Court Says 10 Weeks Of Warrantless Surveillance Is Perfectly Constitutional

from the timcushingunexpectedlysideswithcops.com dept

How long can the government surveill your property without a warrant? According to the Sixth Circuit Court of Appeals, pretty much indefinitely.

Rocky Houston appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At trial, the primary evidence against Houston was video footage of his possessing firearms at his and his brother’s rural Tennessee farm. The footage was recorded over the course of ten weeks by a camera installed on top of a public utility pole approximately 200 yards away. Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads.

It's hard to fault the logic of this conclusion, even if it does seem the ATF's surveillance bumped up against the edges of the Fourth Amendment. What happened in aggregate was not a violation because no individual aspect of it crosses over the "expectation of privacy" line. An ATF agent with a camera filming from across the road wouldn't have violated Houston's privacy, even if the agent could only do so for a single 8-hour shift.

Ten weeks of surveillance is nothing more than 10 weeks of back-to-back, round-the-clock 8-hour shifts. US courts have often stated that rights violations cannot spring into existence on their own. The aggregate is a sum of smaller parts and if none of the "smaller parts" are a violation of Fourth Amendment rights, then 1,680 hours of surveillance by camera is no different than 8 hours of surveillance by an agent. Houston's property could be viewed from the road. The camera on the light pole may have been a bit higher than eye level, but it provided agents with nothing that could not have been observed by the naked eye at that height.

We've seen this same discussion in disputes over automatic license plate readers. Vigilant -- a producer of said cameras -- argued it had a First Amendment right to photograph license plates on vehicles travelling public roads. The courts certainly wouldn't deny an individual the right to do the same as there's no expectation of privacy afforded to vehicles on public roads. If a person can take a few hundred license plate pictures a day, then Vigilant is well within its rights to take millions of pictures a day, all over the country.

For that matter, there are any number of government-controlled cameras observing public areas and buildings -- generating weeks or years of surveillance that covers the comings and goings of far more people than the ATF's camera did here.

Over at Prawfsblawg, Jonathan Witmer-Rich poses a hypothetical question that seeks to tie this decision to the limitations of physical surveillance.

Metaphysical Fourth Amendment question: how long could a tiny ATF agent sit atop a telephone pole?

Today the Sixth Circuit handed down a notable opinion squarely addressing the question, reserved in United States v. Jones, 132 S.Ct. 945 (2012), of how many ATF agents can fit on the head of a telephone pole whether longer-term surveillance by law enforcement infringes on a reasonable expectation of privacy—thus triggering Fourth Amendment protection.

Witmer-Rich's arguments, like the defendant's, ties the Fourth Amendment violation to the length of the surveillance, rather than its nature. His hypothetical question about ATF agents on telephone poles isn't just a pithy turn of phrase. It's directly invoked in the majority's rejection of Houston's arguments.

Furthermore, the long length of time of the surveillance does not render the video recordings unconstitutionally unreasonable, because it was possible for law enforcement to have engaged in live surveillance of the farm for ten weeks. Although vehicles “[stuck] out like a sore thumb” at the property, the ATF theoretically could have staffed an agent disguised as a construction worker to sit atop the pole or perhaps dressed an agent in camouflage to observe the farm from the ground level for ten weeks.

The court also finds that just because it is possible for law enforcement to engage in "in person" surveillance, nothing about the law requires them to utilize this option, rather than install cameras without seeking warrants.

However, the Fourth Amendment does not require law enforcement to go to such lengths when more efficient methods are available. As the Supreme Court in United States v. Knotts explained, law enforcement may use technology to “augment[] the sensory faculties bestowed upon them at birth” without violating the Fourth Amendment. 460 U.S. 276, 282 (1983). The law does not keep the ATF agents from more efficiently conducting surveillance of Houston’s farm with the technological aid of a camera rather than expending many more resources to staff agents round-the-clock to conduct in-person observations. See id. at 282–84. Nor does the law require police observers in open places to identify themselves as police; police may view what the public may reasonably be expected to view.

No warrant was sought during the first ten weeks of surveillance, but one was after that, as a result of another Sixth Circuit decision in which the justices expressed "some misgivings" about long-term, warrantless surveillance.

Though the law does not require law enforcement agencies to bypass more efficient surveillance methods, the budging of the needle back towards Fourth Amendment protections suggests agencies should err on the side of caution. After all, if agencies can't come up with enough probable cause to acquire a warrant, it hardly seems reasonable they should be allowed to engage in something that looks more like a fishing expedition than an investigation. The ATF only found seven instances in which Houston displayed firearms he wasn't supposed to have in his possession in 10+ weeks of footage. The camera may have been more efficient in terms of cost and man-hours, but the end result hardly suggests Houston was worth "watching" for the better part of three months.

The dissenting opinion, written by Judge Rose, makes some good points but, unfortunately, it's not enough to overcome Fourth Amendment-related precedent. Rose dislikes the extended period of surveillance, which brings the ATF's actions very close to other actions courts have considered constitutionally questionable.

While United States v. Skinner, 690 F.3d 772, 780 (6th Cir. 2012), implies that the actual practicability of law enforcement observing activity from a public vantage point may not be relevant, this Court has also sifted from the panoply of opinions in United States v. Jones the concern that long-term non-human surreptitious surveillance “is worrisome because ‘it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.”

