Connecticut Latest State To Add A Conviction Requirement To Its Forfeiture Laws

from the turning-tide dept

Civil asset forfeiture continues to be curbed by legislatures around the country. Belatedly realizing the harm done to citizens by opportunistic law enforcement, lawmakers have been engaged in serious reform efforts over the past few years. Some have fallen apart on the way to approval, thanks to harmful concessions to powerful law enforcement lobbies. Other have made it through intact, potentially ending years of abuse.

Thirteen states have already added conviction requirements for forfeitures, all but eliminating the "civil" process that cuts property owners out almost completely. Connecticut has just become the fourteenth.

Late yesterday, Connecticut Gov. Dannel Malloy signed HB 7146, which will require a criminal conviction to permanently confiscate property. Unlike criminal forfeiture, which targets the property owner and occurs only after a conviction, civil forfeiture sues the property itself and allows the government to permanently keep property without charging anyone with a crime.

HB 7146 will split the difference by requiring a conviction in criminal court as a prerequisite to a Connecticut state’s attorney litigating the forfeiture in civil court. The bill previously passed the House and the Senate without a single vote cast against it.

Making the law even better is the government being unable to seize anything without an accompanying arrest. From there, it must obtain a conviction to guarantee its control of the property. It must present evidence the property was used in a crime or was the proceeds of a crime, regardless of the conviction. If it can't prove this, or the arrest fails to result in a criminal conviction, the state must return the property within 14 days. This saves citizens the trouble and expense of having to litigate the return of seized property.

On the downside, the law still allows law enforcement agencies to directly profit from forfeitures, giving them control of 70% of the proceeds with minimal oversight. This increases the risk of people having the book thrown at them in court to ensure prosecutors walk away with at least a plea deal, when there's money/property on the line.

But it is a major improvement over the state's original statutes, which had resulted in 2/3 of the state's proceedings against "guilty" property being completely untied from any arrests or convictions of property owners.

Filed Under: asset forfeiture, civil asset forfeiture, connecticut, daniel malloy

Connecticut Lawmakers Drop Anti-SLAPP, Libel Tourism Bills On The Governor's Desk

from the MOAR-SPEECH dept

Some good news for free speech is emerging in Connecticut. In the first bit of good news, an anti-SLAPP law has been unanimously passed by legislators and is headed for the governor's desk.

The House of Representatives unanimously approved and sent to the governor’s desk Monday a bill to enable defendants who are exercising First Amendment rights to more easily seek dismissal of some lawsuits intended to silence them.

“It’s a bill to protect people against ‘libel bullies,’” said Rep. William Tong, D-Stamford.

[...]

The bill passed the Senate unanimously last week.

If passed, this would lower the number of states without anti-SLAPP laws to 21, which means there's still a lot of work to do if there's any hope of preventing forum-shopping by censorious litigants. The bill provides for the filing of anti-SLAPP motions by defendants who feel a libel suit has been filed simply to shut them up. It also prevents the court from advancing the case further -- most importantly, blocking discovery attempts by plaintiffs -- until the special motion has been ruled on.

Under this law, libel litigants would need to show a "preponderance of evidence" in support of their lawsuit's claims at the early stages of litigation, helping decrease the costs of defending against defamation claims. In addition, court fees and legal fees would be awarded to the defendant if the anti-SLAPP motion is granted. This deterrent will hopefully prevent bad faith litigators from filing lawsuits just to waste defendants' time and money.

Unfortunately, the law also requires the defendant to make the same evidentiary showing first, which kind of turns anti-SLAPP motions into a pre-trial trial where both parties are given evidentiary burdens during a preliminary set of motions. This somewhat subverts the purpose of the bill, which is to reduce defendants' costs prior to litigation. This is the part of the law the ACLU would like to see removed before it will offer its support.

