Failure To Obtain Warrants Results In Suppression Of Evidence In Two Child Porn Cases
from the if-you-don't-take-the-time-to-do-it-right,-you-don't-get-a-chance-to-do dept
When we fight crime, what do we fight? To hear those guarding the borders and all of the towns in between, it's generally a given that the Drug War is the top priority. Adding borders to the mix usually puts terrorism at a close second. The third? That's usually child porn/child molestation. It tends to shoot up the Public Enemy charts whenever someone drags social media or the internet into the discussion.
Considering that pretty much everyone agrees that child pornography is a bad thing, you'd think those in charge of busting possessors of this illegal content would be more careful. In two separate cases, child porn evidence has been thrown out by judges because officers failed to obtain warrants -- with both orders arriving within four days of each other.
The first comes from the Ninth Circuit Court of Appeals and deals with the illegal search of a border detainee's cellphone [pdf link].
Chad Camou was arrested by border patrol agents and his vehicle was searched. Camou invoked his right to remain silent at this point. While the search was ongoing, his cellphone was called several times by a number known to agents to be one of his accomplices. An agent began warrantlessly searching his phone -- originally for contact information but later took a look at Camou's saved photos. That's when he came across the child porn photos. He alerted his superiors to this fact. The search of the phone occurred 80 minutes after Camou's arrest. The warrant to search his phone wasn't obtained for another four days.
The court suppressed the evidence, stating several factors. First, it wasn't a search "incident to arrest" because too much time had elapsed since Camou's arrest and the agent's search of the phone. The court also pointed out that the "exigent circumstances" exception could not be deployed in this situation because the scope of the search exceeded the circumstances.
Most importantly, the court ruled that, in light of the recent Riley decision, that a cellphone does not fall under the "automobile exception," i.e., anything contained within the vehicle being searched can also be examined without a warrant.
Given the Court’s extensive analysis of cell phones as “containers” and cell phone searches in the vehicle context, we find no reason not to extend the reasoning in Riley from the search incident to arrest exception to the vehicle exception. Just as “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person,” so too do cell phones differ from any other object officers might find in a vehicle. Id. at 2489. Today’s cell phones are unlike any of the container examples the Supreme Court has provided in the vehicle context. Whereas luggage, boxes, bags, clothing, lunch buckets, orange crates, wrapped packages, glove compartments, and locked trunks are capable of physically “holding another object,” see Belton, 453 U.S. at 460 n.4, “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” Riley, 134 S. Ct. at 2488–89. In fact, “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.”The court also refused to let the agent off the hook with the oft-used and abused "good faith exception."
The governing law at the time of the search made clear that a search incident to arrest had to be contemporaneous with the arrest. See, e.g., United States v. Hudson, 100 F.3d 409, 1419 (9th Cir. 1996). The government has not met its burden to prove that a reasonably well-trained officer in Agent Walla’s position could have believed that the search of Camou’s cell phone one hour and 20 minutes after Camou’s arrest was lawful…
The Supreme Court has never applied the good faith exception to excuse an officer who was negligent himself, and whose negligence directly led to the violation of the defendant’s constitutional rights. Here, the government fails to assert that Agent Walla relied on anyone or anything in conducting his search of Camou’s cell phone, let alone that any reliance was reasonable. The government instead only asserts that by searching the phone, Agent Walla was not acting “recklessly[,] or deliberately” misbehaving. In this case, the good faith exception cannot apply.As Orin Kerr points out in his analysis of this decision, it's somewhat surprising that the government didn't introduce the "Constitution-Free Zone" border free-for-all into its arguments for the legitimacy of a warrantless cellphone search. Kerr speculates that it maybe had too many exceptions in play already and that adding this might have produced nothing more than confusion. In the end, it's the results that matter. An agent discovered child porn stored on a cellphone but government prosecutors are unable to do anything with that evidence because no warrant was obtained.
The same can be said for the next case, even though the underlying circumstances are different.
Homeland Security investigators set up a child porn sting in Brownsville, Texas. It tracked downloads to a residence via the IP address and set up surveillance. Although the IP address traced back to the house, there appeared to be no one living there. The agents then approached the house and spoke to the two residents. One of the residents, Miguel Beckes, had his laptop and external hard drives searched without a warrant. Beckes did sign a consent form but conflicting testimonies make it unclear as to whether he was ever clearly informed that he was giving agents permission to search his electronics.
