?What if a president wanted tax cuts that Congress would not enact? Could he instruct the IRS to decline to enforce the income tax laws? President George H. W. Bush proposed, unsuccessfully, a reduction in the capital gains rate. Should he have instead simply instructed the IRS not to tax capital gains at a rate greater than 10 percent?The point is not what you think of any of President Obama’s individual policy decisions. The point is that the President may not—consistent with the command that he faithfully execute the laws—unilaterally amend, waive, or suspend the law.We must resist the President’s deliberate pattern of circumventing the legislative branch in favor of administrative decision making.We cannot allow the separation of powers enshrined in our Constitution to be abandoned in favor of an undue concentration of power in the executive branch. As James Madison warned centuries ago in Federalist 47, “the accumulation of all powers legislative, executive and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”http://judiciary.house.gov/heari...Written Statement Jonathan Turley,Shapiro Professor of Public Interest Law George Washington University"The President's Constitutional Duty to Faithfully Execute the Laws" Committee on the Judiciary United States House of Representatives 2141 Rayburn House Office Building December 3, 2013http://judiciary.house.gov/heari...Two recent rulings from a District Judge lay a heavy emphasis on these complaints above. They go directly to the encroachment of a President on the separation of powers, and diminish our freedoms.Judges rulings against OBAMAJudge orders Obama foreign aid order releasedRejecting one of the Obama White House's most aggressive attempts to preserve executive branch secrecy, a federal judge Tuesday ordered the disclosure of a government-wide foreign-aid directive President Barack Obama signed in 2010 but refused to make public.The Justice Department asserted that the Presidential Policy Directive on Global Development was covered by executive privilege, even though it is unclassified and reflected standing guidance to agencies rather than advice given to the president.Acting on a Freedom of Information Act lawsuit brought by the Center for Effective Government, U.S. District Court Judge Ellen Huvelle concluded that the presidential order is not properly within the bounds of the so-called "presidential communications privilege." The judge went further, calling "troubling" the sweeping nature of the government's argument's in the case."This is not a case involving 'a quintessential and nondelegable Presidential power' — such as appointment and removal of Executive Branch officials...where separation of powers concerns are at their highest. Instead, the development and enactment of foreign development policy can be and is “exercised or performed without the President’s direct involvement," Huvelle wrote in her opinion.Huvelle noted that she ordered the document delivered to her under seal last month and said she disagreed with the government's contention that the order is "'revelatory of the President's deliberations' such that its public disclosure would undermine future decision-making." She also found that "'the President's ability to communicate his [final] decisions privately' ... is not implicated, since the [order] was distributed far beyond the President’s close advisers and its substance was widely discussed by the President in the media.""Here there is no evidence that the [directive] was intended to be, or has been treated as, a confidential presidential communication," wrote Huvelle, a Clinton appointee.The Obama Administration argued that the distribution of the document was restricted to those with a "need to know," but the judge dismissed that contention as "amorphous.""The government has not, even after plaintiff raised the issue...defined what 'need to know' means," Huvelle wrote.The judge also suggested the administration had lost sight of the purposes of the Freedom of Information Act and transparency itself."The government appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight ... to engage in what is in effect governance by 'secret law,'" Huvelle said.The White House referred a request for comment on the ruling to the Justice Department, which did not immediately respond to a query about the case.http://www.politico.com/blogs/un...•••••••••••••••••••••••••••••••••••••••••••••••••••••Judge: NSA phone program likely unconstitutionalThe ruling is the first significant legal setback for the NSA’s surveillance program.A federal judge ruled Monday that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely unconstitutional.U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment ban on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the information had helped to head off terrorist attacks.Acting on a lawsuit brought by conservative legal activist Larry Klayman, Leon issued a preliminary injunction barring the NSA from collecting so-called metadata pertaining to the Verizon accounts of Klayman and one of his clients. However, the judge stayed the order to allow for an appeal.