(Weirdly, the ACLU also wants the language to the bill to exclude commercial speech, which it doesn't feel should be elevated to the level of other protected speech. The problem with this is that it would give bad faith litigants a way to dodge anti-SLAPP motions simply by pointing to advertising on defendants' websites or defendants' use of personal social media accounts to promote their businesses, etc.)

It's not a perfect anti-SLAPP bill, but it's far, far better than the state continuing without one.

The other good news is the passage of a bill targeting "libel tourism."

The House on Tuesday unanimously approved legislation that would protect Connecticut residents from libel suits file in other countries.

The bill, which also cleared the Senate unanimously, is now headed to Gov. Dannel P. Malloy for signature. If signed into law, it would prohibit enforcement of libel judgments in countries with defamation standards lower than those in Connecticut.

This bill is somewhat redundant, considering the US government already shields US residents from foreign libel lawsuits under the SPEECH Act. To overcome this, foreign libel litigants would have to file in a country with comparable free speech protections and deal with Section 230 protections, if they've chosen to target the easiest defendant to serve, rather than the individual involved in the alleged defamation.

But a little extra legal protection never hurts, especially if a libel tourist somehow manages to avoid US federal jurisdiction when suing a US resident. That being said, it's a pretty safe bill to pass and it's apparently turning one legislator into a Connecticut resident's personal hero.

[Senator Joe] Markley introduced the bill at the request of a Cheshire resident, and he expressed pleasure Wednesday that a constituent’s bill garnered approval.

Representatives that actually represent their constituents: an unexpected, but lovely, touch.

Filed Under: anti-slapp, connecticut, defamation, free speech, libel, libel tourism

Connecticut Lawmakers Vote To Give Police Drones With Guns

from the Death-From-Above-2017 dept

Connecticut's legislature has managed to back into legalizing law enforcement use of weaponized drones. In writing a new drone law, lawmakers banned the use of weaponized drones, but made an exception for police. It's not a case of "Hey, let's give the cops weaponized drones!" as much as it is a case of not wanting law enforcement to be unable to have that option.

As for how police will or won't be able to deploy weaponized drones, that's still up in the air (I am so sorry):

Details on how law enforcement could use drones with weapons would be spelled out in new rules to be developed by the state Police Officer Standards and Training Council. Officers also would have to receive training before being allowed to use drones with weapons.

All well and good, but police officers also receive training in things like civil liberties and proper force deployment, and we see daily how much good that has done. The more encouraging parts of the bill -- one that would see Connecticut join North Dakota in police use of weaponized drones -- are the reporting requirements and warrant stipulation.

It would require police to get a warrant before using a drone, unless there are emergency circumstances or the person who is the subject of the drone use gives permission. It also would require police to report yearly on how often they use drones and why, and create new crimes and penalties for criminal use of drones, including voyeurism.

Unfortunately, Connecticut's bill isn't as limited as North Dakota's. North Dakota's forbids the use of lethal weapons, but it's easy to see some less-than-lethal rounds becoming much more lethal when fired from a few hundred feet in the air. This bill would allow lethal force to be deployed from police drones. One lawmaker sees a pretty rosy future for airborne police weaponry.

"Obviously this is for very limited circumstances," said Republican state Sen. John Kissel, of Enfield, co-chairman of the Judiciary Committee that approved the measure Wednesday and sent it to the House of Representatives. "We can certainly envision some incident on some campus or someplace where someone is a rogue shooter or someone was kidnapped and you try to blow out a tire."

The problem with tools like these is they lend themselves to mission creep and abuse. Certainly, no law enforcement agency wants to take home the record for "First Civilian Killed by a Drone," but once the seal's broken, lethal force becomes easier and easier to deploy.

And it's not as though this is a necessary step to take. Law enforcement often complains about being left behind in the tech race, but it's not as though criminals are taking to the air and endangering citizens with weaponized drones. This would put the police ahead of everybody and move them one step closer to being a military force. And there's no warrant in existence that grants police the license to kill -- only to apprehend.