Rose also points to the Jones decision as indicative of the ATF's overreach. But the Supreme Court's decision in this case was less than definitive. No bright line conclusion was reached and the tentative wording in the opinion only suggested extended surveillance should be accompanied by a warrant. The court never specifically defined "long term." Further, the case was tied to loctation tracking rather than static observation and the installation of a law enforcement surveillance device on a private citizen's personal property (the suspect's car), rather than observance of an area (a yard visible from a public street) that has historically never been afforded a reasonable expectation of privacy.

Any suggestion -- like Witmer-Rich's proposed three day rule (warrants for anything beyond that) -- would be completely arbitrary and unable to be resolved with previous caselaw or the lack of a reasonable expectation of privacy in public areas. If such a limit was applied, it would be comparable to telling police officers they could look into someone's yard for three days in a row, but start averting their eyes on the fourth.

As much as I don't like the fact that the government can conduct warrantless surveillance of this type for an extended period of time, I don't see how this can be resolved without setting new standards based on nothing more than the feeling this is wrong.

Judge Rose makes more sense when calling out the majority's "warrants let the bad guys win" hyperbole.

Finally, I do not have the same concern that “if law enforcement were required to engage in live surveillance without the aid of technology in this type of situation, then the advance of technology would one-sidedly give criminals the upper hand.” Expediency in this particular situation is not our concern. It is for the police to work within constitutionally permitted means. Fortunately, no one proposes that law enforcement should “be powerless to thwart such behavior.” Law enforcement would have the power to obtain a search warrant, returning to them the upper hand.

While we'd certainly prefer law enforcement agencies seek warrants in edge cases like these, there's nothing in the Constitution -- as applied to the surveillance of a public area -- that requires one. A visible yard can be viewed by anyone for any length of time -- even a tiny ATF agent perched on top of a telephone pole for nearly three months.

Filed Under: 4th amendment, privacy, rocky houston, surveillance, warrants

UK Investigative Agencies Want To Be Able To Send Warrants To US Companies

from the lots-of-'solutions,'-all-of-them-terrible-in-different-ways dept

Because citizens are localized but their data isn't, things aren't going to get any less weird as time progresses. Or any less legally troublesome. Ellen Nakashima and Andrea Petersen of the Washington Post have seen a copy of a draft negotiating document between UK and US representatives that would allow MI5 (and presumably other agencies) to access data and communications held on US servers.

The transatlantic allies have quietly begun negotiations this month on an agreement that would enable the British government to serve wiretap orders directly on U.S. communication firms for live intercepts in criminal and national security investigations involving its own citizens. Britain would also be able to serve orders to obtain stored data, such as emails.

UK agencies would still be locked out of obtaining information or data on US persons and it would take legislation to actually make this access a reality, but it's apparently being considered, as UK officials feel this issue is standing in the way of investigations/counterterrorism efforts.

As it stands now, UK agencies must make formal diplomatic requests which rely on a Mutual Legal Assistance Treaty -- a process that can take months. That's not good enough, apparently. Everyone wants instant access, including UK agencies, and a strong streak of entitlement (the same entitlement guiding FBI director James Comey's one-sided "debate" on encryption) runs through the arguments for this expansion of the UK's legal powers.

“Why should they have to do that?” said the administration official. “Why can’t they investigate crimes in the U.K., involving U.K. nationals under their own laws, regardless of the fact that the data happens to be on a server overseas?”

Why indeed? Why comply with existing laws or territorial restrictions? After all, the FBI is working toward the same end, pushing for the right to hack servers located anywhere in the world when pursuing criminals.

Several issues need to be addressed before UK agencies can be granted permission to demand communications and data from US companies. For one thing, a warrant issued in the UK is not exactly the same thing as a warrant issued in the US. The legal standards may be similar, but they're still a long ways from identical.

The negotiating text was silent on the legal standard the British government must meet to obtain a wiretap order or a search warrant for stored data. Its system does not require a judge to approve search and wiretap warrants for surveillance based on probable cause, as is done in the United States. Instead, the home secretary, who oversees police and internal affairs, approves the warrant if that cabinet member finds that it is “necessary” for national security or to prevent serious crime and that it is “proportionate” to the intrusion.

Note the "silence" on the differences between the legal standards. It appears no one involved in this discussion is interested in digging into these disparities.

A second administration official said that U.S. officials have concluded that Britain “already [has] strong substantive and procedural protections for privacy.” He added: “They may not be word for word exactly what ours are, but they are equivalent in the sense of being robust protections.”

As a result, he said, Britain’s legal standards are not at issue in the talks. “We are not weighing into legal process standards in the U.K., no more than we would want the U.K. to weigh in on what our orders look like,” he said.

That's great. Both countries won't examine each other's legal standards because they don't want to upset the reciprocity implicit in the draft agreement. The UK can ask for stuff from US companies and vice versa, with neither country playing by the other country's rules. In between all of this are citizens of each respective countries, whose data and communications might be subjected to varying legal standards -- not based on where the data is held, but who's asking for it.

Of course, the alternatives are just as problematic. If an agreement like this fails to cohere, overseas governments will likely demand data and communications generated by their citizens be stored locally, where they would be subject only to local standards.

Then there's the question of what information these agencies already have access to, thanks to the surveillance partnership between the NSA and GCHQ. Although neither agency is supposed to be focused on domestic surveillance (although both participate in this to some extent), the NSA is allowed to "tip" domestic data to the FBI for law enforcement purposes. Presumably, GCHQ can do the same with MI5. The tipped info may not be as comprehensive as what could be obtained by approaching a provider directly, but it's certainly more than the black hole the current situation is being portrayed as. (Especially considering GCHQ already has permission to break into any computer system located anywhere in the world...)