The agents searched Beckes' devices and found over 800 child porn images. The next day, the agents filed a criminal complaint against Beckes for one count of possession. Nearly 10 days later, they finally acquired a warrant to search the electronics they had already searched.
The judge notes that the government has the burden of proof when it comes to voluntary consent. Beckes' testimony suggests the agents mislead him, referring to "suspicious activity" in his neighborhood, rather than what they were actually looking for. The judge also points out Beckes' mental status (a mental capacity below what's expected for someone his age, according to a psychiatric exam) as being part of the issue [pdf link].
Further, taking into account Beckes' diminished mental capacity, the effects of Agent Baker's actions are compounded, thus showing that Beckes merely acquiesced to Agent Baker's claims of lawful authority rather than voluntarily, freely consenting to the search.The judge goes into much further detail of the investigator's wrongdoing towards the end of the decision.
[T]he Court is puzzled at the HSI agents failure to utilize the procedures available to legitimize or at least document this type of investigation and thus avoid the ensuing dispute regarding the validity of the search altogether. At least one year before Agent Baker visited Beckes' residence, he had evidence that child pornography was being downloaded to an IP address associated with that location; evidence he deemed sufficient to apply for and actually receive a warrant to search Beckes' home. Although this IP address was canceled before Agent Baker could execute the search warrant, in January of 2014 -- at least eight months before his visit to Beckes' residence -- Agent Baker discovered that child pornography was again being downloaded to an IP address associated with the same residence.The final decision is much like the one above. The images found during the search at Beckes' home are suppressed, along with everything found past that point, including his confession. In the former, the government is pretty much left with pursuing trafficking charges. In the latter, the entire case against Beckes' is almost completely dismantled. Rather than abide by the processes and controls that ensure the usability of evidence as well as protect citizens' rights, agents under the DHS's large umbrella decided to improvise -- and, in doing so, managed to let two people with child porn in their possession off the hook.
Despite this evidence, which obviously would have been sufficient to obtain a second search warrant… the agents instead chose to proceed without a warrant and rely on attempts to secure the suspects' voluntary consent to search their electronic devices. Then, having decided on this course of action, they did not even attempt to get a signed consent to search form to document this assent. These forms were obviously available in their own office. Although foregoing the necessary procedural safeguards may have seemed expedient at the time, there was no suggestion that time was of the essence or that any other reason existed for not getting a warrant, or at least proof that consent was given.
Further, the steps the agents took after securing the pornographic images from Beckes' laptop computer suggest that they too doubted the legitimacy of Beckes' consent to search. After arriving with Beckes at the HSI office, Agent Baker had him sign a consent to search form that included devices that had already been searched at Beckes' residence. Then, nine days after the complaint against Beckes was filed in federal court, Agent Baker applied for and received a warrant to search Beckes' electronic devices -- a warrant that included devices Baker had already searched twice. Had he considered Beckes' initial consent to search inarguably valid, Agent Baker likely would have deemed these subsequent actions unnecessarily redundant.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 4th amendment, child porn, law enforcement, privacy, warrants
Reader Comments
Subscribe: RSS
View by: Time | Thread
Whatever...
As many back doors and exploits they have found and pay to have embedded in systems, it would be child's play to get porn on anyone's computer if they really wanted a good excuse to turn the public will against them.
[ link to this | view in chronology ]
Re: Whatever...
More importantly this establishes a precedent that the government is not all-powerful at the border.
[ link to this | view in chronology ]
Re: Re: Whatever...
And if you try to stand up for the rights of the accused then you get labeled too.
[ link to this | view in chronology ]
Re: Whatever...
Of course. Consider the recent Sony hack: the attackers could have planted ANYTHING on those computers: child porn, terrorist threats, drug trafficking details, some other studio's movies (which would have been pretty funny, since Sony would then have to defend itself from charges that it pirated rivals' content) -- the point is that once malware or people have achieved control of a computer system, they can put stuff on it just as easily as they can get stuff off it.
