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Big Brother, big dogs are looking at you

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Correspondent   |   Sept. 30, 2012 at 3:30 AM   |   Comments

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WASHINGTON, Sept. 30 (UPI) -- The 2012 U.S. Supreme Court term erupts on the First Monday in October, and in this first month the justices once again look at the intimate relationship between powerful authority and private citizens, and how intrusive that authority can become to protect the nation's interests.

Much of the pre-term analysis on the Supreme Court has focused on challenges to the Defense of Marriage Act, or DOMA, which defines marriage as a union between a man and a woman for the purposes of federal benefits, and which the Obama administration has chosen to enforce but has refused to defend in court.

The Supreme Court is expected to deal with that issue later in the term, but in October the justices are scheduled to grapple with several cases involving surveillance.

On Oct. 29, the justices are set to hear argument in a case central to the law that allows spying on citizens in the United States without a warrant in the name of counter-terrorism just as a partisan Congress decides whether to renew the law.

Earlier in September, the U.S. House voted overwhelmingly to extend the latest version of the Foreign Intelligence Surveillance Act for five more years. The U.S. Senate has yet to act.

The justices have agreed to decide whether a group of organizations and individuals has "standing" to challenge the latest version of FISA. To challenge a government practice or law as unconstitutional, you have to have "standing." You acquire standing -- the right to sue -- by showing an injury.

Simply put, the law allows the government to eavesdrop on U.S. electronic communications -- phone calls, emails and other forms -- without a warrant in the United States as long as one end of the communication is outside the United States.

The Bush administration and now the Obama Justice Department have argued individuals and organizations must be able to show they were monitored by the surveillance program to have standing and challenge it in court.

But the program's target list is secret, and the U.S. government won't tell potential targets whether they have been monitored. Therefore, the government argues, no one has standing.

The American Civil Liberties Union filed suit challenging the 2008 FISA Amendments Act in July of that year on behalf of a broad coalition of plaintiffs who routinely contact people overseas. The government defendants are now headed by James R. Clapper Jr., director of national intelligence; Keith B. Alexander, director of the National Security Agency and chief of the Central Security Service, and U.S. Attorney General Eric H. Holder Jr.

The 1978 Foreign Intelligence Surveillance Act was enacted after the Watergate scandal. Under a special court's supervision, it let the U.S. government secretly eavesdrop on U.S. citizens and others in the United States in intelligence investigations, especially when someone communicates with a foreign agent. It was originally enacted to allow the government to collect foreign intelligence information involving communications with "agents of foreign powers."

The 2001 Patriot Act, enacted after the Sept. 11, 2001, terror attacks, expanded FISA to let the FBI get the personal records of suspects from U.S. libraries and Internet service providers.

The FISA Amendments Act, abbreviated in court records as FAA, was enacted in 2008.

FISA originally required U.S. officials to get authorization and created the Foreign Intelligence Surveillance Court, which gave the authorization. The application also had to be approved by the U.S. attorney general, and had to include, among lots of other information, the identity, if known, or description of the individual to be monitored and the basis for believing the target was a foreign agent, and that a foreign power or foreign agent was using or about to use each of the facilities targeted.

The 2008 FAA left much of the FISA framework intact, but with two crucial differences.

"First, whereas under the pre-existing FISA scheme the government had to submit an individualized application for surveillance identifying the particular target, facility, type of information sought and procedures to be used," a federal appeals court said under the FAA "the government need not submit a similarly individualized application -- it need not identify the particular target or facility to be monitored. ...

"Second, whereas under the pre-existing FISA scheme the [FISA court] had to find probable cause to believe both that the surveillance target is a 'foreign power' or agent thereof and that the facilities to be monitored were being used or about to be used by a foreign power or its agent, under the FAA the [FISA court] no longer needs to make any probable-cause determination at all. Instead, the [FISA court] simply verifies that the government has made the proper certifications."

The federal appeals court said the new procedures mean surveillance orders can be "significantly broader. ... Under the FAA, by contrast, the plaintiffs allege that an acquisition order could seek, for example, all 'telephone and e-mail communications to and from countries of foreign policy interest -- for example, Russia, Venezuela or Israel -- including communications made to and from U.S. citizens and residents.'"

In addition, the original FISA scheme required ongoing judiciary review of whether the government was complying with the law. Under the FAA, compliance is monitored by the executive -- the U.S. attorney general and the director of national intelligence, who make reports to the FISA court.

The appeals court ruled that the ACLU group had standing.

"The plaintiffs' uncontroverted testimony that they fear their sensitive international electronic communications [are] being monitored and that they have taken costly measures to avoid being monitored -- because we deem that fear and those actions to be reasonable in the circumstances of this case -- establishes injuries in fact," the appeals court said, "that we find are causally linked to the allegedly unconstitutional [FISA Amendments Act]. We therefore find that plaintiffs have standing to challenge the constitutionality of the [act] in federal court."

The ACLU group includes Amnesty International USA, the Global Fund for Women, Global Rights, Human Rights Watch, the International Criminal Defense Attorneys Association, The Nation Magazine, PEN American Center, the Service Employees International Union, the Washington Office on Latin America and several individuals.

