Colorado Supreme Court Upholds Illegals’ Privacy Rights—Correctly

By Julian Dunraven, J.D., M.P.A.

Honorable Friends,

This evening, two of my honorable friends here at the PPC, Ben DeGrow and El Presidente, have called my attention to the Colorado Supreme Court’s decision in The People v. Gutierrez, in which a 4-3 majority ruled that the state violated the 4th Amendment privacy rights of the defendant in seizing his tax records without a proper warrant showing probable cause. The defendant also happened to be an illegal immigrant. Former Congressman Tom Tancredo, as quoted in The Washington Times, is outraged by the decision and would like our honorable friends at Clear the Bench Colorado (CTBC) to add this case to their ever lengthening list of judicial offenses. Holding the judiciary accountable is a laudable goal, but also one that requires a good deal of thought to accomplish in the interest of fairness and justice. It requires more than cursory analysis and gut reactions. It requires asking whether the Court remained faithful to the Constitution. Contrary to Mr. Tancredo’s objections, I believe CTBC can point to this decision as one in which the Mullarkey majority finally acted correctly.

Facts:

First of all, it is important to understand that anyone in this country, legal or otherwise, has 4th Amendment protections. The 4th Amendment is not limited to citizens, but considered one of the basic rights of humankind. The British once made the mistake of applying its protections only to British citizens, and the colonists responded with the American Revolution. For that reason, the 4th Amendment states:

“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.”

Also, it is important to understand that the U.S. expects all people in this country to pay taxes, regardless of immigration status. To accommodate both legal and illegal immigrants who often lack Social Security Numbers (SSN), they are permitted to file taxes with Individual Taxpayer Identification Numbers (ITIN).

Now that we have clarified those basic points, allow me to give you a few facts about this case. The Weld County Sheriff’s Department investigated an undocumented immigrant named Servando Trejo on charges of identity theft. Trejo admitted to being an illegal immigrant and that he used a false name and SSN to obtain work. He further informed police that he had filed income taxes using an ITIN rather than the false SSN. He then filed his taxes through Amalia’s Tax Service in Greeley. He said that Amalia’s had helped him obtain the ITIN and implied that all illegal immigrants in the area know to use Amalia’s.

The owner of Amalia’s, told investigators that she often prepared taxes for illegal immigrants. She further speculated that most people applying for ITINs were illegal immigrants and that most of her clients using ITINs have SSNs belonging to someone else.

On the basis of this information, the police secured a warrant to search Amalia’s Tax Service for all tax returns filed in 2006-2007 with ITINs which did not match SSNs on wage earning documents such as W2 forms. They speculated that this would be an effective method to fish for those engaged in identity theft, even calling it “Operation Numbers Game.” Unfortunately, the files were not kept by date, but by client. Thus, the police seized all 5000 client files. They proceeded to examine each file, irrespective of the date limitation in the warrant. One file with a mismatch between SSN and ITIN belonged to Ricardo Gutierrez, who was subsequently charged with identity theft. He argued, however, that the police violated his 4th Amendment rights in obtaining this evidence and should be barred from using it. The Colorado Supreme Court agreed with him.

The Right to Privacy and Probable Cause:

The Court’s reasoning is fairly simple. Most people expect their tax records to be fairly confidential. After all, they contain so much information about income, investments, property, family, et cetera as to paint a fairly basic picture of our lives. We do not want just anyone to have access to that. We do not even want any government agency to have access to that at will. Thus, the 4th Amendment, bolstered by Congress’s specific legislation, ensures that our tax papers enjoy the same privacy as we would have in our own home.

Of course, this means that, to invade our privacy, the police need specific warrants. They cannot simply say, “We want all tax records,” and hope they find something interesting. They have to have some reasonable and specific suspicion first, and identify us as particular suspects before they go rummaging about our things. This is the nature of probable cause, and exactly what the police failed to achieve in this case. Instead, they went fishing.

