If a law is blatantly unconstitutional, is a search warrant based on that law valid? Applications for search warrants are typically ex parte. In such a proceeding the person who owns the property to be searched and/or seized cannot challenge the unconstitutional laws that form the basis of an affidavit justifying that probable cause exists for a search. Does there exist a basis to challenge the admissibility of evidence obtained following this search? Particularly if such a search is used as pretext to find items that violate laws that are not unconstitutional. Would agents that engage in such a search be able to assert qualified immunity in a 1983 proceeding even though the statute was blatantly unconstitutional?
If it is &quot;sufficiently obvious&quot; that a law is unconstitutional, evidence obtained relying on that law can probably be suppressed. Two important principles help discern the answer to this question: The Constitution prohibits searches that are &quot;unreasonable.&quot; The existence of a warrant authorizing a search is strong evidence that a search is reasonable, but the warrant is neither necessary nor sufficient to make a search reasonable. The Exclusionary Rule is designed to do one and only one thing: discourage law enforcement misconduct. Therefore, evidence obtained in reliance on a defective warrant will only be suppressed if it was &quot;objectively unreasonable&quot; for the officer to rely on that warrant. Courts typically find reliance on a warrant to be objectively unreasonable when the warrant was obtained through deception, when it authorizes a search of a person or place with no connection to a crime, or when it fails reasonably describe the person or place to be searched. It is likely also possible to have evidence suppressed because the warrant authorized a search for evidence of the violation of a plainly unconstitutional law. That was the question in Illinois v. Krull, 480 U.S. 340, (1987), where a defendant was prosecuted based on evidence obtained in reliance on a law that was later ruled unconsitutional. The Illinois Supreme Court held that because the law was unconstitutional, the search relying on it was also unconstitutional, and the evidence obtained thereby must be suppressed. But the Supreme Court reversed, holding that the evidence need not be suppressed because &quot;this defect in the statute was not sufficiently obvious so as to render a police officer's reliance upon the statute objectively unreasonable.&quot; This suggests that if a statute's unconstitutionality is sufficiently obvious, that an officer seeking evidence in reliance on it would be objectively unreasonable, and that that evidence would therefore be subject to suppression. I don't know of it ever happening, but it's easy enough to make up ridiculous laws that might satisfy this standard. For instance, if Congress passed a law permitting police to write their own warrants to search any mosque at any time, evidence from that search would likely be suppressed. Or if Congress passed a law prohibiting all black women from criticizing the president, evidence that a defendant had violated that law would likely also be suppressed, even if it had been obtained with an otherwise validly issued warrant. Of course, most laws are not as obviously unconstitutional as those, so a challenge on these grounds will likely revolve around what exactly should have alerted a reasonable officer to the statute's consitutional infirmities. Likewise, an officer executing such a search is exposed to Section 1983 liability for an unreasonable search or seizure if his reliance on the warrant is not objectively reasonable. As always, there will be a question of whether the officer is entitled to qualified immunity, but that question will turn as always on whether his violation of the law was clearly established. If he is searching for evidence of black people voting, qualified immunity is going to be a hard sell. If he's searching for evidence that a defendant violated a law in a gray area, qualified immunity may save him.
A warrant is required: you cannot just bust into a home because the owner died. Nothing that you describe resembles the kind of emergency situation that allows a warrantless search. In order to get a warrant, you have to have a good enough reason. Suppose that campus police found a suspicious object at the scene which was evidence of a crime and which had an identifiable connection to his home. Campus police might get a warrant to search the home, to find evidence related to the possiblity that this was a murder. That evidence could be evidence that he had uncovered a terrorist plot to bomb Needles CA, and he was killed because of that. His home computer might contain records of contact between him and the terrorists: so the judge might grant a warrant. The FBI might also go to a federal court for a warrant for a different suspected crime, for example a planned bombing of Needles. Since this involves national security, this could be a FISA court, which is a secret court for surveilling foreign spies in the US. The daughter has the (apparent) authority to consent to a search – police are not required to inquire very deeply into a person's authority to consent to a search. If she doesn't consent, the police of the FBI might have probable cause for a warrant – it has to be an articulable reason, not just a mystical intuition (TV cop shows notwithstanding) that there must have been a crime and the house has evidence of the crime.
