Judge Says Raid On Twitter User Perfectly Fine Because Officers Can Enforce Non-Existent Laws Provided They Have 'Probable Cause'

Legal Issues

from the in-the-weeds-finding-some-weed dept

Mon, Sep 22nd 2014 5:52am — Tim Cushing

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.

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.

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.

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

73 Comments

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Ninja (profile), 22 Sep 2014 @ 4:05am

Even if they did find something that broke the law, the Constitution is clear and the warrant is invalid. Even if I did not agree with recreational use of marijuana (ie: say it was some worse crime) the guy should still walk free. Either we respect the Constitution regardless of how we feel about it or we don't. Much like free speech: if I cherish it I will tolerate speech opposed to my views, even if it's outrageous.

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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Anonymous Coward, 22 Sep 2014 @ 6:09am

That judge has just confirmed that the US is a police state, as they can raid and arrest people on any trumped up probable cause, even if the policey know that no law is being broken.
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Whatever (profile), 22 Sep 2014 @ 6:15am

I think you are trying to create legal time travel here. You are seeming to imply that what they knew or decided after the warrent was served (it wasn't a raid... geez) should have somehow magically been transmitted back in time so they could not get a warrant.

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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That Anonymous Coward (profile), 22 Sep 2014 @ 6:18am

Can't make the other Judges look bad.

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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Just Another Anonymous Troll, 22 Sep 2014 @ 6:19am

Judge Kieth. I have probable cause that you're an idiot.
Excuse me while I deploy a SWAT team to arrest you and search your house.
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Michael, 22 Sep 2014 @ 6:22am

I am not sure how I feel on this one.

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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Just Another Anonymous Troll, 22 Sep 2014 @ 6:22am

Re:
I am going to type this really slowly so you'll understand.
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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Just Another Anonymous Troll, 22 Sep 2014 @ 6:26am

Re:
The evidence shouldn't be and isn't admissible in court because it was collected through an illegal search, namely serving a warrant for something that wasn't illegal and served only to harass this guy and protect a mayor's oh so fragile ego. While it's certainly wise not to possess drugs, especially while trolling a thin-skinned mayor, the drugs were not even part of the warrant and found by sheer luck in a place the cops probably shouldn't have been searching in the first place.
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Richard (profile), 22 Sep 2014 @ 6:30am

Re:
In other words you think it is OK for the police to go on fishing trips.

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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Anonymous Coward, 22 Sep 2014 @ 6:31am

Re:
I think what they did was perfectly reasonable given they were ordered to execute the warrant despite them disagreeing with it.

Obeying orders is not an acceptable reason to break the law.
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Anonymous Coward, 22 Sep 2014 @ 6:32am

Re:
You should probably read the part where they knew he wasn't breaking a law.

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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TMC, 22 Sep 2014 @ 6:34am

So there's no interlocutory appeal for this, we're going to have to reach the merits before the appeal?
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John William Nelson (profile), 22 Sep 2014 @ 6:34am

This is what happens when judges like jailing folks
This is not surprising. A lower-court judge who sides with prosecutors on a warrant challenge is common. It would be news if he overturned it.

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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Anonymous Coward, 22 Sep 2014 @ 6:40am

Re:
The only problem with your statement is that it is the police that request search warrants.

"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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Rikuo (profile), 22 Sep 2014 @ 6:42am

Re:
You might want to re-read the article. The police knew before obtaining the warrant and executing the search that no laws had been broken. Therefore, this dismantles completely any argument in favour of probable cause. How can there be probable cause of belief of a crime being committed...if the cops doing the search are talking about knowing there's no crime being committed before the search?
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Anonymous Coward, 22 Sep 2014 @ 7:07am

Re:
What is this "Constitution" you speak of? Do you have proof that it exists? Is there some website link we can send these judges if it does exist?
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Anonymous Coward, 22 Sep 2014 @ 7:14am

This was driven purely by the mayors office dispatching the police like they're his personal army gross misuse of power given to him by the people he's meant to serve,the judge is probably golfing buddies with the mayor.
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Jeremy Lyman (profile), 22 Sep 2014 @ 7:24am

Re:
See, we had probable cause that we would find a frying pan in the kitchen. That means we can bust in and look for anything we want, right?
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John Cressman, 22 Sep 2014 @ 7:27am

So...
So basically, as long as the police make up a law and say you're guilty of it... they can search any place, any time. Nice! I'm sure that's EXACTLY what our founding fathers had in mind when they created the 4th amendment.