“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” wrote Leon, an appointee of President George W. Bush.The preliminary injunction Leon granted Monday does not require him to make a definitive ruling on the constitutional questions in the case, but does take account of which side he believes is more likely to prevail.Leon’s 68-page opinion is the first significant legal setback for the NSA’s surveillance program since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. For seven years, the metadata program has been approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court and found constitutional by at least one judge sitting in a criminal case.The Justice Department persuaded those courts that the collection of information on the time and length of calls, as well as the numbers called, did not amount to a search under the Fourth Amendment because that information is routinely available to telephone companies for billing purposes and is shared with those firms voluntarily.Government lawyers and the judges who found the NSA program legal pointed to a 1979 Supreme Court ruling, Smith v. Maryland, which found no search warrant was needed by police to install a device which recorded the numbers dialed on a particular phone line.But Leon said the three-decade-old precedent was not applicable to a program like the NSA’s because of its sophistication and because telephone use has become far more intense in recent years.“The ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s lives,” the judge wrote. “I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”The judge went on to conclude that the searches involved in the NSA metadata program were likely not permissible under the Fourth Amendment in part because there was little evidence the program has actually prevented terrorism.“I have significant doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism,” Leon wrote. “The government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”Edward Snowden himself praised the decision.“I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts. Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”The judge’s ruling was issued just before White House press secretary Jay Carney took the podium for the daily press briefing. Carney said he was unaware of the decision and he referred inquiries to the Justice Department.“We are reviewing the court’s decision,” DOJ spokesman Andrew Ames said.Similar lawsuits challenging the program are pending in at least three other federal courts around the country. In addition, criminal defendants are beginning to challenge the program after the Justice Department disclosed it had played a role in investigating their cases.Critics of the NSA program leapt on Leon’s decision as evidence that the legal foundation of the surveillance effort is deeply flawed.“The ruling underscores what I have argued for years: The bulk collection of Americans’ phone records conflicts with Americans’ privacy rights under the U.S. Constitution and has failed to make us safer,” Sen. Mark Udall (D-Colo.) said in a statement urging passage of legislation ending the so-called bulk collection program. “We can protect our national security without trampling our constitutional liberties,” he added.At a hearing last month, Leon said he knew that his decision would be far from the last word on the issue, which is almost certain to wind up at the Supreme Court.However, he added some flair to his opinion Monday, referring at one point to the Beatles and at another to Federalist Papers author James Madison, who later became president.“Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachments by those in power’ would be aghast,” the judge wrote.http://www.politico.com/story/20...There is little doubt that the public's appetite for this level of overreach will help the Democrats position in the next two election cycles ('14 and '16), and this is central to this discussion here.CHAPTER TWOVarious other "phony scandals" according to President Obama that the American public is not buying.(1) Obama, without Congressional approval or consideration, unilaterally chose to specifically violate the oath of office (see quoted above) and by deferring the implementation of the ACA for the employer mandate did extend it by one year. This is a clear violation of the constitution.(2) The President did not seek Congressional approval to invade and subsequently overthrow the President of Libya.(3) CENSUS.gov Mess in 2012 where election was influencedByron's Blog: Which are the phony Obama scandals, and how do we know which is which?(4) IRS.gov Mess in 2014 where TEA Party was blocked from approvals.Malik Obama: The IRS and Health CareLois Lerner: Tom Byron's answer to The White House: What are examples of US administration officials having been rewarded in spite of their incompetence?