Law Enforcement, DOJ Already Plotting How To Get Around Supreme Court's Warrant Requirement To Search Phones

from the because-of-course-they-will dept

Fri, Jun 27th 2014 10:20am — Mike Masnick

Following this week's landmark ruling from the Supreme Court that says law enforcement must get a warrant to search mobile phones, law enforcement folks are clearly freaking out. A bunch of folks are quoted on how "awful" this ruling is, as they pretend that getting a warrant is such an incredible burden. Jim Pasco, the executive director of the Fraternal Order of Police, points out that due process should be ignored when gangs are around:

Jim Pasco, executive director of the Fraternal Order of Police, the country's largest police union, imagined the police busting a drug deal with two suspects, one who gets cuffed and another who gets away.

The arresting officers “want to get into that phone and see if they can get the other guy,” he said in an interview. “Or gang situations. They communicate almost exclusively by phone. There's more at stake here than due process. It's public safety.”

Meanwhile, another police spokesperson overreacts by suggesting warrants are somehow difficult to get:

Besides the delay, one problem is such a warrant might not be approved, said Bill Johnson, executive director of the National Association of Police Organizations, which counts about 240,000 rank-and-file police officers as members.

“You have to make that jump: I bet he's got a bunch of stuff on his phone. And that's not good enough,” he said. “The officers are really going to have to point to something specific that ties that phone or that suspect's use of phones to the commission of a crime.”

He makes that sound horrible, but that's what the Constitution says. Just because there may be bad stuff in someone's house the police don't get to just search it. They have to point to something specific. That's the 4th Amendment. Has Johnson never read it?

Meanwhile, at the DOJ, they're already plotting on ways to get around this ruling by seeing how far they can push the "exigent circumstances" exception:

Ellen Canale, a Justice Department spokeswoman, said the agency would work with law enforcement to ensure "full compliance" with the decision.

"We will make use of whatever technology is available to preserve evidence on cell phones while seeking a warrant, and we will assist our agents in determining when exigent circumstances or another applicable exception to the warrant requirement will permit them to search the phone immediately without a warrant," Canale said.

Notice how the focus is on figuring out more ways to search phones, not more ways to make sure they obey the law. This doesn't make me feel any safer. Quite the opposite.

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Filed Under: 4th amendment, doj, exigent circumstances, law enforcement, privacy, riley, supreme court, warrants

42 Comments

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Anonymous Coward, 27 Jun 2014 @ 10:25am

What a sad state of affairs. I've realized a while ago that law enforcement now has the culture of finding loopholes in the Constitution and laws to do whatever the hell they want, but this is ridiculous.
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Irving, 27 Jun 2014 @ 10:27am

Sounds very much like a conspiracy. Too bad there's no law against that....
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John Fenderson (profile), 27 Jun 2014 @ 10:39am

Mr. Pasco's false dichotomy
Mr. Pasco said "there's more at stake here than due process. It's public safety."

This statement is meaningless. Due process is a matter of public safety.
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Anonymous Coward, 27 Jun 2014 @ 10:42am

I wish law enforcement would enforce the law, instead of circumventing it.
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Anonymous Anonymous Coward, 27 Jun 2014 @ 10:48am

And the answer is...
...they don't need a warrant.

http://www.propublica.org/special/no-warrant-no-problem-how-the-government-can-still-get-you r-digital-data
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silverscarcat (profile), 27 Jun 2014 @ 10:54am

Oh boo hoo!
"Now we have to follow the law just like the rest of you! It's not FAIR! We're the ones in charge, you're supposed to let us do what we want!"

That's what I imagine they want to say.
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John Cressman, 27 Jun 2014 @ 11:00am

Bad apples
The bad apples in law enforcement only really care about the laws that empower them.

Drunk on power, they want to exploit every loophole to "make it safe"... these are also the people who want military vehicles and assault weapons (REAL assault weapons, not the glorified hunting rifles that LOOK like assault rifles)... Because nothing says "I have a little d**k" like showing up to a domestic disturbance in a TANK.
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Anonymous Coward, 27 Jun 2014 @ 11:03am

So, how many criminals do cops want to let go free, just because they chose not to obey the law in collecting cell phone evidence against them?

There might be a lack of evidence to convict them when illegally obtained cell phone evidence gets thrown out in court.
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Anonymous Coward, 27 Jun 2014 @ 11:03am

And guess what...

If they hadn't abused the process, there wouldn't have been cases before the Supreme Court that caused this ruling in the first place.
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Trevor, 27 Jun 2014 @ 11:04am

"There's more at stake here than due process. It's public safety."

Due Process not only protects the innocent, but also their safety. That's why the government isn't allowed to just go around killing people suspected of crimes...

Wait.
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Michael, 27 Jun 2014 @ 11:06am

one problem is such a warrant might not be approved

Holy cow. This has to be one of the dumbest statements ever made by a law enforcement officer. Law enforcement should not have to get a warrant because it might not get approved? Let me explain something to you:

THAT IS THE ENTIRE POINT - YOU CANNOT BE TRUSTED SO THERE NEEDS TO BE OVERSIGHT
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DogBreath, 27 Jun 2014 @ 11:06am

Really, Bill Johnson? Really?
Besides the delay, one problem is such a warrant might not be approved, said Bill Johnson, executive director of the National Association of Police Organizations, which counts about 240,000 rank-and-file police officers as members.

