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Coalition Letter to Privacy and Civil Liberties Oversight Board on 702 Backdoor Searches (June 2014)
We urge the Privacy and Civil Liberties Oversight Board to follow the House’s lead and to recommend that backdoor searches under section 702 be prohibited. Such access should be granted only when the government has obtained an order from the FISA [Foreign Intelligence Surveillance Act] Court upon a showing of probable cause that the U.S. person whose communications are sought is an agent of a foreign power.
New Jersey v. Terres
Brief of Amici Curiae the National Association of Criminal Defense Lawyers and the Association of Criminal Defense Lawyers—New Jersey.
Argument: Terres improperly extends precedent to permit a search inside a home upon a showing of an articulable suspicion that a third party inside of it poses a danger to those at the arrest scene outside of the home.
United States v. Weaver
Brief of the National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers and New York Council of Defense Lawyers as Amici Curiae in Support of Defendant-Appellant.
Argument: The Circuit should hold that a frisk commences when an individual is forced to assume an “in search” position. Terry frisks have become a routine and routinely abused police tactic. Consistent federal-state application of the exclusionary rule is the only effective way to deter law enforcement from performing intrusive, humiliating, and unconstitutional body frisks. Unlawful Terry frisks are only challenged in criminal cases where suppression is unappealing but necessary. New York State courts recognize that suppression is a necessary and appropriate remedy to deter pretextual stop-and-frisks and police perjury. Deterrence will be undermined if federal and state courts assess Terry frisks differently and apply the exclusionary rule inconsistently.
State v. Kraft
Brief of Amicus Curiae for the Florida Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers in Support of the Appellee.
Argument: The circuit court correctly concluded that the video recordings should have been suppressed because the State failed to follow minimization requirements. The Fourth Amendment prohibits the government from unreasonably intruding in citizens’ privacy. Here, the government recorded citizens over the course of several days in a day spa, where they had a reasonable expectation of privacy. The circuit court correctly found that the evidence should be suppressed here. Amici write to emphasize the unprecedented scope of the surveillance, as well as the importance of suppression here to protect the rights of both defendants and uncharged third parties. Traditionally, the remedy for an unconstitutional search would be suppression in a criminal trial. However, because some of the conduct surreptitiously recorded was perfectly legal, not everybody who was recorded has been charged with a crime. Furthermore, those third parties’ only recourse would be the possibility of a civil suit, which is costly. Indeed, suppression here is essentially the only way to deter the State from engaging in mass surveillance, knowing that many citizens would have little to no recourse. Any other result would encourage an “ends justify the means” approach that this Court has cautioned against.