No matter what conclusion the parties come to, legislation addressing it is likely still several months away, if it ever coheres at all. Congress -- despite its occasional lapses into terrorist-related idiocy -- is likely not interested in subjecting US companies to foreign laws, no matter the stated reason for doing so. But if it doesn't oblige the UK (and others who will jump on the all-access bandwagon), it's safe to assume the British government will move towards forcing US companies to set up local servers and segregating communications and data by country of origin.

Filed Under: surveillance, uk, us, warrants

Algorithm Might Protect Non-Targets Caught In Surveillance, But Only If The Government Cares What Happens To Non-Targets

from the something-it-has-yet-to-show dept

Ashkat Rathi at Quartz points to an interesting algorithm developed by Michael Kearns of the University of Pennsylvania -- one that might give the government something to consider when conducting surveillance. It gauges the possibility of non-targets inadvertently being exposed during investigations, providing intelligence/investigative agencies with warnings that perhaps other tactics should be deployed.

Rathi provides a hypothetical situation in which this algorithm might prove to be of use. A person with a rare medical condition they'd like to keep private visits a clinic that happens to be under investigation for fraud. This person often calls another family member for medical advice (an aunt who works at another clinic). This second person's clinic is also under investigation.

When the investigation culminates in a criminal case, there's a good chance the patient -- a "non-target" -- may have their sensitive medical information exposed.

If the government ends up busting both clinics, there’s a risk that people could find out about your disease. Some friends may know about your aunt and that you visit some sort clinic in New York; government records related to the investigation, or comments by officials describing how they built their case, may be enough for some people to draw connections between you, the specialized clinic, and the state of your health.

Even though this person isn't targeted by investigators, the unfortunate byproduct is diminished privacy. This algorithm, detailed in a paper published by the National Academy of Sciences, aims to add a layer of filtering to investigative efforts. As Kearns describes it, the implementation would both warn of potential collateral damage as well as inject "noise" to make accidental exposure of non-targets minimal.

For such cases where there are only a few connections between people or organizations under suspicion, Kearns’s algorithm would warn investigators that taking action could result in a breach of privacy for selected people. If a law were to require a greater algorithmic burden of proof for medical-fraud cases, investigators would need to find alternative routes to justify going after the New York clinic.

But if there were lots of people who could serve as links between the two frauds, Kearns’s algorithm would let the government proceed with targeting and exposing both clinics. In this situation, the odds of comprising select individuals’ privacy is lower.

Potentially useful, but it suffers from a major flaw: the government.

Of course, if an investigation focused on suspected terrorism instead of fraud, the law may allow the government to risk compromising privacy in the interest of public safety.

Terrorism investigations will trump almost everything else, including privacy protections supposedly guaranteed by our Constitution. Courts have routinely sided with the government's willingness to sacrifice its citizens' privacy for security.

It's highly unlikely investigative or intelligence agencies have much of an interest in protecting the privacy of non-targeted citizens, even in non-terrorist-related surveillance -- not if it means using alternate (read: "less effective") investigative methods or techniques. It has been demonstrated time and time again that law enforcement is more interested in the most direct route to what it seeks, no matter how much collateral damage is generated.

The system has no meaningful deterrents built into it. Violations are addressed after the fact, utilizing a remedy process that can be prohibitively expensive for those whose rights have been violated. On top of that, multiple layers of immunity shield government employees from the consequences of their actions and, in some cases, completely thwart those seeking redress for their grievances.

The algorithm may prove useful in other areas -- perhaps in internal investigations performed by private, non-state parties -- but our government is generally uninterested in protecting the rights it has granted to Americans. Too many law enforcement pursuits (fraud, drugs, terrorism, etc.) are considered more important than the rights (and lives) of those mistakenly caught in the machinery. If the government can't be talked out of firing flashbangs through windows or predicating drug raids on random plant matter found in someone's trash can, then it's not going to reroute investigations just because a piece of software says a few people's most private information might be exposed.

Filed Under: algorithm, michael kearns, non-targets, privacy, surveillance, targets, warrants

Prosecutors Say Cops Don't Need Warrants For Stingrays Because 'Everyone Knows' Cell Phones Generate Location Data

from the we'll-let-you-know-when-you-have-an-expectation-of-privacy dept

Up in Baltimore, where law enforcement Stingray device use hit critical mass faster and more furiously than anywhere else in the country (to date...) with the exposure of 4,300 deployments in seven years, the government is still arguing there's no reason to bring search warrants into this.

The state's Attorney General apparently would like the Baltimore PD's use of pen register orders to remain standard operating procedure. According to a brief filed in a criminal case relying on the warrantless deployment of an IMSI catcher (in this case a Hailstorm), the state believes there's no reason for police to seek a warrant because everyone "knows" cell phones generate data when they're turned on or in use. (h/t Brad Heath of USA Today)

The whereabouts of a cellular telephone are not "withdrawn from public view" until it is turned off, or its SIM card removed. Anyone who has ever used a smartphone is aware that the phone broadcasts its position on the map, leading to, for example, search results and advertising tailored for the user's location, or to a "ride-sharing" car appearing at one's address. And certainly anyone who has ever used any sort of cellular telephone knows that it must be in contact with an outside cell tower to function.

The state's brief folds in parts of the Third Party Doctrine and the Supreme Court's 1979 Smith v. Maryland decision to make a truly terrible argument that because certain aspects of cell phones involuntarily create location data, the Fourth Amendment never comes into play.