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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Anonymous Coward, 22 Sep 2014 @ 7:33am

Re: Re:
When the cops start getting lazy about their absolute power, we'll begin seeing warrants for "Enter Reason for Warrant Here". But hey, they found a minute amount of the least illegal drug out there, so it's justified right?
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Michael, 22 Sep 2014 @ 7:35am

Re: Re:
No. I think it is ok for police to collect evidence that they find while they are in a place that they are supposed to be. I also think it is important for our police officers to follow orders they are given by our elected officials.

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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Anonymous Coward, 22 Sep 2014 @ 7:36am

Re:
Peoria, IL is on a lake which is connected to a river which is connected to the Great Lakes which is connected to the Atlantic which means it's a constitution free zone.
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Anonymous Coward, 22 Sep 2014 @ 7:41am

Maybe the judge should be charged with Perjury. That should solve the problem of lying in order to pervert justice.
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JohnG (profile), 22 Sep 2014 @ 7:41am

Re:
He is not trying to create "legal time travel". If the grounds on which the warrant were issued turned out to be bogus then all things gathered or seized because of that warrant are bogus as well. It's called "fruit of the poisonous tree".
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Whatever (profile), 22 Sep 2014 @ 7:41am

Re: Re:
It doesn't matter how slowly you type it, you can't change reality.

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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Whatever (profile), 22 Sep 2014 @ 7:43am

Re: Re:
The police knew before obtaining the warrant and executing the search that no laws had been broken.

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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Anonymous Coward, 22 Sep 2014 @ 7:43am

Re: Re: Re:
You upset a cop or someone who knows a cop.
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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Anonymous Coward, 22 Sep 2014 @ 7:46am

Re: So...
We have probable cause to believe that we're going to find something to charge you with.
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Anonymous Coward, 22 Sep 2014 @ 7:50am

Re: Re:
The possessor of the weed and such was not the person trolling the mayor but a roommate.
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Jeremy Lyman (profile), 22 Sep 2014 @ 7:51am

Re: Re: Re:
FYI:
Personification is a figure of speech in which a thing, an idea or an animal is given human attributes. The non-human objects are portrayed in such a way that we feel they have the ability to act like human beings. For example, when we say, “The sky weeps” we are giving the sky the ability to cry, which is a human quality. Thus, we can say that the sky has been personified in the given sentence.

Not illegal in any state as far as I know.
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Anonymous Coward, 22 Sep 2014 @ 8:03am

Re:
the police would have to respect in the constitution and believe in citizens having rights. Which they do not in either case.

In 1 example a cop shot a man for refusing to show him respect
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Anonymous Coward, 22 Sep 2014 @ 8:07am

Re: Re: Re:
I also think it is important for our police officers to follow orders they are given by our elected officials.

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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Anonymous Coward, 22 Sep 2014 @ 8:08am

Re:
Eric Holder has set the precedent that you can lie to a court and get away with it as long as you work for this criminal government
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Michael, 22 Sep 2014 @ 8:10am

Re: Re: Re: Re:
But that is not what happened here. The police report to elected officials and those elected officials told them to do the wrong thing. You could argue that they should stand their ground and tell the mayor's office "no" - and perhaps you would be right, but I am not sure I fault them for effectively doing what their boss told them to do.
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Anonymous Coward, 22 Sep 2014 @ 8:14am

Whatever, continuing his tirade of "cops are always in the right, even when they aren't". I for one am not shocked at his defense of this.
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Michael, 22 Sep 2014 @ 8:15am

Re: Re: Re: Re:
Just like our military, our police follow the orders of the elected officials. Allowing them the ability to disobey those orders puts you in a position in which the police is in opposition of the democratically elected government - and that is what leads to "death camps and elimination of undesirables".

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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Anonymous Coward, 22 Sep 2014 @ 8:15am

Re: Re: Re:
No. I think it is ok for police to collect evidence that they find while they are in a place that they are supposed to be.

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.)

I also think it is important for our police officers to follow orders they are given by our elected officials.

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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John Fenderson (profile), 22 Sep 2014 @ 8:30am

Re: Re: Re: Re: Re:
"I want our police to follow orders from someone that is democratically elected."

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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sorrykb (profile), 22 Sep 2014 @ 8:33am

Re: Re: Re: Re: Re:
Michael wrote:
Just like our military, our police follow the orders of the elected officials.

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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Anonymous Coward, 22 Sep 2014 @ 8:35am

Re: Re: Re: Re: Re:
Look up the Nuremberg trials, following orders was not accepted as a reason for committing crimes.
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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Digitari, 22 Sep 2014 @ 8:36am

Orders of Magnitude
I was a Marine for a number of years, I joined shortly after the Vietnam era, the Mai Lai Massacre was fresh in the Militaries memory at the time, so they drilled into us the difference between "orders" and "LAWFUL Orders" now granted this was 35 years ago, so MAYBE the civilian world has not caught up yet.

