Prosecutors Charge Suspect With Evidence Tampering After A Seized iPhone Is Wiped Remotely

from the lots-of-missing-info-here dept

Mon, Nov 19th 2018 12:07pm — Tim Cushing

Going on little more than their belief a phone may contain evidence in a drive-by shooting case, prosecutors in Schenectady, New York are charging a suspect with destroying evidence.

A cellphone seized by police as part of an investigation into a drive-by shooting last month was remotely wiped by its owner, authorities said this week.

Police believe Juelle L. Grant, 24, of Willow Avenue, may have been the driver of a vehicle involved in an Oct. 23 drive-by shooting on Van Vranken Avenue, near Lang Street, so they obtained her phone, according to police allegations filed in court. No one was injured in the shooting.

After police took her iPhone X, telling her it was considered evidence, "she did remotely wipe" the device, according to police.

"The defendant was aware of the intentions of the police department at the conclusion of the interview with her," according to court documents.

Grant now faces three felonies: two counts of evidence tampering and one count of hindering prosecution. One count of evidence tampering related to the alleged phone wipe. The other two counts listed are related to concealing the shooter's identity and disposing of the weapon used.

Grant purchased a new iPhone some time after her other one was seized. It could be her logon from a new device erased files on her old one, but that seems unlikely and the dates don't really line up. Her lawyer says she got a new phone "days after" the cops took her first one, but the documents alleging evidence tampering says it happened less than 24 hours after the alleged drive-by. Supposedly, Grant isn't a "computer-savvy person," according to her attorney, but it's not all that tough to do even for someone with limited tech skill

The easiest method for remote wiping would be using Apple's "Find My iPhone" feature, which has "Erase iPhone" right on the landing page. This seems to be the likeliest explanation for what happened, although it may be Grant herself did not trigger the remote wipe.

And there are unanswered questions about law enforcement's handling of the seized iPhone. Have they not heard of Faraday cages/bags? That exact question was posed to law enforcement by The Daily Gazette. The first answer was a deflection:

Asked last Wednesday evening if such technology was available to city detectives, police spokesman Sgt. Matthew Dearing said he did not know but would check with detectives. He indicated late Thursday afternoon that he had yet to hear back from them.

One week later, there's still no answer.

A message Monday morning asking Dearing if he had yet heard back from detectives was not immediately returned.

Finally, there's another question that needs to be answered by law enforcement as it moves forward with these charges: how likely is it that there's evidence of a drive-by shooting on a person's phone? That probability -- an essential part of "probable cause" -- seems a little low. Sure, cops might have found a judge willing to believe a person's phone is just something that collects evidence of any and all criminal activity until law enforcement needs it, but there's always a chance the judge might actually demand justification for searching a phone seized from a drive-by shooting driver.

With the alleged "evidence" now allegedly maliciously deleted, law enforcement might be off the probable cause hook. But it shouldn't be. It should have to justify its original search plans before it can move forward with evidence tampering charges. From what's been presented in this coverage, it doesn't appear law enforcement has a solid basis for the search it never got to perform.

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Filed Under: evidence, iphone, new york, police
Companies: apple

46 Comments

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Anonymous Anonymous Coward (profile), 19 Nov 2018 @ 12:06pm

Chickens without eggs, or is it eggs but no chickens?
Wouldn't they need evidence to show that there was in fact evidence on the wiped phone?

Then there's disposing of the weapon used. Do they have proof that the 'culprit' had the weapon? It does not appear that she has been charged for the shooting, or even for being there.

And finally, refusing to give up someones name sure sounds like testifying against oneself. If they give up the name, then that would make themselves complicit because how else would one know the name if they weren't there?
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Nathan F (profile), 19 Nov 2018 @ 12:16pm

The hell? Do they think she filmed the incident or something? If they wanted evidence they can request location records and text messages from the provider without having to do a warrant song and dance.
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Bamboo Harvester (profile), 19 Nov 2018 @ 12:16pm

Hmmm....
...does the "wipe iPhone" delete location data?

Unless the cops think there was video of the drive-by on that phone, I'd think they just wanted to place that phone on the scene of the shooting at the time it occurred.
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Anonymous Coward, 19 Nov 2018 @ 12:24pm

Defense
Arguably, she didn't wipe the phone, she asked it be wiped the next time it connected to the public cellular network. It would be reasonable to expect any competent law enforcement body to not do that until they're done with it. After all, leaving it connected raises serious chain-of-custody concerns.

