Two Days, Two Shootings, Two Sets Of Cops Making Recordings Disappear

from the command-control dept

There are cameras everywhere. But when cops start shooting, it's usually bullets and never footage. The first recordings that ever make their way to the public are those shot by bystanders. Anything else captured during a shooting remains under strict control of law enforcement… even when the recordings don't belong to law enforcement.

Minutes after two cops killed Alton Sterling outside of a convenience store, police confiscated all surveillance video of the incident without a warrant and allegedly without permission.

An attorney for the owner of the Triple S Mart, Abdullah Muflahi, told The Daily Beast a hard drive containing the complete recording of the Sterling’s death at the hands of Baton Rouge Police Department Officers Blane Salamoni and Howie Lake was unlawfully taken by police. Muflahi showed The Daily Beast the barren cabinet where the hard drive had been.

All that’s left of the storage unit is a sole barren wire.

If this tactic sounds familiar, it's because we've seen it on multiple occasions. After Laquan McDonald was shot by Chicago police officers, several cops went to a nearby restaurant and seized its surveillance recordings. It took the city of Chicago over a year to release dashcam footage of the incident -- footage that was oddly missing the audio that normally would have been captured when the camera was turned on.

In California, cops raided a marijuana dispensary. Before helping themselves to edibles and playing a game of darts, officers attempted to disable the store's surveillance cameras and seized recording devices.

In Baton Rouge, officers were wearing body cameras. Chances of seeing this footage is nil. According to reports, the cameras "came loose" during the shooting and apparently did not record "quality" footage of the incident. And, as of now, city attorneys, the police department, and the FBI (which is conducting its own investigation of the shooting) are refusing to discuss the missing surveillance equipment.

When The Daily Beast requested both the surveillance video and the supposed warrant from the Baton Rouge Police Department, a lawyer from the department first denied the request by saying they could not turn over any documents from a “criminal investigation.” When told that a warrant is a public court document and could not be withheld, the lawyer then outright refused to confirm or deny if a warrant for the surveillance video even existed.

After backtracking on the existence of the warrant, the attorney backtracked on the possession of the surveillance video, saying that the Federal Bureau of Investigation had the hard drive.

“My client has not been informed of that,” said Porter, the attorney for the store owner.

The FBI refused to confirm or deny the police department’s claim.

What has been confirmed is that it was a warrantless seizure. Both the Baton Rouge District Attorney and the clerk of courts have admitted there is no record of a warrant being issued or even an affidavit submitted.

Another controversial shooting, following one day after the Baton Rouge incident, has also resulted in missing footage -- albeit only temporarily.

The driver of the car in which passenger Philandro Castile was shot by police officers posted a horrifying video of the aftermath to Facebook using its live-streaming option. Not too long after it was posted, the video vanished. Facebook blamed it on a "technical glitch" and restored the recording an hour later. The details behind the video's disappearance now suggest this wasn't a glitch, nor was it Facebook inappropriately flexing its content policies.

Castile, his girlfriend Diamond Reynolds, and her four-year-old daughter were pulled over by police in the Falcon Heights suburb of Minneapolis for a broken tail light. Using her cellphone and Facebook Live, Reynolds web-streamed footage of her dying boyfriend after he was shot by a police officer as he reached for his ID in his wallet. The video was mysteriously removed from her Facebook profile as it went viral across the internet.

On Thursday, Facebook said a “technical glitch" caused the recording to be pulled from its social network. However, Reynolds claimed officers seized her phone and took over her Facebook account to delete the evidence.

Multiple sources with knowledge of the event have tonight confirmed to The Register that someone – highly suspected to be the city's police – used her phone to remove her recording from public view shortly after the shooting.

This, too, is a common occurrence. While the Supreme Court's Riley decision may provide an easy way to determine whether someone's Fourth Amendment rights have been violated by a search/seizure of their cell phone, it doesn't prevent an officer from simply taking a cell phone and deleting incriminating footage. The path for redress is clearer, but it's powerless against those whose first reaction is to vanish away evidence of their misconduct. [Update: For what it's worth, Facebook is standing by its "technical glitch" story and says the cops did not delete the video]. To quote law professor Butler Shaffer [h/t Faultline's Matt Brown]:

The Constitution is that sacred document which prevents the government from doing all the terrible things it does.

Fortunately, a number of streaming options and cloud services will keep some recordings from disappearing just because a phone is illegally seized and accessed. But both of these shootings -- and their responses to "uncontrolled" recordings -- show law enforcement has a long way to go before it can be considered trustworthy.

Filed Under: alton sterling, evidence, philandro castile, police, shootings, videos
Companies: facebook

Judge Says The FBI Can Keep Its Hacking Tool Secret, But Not The Evidence Obtained With It

from the hope-the-feds-enjoy-their-victory-over-transparency dept

Judge Robert Bryan -- having set his own house against itself by declaring the FBI could keep its NIT info secret while simultaneously declaring the defendant in the child porn case had every right to see it -- has managed to find a way out of his self-induced conundrum. And it's going to make the FBI very sad. (h/t Ars Technica)

For the reasons stated orally on the record, evidence of the N.I.T., the search warrant issued based on the N.I.T., and the fruits of that warrant should be excluded and should not be offered in evidence at trial.