�You have to make that jump: I bet he's got a bunch of stuff on his phone. And that's not good enough,� he said. �The officers are really going to have to point to something specific that ties that phone or that suspect's use of phones to the commission of a crime.�

Why not just use the old tried and true method and sprinkle some crack on the phone? Then they'll have all the probable cause they need to get warrant:

http://www.youtube.com/watch?v=nli6RDAWREA&t=0m41s
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Ninja (profile), 27 Jun 2014 @ 11:07am

Re: Mr. Pasco's false dichotomy
Due process is a matter of public safety.

That. The fact that they think that the police is always right and should not be hindered by such Constitutional burdens is a good indicative why they are simply essential.
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Anonymous Coward, 27 Jun 2014 @ 11:09am

Re: Oh boo hoo!
The law we are paid to uphold is just SO personally inconvenient and laborious when we have to obey it ourselves. We don't know how you expect us to get anything done with all these impediments like warrants and rights and stuff.
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Anonymous Coward, 27 Jun 2014 @ 11:10am

Re: Bad apples
"Because nothing says "I have a little d**k" like showing up to a domestic disturbance in a TANK."

That's true. The biggest cowards, the most vociferous whiners, the least intelligent, the most psychotic, and the least competent members of any police force can be found on its SWAT team.

"What? You want to me actually WALK the streets of my own community carrying nothing but a baton and without wearing body armor? What do you think this is, the UK?"
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Anonymous Coward, 27 Jun 2014 @ 11:12am

If you have nothing hide then why not go the legit route and get a search warrant.
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Anonymous Coward, 27 Jun 2014 @ 11:27am

"There's more at stake here than due process. It's public safety."

Police state confirmed. That statement ignores public safety!

"Besides the delay, one problem is such a warrant might not be approved..."

If you don't have the required material to get a warrant you shouldn't be searching the phone anyway. That's a privacy issue!

"The officers are really going to have to point to something specific that ties that phone or that suspect's use of phones to the commission of a crime."

FINALLY, the real root cause of the unhappiness comes out. Police officers have to do more work.
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Anonymous Coward, 27 Jun 2014 @ 11:30am

"Notice how the focus is on figuring out more ways to search phones, not more ways to make sure they obey the law. This doesn't make me feel any safer. Quite the opposite."

I like how Aereo gets in trouble for breaking the spirit of the law, but that's standard practice for government/intelligence agencies/law enforcement
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Anonymous Coward, 27 Jun 2014 @ 11:43am

What happens to a society when the enforcers become vigilantes?
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SolkeshNaranek (profile), 27 Jun 2014 @ 11:59am

Jim Pasco, the executive director of the Fraternal Order of Police, points out that due process should be ignored when gangs are around

If the police don't feel the need to follow the law, why should anyone else?
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Michael, 27 Jun 2014 @ 12:18pm

Re:
Gang:

a group of persons associated for some criminal or other antisocial purpose

Yup, sounds like the police are always around one of those.
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Anonymous Coward, 27 Jun 2014 @ 12:23pm

I'm no fan of Pasco, and I agree his statements are horrendous.. but all this broad generalised law enforcement hate in this comments seams a bit over the top.
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Anonymous Coward, 27 Jun 2014 @ 12:36pm

really? i am gob-smacked!!
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John85851 (profile), 27 Jun 2014 @ 12:37pm

Just get a warrant
After all, if you've done nothing wrong (and your evidence is in order), then you have nothing to hide (the fact that you don't have evidence).
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rocko, 27 Jun 2014 @ 12:42pm

"There's more at stake here than due process. It's public safety."

wow. wow-e-wow-wow. the slackjawed stupor i'm in right now...

does he even know what he's saying? i don't even...
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Crazy Canuck, 27 Jun 2014 @ 1:00pm

Re:
Hmmm, seems to me that the law enforcement is failing the "Looks like a duck" test.
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Anonymous Coward, 27 Jun 2014 @ 1:31pm

Am I missihg something can't the police just remove the battery... possibly stick the phone in a faraday cage box? To then wait for a warrant and gather info off of phone once warrant comes through
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That One Guy (profile), 27 Jun 2014 @ 2:06pm

Re:
You know what could make statements like those found in this comment section, if not go away, at least decrease in volume? If the 'good' cops were just as vocal in calling out such statements as the complete and utter crap they are, and making it totally clear that they disagreed, vehemently, with such whining about how 'Obeying the law is too much work'.

However, the odds of that happening? Zero to zilch, with maybe one or two isolated exceptions(though I'd love to be proven wrong).

When the only 'cops' commenting on the case(or at least the most vocal ones) are the ones whining about how following the law just takes too much work? Yeah, they are going to be seen as representative of cops as a whole, and the blame for that rests on them, and the ones too cowardly to speak up to counter them.
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That One Guy (profile), 27 Jun 2014 @ 2:10pm

Re:
Exactly so.