In her position, I'd claim this was done only to protect against e.g. someone buying this at a police auction, not to protect against police access.
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ShadowNinja (profile), 19 Nov 2018 @ 12:28pm

Re: Hmmm....
That and records of texts/calls seem like the only things they could realistically find that would be relevant.

I always thought the cell phone provider had all that information and could be required to hand it over with a warrant?

The contact list is stored on the phone I think (unless it's different on iOS) so it would be deleted, but surely they'd have texts/calls to those numbers in the phone company records if they existed.
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Paul, 19 Nov 2018 @ 12:38pm

Is there a deadhand option?
This has me wondering if there's a way I could set up a phone to automatically wipe unless a password is entered at specific intervals, a la the deadhand nuclear launch system of the cold war. Such as if I don't sign in via my password in a week it automatically wipes. A feature like that could be useful for many other circumstances as well, not just having my phone seized by law enforcement.
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Anonymous Coward, 19 Nov 2018 @ 12:38pm

1) The Police should have turned off the phone immediately, and not turned it on again until it was in the cell phone examination room, which are usually faraday cages, for this very purpose. Sounds like the police mishandled evidence.

2) The evidence they were likely looking for was text messages concerning the shooting, either planning ahead, or commenting after.

3) There is a remedy for this at trial. The State can argue that the Jury can presume that there would have been evidence harmful to the defendant on the phone. However, they would need to prove that she DID intentionally wipe it. And that there likely WAS evidence on it that was harmful to her.
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Bamboo Harvester (profile), 19 Nov 2018 @ 12:51pm

Re:
No to #3

"Objection! Presumption of Facts not in Evidence!"

"Sustained...The Jury will disregard blah blah blah..."
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That One Guy (profile), 19 Nov 2018 @ 12:54pm

Handy that
Whether the police had anything to do with it(beyond gross negligence in not putting a phone they believed to contain evidence in a container to block outside instructions), I can't help but notice that having the phone wiped seems to be almost entirely in their favor.

Rather than having to defend whether or not the phone did contain evidence of the act(somehow), they get to move right on to asserting that it did, use the destruction of said evidence against the accused, and hit them with additional charges related to that.

Is it possible that the phone did (somehow) contain evidence and it was wiped by the accused or someone else who might be incriminated by it and had access? Most certainly. However the (at best) gross negligence on the part of the police with regards to the phone, and the fact that the 'destruction of evidence' would appear to be nothing but helpful to them has me looking at the situation with a suspicious eye.
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Agammamon, 19 Nov 2018 @ 12:57pm

. . . from a drive-by shooting driver.

You know how kids are these days, always snapping chats and Facebooking while driving.
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Michael, 19 Nov 2018 @ 1:05pm

Re:
As we all know, criminals will only break one law at a time. Someone driving a getaway car would never, at the same time, be texting.

Plus, that would be unsafe. At any moment, a getaway driver may need to drive evasively and a distraction could make this difficult. Criminals aren't stupid.
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Anonymous Coward, 19 Nov 2018 @ 1:09pm

I imagine she was concerned about the nudes on the phone.
Why do the leos think it was wiped .. because there are no nudes? I routinely wipe old data from the phone, why not? I had no idea that it could be considered a felony to remove things from my cell phone - perhaps I do not even need a cell phone, is that a felony also?
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tom (profile), 19 Nov 2018 @ 1:10pm

Wonder if any of these investigative geniuses thought to ask Apple if any of the data in question was auto-magically backed up to Apple's iCloud?
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Anonymous Coward, 19 Nov 2018 @ 1:28pm

Re: Crow is good eats.
Missed you in in the CNN update thread bro.
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Bamboo Harvester (profile), 19 Nov 2018 @ 1:31pm

Re: Handy that
It doesn't work in their favor. The prosecution can't use it, other than to say it was erased by a party or parties unknown.

Otherwise they could claim it had the location of Hoffa's body on it, the Mafia's main Credit Suisse number, etc.

The only thing I can see the phone being used for is the charge that she remotely wiped it, which they won't bother with if they can't prove SHE did it.