But that might be good enough for airborne Drug Warriors, etc. who believe many criminal acts are punishable by death, should the suspect be unwilling to immediately surrender himself into custody. We've seen plenty of senseless death and destruction stemming from overuse of vehicle pursuits. This is the next step: flying guns shooting at suspects as they flee through "civilian" traffic. Law enforcement officers aren't great shots with both feet planted on the ground. Giving them a gun in the air is a bad idea.

Filed Under: connecticut, drones, guns, police, weapons

If You're Going To Forge A Fake Court Order To Delete Search Results, Maybe Don't Choose A Prenda Case

from the just-a-tip dept

Eugene Volokh, just recently teamed up with Paul Levy to track down who was behind a scam abusing the court system with forged or fraudulent court documents to get questionable or fake court orders to force Google to takedown links. It's a sketchy (and illegal) "reputation management" trick and it appears that at least a few folks are doing it. Volokh has just spotted another one and it comes with a Prenda Law twist. Volokh nicely sums up the background info leading up to this:

Ken Haas is a member of a New Britain (Conn.) city commission, the Commission on Conservation, appointed by Mayor Erin Stewart. Several months ago, he got into a public controversy with local activist Robert Berriault — allegedly, when someone got in a Facebook political spat with Haas, he responded by writing, “You do know I have access to ALL city records, including criminal and civil, right???” Berriault took that to be a threat that Haas would misuse that access for political purposes and wrote about this on the New Britain Independent site, as well as in a not-much-noticed change.org petition calling for Haas’s removal. (Since then, Berriault has announced his candidacy for the New Britain city council.)

And then, things get interesting. First, someone sent Google a notice asking it to take that Berriault story out of Google, and sent with it a "court order" in a supposed case between Haas and Berriault. You can see that "Haas v. Berriault" court order, but you may notice some oddities. The case claims to be in the "Sate" (not State) of Connecticut Superior Court:

It's also in front of a Judge John W. Darrah. And the case number is 1:13-cv-01569. So there are some problems here. The "Sate" typo is a give away, but there is no Judge Darrah on the Connecticut court. There is one in US federal court in Illinois. And if you look on PACER in the federal court records, and look at 1:13-cv-01569 in the Norther District of Illinois, it happens to be... a case that we covered. It was the infamous Paul Duffy defamation case. Duffy, the "third wheel" to John Steele and Paul Hansmeier in the Prenda Law scheme, had sued a bunch of online critics for defamation, but the case focused on Alan Cooper (John Steele's former house caretaker, whose signature Steele is accused of forging) and Cooper's lawyer, Paul Godfried. Either way, it looks like the document that someone used as the "template" (including the Judge Darrah signature) came from the Duffy v. Godfried case.

That was a crazy case for a whole bunch of reasons, but it also got a ton of public attention. If you're going to fake a court document, maybe don't take one that is on a widely known case that got a lot of attention and is partly about forging legal documents? It's like trying to pick a disguise to be inconspicuous in committing a crime, and dressing up like Hitler. People are going to notice, and they're going to remember.

As Volokh notes, it's not clear if Haas himself forged the document. It's entirely possible he hired a reputation management firm who did something along those lines. Or, maybe there's another explanation... but there really are only a small number of people who might benefit from this kind of thing:

Who submitted the forged order to Google? Commissioner Haas seems the likeliest intended beneficiary of the forgery and the takedown request, and his name (spelled as Ken Hass) was used on the takedown request. But it is of course possible that this was done by someone else, whether someone hired by Haas (with or without knowledge of what would be done) or someone else. I called Haas to ask about what happened here, but he told me he had no comment.

Anyway, forging a court order using a federal judge's signature from another case is, well, a bad idea. I'd imagine it's kind of worse than having someone publicly expose your threat to go through someone else's city records. In an update, Volokh also notes that Haas also went to the police about Berriault over his posts, only to have the cops explain that it's not a criminal act to state your opinion:

If you can't read that, the report is from the police explaining Haas' complaint about Berriault's internet posts and how he "just wants Berriault to lighten up" as well as a conversation with Berriault, followed by this:

I advised Haas that this was not a criminal act and that Berriault had every right to voice his opinion. I advised Haas that when you choose a career in politics that harsh criticism comes with the territory. Haas stated that he understood.

