Judge Says Raid On Twitter User Perfectly Fine Because Officers Can Enforce Non-Existent Laws Provided They Have 'Probable Cause'
from the in-the-weeds-finding-some-weed dept
There's been an update of sorts in the Peoria Mayor v. Twitter Parody fiasco, although reading the headlines attached to most of these articles tells a much different story than what's actually contained in the body. This has nothing to do with the parody account owner's (Jon Daniel) lawsuit against the city [pdf], filed with the assistance of the ACLU. (Many headlines actually lead with this, as though the filing of the lawsuit didn't actually happen over a month ago.)Judge Thomas Keith ruled that police had probable cause to perform the raid at Daniel's residence -- which also netted his roommate, Jacob Elliott, with felony drug possession charges when marijuana and paraphernalia were discovered. And it's Elliott who's actually in court seeking to have charges dismissed and the warrant invalidated.
The argument against the warrant itself is solid. FOIAed emails show internal discussions between the Peoria PD and the Mayor's office, one of which includes the Chief of Police himself saying there are no laws being broken.
Mayor/Manager, I reviewed this matter with Detective Feehan. He is in the process of shutting down the account as you saw from my last email. This phony Twitter account does not constitute a criminal violation in that no threats are made. I'm not sure if it would support a civil suit for defamation of character. I'm not an expert in the civil arena but my recollection is that public officials have very limited protection from defamation. I asked (Feehan) about identity theft and he advised it did not qualify because the statute requires the use of personal identifying information such as a social security number, DOB, etc., and a financial gain form (sic) the use of that information.Shortly after the raid and the ensuing debacle, the prosecutor dropped the (admittedly) bogus charges against Daniel.
Peoria County State’s Attorney Jerry Brady decided the offender must commit false personation in person. Using that reasoning, he didn’t charge Jon Daniel, the creator of the parody account, who also lived at the house.This is the argument being used by Elliott's legal rep. If no crime was committed -- and the statute used to secure the warrant not applicable -- then the warrant should be thrown out, along with anything discovered during the raid.
But the judge doesn't see it that way. He says the police had "probable cause," even if the probable cause was (to put it nicely) misinformed.
Keith’s ruling means police had to reasonably think they would find items related to the parody Twitter account such as phones, flash drives, computers or similar things in Elliott’s bed or closet.This is stuff the police did find. But the officers also looked under Elliott's pillows and in his closet. Judge Keith still wants them to answer for that.
Peoria police officers will testify Oct. 8 to explain why they looked under Elliott’s pillow and in a closet in his room, where police said they found the drugs in a gift bag.As for the underlying cause being premised on a law that didn't say what police (and Mayor Ardis) wanted it to say, Judge Keith is less decisive.
Elliott’s attorney, Dan O’Day, sought to have the warrant declared invalid, arguing that police made a mistake and that anything found in the house should be thrown out of court.But the prosecutor could make that decision, without the intercession of legislators or case law. He simply found that the law did not apply to Daniel's Twitter account and dropped the charges. Keith seems to be unable to wrap his mind around the fact that a warrant served to seize items and detain someone for not committing a crime is inherently flawed. That this was all uncovered after the raid took place does not excuse actions directed and led by a police chief and detective who admitted in emails that they knew the law didn't apply.
Keith said he couldn’t make such a finding. He said the law was vague, and there was no case law that could guide judges on what legislators meant when they wrote the law.
The "probable cause" was bogus from the start. The officers' actions in Elliott's bedroom aren't relevant because the whole search was a farce predicated on a deliberate misreading of a statute. The warrant may as well have stated it was seeking evidence of "harboring office supplies" or "manufacturing sandwiches without a license" for all the legal force it actually had behind it. While the warrant application lists "cocaine, heroin and drug paraphernalia" as things "reasonably" believed to be on the premises (no specific mention of marijuana or any other drugs, however), the statute clearly stated as the motivating force is False Personation, which doesn't cover Jon Daniel's Twitter account.
The police went after a Twitter account holder who had violated no laws and netted themselves a drug bust. The fact is, the police had no right to enter the premises in the first place and certainly shouldn't benefit from items seized that had nothing to do with the electronics (or other items) specified in the warrant application.
Keith's obeisance to "probable cause" is ridiculous but you can't expect much more from a former prosecutor who minored in cybercrime and majored in death sentences.
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Filed Under: false personation, illinois, jacob elliott, jim ardis, jon daniel, parody, peoria, probable cause, raid, search, search warrant
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I always remember of that epic case where the ACLU went to the defense of some KKK guys to protect free speech. They totally earned my full respect there. It's easy to fight for something you agree with it but incredibly hard to argue for something you support the framework but disagree on how it's being used.