(5) Healthcare.gov Mess since 2010Mandate or pay fine? NoKeep your doctor? NoKeep your insurance? NoKeep your hospital? NoKeep you drug plan? NoHigh deductibles? YesHigh policy premiums? YesCHAPTER THREERepublican alternatives that aren't anywhere nearly as many pages, nor as complex or intrusive as ACA:http://rsc.scalise.house.gov/upl...And also we have over 100 members of Congress now (Nov. 2013) that have co-sponsored it. And we had medical doctors who serve in Congress, like Dr. Phil Roe, help write this bill. This is a bill based on putting patients back in charge of their health care and lowering the cost and getting government out of health care decisions.http://m.cnsnews.com/news/articl...John Podesta will help Obama extend the President's executive power. Congress will become even more irrelevant.Why didn't Obama know about various issues? Podesta will help clear this problem by advising the Chief of Staff for Obama. No more secrets will be kept from the President!KEILAR: Obama was unable to. And with the window closing on his chance for second term achievements, Democratic sources tell CNN Podesta's expertise is much needed.As President Clinton's disciplined chief of staff, Podesta guided that White House through a sex scandal, impeachment and a war in Kosovo. He was known for cracking the whip, one former Clinton colleague telling CNN his co-workers made him a name plate. On one side, "John D. Podesta."http://transcripts.cnn.com/TRANS...CHAPTER FOURBlacks used to be Republicans, but in the years since FDR, they have, sadly, become a group of voters the Democrats have exploited. If you are a Conservative Black in America, you get the full wrath of of the left. You get audited if you speak out (Dr. Ben Carson). http://touch.baltimoresun.com/#s...Additional reading on this topic.http://www.digitalhistory.uh.edu...Compare the rhetoric of these politically active individuals and how the media treats them:Alan West v. Al SharptonJC Watts v. Jessie JacksonCondie Rice v. Sheila Jackson LeeREPUBLICANS NEED ANOTHER MARGARET THATCHER OR MAYBE ANOTHER RONALD REAGAN.

Actually we have a treaty with Ukraine on this where we are supposed to share information on each other's citizens who commit criminal activity in each other's country.Text - Treaty Document 106-16 - Treaty with Ukraine on Mutual Legal Assistance in Criminal Matters U.S. GOVERNMENT PRINTING OFFICE 79-118 WASHINGTON : 1999    LETTER OF TRANSMITTAL   ----------    The White House, November 10, 1999. To the Senate of the United States:  With a view to receiving the advice and consent of the  Senate to ratification, I transmit herewith the Treaty Between  the United States of America and Ukraine on Mutual Legal  Assistance in Criminal Matters with Annex, signed at Kiev on  July 22, 1998. I transmit also, for the information of the  Senate, an exchange of notes which was signed on September 30,  1999, which provides for its provisional application, as well  as the report of the Department of State with respect to the  Treaty.  The Treaty is one of a series of modern mutual legal  assistance treaties being negotiated by the United States in  order to counter criminal activities more effectively. The  Treaty should be an effective tool to assist in the prosecution  of a wide variety of crimes, including drug trafficking  offenses. The Treaty is self-executing. It provides for a broad  range of cooperation in criminal matters. Mutual assistance  available under the Treaty includes: taking of testimony or  statements of persons; providing documents, records, and  articles of evidence; serving documents; locating or  identifying persons; transferring persons in custody for  testimony or other purposes; executing requests for searches  and seizures; assisting in proceedings related to restraint,  confiscation, forfeiture of assets, restitution, and collection  of fines; and any other form of assistance not prohibited by  the laws of the requested state.  I recommend that the Senate give early and favorable  consideration to the Treaty and give its advice and consent to  ratification.   William J. Clinton.  LETTER OF SUBMITTAL   ----------      Department of State,  Washington, October 19, 1999. The President, The White House.  The President: I have the honor to submit to you the Treaty  Between the United States of America and Ukraine on Mutual  Legal Assistance in Criminal Matters with Annex (``the  Treaty''), signed at Kiev on July 22, 1998. I recommend that  the Treaty be transmitted to the Senate for its advice and  consent to ratification.  Also enclosed, for the information of the Senate, is an  exchange of notes under which the Treaty is being provisionally  applied to the extent possible under our respective domestic  laws, in order to provide a basis for immediate mutual  assistance in criminal matters. Provisional application would  cease upon entry into force of the Treaty.  The Treaty covers mutual legal assistance in criminal  matters. In recent years, similar bilateral treaties have  entered into force with a number of other countries. The Treaty  with Ukraine contains all essential provisions sought by the  United States. It will enhance our ability to investigate and  prosecute a range of offenses. The Treaty is designed to be  self-executing and will not require new legislation.  Article 1 sets forth a non-exclusive list of the major  types of assistance to be provided under the Treaty, including  taking the testimony or statements of persons; providing  documents, records and other items of evidence; locating or  identifying persons or items; serving documents; transferring  persons in custody for testimony or other purposes; executing  requests for searches and seizures; assisting in proceedings  related to immobilization and forfeiture of assets,  restitution, and collection of fines; and, rendering any other  form of assistance not prohibited by the laws of the Requested  State. The scope of the Treaty includes not only criminal  offenses, but also proceedings related to criminal matters,  which may be civil or administrative in nature.  