And here's the chilling part: there is no forensic test which can discern this kind of planted evidence from real evidence. NONE. Logs, file metadata, browser histories, etc. are all manipulable. Synthetic entries can be fabricated, real ones can be expunged. But of course the government's "experts" can't admit this in court -- because then a lot of the evidence they present could be thrown out. No, they have to pretend that what they're doing still has value in an era where there are hundreds of millions of bots.
[ link to this | view in chronology ]
Re: Re: Whatever...
If an adversary wanted to frame some inconvenient figure or company there should be a trail leading up to the intrusion with this system in place. Showing that they were the ones who used SFTP to put terabytes of child pornography and plans to attack the Whitehouse with Ricin.
The best the adversary could do to counter a one way logging system would be get it to stop writing or make it run out of space by filling it with garbage. Which could still exonerate by flagging anything after the device disabling as proof of tampering.
But that just protects from remote meddling. No such luck from crooked feds involved in evidence tampering themselves bringing in their own prewritten guilty tape.
[ link to this | view in chronology ]
Re: Whatever...
I heard of one case where just happened to a minister at a church. Almost everyone loved the minister, except for one guy who really wanted to get the minister fired. So that 1 guy made a new email account, and emailed child pornography to the minister. Then they called the police to report that child pornography was on the minister's church computer.
At first their plan worked when the cops came in and confiscated the minister's church computer, and word spread that the minister was looking at child pornography. But then the cops figured out that the guy had set the minister up and arrested him on the child pornography charges.
Yet it was too late to save the minister's reputation, despite the police saying he was set up and that he did nothing wrong. The congregation still wanted their once beloved minister's head to roll. The minister had to ask a Bishop to reassign him to a different church a several hour drive away from his old one, where the people had never heard of the false child pornography allegations against him.
[ link to this | view in chronology ]
Re: ice
[ link to this | view in chronology ]
Wow
[ link to this | view in chronology ]
Re: Wow
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Conspiring to violate rights is a felony level federal crime.
It happens so many times a year that even if the FBI wasn't busy fabricating and busting synthetic terror plots they have no time for anything else, they wouldn't have enough agents to pursue all the cases.
So the guilty parties have no consequences.
[ link to this | view in chronology ]
Re: reply
Chad Camou
[ link to this | view in chronology ]
The true test of character
Barring the evidence in cases like this must have been quite difficult, but the true test of respect for the law and the rights of the people can only take place when it involves defending the rights of people you do not agree with, and that's a test these two judge passed.
I really, really hope every agent and officer involved in these two cases has been fired. Ignoring the law like this got two cases basically thrown out, and thanks to double-jeopardy, they can't try the accused again for their crimes, so their desire to avoid leaving a paper trail, or just flat out laziness, has completely torpedoed the cases they were involved with. If that's not grounds for immediate termination of their employment, I don't know what is.
[ link to this | view in chronology ]
Re: The true test of character
Consider how the Supreme Court has ruled that obviously cartoonish fictional images depicting underage characters can be considered child pornography. Since no children were harmed in the making of such an image, tossing out a case based on such images would not be distressing in the same way as tossing a case based on images of actual abuse.
Consider the point raised in almost any teen sexting story: undressed sexually oriented pictures of minors are categorically child pornography, without any regard to their origin, consent, or mental state of the minors.
Consider also the intentional confusion between abusing a child, creating images of the abuse, selling images of the abuse, and possessing images of the abuse. All are considered illegal as examples of child pornography, but mere possession of the images, particularly if they were acquired without benefit to the original producer, is not as harmful to the depicted child as the other activities. Convicting someone on mere possession may technically be justice, but I would far rather trade that conviction for information that leads to a conviction of the original abuser. Busting someone on possession does nothing to help the victim nor to prevent future abuse, but convicting the original abuser can bring closure to the original victim and may prevent future abuse.
[ link to this | view in chronology ]
Re: Re: The true test of character
[ link to this | view in chronology ]
Re: Re: Re: The true test of character
[ link to this | view in chronology ]
Re: Re: Re: The true test of character
Everyone some time in their life has been a witness and/or party to some form of CP production. The way CP is classified we actually have to take pains in some situations to avoid it. People are just going to see people naked for some of the stupidest yet unintentional situations you usually don't think of. There is no reason to raise every questionable image to the status of CP just because you have some stupid fear. It is putting innocent people in jail and publicly assassinating their Character.