They claim it's about 'public safety', well how exactly is the public being protected when someone who would have been in jail is instead let free because they just couldn't be bothered to get a warrant, and all the incriminating evidence is thrown out due to their impatience?

That sounds to me like the exact opposite of 'protecting the public', and all because they can't go through the simple process of getting a warrant, and/or don't want to create a paper trail of their actions.
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Zonker, 27 Jun 2014 @ 5:41pm

Re: Re:
Unfortunately, they will just use the parallel construction method to obtain a conviction:

Sure, we can't use the phone evidence to convict you, but we found the drugs during the traffic stop we conducted as a result of the information we found on the phone.

Now let me just finish downloading all those intimate pics of your girlfriend off that phone...
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Androgynous Cowherd, 27 Jun 2014 @ 6:41pm

Gotta love this:
We will make use of whatever technology is available to preserve evidence on cell phones while seeking a warrant ...

The way the make it sound like "find the off switch", "pull the battery", and "put the Apple ones in airplane mode" so they won't receive and act on any remote-wipe command is somehow a difficult and arcanely advanced feat of technological wizardry. Hell, sticking the phone in an unplugged microwave oven will do the trick, as the Faraday cage designed to keep microwaves *in* will also keep microwaves *out*, including cell tower signals. Technology so frightfully advanced that we've had it in random consumers' kitchens for the past fifty years! Wow!
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Anonymous Coward, 27 Jun 2014 @ 8:01pm

Re:
Law enforcement should not have to get a warrant because it might not get approved?

Absurd? No! I can DOJ that bullet:

Any agency denied a warrant to search a phone would be breaking the law when searching it. Forcing anyone to break the law would itself be an illegal act. Warrants serve only to enforce lawless behavior, and are therefore irrational and unconstitutional.
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Anonymous Coward, 27 Jun 2014 @ 8:18pm

getting a warrant is such an incredible burden.

And do we really have try them? Can't we just execute them on the spot.
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That One Guy (profile), 27 Jun 2014 @ 8:22pm

Re: Re:
Sad thing is, I could totally see them making that argument, or at least one similar to it.

'Following the law takes too much time and effort, while ignoring the law is seen as illegal or at least questionable. Therefore, the proper response is to get rid of the law that's getting in the way.'
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Anonymous Coward, 27 Jun 2014 @ 8:23pm

Re: Mr. Pasco's false dichotomy
Considering that the police only exist to protect the public's safety in the first place, Pasco isn't just arguing that warrants shouldn't be needed to search phones... he's arguing that warrants shouldn't be needed for anything. Ever.
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Anonymous Coward, 27 Jun 2014 @ 8:58pm

Re:
It's not generalized hate. It's a spectrum of dislike (from hate to annoyance) focused on the words and actions of specific individuals.

What is much more generalized is a distrust of law enforcement. Why so much distrust based on the actions of a minority of cops? Same reason the police carry weapons and don't inherently take random citizens at their word: all it takes is one instance of misplaced trust, and very bad things can happen.
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Chris H. (profile), 27 Jun 2014 @ 9:44pm

OMG now they have to get what usually amounts to a rubber stamp before they go through someone's cell phone! The humanity!
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Anonymous Coward, 28 Jun 2014 @ 5:54am

Re:
we had to burn the village in order to save it!
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Anonymous Coward, 28 Jun 2014 @ 6:20pm

Re: Re:
If the 'good' cops were just as vocal in calling out such statements as the complete and utter crap they are...

I'd be really interested if someone could come up with a system that would allow for Q/A, discussion, and debate between LEOs & "the rest of us" with the constraints that the participants claiming to be police (or other authorities) could be verified as such while still being guaranteed anonymity.

Even a near-perfect system would probably grow very slowly, since the duties of law enforcement would seem to require understanding that virtually any security system can (and most likely will) be circumvented eventually. Hell, if I were a cop, I'd probably just assume any such system was a honey pot designed to weed out "disloyal" troublemakers.

I've noticed that most of the people with actual law enforcement experience who criticize the system have one very important thing in common: they're not cops, they're ex-cops. "Snitches wind up in ditches" is a phrase with very broad appeal and utility.
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Anonymous Coward, 30 Jun 2014 @ 4:59am

So this due-process-nonsense is hindering their ability to "enforce public safety"?

If you follow this trail of logic, how long till they start executing criminals Judge Dredd style so they can "catch" more criminals?
This whole rights, incarceration, courthouse stuff takes to much time better spent gunning down more 'criminals'.
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John Fenderson (profile), 30 Jun 2014 @ 9:49am

Re:
"all this broad generalised law enforcement hate in this comments seams a bit over the top"

With a few exceptions, I don't see any generalized hate for cops here. I see hate specifically for corrupt cops here.
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Anonymous Coward, 9 Jul 2014 @ 10:56am

Re:
conspiracy to deprive a person of their rights, only used by FBI when a federal criminal informant failed to gain a conviction in a murder case in s southern state. of course it was the federal informant that had actually committed most of the big murders on civil activists with the ok of Edgar Hoover.
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