Article 1(3) states that assistance shall be provided  without regard to whether the conduct involved would constitute  an offense under the laws of the Requested State.  Article 1(4) states explicitly that the Treaty is not  intended to create rights in private parties to obtain,  suppress, or exclude any evidence, or to impede the execution  of a request.  Article 2 provides for the establishment of Central  Authorities and defines Central Authorities for purposes of the  Treaty. For the United States, the Central Authority shall be  the Attorney General or a person designated by the Attorney  General. For Ukraine, the Central Authority shall be the  Ministry of Justice and the Office of the Prosecutor General.  The article provides that the Central Authorities shall  communicate directly with one another for the purposes of the  Treaty.  Article 3 sets forth the circumstances under which a  Requested State's Central Authority may deny assistance under  the Treaty. A request may be denied if it relates to a military  offense that would not be an offense under ordinary criminal  law. A further ground for denial is that the request relates to  a political offense (a term expected to be defined on the basis  of that term's usage in extradition treaties). In addition, a  request may be denied if its execution would prejudice the  security or similar essential interests of the Requested State,  or if it is not made in conformity with the Treaty.  Before denying assistance under Article 3, the Central  Authority of the Requested State is required to consult with  its counterpart in the Requesting State to consider whether  assistance can be given subject to such conditions as the  Central Authority of the RequestedState deems necessary. If the  Requesting State accepts assistance subject to these conditions, it is  required to comply with the conditions. If the Central Authority of the  Requested State denies assistance, it is required to inform the Central  Authority of the Requesting State of the reasons for the denial.  Article 4 prescribes the form and content of written  requests under the Treaty, specifying in detail the information  required in each request. The article permits other forms of  requests in emergency situations but requires written  confirmation within ten days thereafter unless the Central  Authority of the Requested State agrees otherwise.  Article 5 requires the Central Authority of the Requested  State to execute the request promptly or to transmit it to the  authority having jurisdiction to do so. It provides that the  competent authorities of the Requested State shall do  everything in their power to execute a request, and that the  courts or other competent authorities of the Requested State  shall have authority to issue subpoenas, search and arrest  warrants, or other orders necessary to execute the request. The  Central Authority of the Requested State must make all  arrangements for representation of the Requesting State in any  proceedings arising out of an assistance request.  Under Article 5(3), requests are to be executed in  accordance with the laws of the Requested State except to the  extent that the Treaty provides otherwise. However, the method  of execution specified in the request is to be followed except  insofar as it is prohibited by the laws of the Requested State.  Article 5(4) provides that if the Central Authority of the  Requested State determines that execution of the request would  interfere with an ongoing criminal investigation, prosecution,  or proceeding in that State, it may postpone execution or,  after consulting with the Central Authority of the Requesting  State, impose conditions on execution. If the Requesting State  accepts assistance subject to the conditions, it shall comply  with such conditions.  Article 5(5) further requires the Requested State, if so  requested, to use its best efforts to keep confidential a  request and its contents, and to inform the Requesting State's  Central Authority if the request cannot be executed without  breaching confidentiality. This provides the Requesting State  an opportunity to decide whether to pursue the request or to  withdraw it in order to maintain confidentiality.  This article additionally requires the Requested State's  Central Authority to respond to reasonable inquiries by the  Requesting State's Central Authority regarding the status of  the execution of a particular request; to report promptly to  the Requesting State's Central Authority the outcome of its  execution; and, if the request is denied, to inform the  Requesting State's Central Authority of the reasons for the  denial.  