Of course, forging a court order with a federal judge's signature does seem a lot more like a criminal act. And someone appears to have done that.

Filed Under: connecticut, court order, eugene volokh, forgery, john darrah, ken haas, reputation management, robert berriault
Companies: prenda, prenda law

State Supreme Court Says 'Smashmouth Journo' Teri Buhl Must Go To Jail For Posting Teen's Journal Pages

from the bad-laws-make-for-bad-decisions dept

Journalist Terri Buhl -- who gained a bit of Techdirt infamy by claiming her public tweets couldn't be republished (which led to wild claims of copyright infringement and defamation) -- is still dealing with some legal woes of her own, stemming from the posting of someone else's actually private information to Facebook.

Teri Buhl, who was found guilty on misdemeanor charges of harassment and breach of peace, was sentenced to 30 days in jail, one-year probation and a strict order not to interact with the victims' family, in Norwalk Superior Court today.

The New Canaan woman was accused of harassing her then-boyfriend's daughter by posting parts of the girl's private journals online in 2010. Buhl, 40, was acquitted of interfering with a police investigation.

Buhl appealed this decision, but has been denied by the Connecticut Supreme Court. In overturning [PDF] the district court's findings, the Supreme Court reaches some (not all that great) conclusions about social media platforms.

Buhl had posted these private journal entries to a publicly-accessible Facebook page under the pseudonym of "Tasha Moore." (According to prosecutors. This name isn't referenced anywhere in the court decision.) While posts to this page were accessible by anyone, the posting itself would have only normally have been seen by "friends" of the account. There's a lot of convolution to be sorted through, based on some severe disparities between the complainant's version of the events (which itself is somewhat contradictory) and Buhl's version, which begins with an entirely unrelated account. (Her version is here. She makes no mention of the "Tasha Moore" alias and -- I wish I were making this up -- compares her misdemeanor jailing to "an episode of Making a Murderer.")

What seems to be (relatively) clear is that the post originally reached only eight people, most likely because they were tagged. The teen whose journal pages were posted to Facebook originally could only reach it through a friend's Facebook account. Then she said she could reach it through her own.

Either way, the Supreme Court's finding is that the pages were published publicly, even though the number of people who had access to the posted pages was, at first, extremely limited. Here's Venkat Balasubramani's take on this part of the ruling:

The court never reconciles the court of appeals’ definition of public (generally available) with the fact that the material here was posted to a page that 8 people were invited to. And the court’s discussion of the Facebook privacy settings and the victim’s testimony were equivocal at best. The victim testified that she had to view the page in question “through her friend’s” Facebook account, but once there, she could “could see everything through [hers]”. Say What!? The existence of how-to materials instructing users on the use of Facebook’s privacy settings is a testament to the average consumer’s challenges in understanding them. Given the difficulty courts and litigants have had with Facebook’s privacy settings, it was surprising to see the court conclude that the accessibility of the page was a matter of sufficient common knowledge and experience that anyone could testify about it. At a minimum, the court could have said that the state failed to carry its burden on this element of the offense.

The larger problem with the decision is that it relies on another badly-written law put into place to deal with harassment.

Apart from finding that the state sufficiently proved the defendant posted the material in question, the court also finds the remaining elements of the offense met. Specifically, the court says there was sufficient evidence that the defendant posted material about the putative victim with the intent to inconvenience, annoy, or alarm the victim. The court looks to the posts and the surrounding context to find that the posts could easily have “vexed” or “provoked” the victim.

"Inconvenience" and "annoyance" are supremely low bars, ones that could be met by every single advertiser on the planet. So, it's unsurprising that a post sent to eight people -- in which the complainant was never specifically targeted -- could meet the stipulations of the statute.