Tip for criminals: When you see the flashing lights, destroy your cell phone...
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btr1701 (profile), 19 Nov 2018 @ 1:33pm

Hobson's Choice
> Grant now faces three felonies: two counts of evidence
> tampering and one count of hindering prosecution.

Depending on what she would have been charged with in the drive-by (attempt murder, aggravated assault, unlawful discharge of a firearm, etc.), she probably still is getting off easy.

The destruction of evidence charge is better than a murder one charge any day.
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TKnarr (profile), 19 Nov 2018 @ 1:40pm

Re: Is there a deadhand option?
There isn't an easy way to set up an automatic wipe like you describe, but many phones have an option to encrypt the storage (internal and SD card) so that a password has to be entered during boot before the phone can even read it's own storage. You'd combine this with a scheduled-reboot app (requires a rooted phone to work) that would trigger a restart of the phone at a certain time each day. You could use a remote-power-off app as well, but doing it automatically on a preset schedule avoids the issue of you having to actively do something after the phone was confiscated. I'd have to dig into whether there's software out there that could invalidate the decryption credentials (forcing a re-entry of the password) if the device is idle for longer than a set time (something like the lock screen, but operating at the hardware layer rather than the level of the UI and external interfaces).
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Anonymous Coward, 19 Nov 2018 @ 2:08pm

Re:
Members of the jury. It is our considered opinion that the defendant is the second shooter on the grassy knoll. A search of electronic communications on the date in question reveals no mobile phone activity, and, as the defendant's phone also has no records of activity stored on it, this proves that this is the phone that generated those non-existent signals.

Thus you MUST conclude that the defendant maliciously and remotely wiped those signals from the spectrum on the date, and did, with further malicious forethought, remotely delete all evidence from the phone in question.

Absence of evidence is not evidence of absence, ipso facto, the defendant can only be found guilty.

Quid erronium dumbonstrandum.
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Bryan Beals, 19 Nov 2018 @ 2:22pm

Phones
>1) The Police should have turned off the phone immediately, and not turned it on again until it was in the cell phone examination room, which are usually faraday cages, for this very purpose. Sounds like the police mishandled evidence.

This chould make there job harder. I am an IT guy and I work with our company MDM. On Android phones at least if the phone is rebooted non of our remote commands will work till it loged back into with pin/password. Including our ability to remotely reset someones pin code. We have rather complext pin requirements and people for get there pins from time to time from using finger prints 99% of time. When they forget there pin and the rebooted there phones I have to tell them I hope you had you photos and such backed up because you are not getting them back. if they hav't rebooted i can send a command and poof your pass code is now 1234 and you have 15 min to pick a new one before the system kicks you out of company email :)..
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Ehud Gavron (profile), 19 Nov 2018 @ 2:22pm

Who owns my data?
TechDirt (rightly) spends a lot of brain power and well crafted discussions discussing our rights to our devices, to have them free of malware, and protecting our rights to use, repair, and keep them free for OUR use, not others.

So here's a case where the bad guys wanted to get this woman's data. They were determined to hack into her phone to get her private data. We've discussed for ages this data reveals FAR MORE about her life than the alleged drive-by shooting.

Instead of allowing these bad guys (LEOs) to get her data, she (allegedly) wiped it. That's equivalent in result to her phone being locked and LEOs being unable to unlock it, and equivalent in action to what she's charged with... which is destruction of evidence.

Evidence isn't "all known data we didn't get to access." LEOs claiming so doesn't make it so.

There are two types of cops... bad ones, and the ones that let them continue to be bad cops. I don't trust any of them with an open copy of all the data on any of my devices. They can't even have my fitbit.

E
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James Burkhardt (profile), 19 Nov 2018 @ 2:40pm

Re: Hmmm....
Remotely wiping your iPhone performs the factory reset function. It removes all of the data, including location data, on the phone. I assume it does not wipe the secure enclave with the iCloud credentials, as with an in person reset, reducing value in resale as it remains locked to the account.
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Anonymous Coward, 19 Nov 2018 @ 2:47pm

Re: Who owns my data?
Unless they had a warrant, the phone was hers and they had no right to the information on it.
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Anonymous Coward, 19 Nov 2018 @ 2:49pm

Re:
I've never had any form of social media account. I'm waiting for the day when that becomes a legal (or employment) problem.
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Anonymous Coward, 19 Nov 2018 @ 2:51pm

Re: Who owns my data?