Matt Blaze rephrases the state's argument slightly, exposing the ridiculousness of this assertion.

"People let people into their houses sometimes, therefore no warrant is needed to search houses". Or something. https://t.co/XncuaZvdwW

— matt blaze (@mattblaze) January 14, 2016

"People let people into their houses sometimes, therefore no warrant is needed to search houses". Or something.

The state follows this up by arguing that, because the use of a pen register order to deploy an IMSI catcher is not expressly forbidden by local statutes, the evidence shouldn't be suppressed.

There was no cellular tracking device statute in effect at the time. There was an order from a neutral magistrate, finding probable cause to authorize precisely what was done in this case; the closest applicable statute does not contain an exclusionary provision. Thus, the court erred in excluding evidence in this case.

All well and good, except that the only reason there was no statute in place is because local law enforcement spent years keeping its cell phone tracking devices hidden from judges and defendants, obscuring the technology through parallel construction and misleading pen register order requests. This case is no different than the hundreds preceding it. The magistrate judge signing the pen register order had no idea what the Baltimore PD was actually doing. The presiding judge in this prosecution declared the Baltimore PD's pen register request contained "material misrepresentations" on his way towards granting the suppression of evidence.

For the state to claim everything was above board and no Fourth Amendment violations occurred is rather audacious, considering it spent months dodging discovery requests related to the methods used to locate the defendant.

The request, asking for no more than what the State was compelled to disclose pursuant to Maryland Rule 4-263, sought: 1) "records, notes, and documents" relating to the Baltimore Police Department's investigation into a second suspect from the April 27, 2014 shooting; as well as 2) information "indicating how Mr. Andrews was located at 5032 Clifton Avenue."

Over two months later, on January 8, 2015, the State responded to the discovery request. The State claimed not to "possess information related to the method used to locate the Defendant at 5032 Clifton Avenue." (T1 9) This turned out to be false.

In fact, the state did not turn over its IMSI catcher-related information until mid-May 2015, more than seven months from the point it was originally requested. That's a long time to withhold information on a Hailstorm deployment the state now claims was both perfectly legal and intruded on no one's privacy.

Filed Under: 4th amendment, baltimore, cell phones, expectation of privacy, hailstorm, imsi catchers, police, stingrays, warrants

Legislator Thinks Warrantless Cell Phone Searches The Best Way To Combat Distracted Driving

from the BLOWOUT!!!!-ALL-RIGHTS-MUST-GO!!! dept

The Supreme Court's Riley decision made it clear: law enforcement cannot search cell phones without a warrant. Seems pretty straightforward. Cell phones aren't mere "containers" -- they contain a great deal of information that has historically been afforded a reasonable expectation of privacy. Get a warrant.

Rep. Martin LaLonde of Vermont feels this is just too much privacy, especially when there's distracted driving that needs to be punished.

H.527, introduced by Rep. Martin LaLonde, D-South Burlington, would allow law enforcement officers to see a driver's phone or other electronic device, to see if it was being used.

By "see," LaLonde means "look at web activity, text messages, recent phone calls or anything else that might indicate the phone was in use." All without a warrant, and based on nothing more than an officer's suspicion that the driver may have been "distracted."

LaLonde, another legislator who seems to have little grasp of the particulars of his trade (other laws, the Constitution) says this won't be an excuse for police to go "rummaging" through drivers' phones. In support of this assertion, he states that he has no idea what limits will be in place or how any of this will actually work.

[T]he chief sponsor of the bill said he hasn’t “really thought about” what, exactly, would be fair game for a warrantless search under his bill.

Here's a stab at narrowing the search.

“Essentially, it’s ‘show me your text log,’” he said.

Whatever the fuck that is. To figure out whether or not a driver has been texting, the officer will have to look at a few messages. What if the officer comes across a message that sounds like code for a drug deal? Would it be considered "plain sight," what with the law authorizing a quick peek at recent activity?

No man is an island, it has been said. LaLonde may be the exception.

No other state allows warrantless searches to combat phone use while driving.

LaLonde is trying to equate distracted driving with impaired driving. While the tragic outcomes of these two behaviors may be similar, the evidence gathered is worlds apart.

LaLonde said he looked at the precedent of breathalyzer tests. Anyone who drives a vehicle on a highway in Vermont is implied to have given consent to take a breath test if an officer suspects him of driving drunk. Refusing to do so can be introduced as evidence in a criminal proceeding.

Under LaLonde’s bill, a driver who refuses police access to his phone would get the same penalty he’d get if he was, in fact, texting.

The privacy impact of giving police carbon dioxide and giving police access to a cell phone aren't comparable. While the originating actions could both result in criminal charges, only one would allow officers to access a wealth of personal information without a warrant. There's only so much abuse an officer can perform with a breathalyzer. An unlocked phone, though? That's a fishing expedition waiting to happen.

It's not just civil liberty advocates and people with common sense that have problems with LaLonde's proposal. Local law enforcement officials don't seem particularly enamored with the legislation either.

Orange County Sheriff Bill Bohnyak, president of the Vermont Sheriffs Association, said he would support the bill, though he doesn’t want to infringe on anyone’s rights.

Thanks for the 4thA hat tip, Sheriff. That's mighty thoughtful, especially for someone who also heads the local law enforcement union. But why would you support a bill you think might infringe on people's rights? Are you hoping the Supreme Court will reverse its decision in the next few months? Or are you expecting the War on Terrorism to strip away what's left of the Fourth Amendment now that the War on Drugs has had its way with with for four decades?