Well, not quite.

Michaud hasn't had the case against him dismissed, but the government will now have to rely on evidence it didn't gain access to by using its illegal search. And there can't be much of that, considering the FBI had no idea who Michaud was or where he resided until after the malware-that-isn't-malware had stripped away Tor's protections and revealed his IP address.

The FBI really can't blame anyone but itself for this outcome. Judge Bryan may have agreed that the FBI had good reason to keep its technique secret, but there was nothing preventing the FBI from voluntarily turning over details on its hacking tool to Michaud. But it chose not to, despite his lawyer's assurance it would maintain as much of the FBI's secrecy as possible while still defending his client.

Judge Bryan found the FBI's ex parte arguments persuasive and declared the agency could keep the info out of Michaud's hands. But doing so meant the judicial playing field was no longer level, as he acknowledged in his written ruling. Fortunately, the court has decided it's not going to allow the government to have its secrecy cake and eat it, too. If it wants to deploy exploits with minimal judicial oversight, then it has to realize it can't successfully counter suppression requests with vows of silence.

It's doubtful the FBI will learn from this experience. It did the same thing in 2012 and received nothing but deference from the courts. This time around, courts and lawyers are better educated, thanks to Snowden's leaks and a few hundred FOIA warriors -- all of whom have served to expose the massive, secret expansion of the government's surveillance reach and the near-complete dearth of effective oversight.

The FBI will be pushing hard for the adoption of the proposed Rule 41 changes. If these had been in place, every illegal search it performed using its NIT and the invalid warrant it obtained would have been legal. As it stands now, however, multiple courts have examined the warrant and the hacking tool and found the FBI's actions to be in violation of current statutes. What should have been slam-dunk prosecutions against unsympathetic defendants have instead become multiple participants in an ongoing debacle.

Filed Under: doj, evidence, fbi, jay michaud, malware, nit, playpen, robert bryan, rule 41

Judge: Taking Your Facebook Account Private During Litigation Isn't Exactly 'Preserving Evidence'

from the 'sharing' dept

If your social media "presence" has been submitted as evidence, you'd better leave everything about it unaltered. That's the conclusion reached by the judge presiding over a Fair Housing Act lawsuit. The plaintiff didn't go so far as to delete Facebook posts relevant to the case at hand, but did enough that the defense counsel (representing the landlord) noticed everything wasn't quite the way it was when the plaintiff was ordered to preserve the evidence.

According to one of the lawyers for the defense, she accessed plaintiff’s accounts at one point despite not being “friends” with plaintiff. She later looked at the accounts and saw many posts were missing. The Plaintiff also testified that, to her knowledge, she never deleted anything. She did hide a few posts from her timeline which appeared there because she had been tagged by others. She said she thought she originally set her Facebook account to private and she merely double checked this after defendant filed its spoliation motion.

Whether or not the plaintiff was telling the truth about the Facebook account's privacy settings ultimately doesn't matter. She changed something after being instructed not to. This resulted in posts being hidden from public view. According to the court, this flip of a digital switch was a violation of the order to preserve evidence.

By altering her Facebook account, Thurmond violated the Court’s May 21 order. Her conduct had the effect of hiding her postings from public view, and hence from defendants’ counsel’s view.

There were no sanctions for this action. Just a few stern words from the judge. The damage done was minimal as the defense counsel was still able to obtain the "missing" posts. The plaintiff herself offered to print out the hidden posts in an effort to comply with the order. Of course, this offer came after she had altered the privacy settings and the defense counsel had noticed the alteration.

The damage, however, could cost the plaintiff her case, even if the judge isn't going to issue sanctions for violating a preservation order and even though the defense was able to recover the missing posts.

Of course, it does not appear that the postings were deleted, and they remain available for defendants’ use, and defendants have not shown that they were prejudiced by Thurmond’s conduct in violating the order. Nevertheless, it is troubling that the posts were removed from public view after this Court issued a consent order designed to preserve the status quo of her social media accounts. Also troubling is Thurmond’s execution of an affidavit that contained a statement she knew to be inaccurate. Although the false statement was ultimately immaterial to the issues in the pending motions, Thurmond’s willingness to sign the affidavit knowing or having reason to know that it included a false statement threatens the integrity of the judicial process. Thurmond’s conduct in both respects is certainly a fair subject for cross-examination at trial and could result in the impeachment of her credibility.

As Venkat Balasubramani points out, changing privacy settings on relevant social media accounts during litigation is something to do "at your own peril." In this case, the damage was minimal. At most, the plaintiff undercut her own credibility. That may cost her a positive ruling, but it won't result in anything more serious like jail time.

What is a larger problem are the federal rules for evidence preservation, which include preserving evidence you possibly won't even know is evidence until you've been indicted. As we've seen in the past, rules meant to prevent corporations from using culpatory documents for bonfire fuel are instead being used by the feds to stack charges against defendants who've done normal computer housecleaning, like culling hard drive clutter or clearing their browser history.