There are two types of cops... bad ones, and the ones that let them continue to be bad cops. I don't trust any of them

Yep. Could have just stopped there.
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Anonymous Coward, 19 Nov 2018 @ 3:29pm

Re: Re: Handy that
Tip for criminals: don't bring your cell phone when you commit crimes.
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Gary (profile), 19 Nov 2018 @ 3:38pm

Re: Re: Who owns my data?
Unless they had a warrant...

That isn't how warrants work. Or arrests. Police can (and will) seize everything, it'd held as potential evidence. They even have a special room to lock it up in. If the prosecutors and/or defence want to use the seized items at trial, then it is entered as evidence.
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Ehud Gavron (profile), 19 Nov 2018 @ 3:50pm

"Evidence"
Even more technical, when a prosecutor wants to enter an exhibit at trial, he requests the permission of the Court to do so. That gives the defense an opportunity to object.

If said objection occurs and if it is upheld, the exhibit is not allowed to be entered, and it never becomes "evidence". Sometimes the prosecution will even return this private property undamaged to the defendant in an undamaged condition, but don't count on it. Law enforcement in the US is all about punishing everyone and hoping to catch some promotions in the process.

That whole "innocent until proven guilty" and "criminal JUSTICE system" and cops following the law is just an intro to a TV show. https://www.youtube.com/watch?v=lMalvNeJFLk

E
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Anonymous Coward, 19 Nov 2018 @ 5:07pm

No, it wasn't a deflection. It was a complete lack of understanding. A Faraday cage could hardly be called a piece of technology. It's little more than a metal mesh. You can get them small enough to fit in a wallet, so NFC can't ping your credit card.

Forensics would probably need something more robust and foolproof. So it'll probably be something a contractor will charge millions of dollars for, and it will be proclaimed as a revolutionary new piece of equipment.
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Anonymous Coward, 19 Nov 2018 @ 5:23pm

couple problems on evidence handling
1) why was phone turned on?
2) why was phone not in a $0.10 ESD bag?
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Anonymous Coward, 19 Nov 2018 @ 5:30pm

Re: Re: Re: Handy that

Tip for criminals: don't bring your cell phone when you commit crimes.

Wait, scratch that, please use the phone to record your crimes, then upload to Youtube.
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Anonymous Coward, 19 Nov 2018 @ 6:22pm

restraining order ?
Wouldn't a court need to issue a restraining order to legally bar a specific person from accessing her electronic devices remotely?

Or is the situation more akin to the very nebulous crimes of "witness tampering" (two subjective variables) and "conspiracy" that gives organized crime prosecutors a handy multitool to rope in everyone in a targeted person's social circle and force them to talk?
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Martin Samuel, 19 Nov 2018 @ 11:33pm

Why do they need the phone in the first place?
I find it difficult to believe that the phone was necessary. These records can be subpoenaed from the mobile provider. I think the police department in this case, and every case like it, just like playing with other peoples gadgets. There's really no other explanation for it.
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Peter (profile), 20 Nov 2018 @ 1:09am

The lack of tech experience indicated by the enquiry...
... about Faraday bags suggests an alternative option: Perhaps the phone wiped itself automatically after detectives entered a wrong password too often.
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Anonymous Coward, 20 Nov 2018 @ 4:17am

Re: Re:
This isn't quite the cut-and-dried situation you may think it is. Courts have changed how they approach "lack of evidence" when it comes to destroying that evidence.

There are landmark cases which have set precedence in scenarios where even the expectation of legal proceeding can create a duty to preserve data, and this duty is for both sides of the court case.

If this duty is ignored, judges have given jury instructions to assume the destroyed information would have been detrimental to the party doing the destruction (either plaintiff or defendant).

In lawsuit scenarios, even the amount of time it takes to provide this data can cause the judge to give these adverse jury instructions... though I don't know if this translates directly to criminal cases.
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Bamboo Harvester (profile), 20 Nov 2018 @ 4:55am

Re: The lack of tech experience indicated by the enquiry...
If they can get away with charging people for a phone they were carrying being wiped, expect to see any passworded phone they seize "remotely wiped" so they can add on the charges.
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That One Guy (profile), 20 Nov 2018 @ 8:55am

Re: Re: Handy that
Grant now faces three felonies: two counts of evidence tampering and one count of hindering prosecution. One count of evidence tampering related to the alleged phone wipe. The other two counts listed are related to concealing the shooter's identity and disposing of the weapon used.