Article 6 apportions between the two States the costs  incurred in executing a request. It provides that the Request  State shall pay all costs, except for the following items to be  paid by the Requesting State: fees of expert witnesses, costs  of interpretation, translation and transcription, and  allowances and expenses related to travel of persons pursuant  to Articles 10 and 11. If during the execution of the request,  it becomes apparent that extraordinary expenses will be  entailed, the Central Authorities shall consult to determine  the terms and conditions under which execution may continue.  Article 7 requires the Requesting State to comply with any  request by the Central Authority of the Requested State that  information or evidence obtained under the Treaty not be used  for proceedings other than those described in the request  without its priorconsent. Further, if the Requested State's  Central Authority asks that information or evidence furnished under  this Treaty be kept confidential or be used in accordance with  specified conditions, the Requesting State must use its best efforts to  comply with the conditions. Once information is made public in the  Requesting State in accordance with either or these provisions, no  further limitations on use apply. Nothing in the article prevents the  use or disclosure of information to the extent that there is an  obligation to do so under the Constitution of the Requesting State in a  criminal prosecution. The Requesting State is obliged to notify the  Requesting State in advance of any such proposed use or disclosure.  Article 8 provides that a person in the Requesting State  from whom testimony or evidence is requested pursuant to the  Treaty shall be compelled, if necessary, to appear and testify  or produce items, documents and records. The article requires  the Central Authority of the Requested State, upon request, to  furnish information in advance about the date and place of the  taking of testimony or evidence pursuant to this Article.  Article 8(3) further requires the Requested State to permit  the presence of persons specified in the request and to permit  them to question the person giving the testimony or evidence.  In the event that a person whose testimony or evidence is being  taken asserts a claim of immunity, incapacity, or privilege  under the laws of the Requesting State, Article 8(4) provides  that the testimony or evidence shall be taken and the claim  made known by written notification to the Central Authority of  the Requesting State for resolution by its competent  authorities. Finally, in order to ensure admissibility of  evidence in the Requesting State, Article 8(5) provides a  mechanism for authenticating evidence that is produced pursuant  to or that is the subject of testimony taken in the Requested  State.  Article 9 requires that the Requested State provide the  Requesting State with copies of publicly available records in  the possession of government departments and agencies in the  Requesting State. The Requested State may further provide  copies of any documents, records or information in the  possession of a government department or agency, but not  publicly available, to the same extent and under the same  conditions as it would provide them to its own law enforcement  or judicial authorities. The Requested State has the discretion  to refuse to execute, entirely or in part, such requests for  records not publicly available. Article 9(3) provides that  records produced pursuant to this Article shall, upon request,  be certified by the appropriate form attached to the request.  Article 9(3) also provides that no further authentication shall  be necessary for admissibility into evidence in the Requesting  State of official records pursuant to this Article.  Article 10 provides a mechanism for the Requesting State to  invite the voluntary appearance in its territory of a person  located in the Requested State shall indicate the extent to  which the expenses will be paid. It also states that the  Central Authority of the Requesting State has discretion to  determine that a person appearing in the Requesting State  pursuant to this Article shall not be subject to service of  process or be detained or subjected to any restriction of  personal liberty by reason of any acts or convictions that  preceded his departure from the Requested State. Any safe  conduct provided for by this article ceases seven days after  the Central Authority of the Requesting State has notified the  Central Authority of the Requested State that the person's  presence is no longer required, or if the person has left the  Requesting State and voluntarily returns to it.  Article 11 provides for temporary transfer of a person in  custody in the Requested State or in a third State to the  Requesting State for purposes of assistance under the Treaty  (for example, a witness incarcerated in the Requested State may  be transferred to have his deposition taken in the presence of  the defendant), provided that the person in question and the  Central Authorities of both States agree. The article also  provides for voluntary transfer of a person in the custody of  the Requesting State to the Requested State for purposes of  assistance under the Treaty (for example, a defendant in the  Requesting State may be transferred for purposes of attending a  witness deposition in the Requesting State), if the person  consents and if the Central Authorities of both States agree.  