The warrant the police obtained was not limited to their original suspect. They did not even limit themselves to the dates the warrant specified. They examined all files of every individual client despite the fact they had no basis to suspect any of those individuals of wrongdoing. For these reasons, the warrant was overly broad, utterly eviscerating the purposes of the 4th Amendment. No reasonable police officer could have thought such a blatant fishing expedition would be valid. If it were, police might as well start randomly inspecting homes to see if they find any evidence of illegal activity. Dreadful thought.

In the dissent, Justice Coats makes the point that the police did have probable cause to suspect that the owner of Amalia’s knowingly aided and abetted instances of identity theft if she knew some of the SSNs were false. As such, the police could have obtained a warrant to search for mismatched ITINs and SSNs which would indicate a pattern of fraud on the part of Amalia’s. This would have allowed them to conduct the search exactly as they did—but this time without violations of the 4th Amendment.

However, this is not what happened. Neither the police nor the district attorney even suggested any wrongdoing on the part of Amalia’s. They were interested only in fishing for possible but unknown wrongdoing on the part of Amalia’s unidentified clients. Justice Coats fails to recognize that fact and Justice Bender’s majority opinion is correct to distinguish it. Although a search for fraud on the part of Amalia’s Tax Services would have provided the same information as an unspecified search of unknown clients in an attempt to find evidence of wrongdoing, the former has probable cause to support it while the latter is supported by nothing but the arbitrary will of law enforcement. Though the distinction is fine, it is also of vital importance. And that, my honorable friends, is the difference between a republic of laws and the tyranny of a police state.

Could Obama Be Disqualified From The Election? The Federal Courts Will Decide

By Julian Dunraven, J.D., M.P.A.

(For updated information on the Motion to Dismiss, click here)

Honorable Friends,

For those of you unaware, Pennsylvania attorney Philip J. Berg has filed suit in the U.S. District Court for the Eastern District of Pennsylvania alleging that Barack Obama is not eligible for the Office of the President because Obama lost his U.S. citizenship when his mother married an Indonesian citizen and naturalized in Indonesia. Berg further alleges that Obama followed her naturalization and failed to take an oath of allegiance when he turned 18 years old to regain his U.S. citizenship status. The case is Berg v. Obama.

It sounds crazy, I know. It becomes even stranger when you realize that Berg is a lifelong Democrat, the former Democratic Chairman of Montgomery County, Pennsylvania, an 8-year member of the state democratic committee, and former Deputy Attorney General of Pennsylvania. This is not a simple crank, and after reviewing the court documents, I believe the case is fairly strong, and has amazing implications.

It revolves around Article II Section 1 of the U.S. Constitution which provides in pertinent part that:

“No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.”

To better understand the case, I recommend reading the complaint, Obama’s Motion to Dismiss, Berg’s Response in Opposition to the Motion to Dismiss, and Berg’s Motion for Summary Judgment. You can also read news about the case or donate to the cause by visiting Berg’s webpage.

Of course, the case is still developing and it is doubtful there will be any resolution before the election. If Obama loses the election, the case may be deemed moot and dismissed. If he wins, however, and Berg turns out to be correct, it would mean that we not only elected a man unqualified to hold office under the Constitution – we would have elected an illegal immigrant, who would then be disqualified from serving.

You might be wondering how our officials could have missed something so major. It is easy to do though if you think about it. Obama’s mother certainly used to be an American citizen. When he returned to the U.S. from Indonesia, how many government officials would even think to ask, “While away, did you or your parents happen to renounce your U.S. Citizenship?” It simply would not happen. Our officials would have proceeded as if Obama was a child of a U.S. Citizen. No one would know the truth unless he or his mother willingly revealed the information, or unless they were specifically examining Obama’s background in great detail..

I cannot even imagine the pressure this judge must be feeling, along with the Justices of the Supreme Court who will ultimately hear the appeal. Can you begin to hear the enraged screams of the rioters? Our courthouses will have to turn themselves into fortresses.

El Presidente and I will certainly be keeping a close watch on this fascinating case and provide updates as it develops. For now, however, I will leave you with the most interesting part of Berg’s argument thus far, taken from his Response in Opposition to the Motion to Dismiss and appended below.