Sarbanes-Oxley says evidence -- which now apparently includes every bit of your digital presence in addition to physical files -- relevant to "foreseeable investigations" must be preserved. Since citizens don't initiate investigations, the ball is completely in the government's court, and every investigation seems "foreseeable" once it's underway. Those being investigated may not have seen it coming, but they're still saddled with a post facto requirement to preserve evidence dating back to whatever arbitrary point the government declares to be the beginning of the alleged wrongdoing. Civil litigants may get away with nothing more than some words from an irritated judge, but federal defendants won't be nearly as lucky. Thanks to the misuse of this law, anyone changing privacy settings to a social media account does so "at their own peril."

Filed Under: evidence, social media
Companies: facebook

Federal Judge Says Internet Archive's Wayback Machine A Perfectly Legitimate Source Of Evidence

from the score-one-for-the-internet's-unofficial-backup-system dept

Those of us who dwell on the internet already know the Internet Archive's "Wayback Machine" is a useful source of evidence. For one, it showed that the bogus non-disparagement clause KlearGear used to go after an unhappy customer wasn't even in place when the customer ordered the product that never arrived.

It's useful to have ways of preserving web pages the way they are when we come across them, rather than the way some people would prefer we remember them, after vanishing away troublesome posts, policies, etc. Archive.is performs the same function. Screenshots are also useful, although tougher to verify by third parties.

So, it's heartening to see a federal judge arrive at the same conclusion, as Stephen Bykowski of the Trademark and Copyright Law blog reports.

The potential uses of the Wayback Machine in IP litigation are powerful and diverse. Historical versions of an opposing party’s website could contain useful admissions or, in the case of patent disputes, invalidating prior art. Date-stamped websites can also contain proof of past infringing use of copyrighted or trademarked content.

The latter example is exactly what happened in the case Marten Transport v. PlatForm Advertising, an ongoing case in the District of Kansas. The plaintiff, a trucking company, brought a trademark infringement suit against the defendant, a truck driver job posting website, alleging unauthorized use of the plaintiff’s trademark on the defendant’s website. To prove the defendant’s use of the trademark, the plaintiff intended to introduce at trial screenshots of defendant’s website taken from the Wayback Machine, along with authenticating deposition testimony from an employee of the Internet Archive.

The defendant tried to argue that the Internet Archive's pages weren't admissible because the Wayback Machine doesn't capture everything on the page or update every page from a website on the same date. The judge, after receiving testimony from an Internet Archive employee, disagreed. He found the site to a credible source of preserved evidence -- not just because it captures (for the most part) sites as they were on relevant dates but, more importantly, it does nothing to alter the purity of the preserved evidence.

[T]he fact that the Wayback Machine doesn’t capture everything that was on those sites does not bear on whether the things that were captured were in fact on those sites. There is no suggestion or evidence … that the Wayback Machine ever adds material to sites.

Further, the judge noted that the archived pages were from the defendant's own website and he'd offered no explanation as to why pages from his own site shouldn't be considered as evidence of alleged infringement.

It's nice to know that what many of us have considered an independently-verifiable source of evidence is also acceptable in federal courts. It's more than just a handy way to preserve idiotic statements and potentially-illegal customer service policies. It's also a resource for litigants who might find their opponents performing digital cleanups after a visit from a process server.

Filed Under: evidence, internet archive, wayback machine
Companies: internet archive

Stingray Memo From FBI To Oklahoma Law Enforcement Tells PD To Engage In Parallel Construction

from the fake-it-til-you-make-it dept

The concept of "checks and balances" kind of takes a beating when one branch of the government says it's ok to lie to another branch. We've already seen the FBI tell law enforcement agencies -- through extensive NDAs it makes them sign before they can deploy cell site simulators -- that it's better to let suspected criminals walk away from charges than risk allowing details on Stingray devices to make their way into the public domain via submitted evidence.

Many law enforcement agencies appear to be doing exactly that. More than one agency has misled judges with applications for pen register orders and requests for cell site location data -- neither of which provide details on the technology actually being used.

Another memo from the FBI shows the federal agency directly instructing a local law enforcement agency to engage in parallel construction. The memo, obtained by Oklahoma Watch, explicitly spells out what is supposed to happen if cell site simulator use is part of the evidence chain. (h/t Nate Wessler)

Information obtained through use of the equipment is FOR LEAD PURPOSES ONLY, and may not be used as primary evidence in any affidavits, hearings or trials. This equipment provides general location information about a cellular device, and your agency understands it is required to use additional and independent investigative means and methods, such as historical cellular analysis, that would be admissible at trial to corroborate information concerning the location of the target obtained through use of this equipment.

The problem is that this sort of "lead" often leads directly to search warrants of residences where people are located. The Oklahoma City PD is being told to obtain other non-Stingray-related data that could plausibly explain how it managed to located Subject X at Location Y. Officers won't be telling magistrate judges when seeking pen register orders or subpoenas for cell location info. And officers won't be telling defendants or their representation how they managed to be in the right place at the right time with a search warrant.

The memo also notes that the FBI "will use all appropriate legal means" to prevent Stingray use from being uncovered in discovery requests. Apparently, "all appropriate legal means" covers parallel construction.

What sets this apart from the FBI NDAs we've covered here previously is that this memo is limited to the local law enforcement's borrowing of FBI equipment to locate suspects. With the FBI still in control of the device, it's obviously going to be that much more concerned with controlling the narrative.