The court also finds the delivery method used to put the journal pages in the hands of the parent whose daughter wrote them was harassing in and of itself.

In the present case, the trial court reasonably could have found that the circumstances surrounding the mailing, the contents of the mailing, and the defendant’s behavior thereafter demonstrate beyond a reasonable doubt her intent to harass, annoy, or alarm P or M through the mailing. The defendant could have brought the diary entries to P, her boyfriend of more than two years, directly, but she instead, as she admitted, sent them anonymously. The anonymous nature of the mailing served to increase P’s and M’s anxieties because they did not know who had intruded into M’s bedroom and copied her diary entries, how the mailer had obtained the entries, or who else might have access to them. P, in fact, testified that he felt ‘‘violated’’ that M’s diary entries were in ‘‘someone else’s hands.'"

Buhl's lawyer does make a good point about the decision, in a statement given to Eric Goldman and Venkat Balasubramani.

We must catch up with the technology when it comes to our consideration of analogs. We have to begin not by abandoning well know and traditional definitions of legal and logical concepts but by attempting to marry them consistently with their functional equivalents in cyberspace. Today I am not so sure that my Facebook status or the the idea of a Facebook invitation is so clearly analogous to real world instantiations of the same that my inferences upon them can be treated identically. For me, I still believe that if I specifically invite 6 people to my private yard party by written invitation noting the same, and an uninvited guest walks through an open gate to my yard, my private party doesn’t morph into a public affair. This conclusion is an intuitive one for most; we need to ensure that reliance upon legal analysis of social media platform evidence comes with the same intuitive flair.

So, there's that. On the other hand, the use of social media platforms -- if one isn't careful to lock down privacy settings -- is prone to allowing anyone to view posts never intended to be seen by them. That's the nature of the sharing beast. You might throw a private party in your backyard, but if your fence is too low, anyone can watch the proceedings and even interject their own comments on your choice of entertainment, food, etc. (to carry through with the metaphor).

Buhl still maintains her innocence. She claims she never made the postings under the "Tasha Moore" name. She also claims the only reason she's being nailed for this is because she hasn't divulged the actual source of the journal pages and Facebook post. Buhl claims she's protecting a source and that this lack of disclosure should be covered under the First Amendment. The court never addresses these arguments, however. It instead notes the lower court may not have addressed this issue sufficiently, but refuses to entertain the argument itself.

There's also an apparent lack of intent to annoy or harass. The journal page posts were never directed at the teen who had written them. Her discovery of it was secondhand. That's not to say posting of teens' private journals is a good thing -- especially when the poster has chosen to divulge personal info (full name, school attended) rather than redact it before publication.

So, while this site's experience with Teri Buhl is largely based on stupid legal threats, there's really no reason to celebrate this decision. There's some very flawed logic on display and it's made worse by a law that makes it a criminal act to "annoy" someone. The evidence tying Buhl to the postings appears to be mostly circumstantial and the court's finding makes some bad assumptions about how "public" should be defined in the age of social media.

Filed Under: connecticut, diary, free speech, harassment, journalism, public place, social media, teri buhl

Federal Judge Says Third Party Doctrine A Perfectly 'Good Law;' No Warrants Needed To Obtain Cell Location Records

from the multiple-government-agencies-agree! dept

Back in December, a Connecticut state court ruled that tracking people in near-real time with cell site location info required the use of a warrant. Three months later, a Connecticut federal court has ruled law enforcement can obtain CSLI without a warrant, in bulk and for extended periods of time. While the opinion doesn't address the use of subpoenas and CSLI as a makeshift Stingray (for real-time tracking), it does come down firmly on the side of the government's interpretation of the Third Party Doctrine.

Here, the Government acquired information about defendant that was in the possession of a third-party—Verizon—and that the acquisition of this information did not involve any trespass upon defendant’s body, house, papers, or effects and did not involve any interference at all with defendant’s possessory interests in any of his property.