* * * * * * * * * *

Even if Obama was, in fact, born in Hawaii, he lost his U.S. citizenship when his mother re-married and moved to Indonesia with her Indonesian husband. In or about 1966, when Obama was approximately five (5) years old, his mother, Stanley Ann Dunham, married Lolo Soetoro, a citizen of Indonesia, whom she had met at the Hawaii University, and moved to Indonesia with Obama. Obama lost his U.S. citizenship, when his mother married Lolo Soetoro, and took up residency in Indonesia. Loss of citizenship, in these circumstances, under U.S. law (as in effect in 1967) required that foreign citizenship be achieved through “application.” Such type of naturalization occurred, for example, when a person acquired a foreign nationality by marriage to a national of that country. Nationality Act of 1940, Section 317(b). A minor child follows the naturalization and citizenship status of their custodial parent. A further issue is presented that Obama’s Indonesian stepfather, Lolo Soetoro, either signed an acknowledgement acknowledging Obama as his son or Lolo Soetoro adopted Obama, giving Obama natural Indonesia citizenship which explains the name Barry Soetoro and his citizenship listed as Indonesian.

Obama admits in his book, “Dreams from my father” Obama’s memoir (autobiography), that after his mother and Lolo Soetoro were married, Lolo Soetoro left Hawaii rather suddenly and Obama and his mother spent months in preparation for their move to Indonesia. Obama admits when he arrived in Indonesia he had already been enrolled in an Indonesia school and his relatives were waiting to meet him and his mother. Lolo Soetoro, an Indonesian State citizen, could not have enrolled Obama in school unless Lolo Soetoro signed an acknowledgement acknowledging Obama as his son, which had to be filed with the Government. Under Indonesian law, when a male acknowledges a child as his son, it deems the son, in this case Obama, as an Indonesian State citizen. Constitution of Republic of Indonesia, Law No. 62 of 1958 Law No. 12 of 2006 dated 1 Aug. 2006 concerning Citizenship of Republic of Indonesia, Law No. 9 of
1992 dated 31 Mar. 1992 concerning Immigration Affairs and Indonesian Civil Code (Kitab Undang-undang Hukum Perdata) (KUHPer) (Burgerlijk Wetboek voor Indonesie) states in pertinent part, State citizens of Indonesia include: (viii) children who are born outside of legal marriage from foreign State citizen mother who are acknowledged by father who is Indonesian State citizen as his children and that acknowledgment is made prior to children reaching 18 years of age or prior to marriage; Republic of Indonesia Constitution 1945, As amended by the First Amendment of 1999, the Second Amendment of 2000, the Third Amendment of 2001 and the Fourth Amendment of 2002, Chapter X, Citizens and Residents, Article 26 states, “(1) Citizens shall consist of indigenous Indonesian peoples and persons of foreign origin who have been legalized [sic] as citizens in accordance with law. (2) Residents shall consist of Indonesian
citizens and foreign nationals living in Indonesia.”

Furthermore, under the Indonesian adoption law, once adopted by an Indonesian citizen, the adoption severs the child’s relationship to the birth parents, and the adopted child is given the same status as a natural child, Indonesian Constitution, Article 2.

The laws in Indonesia at the time of Obama’s arrival did not allow dual citizenship. If an Indonesian citizen married a foreigner, as in this case, Obama’s mother was required to renounce her U.S. citizenship and was sponsored by her Indonesian spouse. The public schools did not allow foreign students, only citizens were allowed to attend as Indonesia was under strict rule and decreed a number of restrictions; therefore, in order for Obama to have attended school in Jakarta, which he did, he had to be a citizen of Indonesia, as the citizenship status of enrolled students was verified with Government records.