One of Bohnyak's deputies has his own concerns about the bill… but they're strictly logistic.

Deputy Bariteau, who spends hours patrolling the roads of Orange County looking for distracted drivers, said he’s concerned about some of the practical aspects of LaLonde’s proposal. For example, he said, there are a lot of different phones out there, and officers might not know how to use all of them.

“If you make a law, it’s gotta be enforceable for us,” he said.

Warrantless cell phone searches are pretty much illegal, but the only thing bothering the deputy is that some phones might go unsearched because of a lack of officer skillz.

Finally, LaLonde defends his proposal by offering up the stupidest, most asinine defense of privacy violations: the "I, for one, welcome our new privacy-violating law enforcement overlords" cliche.

“Personally, if I’m in a car and I’ve been text messaging, I should expect narrow privacy,” he said.

Here's an idea: if you expect less privacy, then behave accordingly. Hand over your phone along with your license and registration and sign the search consent form. Enjoy your self-imposed lowered expectation of privacy on a one-to-one basis. Don't forget to ask officers to search your trunk, glove compartment and anus, Rep. LaLonde, because those are all places people have been known to hide contraband and you're certainly not carrying any of that, right? Be the hero Vermont neither wants nor deserves. But don't force it on your constituents.

Filed Under: 4th amendment, distracted driving, martin lalone, mobile phones, searches, vermont, warrants

Comparing Cell Phones To Houses Not Exactly Deterring Use Of Generalized Warrants, Court Finds

from the the-analogy-that-almost-worked dept

Sometimes the courts realize today's smartphones can't be reasonably compared to anything else people have historically carried with them, like wallets, address books and the contents of their pockets. In the Supreme Court's Riley decision, it noted that searching a smartphone is roughly analogous to searching someone's house -- people's entire lives are contained in these devices. Hence, the warrant requirement, which turns phones from a "container" to the most sacrosanct domain under the Fourth Amendment.

Sometimes, though, the house analogy works against defendants and their smartphones, as in this recent case highlighted at FourthAmendment.com. A warrant application to search a suspect's cell phone was broadly (and badly) written, asking for basically everything the device could conceivably contain.

In his affidavit, which was attached to his application for the warrant, Walker set out the substance of the investigative interviews and concluded by stating: "Based on the above facts . . . I have probable cause to believe [the defendant's] cell phone contains valuable information that will link the victim/suspect ([the defendant]) and suspect/victim (Lerouge) to the crime." Walker received and executed a warrant to search the defendant's iPhone for the following:

"Subscriber's name and telephone number, contact list, address book, calendar, date book entries, group list, speed dial list, phone configuration information and settings, incoming and outgoing draft sent, deleted text messages, saved, opened, unopened draft sent and deleted electronic mail messages, mobile instant message chat logs and contact information mobile Internet browser and saved and deleted photographs on an Apple iPhone, silver and black, green soft rubber case. Additionally, information from the networks and carriers such as subscribers information, call history information, call history containing use times and numbers dialed, called, received and missed."

The suspect sought to suppress the photographs found on his iPhone -- ones in which he was holding a gun and wearing the same jacket as the person sought in connection with a shooting.

The court did have problems with the warrant as written.

The warrant is awkwardly written, conflating at least in part the items to be searched for and the places to be searched. We agree with the dissent that as written the warrant and the warrant application are overly broad.

But it found that considering what would need to be viewed to determine whether or not it was evidence of criminal activity, the search did not exceed the limits of the warrant.

[C]onsidered in conjunction with the affidavit incorporated therein, a commonsense reading shows that the warrant authorized a search of various types of files for evidence of communications that would link the defendant and another person to the shooting.

In its decision, the court applied the house analogy (tipping a hat towards the Riley decision) and found the broad range of content searched to be roughly equivalent to the search of a residence with a warrant.

In the physical world, police need not particularize a warrant application to search a property beyond providing a specific address, in part because it would be unrealistic to expect them to be equipped, beforehand, to identify which specific room, closet, drawer, or container within a home will contain the objects of their search.

So, when searching the phone, the government may treat it like a house, providing little more than a short physical description of the item, along with where it thinks evidence may be found. The government, however, should not extend this analogy further than is necessary. It cannot remain vague on the specifics of what it's searching for, nor can it avail itself to the entire contents of the device without reason.

Nevertheless, much like a home, such devices can still appropriately be searched when there is probable cause to believe they contain particularized evidence. See McDermott, 448 Mass. at 770-772. However, given the properties that render an iPhone distinct from the closed containers regularly seen in the physical world, a search of its many files must be done with special care and satisfy a more narrow and demanding standard.

At issue here were the incriminating photographs, which the defendant sought to suppress. He argued the police only had probable cause to search his text messages and phone calls. The court disagrees.

Communications can come in many forms including photographic, which the defendant freely admits. So long as such evidence may reasonably be found in the file containing the defendant's photographs, that file may be searched.

[...]

Once the photographs in question were viewed, their evidentiary relevance linking the defendant (holding a gun and wearing a jacket similar to the one worn by the shooter) to the specific crimes under investigation was apparent.

"Your phone = your house" does the defendant no good here, primarily because warrants can be used to access both with little fear of constitutional violations. Even the comprehensive nature of the warrant falls within the confines of the Constitution, as the swearing officer had shown that evidence linking the suspect to the crime would likely be found on his phone.

The dissenting opinion, however, disagrees that the photographs entered as evidence were actually evidence of anything more than the suspect's ownership of a gun and a jacket.