Maybe, probably not. The leading case would appear to be Raines v. Byrd, 521 US 811, where 6 congressmen sued over a line-item veto law (later held to be unconstitutional). The court notes the established legal fact that To meet the standing requirements of Article III, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief". where that court added the italics; and the alleged injury must be legally and judicially cognizable. This requires, among other things, that the plaintiff have suffered "an invasion of a legally protected interest which is . . . concrete and particularized" In this case, the court find that "appellees have not been singled out for specially unfavorable treatment as opposed to other Members of their respective bodies", and they are claiming institutional injury, arising "solely because they are Members of Congress...If one of the Members were to retire tomorrow, he would no longer have a claim; the claim would be possessed by his successor instead". The court did, however, uphold standing in one legislative case, Coleman v. Miller, 307 U.S. 433, where there was an issue over whether the legislature had ratified a constitutional amendment when the Lt. Governor of Kansas cast a tie-breaking vote on the question (the allegation was that this was improper). The court held that the legislators "have a plain, direct and adequate interest in maintaining the effectiveness of their votes", finding that their votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to de- feat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes. The Raines court finds that legislators "have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified" – but that was not the case in Raines (the line-item veto act had clearly passed). Applied to the Oprah hypothetical, senatorial vote would arguably have been completely nullified by the proposed process: that is the argument made in the present complaint, para 33-34. The end of sect. III of the Raines opinion gives extensive historical analysis of the fact that branches of government do not generally have standing to sue each other, closing with the note that Our regime contemplates a more restricted role for Article III courts, well expressed by Justice Powell in his concurring opinion in United States v. Richardson, 418 U. S. 166 (1974): "The irreplaceable value of the power articulated by Mr. Chief Justice Marshall [in Marbury v. Madison, 1 Cranch 137 (1803),] lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests. There is a very narrow window through which the Senate might have standing to sue POTUS and otherwise, the answer is "no". The Oprah case is distinguished from Raines in that there is no political recourse to simply ignoring the appointments clause, except impeachment, and the courts might see such an action as equivalent to vote-nullification.
You cannot legally force police to wait to carry out the search. They can search even if you are not present. In fact, they are required to execute the warrant within a certain time frame, which precludes delaying the execution of the warrant. You can inspect the warrant to see if it is &quot;proper&quot; (has the judges name, correct address, is a search warrant and not a warrant of removal/deportation...). Calling a lawyer is always wise, but that does not stop the search.
Any court from a municipal traffic court on up can declare a law unconstitutional and the U.S. Supreme Court is almost never the court that does so in the first instance. Also, while the jurisdiction stripping law that you suggest might be unconstitutional, it is not obviously unconstitutional. The relevant language is in Article III, Section 2 of the United States Constitution (this has been modified by the 11th Amendment in ways that are not pertinent to the issue at hand): The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The key language being the language in bold, who scope and limitations are the subject of hot debate in legal scholarship. For example, both military tribunal law for non-soldiers and the collateral review of death sentences implicate this provision. An issue related to U.S. Supreme Court jurisdiction over military court-martial court composition will be heard this year in oral argument before the U.S. Supreme Court. There is also debate over whether the jurisdiction of every single federal court can be removed from a matter within the judicial power of the United States. In that regard, keep in mind that the United States federal court system did not have direct appeals of criminal convictions at all until the 1890s, although you could challenge, for example, the jurisdiction of a criminal court over your case with a writ of habeas corpus which is a collateral attack on a conviction in a separate civil lawsuit formally directed at your prison warden. That being said, as far as I know, a law is considered in effect until declared unconstitutional. It is illegal to break an unconstitutional law, until declared so. You are wrong. A law that is unconstitutional on its face is, in terms of legal theory, unconstitutional immediately upon enactment and a court simply acknowledges that fact. It is not illegal to break an unconstitutional law even if no court has yet declared it to be unconstitutional (in U.S. jurisprudence). A law that is unconstitutional as applied is unconstitutional in application at the moment it is applied unconstitutionally, and again, a court merely acknowledges that fact.
Short answer: Maybe. Long answer: The answer here varies from jurisdiction to jurisdiction. Normally, the process goes like this: The application for the warrant is usually made under seal or otherwise in secret to prevent the target from trying to hide evidence. So before it's been executed, you can pretty much forget about accessing it. After the warrant is executed, though, there are differing answers to this question. The Supreme Court gave us a test for this kind of question in Press-Enterprise II, which held that the First Amendment gives us a qualified right to access court proceedings and records. The right applies when public access makes sense using the "experience and logic" test: Has the Anglo-Saxon experience typically been to provide access, and does logic tell us that access has beneficial effects for the judicial process? But lower courts have disagreed about how to apply the test. The Eighth Circuit allowed access to warrants in a defense-industry corruption investigation in In re Search Warrant for Secretarial Area-Gunn, but the Ninth Circuit denied access in to warrants in the same investigation in Times Mirror Co. v. U.S. I think, though, that the Ninth Circuit decision would have come out differently if the investigation had already ended. Just to mix things up further, the Fourth Circuit has also allowed access, but based on common law principles of access, rather than the First Amendment. That was Baltimore Sun Co. v. Goetz. Same in the Second Circuit: In re Application of Newsday, Inc. Individual states also have their own rules, but those are of course subject to limits under the First Amendment. When I wanted a copy of a warrant, I would go first to the clerk of the court whose judge signed the warrant. I would tell them what I was looking for, and I pretty much always got it. I would rarely submit a FOIA request, especially if the warrant was issued by a federal agency. Those requests sit in a queue for months or years without being reviewed, and the agency virtually always denies the request anyway. When law enforcement agencies and courts have copies of the same record, you're almost always going to have better luck getting access from the courts, which are set to open by default. If the court denies the request, try again after there's an indictment, and again after the trial.