Clifton Adcock of Oklahoma Watch notes that local law enforcement appears to be using Stingray devices but covering it up through pen register orders. In one case, this has led to a very suspect request from the Oklahoma City PD, suggesting it had borrowed an FBI cell site simulator to locate the defendant.

In one of those cases, a defense attorney, Douglas Parr of Oklahoma City, said he believes a cell site simulator was used to collect his client’s phone data. The client is charged with drug trafficking. During a hearing in Oklahoma County District Court in September 2015, Parr asked an Oklahoma City police detective whether a simulator had been used. The detective, who had requested the order, testified that to his knowledge such a cell site simulator had not been used.

Testimony in the case shows the officer did not file for a trap and trace order with the court until the day he testified in September – more than a year after he conducted the surveillance.

According to the FBI's new rules for Stingray use, warrants must be sought and provide explicit details about the technology being used -- including the facts that Stingrays search every phone in the area while trying to locate devices and that local service may be disrupted during deployments. The DOJ's ruleset arrived a few months after this particular Memorandum of Understanding was signed with the Oklahoma City PD. One would hope a revised version is on the way, if not already in the hands of Oklahoma law enforcement -- one that does a better job of reflecting the DOJ's current stance on warrants and information dissemination.

Filed Under: 4th amendment, evidence, imsi catcher, oklahoma, parallel construction, stingray

Scientists Looking To Fix The Many Problems With Forensic Evidence

from the can-you-fix-the-people-performing-the-tests? dept

Everything everyone saw in cop shows as evidence linking people to crimes -- the hair left on someone's clothing, the tire tracks leading out to the road, the shell casings at the scene, etc. -- is all proving to be about as factual as the shows themselves.

While much of it is not exactly junk science, much of it has limited worth. What appears to indicate guilt contains enough of a margin of error that it could very easily prove otherwise. Science Magazine is taking a look at the standbys of forensic science and what's being done to ensure better presentations of evidence in the future.

On a September afternoon in 2000, a man named Richard Green was shot and wounded in his neighborhood south of Boston. About a year later, police found a loaded pistol in the yard of a nearby house. A detective with the Boston Police Department fired the gun multiple times in a lab and compared the minute grooves and scratches that the firing pin and the interior of the gun left on its cartridge casings with those discovered on casings found at the crime scene. They matched, he would later say at a pretrial hearing, “to the exclusion of every other firearm in the world.”

[...]

So how could the detective be sure that the shots hadn’t been fired from another gun?

The short answer, if you ask any statistician, is that he couldn’t. There was some unknown chance that a different gun struck a similar pattern. But for decades, forensic examiners have sometimes claimed in court that close but not identical ballistic markings could conclusively link evidence to a suspect—and judges and juries have trusted their expertise. Examiners have made similar statements for other forms of so-called pattern evidence, such as fingerprints, shoeprints, tire tracks, and bite marks.

Six years ago, the National Academy of Sciences found that these forensic standbys had a much larger margin of error than was portrayed in court by detectives and expert witnesses. It recommended the margin of error be delivered along with the testimony to head off future verdicts based on faulty evidence.

To date, not much has changed. While actual junk science like bite marks has largely been discarded by prosecutors, the others remain, even as their reliability has been constantly questioned. The FBI loved hair analysis, right up to the point that it determined its witnesses had overstated test results 90% of the time in the two decades prior to 2000.

Even fingerprints, which have long been considered unassailable because of their supposed uniqueness, aren't much better. Some of it has to do with the presumption that every fingerprint is so unique even a partial print can eliminate suspects. The rest of its issues lie with those matching the prints.

One study of 169 fingerprint examiners found 7.5% false negatives—in which examiners concluded that two prints from the same person came from different people—and 0.1% false positives, where two prints were incorrectly said to be from the same source. When some of the examiners were retested on some of the same prints after 7 months, they repeated only about 90% of their exclusions and 89% of their individualizations.

The NIST has given $20 million to the Center for Statistics and Applications in Forensic Evidence (CSAFE) to come up with a better way to present this sort of evidence -- one that clearly accounts for any uncertainties in the results or processes. CSAFE is still trying to figure out how to present this as a number/rating. But that might not be the only problem. The other issue is that juries and judges may not find specifics about forensic reliability to play much of a part in deciding guilt or innocence.

In a 2013 study, for instance, online participants had to rate the likelihood of a defendant’s guilt in a hypothetical robbery based on different kinds of testimony from a fingerprint examiner. It didn’t seem to matter whether they were simply told that a print at the scene “matched” or was “individualized” to the defendant, or whether the examiner offered further justification—the chance of an error is “so remote that it is considered to be a practical impossibility,” for example. In all those cases, jurors rated the likelihood of guilt at about 4.5 on a 7-point scale. “As a lawyer, I would have thought the specific wording would have mattered more than it did,” Garrett says. But if subjects were told that the print could have come from someone else, they seemed to discount the fingerprint evidence altogether.

The other part of the problem is the people who perform the tests. Multiple incidents where evidence was falsified or not properly tested have been uncovered. The evidence is only as good as the processes, and if steps are skipped because of sloppiness or laziness, the evidence's credibility becomes highly questionable -- not just for the specific instance where results were faked, but for every test this person has touched.