Orders are Orders but only LAWFUL ones need be followed (and can be defended)......
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Digitari, 22 Sep 2014 @ 8:40am

Re: Orders of Magnitude
I know many of you are wondering how to tell the difference, between lawful and unlawful, it's quite easy, ask them to be written, dated, and signed, only an Idiot would write down unlawful orders and sign them. (yes every order in the military has the right for written request, even if it does piss off the "boss")
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Oblate (profile), 22 Sep 2014 @ 8:41am

Re: Re: Re:
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.

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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Hot Corn (profile), 22 Sep 2014 @ 8:50am

there WAS probable cause
On the contrary, they did have probable cause to think a law was violated, and hence the search was constitutionally valid. See the documentation of America's leading criminal satire case at:

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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Just Another Anonymous Troll, 22 Sep 2014 @ 8:58am

Re: there WAS probable cause
He tweeted how he was "trill as f***". Only an idiot would believe the mayor posted that, unless the mayor frequently does similar things, in which case there's a whole different problem here.
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Anonymous Coward, 22 Sep 2014 @ 9:10am

Re: there WAS probable cause
It was clearly a parody account and there was a statement as such if memory serves me correctly.

"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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Hot Corn (profile), 22 Sep 2014 @ 9:12am

Re: Re: there WAS probable cause
It doesn't matter: as long as he didn't explicitly say it was a parody, this was a matter for a jury. No one would believe a distinguished academic department chairman had sent out "gmails" crudely confessing to plagiarism either. That was held to be a crime in the New York case, because the "confessions" were sent out with the intent to harm the reputation of the chairman. You do the deed, you do the time. That's the American way, and idiocy's got nothing to do with it.
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Ninja (profile), 22 Sep 2014 @ 9:17am

Re: there WAS probable cause
That's not clear from the news. I haven't seen the original account myself to check for warnings such as "Parody account" or something but the news are not clear.

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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Hot Corn (profile), 22 Sep 2014 @ 9:21am

Re: Re: there WAS probable cause
See my comment above. Your memory needs to be corrected: after a month of tweets, a statement was added that it was parody, probably because if it had not been added the account would have been in violation of Twitter's rules. Thus, for an entire month, the mayor was impersonated, arguably with the intent to harm his reputation.

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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Hot Corn (profile), 22 Sep 2014 @ 9:26am

Re: Re: there WAS probable cause
There was no abuse of authority, because there was probable cause. It doesn't have to be proven in court until the trial takes place. The "blurry line" exists in the New York case too, but if you are arrested and are found to cross that line, you will go to jail. As the judge said in that case, the criminal intent "brings you a parody over the line," and "neither good faith nor truth is a defense." See the documentation I linked above.
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wec, 22 Sep 2014 @ 9:38am

One thing strikes me as wrong. When the police or DA HAS to go look for a crime to possibly charge you with, then you are now a target not necessarily a suspect.
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Hot Corn (profile), 22 Sep 2014 @ 10:14am

Re: Re:
I think it still exists somewhere on paper, bit it's been invalidated in New York, where "neither good faith nor truth is a defense" to criminal satire, which brings "you a parody over the line." See the case documentation at:

http://raphaelgolbtrial.wordpress.com/
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DogBreath, 22 Sep 2014 @ 10:58am

Re: Re:
Ah, the old reverse warrant trick. Instead of finding a crime that fit the law, they looked for a law to fit the crime they wanted to charge him with. Any crime, so long as it got them their warrant to look for any other thing to screw his life up.

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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Whatever (profile), 22 Sep 2014 @ 11:54am

Re: Re: Re: Re:
RTFS - that is what is in there.
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beltorak (profile), 22 Sep 2014 @ 12:14pm

Re: Re: So...
Lt: We can't find anything illegal here. He's actually squeaky clean!

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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JP Jones (profile), 22 Sep 2014 @ 12:18pm

Re: Re: Re: Re: Re: Re:
"Members of the military are expected to obey all lawful orders."

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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John Fenderson (profile), 22 Sep 2014 @ 12:45pm

Re: Re: So...
It's a good thing that warrants are supposed to be for something specific. Probably cause that you're doing something illegal means nothing unless they can name specifically what law they think you are breaking.
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John Fenderson (profile), 22 Sep 2014 @ 12:48pm

Re: Re: Orders of Magnitude
My knowledge of this comes solely from war movies (so is probably wildly wrong), but I thought that all orders aside from perhaps ones barked in the heat of battle itself were written ones. At least, war movies are full of scenes involving handing over or receiving written orders.
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JP Jones (profile), 22 Sep 2014 @ 12:58pm

Re: Re: Re: there WAS probable cause
The documentation you listed was for a case tried under New York law and does not necessarily set the same rules for the law being tried in Illinois.