Obama was enrolled by his parents in a public school, Fransiskus Assisi School in Jakarta, Indonesia. Plaintiff has received copies of the school registration, attached as EXHIBIT “4”, in which it clearly states Obama’s name as “Barry Soetoro,” and lists his citizenship as Indonesian. Obama’s father is listed as Lolo Soetoro, Obama’s date of birth and place of birth are listed as August 4, 1961 in Hawaii, and Obama’s Religion is listed as Islam. This document was verified by television show Inside Edition, whose reporter, Matt Meagher, took the actual footage of the school record. At the time Obama was registered the public schools obtained and verified the citizenship status and name of the student through the Indonesian Government. All Indonesian students were required to carry government identity cards, or Karty Tanda Pendudaks, as well as family card identification called a Kartu Keluarga. The Kartu Keluarga is a family card which bears the legal
names of all family members.

Since Obama’s birth was legally acknowledged by Lolo Soetoro, an Indonesian citizen, and/or Obama was adopted by Lolo Soetoro, which the evidence attached hereto supports, Obama became an Indonesian citizen and bears the status as an Indonesia natural child (natural-born). For this reason, Obama would have been required to file applications with the U. S. State Department and follow the legal procedures to become a naturalized citizen in the United States, when he returned from Indonesia. If Obama and/or his family failed to follow these procedures, then Obama is an illegal alien.

Regardless of whether Obama was officially adopted, (which required a Court process), by his Indonesian stepfather, Lolo Soetoro, or his birth was acknowledged (which only required the signing of a birth acknowledgement form), by Lolo Soetoro, one of which had to occur in order for Obama to have the name Barry Soetoro and his citizenship status listed as “Indonesian”, in either and/or both cases Obama’s name was required to be changed to the Indonesian father’s name, and Obama became a natural citizen of Indonesia. This is proven by the school records in Jakarta, Indonesia showing Obama’s name as Barry Soetoro and his citizenship as Indonesian. Again, the registration of a child in the public schools in Jakarta, Indonesia was verified with the
Government Records on file with the Governmental Agencies.

The Indonesian citizenship law was designed to prevent apatride (stateless) or bipatride (dual citizenship). Indonesian regulations recognize neither apatride nor bipatride citizenship. In addition, since Indonesia did not allow dual citizenship neither did the United States, Hague Convention of 1930.

In or about 1971, Obama’s mother sent Obama back to Hawaii. Obama was ten
(10) years of age upon his return to Hawaii.

As a result of Obama’s Indonesia “natural” citizenship status, there is absolutely no way Obama could have ever regained U.S. “natural born” status, if he in fact ever held such. Obama could have only become naturalized if the proper paperwork was filed with the U.S. State Department, in which case, Obama would have received a Certification of Citizenship.

Plaintiff is informed, believes and thereon alleges Obama was never Naturalized in the United States after his return. Obama was ten (10) years old when he returned to Hawaii to live with his grandparents. Obama’s mother did not return with him, and therefore, unable to apply for citizenship of Obama in the United States. If citizenship of Obama had ever been applied for, Obama would have a Certification of Citizenship.

Furthermore, Obama traveled to Indonesia, Pakistan and Southern India in 1981. The relations between Pakistan and India were extremely tense and Pakistan was in turmoil and under martial law. The country was filled with Afghan refugees; and Pakistan's Islamist-leaning Interservices Intelligence Agency (ISI) had begun to provide arms to the Afghan mujahideen and to assist the process of recruiting radicalized Muslim men--jihadists--from around the world to fight against the Soviet Union. Pakistan was so dangerous that it was on the State Department's travel ban list for US Citizens. Non-Muslim visitors were not welcome unless sponsored by their embassy for official business. A Muslim citizen of Indonesia traveling on an Indonesian passport would have
success entering Indonesia, Pakistan and India. Therefore, it is believed Obama traveled on his Indonesian passport entering the Countries. Indonesian passports require renewal every five (5) years. At the time of Obama’s travels to Indonesia, Pakistan and India, Obama was twenty (20) years old. If Obama would have been a U.S. citizen, which he was not, 8 USC §1481(a)(2) provides loss of nationality by native born citizens upon "taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state...after having attained the age of eighteen years”, in violation of 8 U.S.C. §1401(a)(1) Since Lolo Soetoro legally acknowledged Obama as his son and/or adopted Obama, Obama was a “natural” citizen of Indonesia, as proven by Obama’s school record attached as Exhibit “4”.