There's no possible way to eliminate honest errors, much less prevent anyone from falsifying results. In both cases, the problems are caught after the damage has been done. Humans are the most unpredictable part of the chain of evidence but also an irreplaceable part. CSAFE will be working with forensics labs to create best practices, but it can do nothing to prevent the lazy and/or incompetent from completely ignoring the proper steps.

Problems are also present higher up the chain. When bad science or bad practices result in questionable evidence, it's often extremely difficult to have convictions resulting from them overturned.

What’s troubling, [federal judge Nancy] Gertner says, is that when judges accept junk science, an appeals court rarely overrules them. Attaching a numerical probability to evidence, as CSAFE hopes to do, “would certainly be interesting,” she says. But even a standard practice of critically evaluating evidence would be a step forward. “The pattern now is that the judges who care about these issues are enforcing them, and the judges who don’t care about these issues are not.”

In this way, the courts are no better than labs where shoddy work is done. Variations in personality undermine the dispassionate nature of science, making it susceptible to human prejudices rather than the strength of the evidence itself.

Filed Under: evidence, fbi, forensic evidence, forensics

Court Says Government Needs More Than The Permission Of A Couple Of Underperforming Drug Dogs To Justify Seizure Of $276,000

from the evidence:-it's-a-thing dept

The Seventh Circuit Appeals Court has done something few courts do: told law enforcement it can't have that sweet, sweet "drug" money it lifted from two brothers for no other reason than that it felt there was something shady about its very existence.

Police responded to a call about a home invasion at the residence of Pedro and Abraham Cruz-Hernandez. While inside the house, officers came across a handgun, a small amount of marijuana and a scale. This apparently prompted the arrival of two drug dogs, considering they're not usually standard equipment for home invasion investigations.

When searching the brothers' van, police found $276,080. So, they took it. Why? Because their dogs said they could.

A police drug dog signaled the presence of drugs in Pedro’s van, which was parked outside the house. After obtaining a search warrant, the police discovered in the van a safe containing $271,080 in currency and two pages of handwritten notes including dates and numbers. The cash was bundled with rubber bands in stacks of $5,000. A second dog alerted to the safe. No drugs, however, were found in either the van or the safe.

It didn't matter that neither drug dog could adequately perform the single task required of them. The "alerts" were all the justification law enforcement needed to rob the brothers of their money.

As is standard operating procedure in asset seizures, no charges were brought but the "guilty" money remained in the possession of law enforcement. The brothers challenged the forfeiture. The government then tried to use a mistake any person could have made to justify its possession of the brothers' money.

The government also pointed to two alleged disavowals of ownership by Abraham: (1) a record created by U.S. Immigration and Customs Enforcement (ICE) six weeks before the police seized the safe, in which Abraham had said that he did not have any “equities” in the United States, and (2) Abraham’s application for cancellation of removal, filed with the assistance of immigration counsel six months after the seizure, in which he lists only $2,000 in “cash assets.” The government represented that Pedro and Abraham, when deposed, had testified that they told the truth to the police and to immigration officials.

The problem here is that Abraham was asked to list his cash assets. A normal person not versed in the convoluted fuckery that is asset forfeiture would reasonably conclude that his assets only include what's actually in his possession. As the government was still in possession of the $276,080 at the point Abraham was asked, he reasonably concluded he could only legally claim the $2,000 he had access to. The government took this reasonable conclusion and twisted it to mean Abraham had relinquished his claim on the $276,000.

In legal terminology, the government claimed the contradictory statements constituted a "sham affidavit." The court doesn't see it the government's way, though. (Emphasis in original.)

Changes in testimony normally affect the witness’s credibility rather than the admissibility of the testimony, and thus the sham-affidavit rule applies only when a change in testimony “is incredible and unexplained,” not when the change is “plausible and the party offers a suitable explanation such as confusion, mistake, or lapse in memory.”

[...]

Abraham’s explanation for his answer on the immigration form is not only plausible, but is correct. We suspect that many people—in particular immigrants completing a form for ICE—would not be aware that a legal claim is an asset. But whether they would or not, a legal claim—even a claim to money—is not itself a “cash asset.” See CASH, Black's Law Dictionary (10th ed. 2014) (defining cash as “1. Money or its equivalent; 2. Currency or coins, negotiable checks, and balances in bank accounts.”). Moreover, when deposing Abraham the government’s lawyer did not ask about his understanding of a “cash asset” or whether his attorney had explained the definition of that term. There is no reason, therefore, to reject out-of-hand Abraham’s deposition testimony that he had been truthful in his immigration filings.

Not only that, the court notes, but an element common to nearly all asset forfeitures doesn't help the government's case much.

It is also telling that the government has presented virtually no evidence that the brothers are involved in drug trafficking. There was nothing to indicate past or current drug dealing by the brothers or anyone else living with them in the house, nor was there any suggestion that either brother used the bedroom where the apparent drug paraphernalia was found. Though drug dogs had alerted to the safe and currency, the government did not submit to the court any evidence of the dogs’ training, methodology, or field performance.

(Given this limited sampling includes both dogs "claiming" drugs were present when no drugs were, it's likely the government felt records on training, methodology and field performance would only have made its case weaker.)