I disagree with the court's resolution of the issues presented here. In my view, the search of the photograph files on the defendant's Apple iPhone "smart" cellular telephone was not supported by probable cause, and the warrant authorizing that search was not sufficiently particular. Furthermore, even had there been probable cause to support a search of the photograph files, the photographs seized by the police appear to have been outside the permissible scope of the warrant.

The photographs were supposedly "threats" sent to a recipient by text message. The dissent argues that applying the phone = house analogy may prevent warrantless searches, but it does very little to deter police from performing invasive searches of suspects' devices.

The court incorrectly holds, however, that there was probable cause to search the entire set of photograph files on the defendant's iPhone. In my view, there was not a substantial basis for concluding that the entire set of the defendant's photograph files, rather than just the subset of photograph files attached to the defendant's text and multimedia messages, was related to the criminal activity under investigation.

The dissent warns that the over-reliance on analogies will likely result in more abuse of non-specific warrants as devices carried by a majority of the population continue to hold more and more of their "private" lives.

In an increasingly digital world, we continue to lean heavily on analogies between digital media and physical spaces and objects, such as that between a computer and a closed container. In reality, however, searches of physical spaces for physical objects are akin to searches of digital media for digital information much in the way that "a ride on horseback" resembles "a flight to the moon."

While narrowing the scope of purely digital searches may be difficult, it is not impossible. The purpose of the court is not to make things easier for law enforcement, but rather demand more from them as the stakes rise. To call a phone a house may keep cops from accessing contents without a warrant, but it does little to prevent them from accessing everything once a warrant is in hand.

Here, the state sought to apply the "plain view" standard to its access of photos not attached to text messages -- positing that the incriminating pictures would inevitably have been seen by investigators during the execution of the search warrant. But, as the dissent points out, applying a warrant exception to a not-quite-fitting analogy only encourages law enforcement to pursue generalized searches that encompass the entire contents of suspects' smartphones, rather than limit themselves to where evidence is most likely to be found.

In Preventive Med. Assocs., supra at 832, this court elected to "leave for another day the question whether use of the plain view doctrine as a justification for admission of evidence should be precluded or at least narrowed in the context of searches for electronic records." While not today, the day when the court will be called upon to determine more precisely when and how the plain view exception applies to digital searches is likely close at hand.

The inevitable has been postponed. This court -- and many others around the country -- will have to tangle with this issue and decide for themselves whether they'd rather apply analogies or remedies. Only one will prevent digital devices from being treated with the disregard as the British treated colonists' homes during the execution of general warrants.

Filed Under: 4th amendment, houses, mobile phones, privacy, warrants

Court Points Out The Fourth Amendment Still Protects Public School Students From Illegal Searches

from the expectations-of-privacy,-even-in-a-public-setting dept

Students don't sacrifice their Constitutional rights when they walk through the school's door. Their protections are somewhat diminished but they don't evaporate completely. There are reasons their rights aren't eliminated and those are tied to the operation of government employees outside of the school doors.

A recent decision by an Ohio Appeals Court reiterates this fact and spells out exactly why we shouldn't treat minors as possessors of only a minimum amount of civil liberties. (via 4thAmendment.com)

At issue is a warrantless search of a student's bag under the suspicion that he was carrying a gun. Considering the number of "zero tolerance" policies in place in many schools, you'd think the student's rights would immediately have become subservient to the exercise of those policies. Not so.

A single witness testified at the hearing, a school security officer by the name of Robert Lindsey. Lindsey explained that he is not a police officer but that he is a safety and security officer employed by Columbus Public Schools and works at Whetstone High School. On February 5, 2013, when Lindsey was on duty, a school bus driver approached him with a book bag that had been left on a bus, seeking to have it returned to its owner. Lindsey testified that he opened the bag and was able to quickly determine that it belonged to Polk. However, he began to search further and dumped out the bag, "just to, you know, be precautious, [sic] that's what we do."2 (Tr. 6.) Lindsey said that when he saw Polk's name, he remembered rumors that Polk was in a gang and he admitted he was thinking about that when he dumped out the bag. However, he also testified that he would have dumped out the bag and searched it, regardless of to whom it belonged, because even though there was nothing outwardly suspicious about the bag, it was unattended.

There's your first rights violation. A warrantless, nearly suspicionless search of a student's bag that went beyond the cursory search needed to determine ownership. The single witness showed his disregard for the students under his care by stating he would have dumped the bag out and searched it even without having heard somebody say something about this student possibly being a gang member.

Inside the bag were some bullets. The student was apprehended in the hallway and restrained. He was then searched in an empty classroom by a law enforcement officer. In the bag Polk was carrying with him was a gun. Despite the apparent severity of the situation, the lower court found (and the Appeals Court confirmed) that, while the cursory search to determine ownership was constitutional, the emptying of the bag left on the bus was not.

We agree with the trial court that the second search could have been justified at the outset, "[i]f Officer Lindsay [sic] had dumped the entire contents of the bag in his initial search for safety purposes and/or to obtain the owners [sic] identity." That is, in a school setting, emptying the entire bag would have been an acceptable way to meet the two initial justifications for the search: safety and identification. But Lindsey did not empty the bag at first. He testified he took the bag to the principal's office, recalling that rumors existed that Polk was involved in gang activity, and then emptied the contents of the bag… The trial court was well within its fact-finding discretion to conclude, based on the circumstances, the testimony and its ability to evaluate the officer's credibility, that the second search was based "solely" on rumors of Polk's gang affiliation.