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http://raphaelgolbtrial.wordpress.com/
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In 1 example a cop shot a man for refusing to show him respect
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there WAS probable cause
http://raphaelgolbtrial.wordpress.com/
As the New York Court of Appeals' decision in that case makes clear, deadpan, electronically conveyed satire can be criminalized in the United States. To avoid arrest, the authors of such "tweets" need, at a minimum, to overtly state that they are engaged in parody, otherwise they risk crossing the line into "criminal deceit." And let's not hear any First Amendment baloney, everybody knows this is a crime and there are limits to this Internet freedom junk. Here, someone posted misleading tweets that were highly damaging to the reputation of Mr. Ardis. Hence, there was probable cause to believe a crime had been committed.
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"And let's not hear any First Amendment baloney, everybody knows this is a crime and there are limits to this Internet freedom junk."
It's not "limits to this Internet freedom junk", it's no limits (with extremely limited exceptions) to "freedom of speech", which the government (or agents thereof) are legally prohibited from encroaching upon.
"Here, someone posted misleading tweets that were highly damaging to the reputation of Mr. Ardis. Hence, there was probable cause to believe a crime had been committed."
If by "misleading tweets" you mean "tweets that were incredibly obvious as to being satirical and parodying in nature" and by "damaging to the reputation of Mr. Aridis" you mean "upset the mayor who couldn't take a fucking joke" then yes, "there was probably cause to believe a crime had been committed". By which I mean "lacking a sense of humor and taking things personally", and that crime would have been on the part of Major Ardis.
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Your interpretations of my other comments are interesting. Since I'm not impersonating anyone, I don't need to clarify the satirical intent of any poorly written statements I might choose to make. But you can see how unclear it can be when someone uses a deadpan tone to try and engage in mockery. From now on, everyone should be very careful when they "tweet" in anyone else's name, because they are risking arrest, prosecution, and jail.
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And let's not hear any First Amendment baloney, everybody knows this is a crime and there are limits to this Internet freedom junk.
There seems to be quite a blurry line here. And where are the limits to freedom of speech set? Based on what, your say so? Like it or not parodies are completely fine.
Here, someone posted misleading tweets that were highly damaging to the reputation of Mr. Ardis. Hence, there was probable cause to believe a crime had been committed.
Was it proven in a court that the tweets were damaging to his reputation? Didn't the guy have bad enough reputation already that actually gave birth to such parody account? There are several issues that must be taken into account here. While you seem to be certain of everything I'm not so fast to judge it but from what I've read it seems that there was abuse of authority and procedural issues even if he was, in fact, exceeding his free speech rights.
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Either way it's irrelevant. You cannot use evidence not covered under the scope of your search warrant unless it was in plain view. The police are going to have to prove they had reasonable suspicion that evidence for a fake twitter account was hidden in a gift bag in his roommate's closet. Since this was (most likely) outside the scope of the warrant, since they were looking for Daniel's computer, I'd be very surprised to see if the evidence wasn't dropped.
So, there may have been probable cause enough for the warrant, but it would be hard to argue that the evidence was within the scope of the warrant.
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This means, first of all, that "neither good faith nor truth is a defense" as the criminal court put it in New York, and secondly that criminal courts and juries will need to evaluate these tweets on a case-by-case basis, whenever prosecutors decide to seek indictments to protect the reputations of well-connected members of the community.
As for the plain view argument, this is another minor technicality. Maybe they opened the closet because they thought the laptop used to post the criminally satirical tweets might be hidden there. If they drop the evidence, it will be just to get rid of the case after all the public criticism it's received on sites like Techdirt, not because any so-called "rule of law" prevails in the American criminal court system.
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The "plain view" thing is also a pretty major technicality. While John is correct that evidence seized in the course of the search, even if the evidence was for an unrelated crime, is admissible, I can't think of any reason for them to search in there unless the laptop was hidden (which would be very surprising, since the individual being searched had no reason to believe they were committing a crime...because they weren't).
We're not talking about child porn here, where he could have saved the data on a flash drive, we're talking about a Twitter account, where most of the data is going to be saved in temporary files for the browser. Again, this was most likely out in the open, probably on a desk.
As I said in my initial post, it's possible they had reason to believe his Twitter data was hidden in a gift bag in his roommate's closet...but I'd be pretty surprised to see that one stick.
All of which was pointed out in the original article. The article goes one step further, saying the whole warrant should be dropped because no laws were broken and the police knew it, but even if the probable cause sticks I'd be surprised (and disappointed) if the evidence obtained sticks as well.
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I thought you were being sarcastic. You really view freedom of expression on the internet as "junk"?
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Hopefully, in this situation for the roommate, the jury, or if found guilty, an appellate judge will take care of it.