Neither did the government point to evidence (e.g., an experienced drug investigator’s opinion) to substantiate its assumptions that the notes found in the safe were a “drug ledger” or that counting and bundling currency is something that only drug dealers would do. “Absent other evidence connecting the money to drugs, the existence of money or its method of storage are not enough to establish probable cause for forfeiture,” much less enough to meet the now-heightened standard of a preponderance of the evidence.

And, finally this little kick to the government's ribs:

Courts have concluded that the government failed to meet its burden in cases with better evidence than this [one]...

And with that, the Appeals Court sends it back to the lower court with the judgment in favor of the government vacated. Considering the brothers appear to have "substantially prevailed," the government may find itself cutting a check for legal fees. In hindsight, it would have been smarter to have returned the money when it became apparent there was no basis for a criminal case. But that's not how the government rolls. Cash is presumed guilty until proven innocent, even when it's little more than two underperforming drug dogs and a small baggie of marijuana "justifying" the seizure.

Filed Under: abraham cruz-hernandez, asset forfeiture, drug dogs, evidence, pedro cruz-hernandez, probable cause, seizure

Milwaukee PD Hid Stingray Usage From Judges, Defendants And Now Congress Members Want Answers From The FBI

from the the-huge-secret-that-isn't dept

More evidence of Stingray obfuscation has been uncovered in Milwaukee. What appeared at first to be a bog standard court order for tracking of a suspect using a cell phone provider's own "network equipment" actually appears to be something else. The ACLU was already involved in this case, arguing that such tracking by cell phone providers only be available with a warrant. But as it dug into the specifics, it became obvious the tracking had not been performed by the cell provider.

As we read through documentation from the case, however, we began to suspect that something else was going on. It appears that police secretly used a cell site simulator, also known as a Stingray, to track the phone, but successfully concealed that fact from the defense and the court.

Our suspicion was first raised because police initially did not disclose to the defendant that they had located him by tracking his phone, only revealing it at an evidentiary hearing. In reports prepared after the defendant’s arrest, police officers used oddly vague language to explain how they located him: one officer merely wrote that law enforcement had “obtained information” about the defendant’s location; another said that police “obtained information from an unknown source” about where he was. This sounded to us a lot like the kind of intentionally ambiguous language used by police across the country to hide their Stingray use.

Like every other law enforcement agency with a Stingray device in its possession, the Milwaukee PD had signed a nondisclosure agreement with the FBI. This "allowed" it to withhold the information from courts and defendants. But cracks in the NDA appeared and a prolific FOIA filer was able to pry loose documents detailing MPD's use of cell tower spoofers.

Last fall, privacy activist Mike Katz-Lacabe obtained a list of 579 investigations in which the Milwaukee Police Department used Stingrays. (Here are Mike’s public records request and MPD’s response letter). That previously unpublicized list includes an entry for a case that matches the date and description of this one: an October 28, 2013, apprehension of a “fugitive” “related to [an] FBI roundup.”

The ACLU is now arguing for suppression of the evidence obtained with the Stingray. That isn't local law enforcement's only problem, however. The ACLU's exposure of this secret Stingray use (along with the Milwaukee Journal-Sentinel's coverage) has attracted the attention of people in a better position to demand answers from the FBI: Reps. Jim Sensenbrenner and Sheila Jackson.

In a letter sent to James Comey (who kind of has a lot on his plate already, tbh), the Congress members demand to know why the FBI is actively hiding information about these tracking devices from the public.

The FBI’s stated reason for secrecy was that disclosing the existence of the capabilities may allow “the subject of investigation wherein this equipment/technology is used to employ countermeasures to avoid detection by law enforcement.” But certainly not lost on the FBI was the fact that secrecy shields the technology from debate and inevitable controversy. Courts could not review its constitutionality. The public could not debate the merits and costs of the technology and what limitations might be appropriate. While this type of secrecy may be appropriate in the national security context, it is entirely inappropriate in the context of law enforcement where citizens have the constitutional right to challenge the government’s evidence against them

We are not prejudging the outcome of the debate over the use of Stingray technology, but we categorically denounce the use of nondisclosure agreements that limit the ability of the public and of courts to debate the merits of the technology and to implement limits they may deem appropriate.

The letter acknowledges that the FBI has recently backed away from supporting its own NDAs. The FBI's last statement on the matter basically said the NDAs should not be read as saying exactly what they say: that information about Stingray usage should be hidden from everyone, if possible. It also expressed mild disbelief that the agreements were being taken so literally. The disingenuous and self-serving nature of this walkback is highlighted in the letter.

This, however, is at odds with the explicit language of the NDA which precludes disclosure to the public in any manner “including but not limited to: in press releases, in court documents, during judicial hearings, or during other public forums or proceedings.” The agreement, in fact, goes much further and states that the Milwaukee Police Department should seek FBI permission before responding to court ordered disclosures and should be prepared to dismiss cases at the FBI’s request if necessary to protect against disclosure.

The FBI has until March 25th to answer the following questions:

• Does the FBI consider state and local law enforcement to be bound by the NDAs related to the use of cell-site simulators?
• Has the FBI ever requested that a law enforcement agency dismiss a case to maintain the secrecy of law enforcement technology?
• How many NDAs has the FBI signed with state and local law enforcement agencies regarding cell-site simulators?
• Are there other technologies for which the FBI demands state and local law enforcement sign an NDA?
• Does the FBI continue to believe that NDAs are appropriate?
• Would the FBI ever condone perjury to Congress or judges to protect the existence of technology?