Assuming that's accurate they either think that they can connect the phone wipe to her, or (equally possible to be sure) they're bluffing in hopes that they can make her think they can such that she takes a plea deal.

As I understand it destroyed evidence is assumed to be detrimental to the one who destroyed it, so if they can link the wipe to her, and claim that the phone contained evidence, it certainly looks like it would be beneficial to them.
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That Anonymous Coward (profile), 20 Nov 2018 @ 9:06am

Someone inform the FBI about these Faraday bags...
perhaps it isn't criminals going dark with encryption but the phones just being wiped stymieing them.
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NeghVar (profile), 20 Nov 2018 @ 10:17am

That is why you use a faraday bag to transport wireless devices and use an RF isolation box or room when examining them.
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Anonymous Coward, 20 Nov 2018 @ 10:38am

Re: Defense
^^^ This ^^^

First question I would ask about the "evidence" is how they were planning to introduce it since allowing the phone to connect to the cellular network prior to imaging it calls into question its integrity.
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Anonymous Coward, 20 Nov 2018 @ 11:23am

_if such technology was available to city detectives_

I don't know, it's rather new stuff, only came out in the 1830s... they probably have not mastered electric fan or toothbrush technology, either. Sometimes i suspect they probably have issues with fire.
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Uriel-238 (profile), 20 Nov 2018 @ 12:11pm

Location data...
...should be attainable by third parties, say the suspect's phone service.

They might need (read: should need) a warrant for it, but that might even be easily doable under the circumstances.

Personally, I think anytime a law enforcement officer is looking into a phone for evidence of a crime that doesn't involve the phone, they're fishing.

Though it also raises the question what is someone doing bringing a personal cell phone to a drive by shooting? That's totally a premeditated crime and warrants a burner or not having a phone.
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Ehud Gavron (profile), 20 Nov 2018 @ 1:29pm

I can wear a short skirt if I want to.
Having a phone shouldn't be something we avoid because of government overreach. We [our society and our elected officials] should be limiting that overreach and having strong protections.

Like, let me think, oh I don't know, the 4th Amendment? And... uh, the Exclusionary Rule?
And... no Good Faith exemption?

I tire myself just thinking about how much our protections have been gutted by the gutless.

E
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Coyne Tibbets (profile), 20 Nov 2018 @ 6:55pm

Re: Re: Defense
A phone is a computer. Per the rules for computers, anything it reports is Gospel.

Gallois’ Revelation: If you put tomfoolery into a computer, nothing comes out but tomfoolery. But this tomfoolery, having passed through a very expensive machine, is somehow enobled, and no one dares to criticize it.

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Uriel-238 (profile), 20 Nov 2018 @ 8:02pm

Tomfoolery
The classic adage is:

Garbage in, garbage out.
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Uriel-238 (profile), 20 Nov 2018 @ 8:10pm

Bringing a rifle to an assassination
I just find it strange that people expect to be able to bring their phones when they're planning on committing a major crime, exempli gratia, murder.

A drive by shooting is a hit. That's pretty serious, and police are going to be given a lot of latitude regarding warrants when they start investigating it.

In fact, were I writing crime fiction, I'd expect my shooting team to drop their phones with their alibis, so that the phone stays mobile and yet not at the scene of the crime.

So this is not about whether or not you can wear your short skirt, but whether or not you can keep your ordnance in your trunk.
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Arthur Morgan Stole My Horse, 23 Nov 2018 @ 4:23am

Re: Chickens without eggs, or is it eggs but no chickens?
You read my mind. Another thought that occurred to me involves police receiving the phone in an unlocked state and upon finding no evidence, wipe the phone themselves in order to hit her up with trumped up charges instead. There's certainly no shortage of dishonorable law enforcement officials out there who'd feel justified doing exactly that, especially when angered by a suspect they don't like. Given the timing involved, I wouldn't be at all surprised if this wound up being what happened. I've certainly encountered my fair share of dishonorable police officers (good ones as well) and have even had one contact me to apologize for their behavior, so I know for a fact that my hypothesis is possible.
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