Rumors do not rise to reasonable suspicion, and mere affiliation with a criminal group does not constitute a crime or a justification for a search, even in a school.

Because the results of the unconstitutional second search led directly to the third search, both the bullets and the gun were suppressed. And while it may seem unconscionable that a student who brought a weapon to school will "get away with it," there's a very good reason why his Fourth Amendment rights are being recognized. If they were waived under the assumption that the lowered expectation of privacy afforded to students made the second search constitutional, the system would open itself up to further abuse.

The state argued the exclusionary rule (under which the gun and bullets were suppressed) only applies to law enforcement officers. The court corrects this misinterpretation, reminding the school that the rule applies to all government employees with the power to act on behalf of the state.

In short, public school employees are state actors for purposes of the Fourth Amendment, and evidence collected by teachers when they (or a school safety officer) investigate a student to determine whether the student has committed a criminal act may be subject to the exclusionary rule if a subsequent criminal prosecution occurs.

If the court had found otherwise, it not only would have gone against US Supreme Court precedent, but would have given the state a way to route around limitations imposed by the Fourth Amendment.

To hold otherwise would be to revive what was known as the silver platter doctrine for use against Ohio's school children. This doctrine allowed law enforcement agents from jurisdictions outside the reach of the Fourth Amendment to develop evidence through means that would otherwise have been unconstitutional and then deliver that evidence on a "silver platter" to law enforcement officers who were subject to the Fourth Amendment's strictures in order to avoid the operation of the exclusionary rule...

If the evidence they collect in violation of the Fourth Amendment were able to be used when turned over to law enforcement, school employees would have little incentive to respect students' rights, and worse, law enforcement would have an incentive to use school employees as Fourth Amendment-immune agents to conduct illegal student searches in schools.

And no local government can act as though this wouldn't be abused, because it was this exact abuse that lead to the Supreme Court decision: federal law enforcement using local law enforcement to route around the Fourth Amendment restrictions on wiretaps.

To grant the state's arguments credence would undercut this fundamental American right. The court concludes by pointing out that the sting of losing evidence in criminal cases is meant to keep the government honest. It doesn't do its job as well as it should -- and the court notes it's of almost no use in civil litigation -- but the deterrent cannot be removed simply because a guilty person was apprehended.

The Fourth Amendment exists to be enforced, which means providing a remedy. As civil liability (in light of wide-ranging immunity and lack of practical damages) has not proven effective, exclusion, despite its costs, is the available remedy. Without the remedy of exclusion, no practical remedy would exist for Fourth Amendment violations, and "the protection of the Fourth Amendment declaring [one's] right to be secure against such searches and seizures [would be] of no value, and… might as well be stricken from the Constitution."

Filed Under: 4th amendment, columbus, ohio, public schools, robert lindsey, search, warrants
Companies: whetstone high school

New Zealand's Raid On Investigatory Journalist Was Illegal

from the all-these-raids dept

Back in the fall of 2014, we wrote about a highly questionable police raid on the home of Nicky Hager, a well-known journalist who had published powerful pieces criticizing the government (and who was working on some investigations concerning the Snowden documents and New Zealand's involvement in mass surveillance). The wonderful Freedom of the Press Foundation (who helped raise funds for Hager's legal defense) has now alerted us to the fact that the raid on Hager's home was deemed illegal by New Zealand's High Court:

The judge found that the search was illegal. He said that the Police had failed to disclose relevant information to the Judge who issued the warrant. As a result, he formally declared that the warrant was “fundamentally unlawful”. He also found that the search was therefore unlawful. Justice Clifford also expressed concerns about other aspects of the Police’s actions.

This reminds me of the raids on Kim Dotcom's house as well, which involved a bogus warrant. Though, in that case, the High Court, after admitting that the warrants were not drafted properly, decided they were "good enough." Either way, those are the only two law enforcement raids in New Zealand, and both came under sketchy circumstances, where the police couldn't be bothered to actually follow the rules. What's going on down there?

Filed Under: journalism, new zealand, nicky hager, privacy, protecting sources, raid, warrants

Judge Not Impressed With Government's Warrantless 921-Page 'Peek' Into A Suspect's Cellphone

from the also-discussed:-digital-forensic-tools-and-how-not-to-use-them dept

All the DHS wanted was a warrantless "peek" at the contents of a seized iPhone. The phone, one of three seized from a person suspected of drug trafficking, was examined by the DHS, with the warrant arriving a month later. Now, all of the evidence obtained from the phone is being tossed out.

In the order granting the suppression of evidence obtained from the phone, Judge Sterling Johnson points out that the government revised its story several times during oral testimony.

DHS Special Agent Thomas Wilburt worked with the CBP to detain the suspect, Adamou Djibo, at the JFK Airport. Djibo's iPhone was taken and examined by Wilburt, who couldn't seem to accurately recall the details of the examination.

First off, Wilburt made it clear that the DHS and CBP were searching for a particular kind of "contraband."

Wilburt defined the search as one for "contraband," and when asked by the Court to define contraband stated:

If they're leaving with any weapons, any mostly it's money, I think, they're looking for. Drugs as well. Drugs, often they'll go to Bermuda. Drugs come in here and go to Bermuda, as opposed to Bermuda from here. This particular case, the main search was for money.

The problem was, Djibo's money checked out. The declaration form was legitimate and the amount of currency he was carrying was found to be legal. (Yeah, let that last part sink in for a moment…)

Wilburt then took an iPhone from Djibo and asked him to input his passcode. Or not. The opinion contains several quotes from Wilburt's testimony, many of them elusive or contradictory. The opposing counsel found it nearly impossible to get Wilburt to provide an accurate portrayal of the phone's search and seizure.