The answers should be illuminating -- if the public is actually allowed to see the responses. The FBI may still try to claim this super-secret technology that everyone knows about can't be discussed in an open forum. And I'm certain the agency will claim it would not condone perjury even though its NDAs strongly hint this would be preferable to exposing "sensitive" law enforcement methods.

Filed Under: congress, courts, evidence, fbi, imsi catcher, judges, milwaukee, police, stingray

French Police Report On Paris Attacks Shows No Evidence Of Encryption... So NY Times Invents Evidence Itself

from the reporting! dept

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Over the weekend, the NY Times ran a big article providing a bunch of details about the Paris attacks from last year, now that the lone surviving member of those attacks has been captured in Belgium. The article is mostly based on a 55-page report put together by French antiterrorism police and given to France's Interior Minister. Someone apparently gave the report to the NY Times as well. And it does includes some interesting background info, including some previously unknown attack details. It also includes a bit about how the attacks were planned and carried out, with the most salient detail being that it's pretty clear that the team used burner phones (i.e., phones purchased just for this purpose, for a very short time, and not easily traced back to individuals):

They used only new phones that they would then discard, including several activated minutes before the attacks, or phones seized from their victims.

That's not all that surprising, of course. People have known about burner phones for ages. But the thing that stood out for me was the desperate need of the NY Times reporters to insist that there must be encryption used by the attackers, despite the near total lack of evidence of any such use. Immediately after the attacks, law enforcement and intelligence officials started blaming encryption based on absolutely nothing. Senator John McCain used it as an excuse to plan legislation that would force backdoors into encryption. And Rep. Michael McCaul insisted that the Paris attackers used the encrypted Telegram app, despite no one else saying that. In fact, for months, the only thing we'd heard was that they used unencrypted SMS to alert each other that the attacks were on, and made almost no effort to hide themselves.

But, amazingly, the NY Times takes evidence of a lack of encryption... to mean there must be encryption:

According to the police report and interviews with officials, none of the attackers’ emails or other electronic communications have been found, prompting the authorities to conclude that the group used encryption. What kind of encryption remains unknown, and is among the details that Mr. Abdeslam’s capture could help reveal.

But... that's not how encryption works. If they're using encrypted emails, the emails don't disappear. You still can see that they exist, and the metadata of who sent messages to whom remains. It's just that you can't read the contents of the emails. This is bogeyman thinking about encryption, where people think it does something it doesn't actually do. Sure, it's possible that the attackers used some sort of secretive way to communicate, but then the issue isn't encryption, but rather that they figured out how to hide the method by which they communicated. Or, you know, they just talked about stuff in person.

And then there's this:

One of the terrorists pulled out a laptop, propping it open against the wall, said the 40-year-old woman. When the laptop powered on, she saw a line of gibberish across the screen: “It was bizarre — he was looking at a bunch of lines, like lines of code. There was no image, no Internet,” she said. Her description matches the look of certain encryption software, which ISIS claims to have used during the Paris attacks.

OH MY! "A bunch of lines, like lines of code"?!?!?! Must be encryption! Or, you know, Linux. Or some other system that doesn't start with a graphical user interface. And even if it was encryption, then he wouldn't be looking at it in encrypted form. To read encrypted messages you decrypt them first. Nothing in this paragraph above makes any sense at all as "proof" of encryption. It just seems like proof of the reporters' technology ignorance.

It may very well turn out that the attackers used encryption. It very likely will be true in the future that attackers and terrorists will use encryption. But, this crazy moral panic going on these days where anything that people can't understand "must be encryption!" is reaching insane levels.

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Filed Under: encryption, evidence, journalism, paris attacks
Companies: ny times

Judge Tosses Evidence After 'COPS' Footage Contradicts Officer's Testimony

from the just-trying-to-impress-the-crew? dept

The mutual adoration society that is long-running reality show "COPS" has just landed one of its protagonists in the middle of an evidence suppression order. Evidently forgetting his star turn in an episode of the show, Officer Miguel Hernandez of the Fort Myers (FL) Police Department performed an illegal search of a man walking down the street and concocted a story to cover up his actions. (h/t FourthAmendment.com)

Unfortunately, Hernandez's stop of Hubert Solomon was all captured on tape -- and apparently broadcast as well. Hernandez spotted Solomon walking down the middle of a street. Sidewalks are for walking, Hernandez thought (and Florida law agrees: pedestrians "must use sidewalks if one is available"), and he circled the block to cite Solomon. Solomon was on the sidewalk by this point, and shortly thereafter, so was Officer Hernandez's patrol car.

Officer Hernandez exited his vehicle and approached Defendant, who immediately reached into his pocket and pulled out his driver’s license. Defendant stated, “I don’t know what’s going on man; I just got stopped down the street.” Officer Hernandez informed Defendant that he was being stopped because he “failed to walk on the sidewalk down the street.” By this point, Officer Hernandez was face to face with Defendant. Officer Hernandez continued the conversation by inquiring why Defendant was walking on Lafayette Street at 11 p.m. Defendant responded that he was “coming from his girlfriend’s house,” and that he “lives just down the street.” Officer Hernandez then instructed Defendant to turn around and put his hands behind his back because he was going to pat him down. Defendant complied. During the pat down, Officer Hernandez discovered a gun in Defendant’s front pocket. The entire encounter lasted no more than 23 seconds.

