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October 3, 2014     Post-Gazette
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October 3, 2014

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Page 4 POST-GAZE'IrE, OCTOBER 3, 2014 by Sal Giarratani d__--/i Is it Twilight's Last Gleaming for America? THE FOURTH AMENDMENT AND ITS ATTENDANT RIGHT OF PRIVACY WAS BORN IN THE NORTH END OF BOSTON! unrestricted searches and seizures, drafted the Massachusetts Constitution and was present at Attorney James Otis's speech in 1761 on the Writs of Assistance. Adams used Otis's language, writing, "every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and his possessions". Today the Fourth Amendment to the U.S. Constitution codifies the right to be free from unreasonable searches by stating that: 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. Most recently, on June 25, 2014, the U.S. Supreme Court unanimously ruled that officers must obtain a warrant before searching cell phones and other electronic devices. Furthermore, the Court concluded its opinion by recounting the incidents discussed above stating: Our cases have recognized that the Fourth Amendment was the founding generation's response to the reviled "general warrants" and "writs of assistance" of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he Would IdteKuJrite tffdt-~[eJvery man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance." According to Adams, Otis's speech was "the first scene of the first act of opposition to the arbitrary claims of Great BritairL Then and there the child Independence was born." Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans "the privacies of life." The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple -- get a warrant. Similarly and earlier, on February 18, 2014, the Massachusetts Supreme Judicial Court reached the same result disallowing warrantless searches of cell phones under the Massachusetts Declaration of Rights. Today with police searches of cell phones upon arrest without warrants, the revela- tions of the NSA surveillance of ordinary Americans, secret warrants issued by the FISA courts, and use of drones, it is enough for every American to question and join the debate over the limits of the government's authority and power. The post-9/I 1 world has made many Americans all too accepting of these searches. As Americans, let us not forget the United States of America arose as a new independent nation from the oppressive grip of the British Empire's general searches and that these freedoms that helped define America's precious liberties were actually born in the North End of Boston. While many Americans consider 1776 as the birth year of our nation, it was actually the signing of the United States Constitution in 1789 and its ratification by the last colony in 1791 that established America's governmental structure. Of the many funda- mental rights articulated in the U.S. Constitution, the Fourth Amendment's right to be free from unreasonable searches and seizures continues to be just as contested and relevant today as it was during those revolutionary times on the streets of Boston's North End. On September 24, 1766 near the present day corner of North Bennett Street and Hanover Street stood "one of the most active merchants on the popular side [who] was proportionately hated and abused by the Crown" named Daniel Malcolm against Benjamin Hallowell, the Comptroller of the Customs of the Port of Boston, and a man named Sheafe, the Deputy Collector. The men approached Malcolm's home with a Writ of Assistance, which was an extremely broad general grant of authority to search a colonist's home without any articulable facts showing reason or cause, specificity, or description of what is likely to be found therein. A Deputy Sheriff was also present to search the home and seize goods that Malcolm allegedly failed to pay as requisite customs duties. The men were greeted by Malcolm with "sword and pistols" and "threats of death" if anyone attempted to search his home. The officers retreated, and shortly thereafter, the Colonial Council, headed by the Governor, convened to determine what they needed to do to enforce the Writ. The Council determined that they possessed the authority to use any means necessary to enforce the writ and could intervene when necessary. Nonetheless, they determined that their action was not necessary because the sheriff has "posse comitatus" authority, which grants law enforcement officers to command any person to assist them with their duties. Under the guise of such authority, HaIloweIl, Sheafe, and the Sheriff returned to Malcolm's home. When they arrived, a "great number of people" greeted the officers and "most credible" members of the crowd informed the officers that if they attempted to enter the house, they "would be in danger of their lives." Meanwhile, Malcolm remained in his home with all the windows and doors shut. The Sheriff approached the crowd and calmly attempted to explain the situation, but members of the crowd demanded that the Customs Officer first attest, under oath, to the name of the informant. The crowd remained firm that the customs officer must swear to the identity of the informer before the warrant can be valid. As the sun slowly fell in the sky, the crowd continued to grow while the discourse between the people and the sheriff continued. Eventually, the officers deter- mined that any further attempts to enter Malcolm's home would be fruitless, and they left the scene without successfully entering his home. Years later on March 2, 1780, the Massachusetts Declaration of Rights, set these principles down as essential rights of the newly independent Commonwealth. John Adams, a staunch opponent of the Richard J. Vita, Esq. is the principal of the Vita Law Offices, P.C., a Boston law firm focused on securities fraud, insurance, and consumer class action cases. He may be contacted at (617) 426-6566 or by email at L'Anno Bello: A Year in Italian Folklore by Ally Di Censo Symynkywicz WILL RETURN NEXT WEEK ... Personally I say not, but one can get pretty depressed by the latest news out of the US Ninth District Court out in San Francisco that ruled recently that students don't have the liberty to wear an American flag tee shirt. I kid you not. It might offend Mexican students celebrat- ing Cinco de Mayo. I am far from alone in calling this a direct assault on the First Amendment and our consti- tutional Republic. On this past September 17, more than four years after Live Oak High School in Morgan Hill, California sent students home for wearing U.S flag tee shirts an l 1-judge Ninth District Court of Appeals panel ruled it was the right choice to make and was "tailored to avert violence and focused on student safety." This d.ecision upheld an earlier decision in a three- judge ruling in February that justified the school's ac- tions based on tensions be- tween Mexican and Ameri- can students. Since when is the wearing of a U.S. flag on a shirt contributing to a pos- sible violent disturbance. After all they could have cancelled the recognition of "Cinco de Mayo" which actually isn't a big deal in Mexico. I am not making any of this up. Just because the sight of the American flags upset Mexican students doesn't mean you ban the American flag from sight, does it? The lawyer for the students said this case will end up in the U.S. Supreme Court. By the way, most of the appeal courts usually get overturned by the Supremes and this one probably will too. Does the school now ban "Obama" tee shirts when they upset conserva- tive students? You know what's really funny about this recent September 17th ruling? Sep- tember 17t" is a part of U.S. history. On the day the rul- ing was made, it was the 200th anniversary of the first printing of "The Star Spangled Banner." The song celebrated the Battle of Bal- timore in which America de- feated the British during the War of 1812, September 17a is also the birthday of the U.S. Constitution which was created on that date in 1787. Our rights and freedoms were born on September 17, 1787 and defended again on September 17, 1814. Ameri- cans long ago founded this Republic and over the gen- erations have fought and died to keep us a free nation. This latest judicial deci- sion should upset all Ameri- cans. It is a time to close ranks. Whether you are liberal, conservative, Demo- crat or Republican, this court decision violated the very principles upon which America's foundation rests. This is something worth standing together over. The actions of this federal Appeals Court in San Fran- Cisco must not be allowed to stand or our Constitution and Bill of Rights become meaningless! MICHAEL C E M E 7 C 500 Canterbury Street The Respec(fuI Boston, MA 02131 617.524.1036 Serving the Italian Community. for Over 100 Years! Since 1969 FOR ALL YOUR INSURANCE NEEDS AUTO * HOMEOWNERS * TENANTS COMMERCIAL Experience makes the difference 209 BROADWAY, REVERE, MA 02151 Tel. 781.284.1100 Fax 781.284.2200 Free Parking Adjacent to Building '' ~ I~1' 7T(