How would you like to be falsely accused, and they find CP on your computer? Under your "Reasoning" you will deserve punishment! This shit is getting way to damn overboard these days!
[ link to this | view in chronology ]
Re: Re: Re: The true test of character
[ link to this | view in chronology ]
Re: The true test of character
They can not be accused again for this crime, based on this evidence, but they can be charged again in the future for the possession of child porn based on new, legally obtained evidence. Double-jeopardy isn't a shield that protects you from all future crimes, just on prosecution of the current crime.
If they killed someone, and the evidence was ruled inadmissible and they were found innocent by a jury during trial, they could not be charged again for that particular murder (though, due to the loopholes, the federal government could come back and charge them for civil rights violations and the such,) but it wouldn't mean that they couldn't be charged again if they killed someone else.
If that's not grounds for immediate termination of their employment, I don't know what is.
What kills me in the Beckes case is that he already had a history, and getting a warrant would have been extremely easy. It stumped the judge, and it stumps me. I'd agree with you...they are way too stupid or too lazy to be given a badge and a gun. They are going to get someone killed.
[ link to this | view in chronology ]
No one wants CP out there, but allowing them to throw out the rules because its a really bad crime is wrong.
Everyone is entitled to due process, and cutting corners and hoping it will be overlooked destroys it.
[ link to this | view in chronology ]
Re:
If these defendants are truly CP enthusiasts, they'll likely resume their habits, which means there are more opportunities to catch them and prosecute them legitimately. But it would take only one CP accusation against a legitimately innocent person to ruin their life, regardless of whether any evidence is thrown out or the charges are dropped.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
I believe your John Adams also stated something similar and maybe even expanded on the principle for the USA structures with:
[ link to this | view in chronology ]
Re: Re:
A lot of people assume that if they are innocent of this then this will serve as punishment for something they were not caught doing. Additionally aligning this logic with, that if they were not scum to begin with they would have never attracted the attention required to be caught with something/anything. As a Nation we are hell bent on destroying ourselves with law and fear.
An officer will tell you that no matter how long it takes, you will eventually make a mistake that justifies a reason to get into your business. I remember some of the stupid stuff I did as a kid, simple vandalism and jerking around got me into a lot of trouble, which nowadays would only serve to push a child into more trouble as ever growing orifice of authority hangs over their head further causing them mental anguish and ensuring an unhealthy childhood.
The default nature of mankind is to be evil, however this is primarily for selfish reasons and juvenile events. It is not common for people to commit high crimes, even if they are more evil than good. This nature of ours has always lead to the presumption of guilt over innocence, America is truly a unique experience "When" we used to believe in innocent until proven guilty. But no longer.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
In a case like this, I would fully support the prosecution of members of Law enforcement that fail to properly secure evidence. Making sure evidence is properly handled is damn important and should not be allowed this level of fuckupery as often as we do!
[ link to this | view in chronology ]
Re:
Actually it's the FBI.
[ link to this | view in chronology ]
Re: Re:
FTFY.
[ link to this | view in chronology ]
The level of incompetence exhibited by "authorities" is always astounding.
[ link to this | view in chronology ]
Is the US Government the World's largest supplier of child porn?
I think "managed to let one person off the hook with child porn provided to him by the Government."
[ link to this | view in chronology ]
Yes, people who are probably (most likely) criminals go free - but then, the police cannot beat your passwords out of you either just because the "know" you are guilty. If the police cannot make a case with the tools a hand, then the case needs more work or move on to something else.
the police are not allowed to target an individual and then do whatever they want to make a case. What comes next? "We know he's a drug dealer, but we can't catch him, so just arrest him and plant the drugs on him"? Or how about "one of the guys in the Frat House must have done it, so force everyone in the house to provide DNA"?
In the first case, the guy had been arrested - the article fails to say why. There is nothing mentioned as to why they needed to look at his photos.
[ link to this | view in chronology ]
The Last Word
“Whatever...
... There are so many lies now from government thugs and company that I no longer believe them when they say they found kiddie porn on a computer anymore.As many back doors and exploits they have found and pay to have embedded in systems, it would be child's play to get porn on anyone's computer if they really wanted a good excuse to turn the public will against them.