The opinion leans heavily on every decision finding that there's no expectation of privacy in records held by third parties. The court makes the slightest nod to the current discussion of expectations of privacy in a world where the devices most people carry generate a wealth of information and data nearly non-stop. But it does so with wording that shows it has no interest in engaging in this discussion.

The third-party doctrine has been subject to tsunamis of criticism. But it doubtlessly remains good law today.

And, like other decisions along the same lines, the court echoes the government's assertions that every cell phone user is perfectly aware their phones are sending all sorts of information to the nearest cell tower.

Defendant also contends that cell-site location information is not voluntarily conveyed to one’s cellular telephone company in the same sense or manner that one voluntarily conveys financial information to a bank as in Miller or telephone numbers to a telephone company as in Smith. Although this rationale has convinced some courts to conclude that the third-party doctrine does not apply, I do not agree. Every cell phone customer knows that his or her information is relayed wirelessly to nearby cell phone towers. It can come as no surprise that one’s cell phone company keeps records of cell towers that are accessed by and necessary to the provision and connection of every customer’s cell phone service. This is no different than every customer’s awareness that the bank keeps records of one’s checks and transactions (Miller) and that the telephone company keeps records of the telephone numbers that one calls (Smith).

The court also points out there's no bright line determination as to how much is too much when it comes to acquiring location records. (The defendant raised the argument that 22 days of CSLI was excessive without the use of a warrant.) As the court logically points out, any determination on an acceptable time frame would be completely arbitrary and mostly useless.

As for the Third Party Doctrine's possible inapplicability in today's world, the court says that's up to Congress to fix, not the courts.

All that said, the critics of the third-party doctrine have strong arguments it does not adequately protect privacy—that it imposes an unacceptable and Orwellian cost of forfeiture of any claim of privacy to what we voluntarily disclose even in confidence to one another. The critics persuasively argue that the doctrine is especially problematic in our ever expanding technology-dependent and technology-intrusive society. But these are arguments for policymakers in Congress to consider, if Congress wishes to enact protections that exceed the Fourth Amendment baseline.

[...]

In the meantime, the obligation remains for the lower courts to follow the law and not to impose—no matter how techno-intellectually fashionable—an “everything is different because it’s an iPhone” theory of the Fourth Amendment.

The issue of real-time warrantless tracking remains unaddressed as this case only dealt with historic data. The question of the Third Party Doctrine is punted back to Congress -- which has proven mostly uninterested in updating outdated laws to better conform to today's reality. Even with a boot up the ladder to a higher court is unlikely to result in a re-reading of the Third Party Doctrine. The Supreme Court has only determined that long-term location tracking might need a warrant. As it stands now, the acquisition of third-party records violates no one's privacy, legally-speaking.

Filed Under: 4th amendment, cell site location info, connecticut, csli, mosaic theory, privacy, third party doctrine

Connecticut Judge Says Cops Can't Get Real Time Cell Site Location Info Without A Warrant

from the which-apparently-law-enforcement-already-knew dept

It's a lower-level decision but it still means something. Well, a couple of somethings. First off, it appears Connecticut law enforcement probably shouldn't continue seeking "live" cell site location information without a warrant. It also appears the law enforcement agency involved doesn't have access to a cell site simulator (Stingray, etc.).

New Haven Superior Judge Jon Blue agreed to suppress evidence in an ATM robbery case, saying it was the result of Connecticut State Police improperly asking in advance to receive periodic live updates from the phone company of the location of the suspect’s cellphone

The Monday ruling comes in the case of Terrance Brown, 29, of Stratford, who was charged with robbing several automated bank teller machines in 2010.

T-Mobile was ordered to provide the location of Brown’s cellphone every 10 minutes during the time police were tracking him.