Article 11(3) further establishes both the express  authority and the obligation of the receiving State to maintain  the person transferred in custody unless otherwise agreed by  both Central Authorities. The return of the person transferred  is subject to terms and conditions agreed to by the Central  Authorities, and the sending State is not required to initiate  extradition proceedings for return of the person transferred.  The person transferred receives credit for time served in the  custody of the receiving State.  Article 12 establishes the authority of the Requested State  to authorize transit through its territory of a person held in  custody by a third State whose appearance has been requested by  the Requesting State. The Requested State further has the  authority and the obligation to keep the person in custody  during transit. The Parties retain discretion to refuse to  grant transit of their own nationals, however.  Article 13 requires the Requested State to use its best  efforts to ascertain the location or identity of persons or  items specified in a request.  Article 14 obligates the Requested State to use its best  efforts to effect service of any document relating, in whole or  in part, to any request for assistance under the Treaty. A  request for the service of a document requiring a person to  appear in the Requesting State must be transmitted a reasonable  time before the scheduled appearance. Proof of service is to be  provided in the manner specified in the request.  Article 15 obligates the Requested State to execute  requests for search, seizure, and delivery of any item to the  Requesting State if the request includes the information  justifying such action under the laws of theappropriate. The  Central Authority of the State receiving such information is required  to inform the Central Authority that provided the information of any  action taken.  Article 17 also obligates the Contracting States to assist  each other to the extent permitted by their respective laws in  proceedings relating to forfeiture of the proceeds and  instrumentalities of offenses, restitution to victims of crime,  and collection of fines imposed as sentences in criminal  prosecutions. This may include action to temporarily immobilize  the proceeds or instrumentalities pending further proceedings.  The Contracting State having custody over proceeds or  instrumentalities of offenses is required to dispose of them in  accordance with its laws. Either Contracting State may transfer  all or part of such assets, or the proceeds of their sale, to  the extent permitted by the transferring State's laws and upon  such terms as it deems appropriate.  Article 18 states that assistance and procedures provided  in the Treaty shall not prevent either Contracting State from  granting assistance to the other Contracting State through the  provisions of other applicable international agreements or  through the provisions of its national law. The Contracting  States may also provide assistance pursuant to any bilateral  arrangement, agreement, or practice which may be applicable.  Article 19 provides that the Central Authorities of the  Contracting States shall consult, at times mutually agreed, to  promote the most effective use of the Treaty, and may agree  upon such practical measures as may be necessary to facilitate  the Treaty's implementation.  Article 20 provides that the Treaty is subject to  ratification and the instruments shall be exchanged at  Washington as soon as possible. The Treaty enters into force  upon the exchange of instruments of ratification. Article 20  further provides that either Contracting State may terminate  the Treaty by written notice to the other Contracting State,  with termination to be effective six months following the date  of notification.  A Technical Analysis explaining in detail the provisions of  the Treaty is being prepared by the United States negotiating  delegation, consisting of representatives from the Departments  of Justice and State, and will be transmitted separately to the  Senate Committee on Foreign Relations.  The Department of Justice joins the Department of State in  favoring approval of this Treaty by the Senate as soon as  possible.  Respectfully submitted,  Strobe Talbott.     Site ContentLegislationCongressional RecordCongressional Record IndexMembersCommitteesCommittee ReportsNominationsTreaty DocumentsHouse CommunicationsSenate CommunicationsLegislative ProcessAbout Congress.govHelpHelp | Feedback | Contact UsGlossarySearch ToolsAsk a Law LibrarianWebinarsWays to ConnectTwitterYouTubeVideoRSS & Email AlertsBlog – In Custodia Legis: Law Librarians of CongressResourcesCongress.gov ResourcesCRS ReportsU.S. CodeGPO govinfoLaw Library of CongressGuide to Law OnlineTeacher Lesson PlansState Legislature WebsitesBill Status Bulk DataRoll Call VotesConstitution AnnotatedLaw Library ReportsHouse LinksHouse.govFloor ActivitiesRepresentativesCommitteesHearings (Video)Bills to Be ConsideredLeadershipHistory, Art & ArchivesMore House ResourcesSenate LinksSenate.govOn the Senate FloorSenatorsCommitteesHearings (Schedule)LeadershipHistory, Art & StatisticsMore Senate ResourcesLegalAccessibilityHelpContact UsExternal Link DisclaimerUSA.gov