This case even reminds me a little (sans "warrant") of this:
Federal Appeals Court Ridicules Florida Cops For Using SWAT Team To Check On Barbershop Licenses
The cops tried to claim immunity from prosecution for doing their jobs.
September 18, 2014
Disney World is not the only fantasyland in Orange County, Florida, according to the U.S. Court of Appeals 11th Circuit, which Tuesday issued a remarkable ruling slamming the sheriff and a state barbershop inspector for imagining they needed—and then using— a SWAT team in a police raid to see if haircutting licenses were valid...
“The plan also contemplated other law-enforcement objectives,” the Court wrote. “For example, the plan provided that any contraband discovered during the inspection had to be turned over to OCSO for prosecution and that the officers, with the assistance of narcotics agents, would identify and handle any narcotics, gather intelligence, and interview potential confidential informants.”
Not working out so well for the officers involved.
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I haven't read the decision, but it does seem from the summary like the judge doesn't understand that probable cause means probable cause to believe that a crime has been committed, not just probable cause of something. This is a depressing case.
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Huh?
There is a major difference between probably cause at the level of a warrant versus actual criminal charges being laid. It's not particularly unusual for a DA to look at a case as presented by the police (even after warrants are served) and decide not to move forward.
The real question is one of probably cause at the level that the warrant was issued, and not how the DA decided it at a later date.
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If. Someone. Is. Not. Breaking. A. Law. You. Cannot. Get. A. Warrant. To. Search. Their. House. Based. On. The. Law. They're. Not. Breaking.
I await your absurd reply that states that the cops can search your house for any dang reason, as long as they have a warrant for any dang thing like unlicensed sandwich assembly.
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The email is from the 11th. The detective, AFTER that email, found that there did exist a potential crime (personification) in the state books, and on that basis, moved forward with the warrant.
Was it a stretch? Huge one. Does it reach the level of probably cause? Remarkably yes. Was it a bad move? No doubt. Was it politically motivated? Beyond a doubt. Was it legal? Remarkably, yes.
Again, do I agree with what they did? No. But my personal disagreement with them doesn't take away from the fact that the law is an ass at times, and yes you can stretch it both ways to cover or uncover as you see fit.
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Not illegal in any state as far as I know.
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The fact that it doesn't really seem to matter which word people use to describe the non-crime really drives home the point that this fishing expedition was personally motivated and didn't deserve to have a warrant issued.
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Also, I've found that as a general rule, people who don't understand the word "probable" are usually not worth listening to.
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re-read the fuller story. After that initial email was sent, they did find laws under which they could move forward and they did. The email quoted was early in the going, and didn't reflect everything that they had and worked with.
You should read the linked story, even if it's a Techdirt opinion piece - it has way more detail than there is in this post.
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How is the contents of a gift bag in the roommates' closet within the scope of the search warrant? Did the Peoria police think he was hiding a copy of the internet in there?
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No law broken
This is part of the problem. Once you come to the attention of authority, they will find something to justify a search. Once they start searching, it is possible to find something, anything, and then you are up the creek.
If you have enough money to hire a lawyer, you might only be out a significant amount of time and money. Possibly with your reputation trashed.
This is too much power. Police need to be able to find criminals, and evidence of crime, but the power to look through your life and look through thousands of laws to find something to throw at you must be limited.
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So even if the law is made up, as long as they have good faith you are entitled to no protections under law in Peoria.
Do they get appointed or elected there? Because I can totally explain this sort of brain damaged thinking to someone who is terrified of being painted as soft on drugs in the next election cycle.
I think people should be more terrified that he puts his political future above rational thinking.
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Excuse me while I deploy a SWAT team to arrest you and search your house.
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On one hand, the police had a warrant, searched, and found drugs. I think what they did was perfectly reasonable given they were ordered to execute the warrant despite them disagreeing with it. Our police should not be making that distinction. I think finding the evidence is reasonable and it should be evidence that can be used in court.
However, the people that did know that the warrant was unreasonable and still ordered the police to execute it should find themselves in hot water. It seems to me that the Mayor's office knew it was bogus and a judge did a pretty awful job approving the warrant - they should at least be reprimanded over this.
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Get a warrant to search for one thing and then - hey ho - find something unrelated - and not even relating to the same person!
Of course the existence ot our ridiculous criminal business enablement laws (aka drug laws) does make this thing so much easier - almost anyone can be suspected of having drugs and quite a few who are actually suspected of something else will turn out to have them (or if not then it can be arranged...).
It works both ways.
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The elected officials should be held accountable when they order our police to do something illegal.
I'm not sure if I think the police should or should not have been there - so this is a bit fizzy for me and I can see why a judge would not penalize the citizens (by not being able to prosecute someone for drug possession) because the mayor's office acted inappropriately.
Maybe if I had more details, but this one is not all that clear-cut to me.