It only takes 23 seconds to violate someone's rights. Both parties agree Hernandez had every right to stop Solomon, but disagreed on the legality of the search. Solomon's lawyer asserted the frisk had no basis. The government argued otherwise, stating Solomon was walking through a "high-crime area" and was "nervous" when speaking to Hernandez.

The court might have agreed with the government, if not for the footage captured by "COPS" cameramen.

Officer Hernandez provided testimony that could establish reasonable suspicion, but Officer Hernandez’s testimony is not the only evidence of what occurred during the stop. On the night in question, Officer Hernandez co-starred with Defendant in an episode of Cops, the television show. The Cops production team filmed the entire stop, thereby providing the Court with indisputable video evidence of the stop from its inception to Defendant’s arrest.

And here's why some cops are extremely resistant to the notion of additional recording devices. (Although, up until this point, Hernandez was apparently unopposed to the ridealong "COPS" crew…)

Interestingly, there are several discrepancies between Officer Hernandez’s testimony and the Cops video.

Because of Hernandez's "misstatements," "COPS" ended up arguing for the defense.

Officer Hernandez testified that Defendant was “blading” during the encounter to conceal the right side of his body where the firearm was located. The video, however, shows that Defendant walked straight towards Officer Hernandez after he drove his patrol car up to the sidewalk and activated the overhead lights. At no point did Defendant turn or “blade” and conceal his right pocket where the firearm was eventually located.

And:

Officer Hernandez also testified that Defendant appeared “extremely nervous” because his eyes were bulging and his forehead was glistening from sweat. The video, however, fails to show any unnatural or exaggerated eye movement by Defendant. Nor does the video show Defendant sweating in a manner that indicates nervousness. In fact, it would have been hard for Officer Hernandez to see Defendant’s forehead “glistening” when he wore a hat during the entire encounter. At most, the video shows Defendant endured the typical nerves experienced during any average police encounter.

Not only did COPS sell Officer Hernandez out, but the court finds that he helped himself to additional reasonable suspicion by watching the same video that refuted his other claims.

Beyond the testimony refuted by the Cops video, the Court does not find Officer Hernandez’s testimony regarding the bulge in Defendant’s pocket credible. At the hearing, Officer Hernandez testified that he saw a heavy object/bulge in Defendant’s pocket when Defendant approached him. Significantly, this fact was not included in the incident report/probable cause affidavit that Officer Hernandez was required to complete shortly after the stop.

More importantly, the Government failed to mention this fact in its Response. It seems unlikely such a significant fact would be unearthed for the first time on direct examination but rather was discovered after Officer Hernandez had the benefit of watching the Cops video. Therefore, it seems this allegation constitutes nothing more than hindsight observation from the Cops video, rather than an observation made during the very brief encounter.

Supposedly, this "bulge" Officer Hernandez didn't spot until after he'd viewed the recorded footage (in a presumably safe location) made him "fear for his safety and the safety of others." The court finds this no more credible than the steady stream of misstatements surrounding it. It agrees the defendant was in a high crime area and was dressed as Hernandez described him, but finds the totality of the circumstances to be nowhere what was needed to escalate a minor pedestrian stop to a frisk for contraband.

In sum, Defendant was stopped for a sidewalk violation – a section of Florida law not typically associated with armed and dangerous criminals. Defendant did not attempt to evade Officer Hernandez or take any evasive measure.

There is no evidence Officer Hernandez suspected Defendant was engaged in more serious criminal conduct, or that any criminal conduct had occurred in the immediate area before the stop occurred. Cf. Id. Nor is there any evidence that Defendant acted in a manner that would make Officer Hernandez fear for his safety or the safety of others during the 23-second encounter. The video evidence is clear: Defendant was walking home to his residence, which happens to be a high-crime area, and conveyed this fact to Officer Hernandez in a calm manner. Nevertheless, Officer Hernandez almost immediately subjected Defendant to a pat down with no articulable basis for why he feared for his safety or the safety of others. Because Officer Hernandez lacked the requisite reasonable suspicion to frisk Defendant for weapons, the evidence found during the pat down and any subsequent searches must be suppressed.

The court does commend Officer Hernandez for "instinct, experience and intuition." After all, the officer did recover a weapon during his unconstitutional search. But it points out that the Fourth Amendment isn't only supposed to be viewed after the fact. It's supposed to govern these interactions as they happen and deter the sort of thing Hernandez did.

Unfortunately, the court doesn't follow through on this thought process and wonder aloud whether Officer Hernandez's "instincts" and "intuition" also include lying about unconstitutional stops. It's entirely possible for police officers like Hernandez to both make tons of busts and violate several peoples' rights. This lying may have cost Hernandez a bust here, but having contradictory video documentation on hand and held by a third party is the sort of "perfect storm" violated citizens can't rely on saving them from law enforcement abuse.

Filed Under: cops, evidence, florida, fort myers, hubert solomon, miguel hernandez, police