This sort of collection is nothing new. Many law enforcement agencies act under the belief that location information is just another business record, subject to fewer restrictions and a lower level of privacy protections. Generally speaking, courts have found the acquisition of historical cell site location data without a warrant to have minimal impact on Fourth Amendment protections. Using this information as a tracking device, however, has generated plenty of friction in the judicial system, something that probably won't be resolved until the Supreme Court tackles it.

In this case, the presiding judge found that the omnipresence of cellphones wasn't supposed to be viewed by law enforcement as a bold new world of exploitable tracking devices.

“The convenience of cellphones is well known; it is increasingly rare to meet someone who doesn’t carry one on his or her person,” Blue wrote. “But with this convenience comes the possibility of an Orwellian state.”

Currently, the state's laws only demand law enforcement offer "reasonable, articulable suspicion" in exchange for phone records, including location info. (This is the same standard the NSA is "held" to in its acquisition of phone records.) The ACLU would like to see that raised to "probable cause," but it's going to be an uphill battle against reams of legal precedent. Circuit splits on the issue of whether location data should be considered a business record complicate the matter, but for the most part, jurisprudence suggests location data -- especially historical location data -- may act as an ad hoc tracking device but still somehow lands outside of the Fourth Amendment's protections.

But using a phone as a GPS stand-in isn't quite the same thing, not when law enforcement is issuing subpoenas demanding periodic updates on futurelocation pings. Judge Blue notes the case's prosecutors admitted state law does not permit the warrantless tracking of individuals via their cellphone providers. Not that this admission means much when weighed against law enforcement's actual actions.

Using a 2005 "update" to a telecommunications record statute (referred to by some as Connecticut's Patriot Act), law enforcement could secure "ex-parte" orders to obtain phone records and communications. All that's required is reasonable suspicion. And use these orders law enforcement did -- more than 14,000 times since the law was enacted. An attempt to restore the warrant requirement died this summer in the state's legislature. Perhaps the judge's decision here will prompt legislators to take another run at restoring some Fourth Amendment protections to cell phone records.

However, the lack of a prosecutorial challenge suggests law enforcement knows the law doesn't specifically grant it the power to perform real-time tracking of individuals without warrants. Then again, knowing this didn't stop it from doing it, and the end result is the loss of its collected evidence, and most likely the case itself.

Filed Under: 4th amendment, cell site location info, connecticut, csli, jon blue, location info, warrant

Connecticut Police Announce Plan To Open Unlocked Vehicles And Seize Valuables

from the WE-CARE-BECAUSE-YOU-DON'T dept

No criminal activity. No suspicion of wrongdoing. Just cops wandering around, opening car doors and seizing valuables. But they're doing it for YOU.

Officers in East Rock (CT) are starting a pilot program.

“Cars will be checked for visible valuables,” said New Haven City Spokesperson Laurence Grotheer.

If they see a valuable Grotheer says they’ll take it if your car doors are unlocked. They’ll leave a note and you can pick it up at the police station property room.

Arguably, residents will be better off having their valuables stolen by the police rather than by criminals. But what gives cops the right to enter vehicles and take stuff? The city's spokesperson says it's built right into warrant exception statutes.

Grotheer says there’s a *caretaker* provision in state law that allows them to do it.

“There is an exemption in standard search warrant provisions to allow for this caretaker action,” said Grotheer.

Except that's not really what the "caretaker" provision is for. Generally, it's used to allow officers to approach and question motorists who appear to be in distress or enter homes in cases of medical emergencies, etc. What it's not there for is the seizure of valuables under the assumption that someone's poor personal decision may result in criminal activity at some undetermined point in the future.

What the exception does do is wholly separate police searches and seizures from law enforcement purposes.

Community Caretaker Function: The Courts have created a Caretaker exception under which local police officers are charged with community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to violation of any criminal statute An example is checking on motorists parked in rest areas, especially in winter, or opening an unlocked door of a parked vehicle when the officer is acting out of concern for the well-being of the person inside.

This removes pesky roadblocks like "reasonable suspicion" and "probable cause." That's why it's routinely abused to perform warrantless searches. Several court decisions related to "community caretaking" exceptions can be found at the indispensable FourthAmendment.com.