The U.S. government contends the group lacks standing "because they proffered no evidence that the United States would imminently acquire their international communications using [the law] ... and did not show that an injunction prohibiting [the law] would likely redress their purported injuries."

On Oct. 31, the justices are set to hear argument in two Florida cases involving police use of dogs.

The cases weigh the security of Americans in their homes and vehicles against how far police can go when using dogs to determine the presence of drugs or other contraband.

In one of the canine Florida cases, the justices are being asked to decide whether allowing a dog to drug-sniff at the front door of a suspected grow house "is a Fourth Amendment search requiring probable cause."

"Probable cause" to suspect a crime is the threshold allowing a police officer to make an arrest, conduct a search or request a warrant from a judge.

The Fourth Amendment of the U.S. Constitution, backed up by the 14th Amendment, says: "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."

Florida's Constitution reinforces that right in almost identical language, and includes a ban "against the unreasonable interception of private communications by any means."

In November 2006, the Miami-Dade Police Department received a Crime Stoppers tip that Joelis Jardines was growing marijuana in his house. A month later, a police detective with members of a drug task force that included several U.S. Drug Enforcement Agency agents conducted surveillance at Jardines' house.

A canine officer went up to the front porch with Franky, who alerted by sitting down. After the dog left, the detective knocked on the door to get consent for a search, without response. He did smell marijuana, court records said, and heard the sound of a constantly running air conditioner -- in the officer's experience, a sign of a drug operation.

The detective got a search warrant using the dog sniff and his own observations. The officers conducted a search and "seized numerous live marijuana plants. A DEA agent arrested Jardines as he attempted to flee through a rear door of the house," the state's petition to the Supreme Court said.

Jardines was charged with trafficking in excess of 25 pounds of cannabis, a first-degree felony, and grand theft for stealing more than $5,000 in electricity from Florida for the grow lights.

His lawyer argued the dog sniff and the detective's sniff violated the Fourth Amendment. The trial judge granted a motion to suppress the evidence, saying the initial search was illegal.

Though an intermediate court reversed, the Florida Supreme Court also suppressed the evidence, relying on the Supreme Court's decision in Illinois vs. Caballes. Where was the probable cause?

"First, the dog 'sniff test' that was conducted in the present case was an intrusive procedure," the state supreme court said, adding later, "If government agents can conduct a dog 'sniff test' at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen. Such an open-ended policy invites overbearing and harassing conduct. Accordingly, we conclude that a 'sniff test,' such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a 'search' within the meaning of the Fourth Amendment. As such, it must be preceded by an evidentiary showing of wrongdoing."

State officials told the U.S. Supreme Court in a brief that besides ignoring Caballes, the Florida Supreme Court created "a new test for whether officers' conduct is a search. Seeking to avoid applying Caballes, the Florida Supreme Court fashioned a new test which focused on the surrounding circumstances rather than properly on the dog sniff itself. This new test, however, violates a plethora of this [U.S. Supreme] Court's Fourth Amendment cases. This court should disavow the Florida Supreme Court's newly formulated Fourth Amendment test."

The other Florida dog case involves a valid traffic stop. Clayton Harris was stopped in Liberty County by a sheriff's deputy canine officer for driving on an expired license. The officer's dog Aldo sniffed and alerted for drugs on the driver's side, causing the deputy to search the interior of the car.

The deputy said he discovered supplies to manufacture methamphetamine, which Harris admitted to making and using, the state said in a brief. After his lawyer's motion to suppress the evidence at trial was denied, Harris pleaded no contest and was convicted of possessing the restricted chemical pseudoephedrine with intent to use it to manufacture methamphetamine, in violation of state law.

But the Florida Supreme Court eventually ruled evidence that a dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog's reliability for determining probable cause.

State officials said the Florida court relied heavily on law review articles and an intermediate appellate court's decision in another case, which concluded that an officer who knows that his dog is trained and certified can only suspect that a search based on a dog's alert will yield contraband, and mere suspicion cannot justify a search.

By holding a dog alerting to the residual odor of contraband may result in subjecting a person and vehicle to an invasive search when there are no drugs actually present, state officials said, the Florida Supreme Court rejected the U.S. Supreme Court's interpretation of the Fourth Amendment that a dog sniff is not a search as it only reveals the presence of contraband.

The Florida Supreme Court thus effectively negated "the narcotics detection dog as an important crime fighting tool for law enforcement and society," state officials said.

Another case scheduled to be heard Oct. 10 does not deal with surveillance or drug dogs, but will draw considerable attention.

The justices have agreed to take another look at affirmative action in college admissions in a case involving the University of Texas.

In the case, more than three-fourths of freshmen enroll at the University of Texas under a state law that gives automatic admission to students in the top 10 percent of their high school classes. For the rest, the school considers a number of factors, including race.

Two white students denied UT admission under the policy challenged it in federal court.

A three-judge appellate panel upheld the admissions policy, and the full 5th U.S. Circuit Court of Appeals, one of the most conservative in the country, refused to rehear the case by a vote of 9-7.

The majority said UT's admissions program was "narrowly tailored," as required by a 2003 Supreme Court precedent. But the majority opinion warned that affirmative action cannot last forever.

© 2012 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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