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Petition Supporting Virginia HJ 578, A 4th Amendment For the 21st Century

To: Virginia House of Delegates

SUPPORT HJ 578, A “Fourth Amendment for the 21st Century!"

I’m watching how you vote on HJ 578, a “Fourth Amendment for the 21
st Century, “ and I want to know whose side you are on.

Do you support or tolerate government lawlessness?

Do you support government spying on the emails, phone calls, and data of innocent, law-abiding Virginians?

Do you want government snooping in our backyards, fields, and pastures, even using drones like peeping Toms?

Do you believe the phrase “ignorance of the law is no excuse” should be applied to citizens but not government officials?

OR

Are you on the side of people’s rights and security in their private data, backyards and fields, and other property?

Do you believe in good, sound law enforcement on government officials and our vast bureaucracies?

Do you believe that government officials should know, respect and be accountable to the law?

I support our valiant police and sheriff departments.

I support good government.

I do not support lawless government.

I believe that the purpose of good law enforcement and good government is to protect our security and rights -- even against lawless government itself.

I support HJ 578.  How you vote on HJ 578 will tell me whose side you’re on:  Law-abiding citizens, or lawless government.

HJ 578, Virginia’s “Fourth Amendment” for the 21st Century

(Bold means new language)

“The Fourth Amendment is what separates America from a police state.”

 “[F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas ("persons, houses, papers, and effects") it enumerates . . . [and the] reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” From the majority opinion in U.S. v. Jones, 565 U.S. ___ (2013).

Sentence 1 “That the government shall not violate the right of the people to be secure against unreasonable searches and seizures of their persons, houses, businesses, lands, papers, and effects, including communications and stored personal information and data.”

Besides “persons, houses, papers and effects” from James Madison’s original version, the proposed amendment expressly incorporates protections for (1) businesses, (2) lands, and (3) modifies the expressly protected property to include communications and stored personal information and data.

Merchants and business were always presumed to be covered by the Fourth Amendment.

The Fourth Amendment has been construed to protect curtilage (land immediately surrounding the house).  Given expansion of government’s administrative reach and land surveillance since adoption of the Fourth Amendment, it is appropriate to include land in this 21st century amendment to Virginia’s Constitution. Government should not use drones to snoop on us or our backyards and pastures.

Virginians’ technological property and privacy need this protection not currently provided under the Fourth Amendment.

Sentences 2 and 3  “A reasonable search or seizure is one based on probable cause that a law has been or will be broken. An unreasonable search or seizure is one that is not based on a valid law.

Sentence 2 provides greater particularity than the Fourth Amendment in order to aid the more predictable and consistent interpretation and application of the Virginia amendment by clarifying what is meant by “probable cause” in the context of what constitutes a reasonable search or seizure. 

Sentence 3 clarifies that unreasonable searches and seizures include those not based on enforcing a valid law, and overrules Heien v. North Carolina saying mistakes of law are reasonable.   Heien v. North Carolina, No. 13-604, December 15, 2014. In light of the Heien ruling, the amendment would provide Virginians greater protection than under the Fourth Amendment as it relates to mistakes of law, whether intentional, reckless or unknowing

Sentence 4  “Warrants and other demands shall be issued only based upon probable cause, signed by a neutral judge or magistrate, supported by oath or affirmation, and particularly describing the place to be searched, the persons, property, or things to be seized, or the communications, personal information, or data to be accessed or obtained.”

This sentence confirms that warrants and other writs such as administrative subpoenas or demands must be signed by a neutral judge or magistrate.  Just as our police and sheriff departments may not unilaterally sign and issue warrants to enter one’s home or search private property -- and police often operate under emergency, “exigent” and heroic circumstances -- administrative agencies must present probable cause under oath and affirmation to a neutral judge or magistrate to obtain an administrative search or seizure subpoena.  This helps ensure the objectivity that maintains our security and rights from unreasonable searches and seizures, and is part of the “separation of powers” underlying the Fourth Amendment.

Sentence 5  “A person's disclosure of papers, effects, communications, personal information, or data to another person shall not alone constitute a waiver of this right.”

This sentence will eliminate what is known as the “third-party doctrine” for the digital age, where the sharing of communications and private information and data is now an everyday occurrence.  People now use technology to communicate and share information that at the time the Fourth Amendment was ratified would occur in private meetings, their living rooms, and in other venues with an expectation of privacy.

Sentence 6  “The people shall have remedies of exclusion and actions for damages and other remedies wherein defendants shall not enjoy greater immunity than other citizens of the Commonwealth.”

“Ubi jus ibi remedium “ is Latin for the legal maxim, "where there is a right, there must be a remedy.”

One remedy for violation of the right of Americans to be secure from unreasonable searches and seizures known as the “exclusionary rule” has been part of American jurisprudence since 1914, and has been applied in state courts since 1961.

Sometimes, however, exclusion has not been enough to deter bad faith, or willful or reckless acts in violation of the Fourth Amendment. 

Indeed the exclusionary rule is insufficient against or irrelevant to abuse of administrative agency searches and seizures.  Wrongfully commenced administrative enforcement matters often do not go to trial, but may cost citizens or business tens of thousands of dollars in the process.

For America’s first 100 years, federal searching agents could be sued for trespass, replevin and other common law actions when searches and seizures were done in violation of the law.  All lawbreaking, even within government, is best deterred with consequences, and the people’s security is best maintained when both the private sector and the government sector respect and abide by the law.

Petition

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