The validity of the NDA is not an easy question, but a related one is more clear. A lawyer in the U.S. in most states is not permitted to threaten criminal or administrative action (e.g. reporting someone to immigration or tax officials), to gain advantage in a civil case. You can unilaterally bring criminal charges or take administrative action, but it is deemed to be unethical and against public policy to refrain from bringing criminal charges or taking administration action to gain civil advantages. An NDA of the type described arguably violated the same public policy and might be invalidated as a result. Put another way, there is a privilege to make certain reports to public officials without legal consequences and such an NDA might violate that privilege. Some of these privileges found in what are called "whistle blower" statutes specifically prohibit this kind of agreement as to some specific kinds of illegal conduct, but not others. There isn't a general rule. This said, it is not black and white. For example, a private NDA can't prevent someone from testifying under subpoena, but can prevent someone from voluntarily testifying in the absence of a legal compulsion to do so such as a subpoena. Suppose a woman is sexually assaulted at work, and is given an NDA to sign. Can the company legally require her not to disclose the conduct of an illegal activity? I can imagine this example coming out different ways in different jurisdictions. For example, some states have a legal duty (rarely enforced) that requires people to report felonies, and an NDA in this case would contradict that affirmative legal duty, while others do not. Another source of gray in the analysis is that there is a difference between not reporting a sexual assault that actually happened, and, as part of a larger settlement, executing an affidavit stating under penalty of perjury and under oath that a sexual assault didn't happen. The first is potentially an NDA that is void as a matter of public policy. The other, in principle, is a settlement that the person signing the affidavit can only enter into if it is true. There is nothing, in general, wrong, about requiring someone to confirm that certain representations are true as part of a business transaction or contract and allowing the contract to go forwards only if certain facts are true. The gray gets deeper, because whether a sexual assault happened or not is not always a subjectively black and white clear issue of pure fact. (It is subjective because an affidavit or affirmation is made to the best of the declarant or affiants' knowledge and belief, not as a matter of objective fact.) For example, someone may not have perfect memory of what happened, or there could be doubt over the question of whether the perpetrators acted recklessly (the Model Penal Code intent requirement for sexual assault) or merely with criminal negligence (which would not be sexual assault under the Model Penal Code). A statement made under oath about whether a sexual assault happened to the best of your knowledge, thus, might be a mixture of factual issues (A penetrated B at a certain date and time) and legal or not perfectly factually known ones (A acted with X intent regarding consent during that act). So, in a case where there was some room to argue either way about how to characterize what happened and about what actually did happen, there might be some room for a settling party to make a non-perjured statement consistent with the settlement and then to agree not to a true NDA, but instead to not make statements which, if the affidavit is true, would be false. In a plea bargain in a criminal case, one can plead "no contest" without agreeing that the crime factually happened, but that isn't really possibly in the context of an affidavit about what really happened, with an NDA limited to not disclosing the incident since it was already agreed as a matter of sworn fact that there is nothing to disclose that rises the level of a crime.
I'm not aware of case law on point, other than Riley, which you mention (which doesn't mean that there isn't any - I'm not a specialist in this area). But, I think that the answer would be that you do have an expectation of privacy because the Riley holding that there was an expectation of privacy in a smart phone didn't really hinge in any meaningful way on the existence of a password. The linked summary of the Riley decision explains the court's reasoning as follows: Chief Justice John G. Roberts, Jr. wrote the opinion for the unanimous Court. The Court held that the warrantless search exception following an arrest exists for the purposes of protecting officer safety and preserving evidence, neither of which is at issue in the search of digital data. The digital data cannot be used as a weapon to harm an arresting officer, and police officers have the ability to preserve evidence while awaiting a warrant by disconnecting the phone from the network and placing the phone in a "Faraday bag." The Court characterized cell phones as minicomputers filled with massive amounts of private information, which distinguished them from the traditional items that can be seized from an arrestee's person, such as a wallet. The Court also held that information accessible via the phone but stored using "cloud computing" is not even "on the arrestee's person." Nonetheless, the Court held that some warrantless searches of cell phones might be permitted in an emergency: when the government's interests are so compelling that a search would be reasonable. Justice Samuel A. Alito, Jr. wrote an opinion concurring in part and concurring in the judgment in which he expressed doubt that the warrantless search exception following an arrest exists for the sole or primary purposes of protecting officer safety and preserving evidence. In light of the privacy interests at stake, however, he agreed that the majority's conclusion was the best solution. Justice Alito also suggested that the legislature enact laws that draw reasonable distinctions regarding when and what information within a phone can be reasonably searched following an arrest. The 4th Amendment expressly protects "papers" in your possession, which can't be password protected, and a smart phone file is analogous to a "paper" for 4th Amendment purposes. Your expectation of privacy in an unlocked smart phone flows from your exclusive possession of the phone as a piece of tangible personal property containing information, and not just from the password protection. In the same vein, I don't think that you would need to have a lock on a diary to have an expectation of privacy in it. This said, this is a cutting edge area of the law and password protection for a smart phone provides both more practical protection and potentially a less ambiguous cases of legal protection from search (since it brings you closer to the facts of Riley), and is therefore still a good idea.