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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Richard (profile), 22 Sep 2014 @ 1:00pm

Re: Re: Re:
I also think it is important for our police officers to follow orders they are given by our elected officials.

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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John Fenderson (profile), 22 Sep 2014 @ 1:21pm

Re: Re: Re: Re: there WAS probable cause
Strictly speaking, I don't think it has to be in plain view. It just has to be visible in the course of the authorized search. For example, if the warrant says the police can search through desk drawers for financial records, and drugs are found in one of those drawers, then that's prosecutable even if the drawer was closed prior to the search. However, if the cops searched a closet and the closet wasn't authorized by the warrant, then anything found there would be inadmissible.
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Hot Corn (profile), 22 Sep 2014 @ 1:24pm

Re: Re: Re: Re: there WAS probable cause
So is that all it comes down to, a little technicality, a possible difference between New York and Illinois law? I beg to differ: the New York case will clearly have an influence on related decisions elsewhere in the country, and its basic holding is that no kind of "free speech" argument avails against a law criminalizing electronically conveyed, first-person satire or impersonation that is too unclear or unsuccessful to qualify as parody.

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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Anonymous Coward, 22 Sep 2014 @ 1:24pm

No law broken
"After that initial email was sent, they did find laws under which they could move forward and they did."

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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Anonymous Coward, 22 Sep 2014 @ 1:35pm

Police fishing
In most states, it is legal for the police to list several unrelated generic things they hope to find, that way they are covered if they find them. i.e. most warrants will include boilerplate about illegal drugs and firearms.

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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JP Jones (profile), 22 Sep 2014 @ 6:57pm

Re: Re: Re: Re: Re: there WAS probable cause
A little technicality? State laws can vary widely. Either way, the original charge for personification was already dropped so that's not even a factor. The law in New York is irrelevant because it's not even going to court.

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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jimardisthemayorofpeoriail (profile), 22 Sep 2014 @ 7:51pm

freedom's just another word for nothing but the blues
Now just hold on there. You can't keep bashing a high Mayor like this stuff there. It just not write is it? Those people had illegal substance, not the medical kind, and the swat team found it. So they need to be punished. You wouldn't elect a cook with a sense of humor mayor of Peoria after all is said and done. So how else can I, the official mayor of Peoria, defend his freedom of speech like Larry Flint who parodied some blubbery millionaire televangelist in a public magazine in front of the Supreme Court and all? I can't call in the Supreme court but I can drop a dime to the police, just like any citizen of Peoria and have a swat team bust in on people you think you don't like but haven't met them so you don't know you don't like them yet, but then the police will ransack their household until they find something legally wrong there.

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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jimardisthemayorofpeoriail (profile), 22 Sep 2014 @ 7:55pm

Re:
I think reprimand is a little strong there don't you?
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jimardisthemayorofpeoriail (profile), 22 Sep 2014 @ 8:21pm

really it's not me
I'm really not the mayor of Peoria. Weren't the Smothers Brothers always marching to Peoria back in the 60's? I thought I should just state for the record that I am not the real mayor of Peoria, IL and that humor overwhelms me in the manic state (that's the upper polar half for those of you who don't know where you were when the Kennedy's were shot and no it doesn't matter which one) and I'm not drunk at all nor do I possess any non-medical pot (I can't seem to spell marijuanna. See?) And I am not the real Jim Ardis. My name is Milton Smith and I live at 613 E. Main Street Webster, NY 14580. The home town of Wendy O. Williams later to be know as the squirrel lady.
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Jeremy Lyman (profile), 23 Sep 2014 @ 4:59am

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If that's what's in the story then it's wrong. All the links I read say "false personation" though, as in impersonation, or pretending to be someone you're not.

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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nasch (profile), 23 Sep 2014 @ 6:16am

Re: there WAS probable cause
And let's not hear any First Amendment baloney, everybody knows this is a crime and there are limits to this Internet freedom junk.

I thought you were being sarcastic. You really view freedom of expression on the internet as "junk"?
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nasch (profile), 23 Sep 2014 @ 6:19am

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See, we had probable cause that we would find a frying pan in the kitchen. That means we can bust in and look for anything we want, right?

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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Anonymous Coward, 23 Sep 2014 @ 9:00am

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congratulations you have joined the ranks of pets everywhere. They are moving targets to the police these days. They see a dog and shoot it on sight
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Anonymous Coward, 1 Oct 2014 @ 6:42am

Re: Re: Re: Orders of Magnitude
Trivial orders aren't generally written down, because even something as simple as "fetch me that spanner" is an order. OTOH, if there's more complexity, writing down the order is desirable because it reduces the chances of confusion.
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