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Next day the police via their friendly neighborhood SWAT breaks into your house producing a warrant for drugs or drug related paraphernalia. Justifies warrant to court because he saw you in an area that has drug traffic (which can be anywhere).
Cops get to search your house for anything illegal to charge you with.
Hurray! you get to go to jail because you pissed off a cop or someone who knows a cop.
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In a well ordered society, the police and courts enforce the laws enacted by politicians, where laws can be thrown out by the courts if they breach a constitution. However, under no conditions should the police be expected to simply obey the orders of politicians, as that removes the rule of law, and replaces it with the whims of those in power.
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When the police are expected to just follow orders of politicians despite no laws being broken, then you are a long way down the road to death camps and elimination of undesirables.
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I want our police to follow orders from someone that is democratically elected. If they can disobey the elected officials, you will quickly end up with a military dictatorship rather than a city.
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But I don't want them (or anybody) to blindly follow those orders. When unjust orders come down the chain, disobeying them is the only just action that can be taken.
I am fine with officers being disciplined for failing to obey orders, so long as there is recourse to an impartial court where the full story and the reasons the orders were disobeyed can be heard. Let a judge determine things on a case-by-case basis.
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Members of the military are expected to obey all lawful orders. An order that is unlawful does not have to be obeyed. In fact, obeying an unlawful order can result in criminal prosecution. (See "Just following orders".)
Police should be subordinate to civilian authority, most definitely. But both should be subordinate to the Constitution.
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THIS, very much so. If a military member performs and illegal action on orders they have still performed an illegal action and both the person giving the order and the one who performed it will be prosecuted.
The responsibility of the police is to the law and to the people, NOT to elected officials. If the elected officials aren't happy with that, they can try to change the law, but they don't get to break it because they got elected.
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Agreed. If you're executing a warrant for embezzlement and you find a corpse, you should absolutely be able to use it as evidence even if you weren't expecting it to be there. (But not if you knew beforehand that the guy didn't actually commit embezzlement.)
Generally, yes; it's important for the police to be obeying the people in charge of them, after all. But in this case, no. If they knowingly sought and executed a bogus warrant, they broke the law, and saying the mayor told them to won't help them.
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I don't know how you work it in the US - but in the UK the police are independent - and NEVER receive a direct order from an elected official. If it ever even appeared to happen then there would be a scandal.
I think having elected officials order policemen about directly is a really bad idea.
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Police fishing
In some states, it is legal that if the police find something not covered by the warrant as part of the search, they can get the warrant extended to cover what they found (i.e. we went looking for drugs and found a corpse). Which has unfortunately been extended to cover almost anything found during the search.
I'm waiting to read a story about policy "looking for drugs" and finding copyright violations, so they lock the guy up.
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Obeying orders is not an acceptable reason to break the law.
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"A search warrant is an order signed by a judge that allows the police to look in a specific place for a specific item at a specific time. In order to get a search warrant, the police must persuade a judge that they have "probable cause" to believe they will find evidence of criminal activity in the place to be searched."
link
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This is what happens when judges like jailing folks
This doesn't mean the judge was wrong, and that the law was violated and the search must be suppressed. It was, and it the fruits of the illegal search should be suppressed.
However, this happens all the time. Trial judges looking at warrants often let the Fourth Amendment be trampled. So much so, one wonders whether these judges have even read the Fourth Amendment or any illegal search cases. Or if they just don't care and don't want to do their job.
Probably the latter.
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So...
Officer: "We have a warrant to search the premises"
Me: "What's the charge?"
Officer: "The charge on the warrant says collaborating with squirrels... now step aside."
Me: "Um... say what?"
Officer: "Grab everything guys! We'll charge him with a real crime later!"
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Re: So...
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Capt: (Turning to the citizen) Ah, wise guy, huh? You're under arrest! Put your hands behind your back.
Citizen: What? What's the charge!
Capt: Resisting Arrest!
Citizen: But I've done nothing wrong, you can't arrest me!
Lt: Sounds like resisting arrest to me! Get him boys!
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Orders of Magnitude
Orders are Orders but only LAWFUL ones need be followed (and can be defended)......
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freedom's just another word for nothing but the blues
What was that? No, I'm not done. I'll just be a minute more hon. Honest Indian.
I didn't overstep any limits of my power. Any person in Peoria, IL can call the police and report a suspected Twitter violation and have a swat team investigate it for them - especially if you can get Twitter to rat out the home address and name of the person who made a humorous parody of them. A person reading that parody might think that the person being parodied was indeed an alcohol abusing, power wielding demigod in a politician's suit. We have to protect ourselves from personation with intent to funny him.
No. Go away. I'll be in later. Just get the water warmer this time.
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really it's not me
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