State v. Matalonis

Even if we had determined that the police were exercising a bona fide community caretaker function when they searched Matalonis’s residence, the entry would not fall within the community caretaker exception because it fails under the third inquiry–“whether the public interest outweighs the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised within the context of a home.”

State v. Garrison

Warrantless entry into defendant’s car at the scene of a three vehicle accident, when she was being attended to by paramedics to see if she was alright, was not legally sustainable entry under the community caretaking function because she was still there and conversing with EMTs. The officer never asked for consent to look for the papers; he just went into the car.

State v. Graham

A couple kissing in a car is not particularized suspicion that a crime is occurring or about to occur. Instead of “moving them along,” the officer detained them, and the detention was unlawful. The state’s community caretaking justification for rousting them also failed.

But as there is no clear delineation of what does or doesn't fall under the "community caretaking" warrant exception, searches and seizures are handled on a case-by-case (and state-by-state) basis when challenged in court by criminal defendants or plaintiffs in civil rights lawsuits. So, when the city's spokesperson says the following, it's unfortunately very true.

Grotheer says all laws are open to interpretation.

And most interpretations will favor law enforcement, who have a multitude of exceptions, including the incredibly expansive "good faith" exception, to insulate them against allegations of misusing their power.

The program raises several questions, most of which will remain unanswered as the New Haven police have chosen to speak solely through the city's spokesperson.

First: Do the searches only implicate valuables visible through windows? Or are officers digging around in vehicles like the thieves they're "saving" citizens from, reaching under seats, opening storage consoles or peeking in the glove compartment?

Second: If the police are simply emulating thieves, would this supposed "community caretaking" function allow them to seize vehicles if ignition keys are present in unlocked automobiles? If not, WHY NOT?

Third: What does the department define as a "valuable" for the purposes of its warrantless entry into unlocked vehicles? Is it simply wallets, checkbooks, credit cards or electronic devices? Or does it cover anything someone could conceivably take, like clothing, groceries or anything else that might be found in plain sight?

Fourth: Would this same exception allow officers to check for unlocked house doors and remove valuables from residences? Would this also allow the fire department to enter unlocked homes if a firefighter spotted oily rags or frayed cords or whatever through an open window?

As long as the city is going to "interpret" this exception to enter vehicles and seize valuables, it should at least maintain its consistency across all other areas. Crossing into a person's home generally raises Fourth Amendment issues faster than unlocked vehicles on public streets, but considering the exception cited by the city is more frequently used to provide warrantless access to residences, it would only make sense for cops to go door-to-door to save citizens from their own careless actions.

I have reached out to both the city and police department for more clarification but I'm not expecting any answers. My guess is this program will be shut down sometime in the next few days. The city has hugely miscalculated the public's receptiveness to its warrantless search and seizure "public service." When it does get shut down, it will likely be accompanied by complaints about the public's lack of gratitude towards its ever-vigilant public servants. But like so many other ill-conceived efforts made on the "behalf" of the public, it appears to have been done without any consideration of the public's concerns.

UPDATE: No answers to the questions, but city spokesperson Laurence Grotheer informs me the program is now officially dead.

Thank you for reaching out about this…

After unanticipated press coverage sufficiently raised community awareness about this issue, NHPD plans for this initiative have been shelved…

Thanks again…

Laurence…

Yeah, it sucks when the people find out about the things the government plans to do to them for their own safety. The wording of Grotheer's statement is very peculiar. He obviously supported the program during earlier statements to the same press he didn't anticipate would turn it into a "thing," but trots out the phrase "community awareness" as though he's never used it in this context before. "Community awareness" is always a good thing (and should precede implementation of dubious programs rather than follow behind it) but in this bizarre sentence, it's almost portrayed as the unfortunate byproduct of an apparent press ambush.

Filed Under: cars, connecticut, east rock, police, unlocked cars, valuables, warrants