Wilburt first claimed he couldn't recall whether or not he had asked Djibo for his passcode. He then claimed he didn't know when the passcode was used to unlock the phone and access the contents.

Counsel: After they took his boarding pass and his passport, his password was put into his phone. Is that right?

Wilburt: I don't know that his password was put into his phone then, no.

[...]

Counsel: You never saw his passcode get put into his phone?

Wilburt: I don't believe it was put into his phone then, no.

[...]

Wilburt: At some point, I put it into his phone. I don't know if I did it right then or I did it back at our office.

At a second hearing, Wilburt suddenly recalled when the passcode had been entered:

I believe it was after the exam was over and after he was arrested, we went back to our office, and then I proceeded to put that code into the phone.

But he became less clear on the details of what the agents had viewed on the phone during their warrantless "peek." Wilburt testified that the phone was hooked up to a Cellebrite (a device for forensic phone examinations), where "another agent… obtained all the information off the phone that we were able to."

When the court pointed out that the warrant to search the phone didn't arrive until a month later, Agent Wilburt then claimed the Cellebrite didn't actually grab "all the information" the government wanted, despite saying it had only moments earlier.

We wanted to get more in depth in the phone. Cellebrite, as far as I know, gives you basic information.

Wilburt vastly underplays the capabilities of this forensic device. It grabs address books, call logs, pictures, videos and text messages.


In this case, it returned incriminating information, well ahead of the warrant acquisition.

The Court: Were there any text messages or incriminating calls to the original defendant?

Wilburt: At a later point looking at that report, I believe there were text messages.

Agent Wilburt, apparently attempting to legalize the illegal search of Djibo's phone, tried to redefine "contraband" -- something he originally claimed was "specifically currency" -- to cover what he had already discovered without the acquisition of a warrant. Wilburt now claimed the phone needed to be accessed to look for "evidence of currency or other crimes."

Pressed further, Wilburt admitted the phone had been seized and searched without a warrant, but the DHS had only used its forensic device to get a "peek" at the contents.

I believe after -- nothing was seized at the border search. After he was arrested, I believe they ran an initial Cellebrite report or an initial search on the phone, just a preliminary peek.

(Hilariously, when the court asked Wilburt why he would seek a warrant when Djibo had already given him the passcode, he claimed it was to avoid "violating [Djibo's] rights.")

And what did that "peek" contain?

It was emails, text messages, undeleted content. So whatever was -- when you turn on your phone and you see your text messages and your emails, that's what they obtained with this initial peek.

So, basically all the communications contained in the phone. The court asked for a copy of the "peek" and was informed a CD would be burned and sent out, as the "peek" contained "hundreds" of pages. Three weeks later, it arrived in the court's hands.

The CD contained 921 pages of materials, all of which this Court has reviewed, including hundreds of text messages, WhatsApp messages, photographs and emails. Many of the messages appear to be written in code. For example, there are text messages about orders for 600 cases of diapers and 1500 cases of wipes; "booking confirmations" to a "personal trainer" who provides various styles of "sessions;" and about stomach ailments that have to be operated on in Ghana.

The government magnanimously agreed to "suppress the peek," while less magnanimously claiming it could have obtained the info anyway, even if it hadn't known the passcode.

Further questioning of DHS Special Agent David Bauer revealed the DHS could have taken a look at Djibo's phone without needing to know his passcode.

Bauer described a "fairly new" device called an IP-Box, which can be attached to an iPhone and systematically attempt every passcode from 0000 to 9999 without shutting down [the phone]... IP-Boxes came into the fray when Apple Inc. ("Apple") refused to assist the government with cell phone break-ins.

[Here's an IP-Box in action.]


Even less magnanimously, the government disputed Djibo's attempts to suppress the evidence it had obtained with a warrant. Starting with the alleged Fifth Amendment violations, the court has this to say about the government's relocation of the investigative goal posts.

It appears from his testimony that he stood by passively until the phones were discovered, but phones are not contraband. In fact, no contraband was found by the CBP. After that, the border search ended. The line of inquiry into Djibo's telephones thereafter changed the stage because the purpose of the original search was to find currency and currency cannot be found on a phone.

Citing the Supreme Court's Riley decision, the court finds that the original, warrantless 921-page "peek" was an illegal search, tainting every piece of evidence obtained subsequently.

In his affidavit in support of the application for a search warrant, he made no mention of having already looked at 921 pages of data from the phone. Therefore, not only was the initial search unreasonable… Agent Wilburt decided it was insufficient to support the narcotics investigation. He wanted "more." For these reasons, this Court finds that the forensic search of Djibo's phone was the fruit of the illegal initial search and was unreasonable.

[...]

The government's claim that it did not rely on the initial "peek" -- despite the wording of the search warrant -- is simply unsupported by the often contradictory evidence.

[...]

In this case, the search was undertaken to find contraband or currency and neither were found. There was no need to then seek out Djibo's passcode. It had nothing to do with national security at the airport on that day… That Djibo was arrestable based on the information from the Cooperator is of no great moment. He could have been arrested, his phone seized pursuant to border authority, and a search warrant obtained before any searching occurred. Wilburt sought to sidestep these constitutional guarantees.

The DHS was so sure it could build it case that it skipped all the essentials of building a case. And now it has no evidence and a guy "caught" carrying a legal amount of cash through an airport, which isn't going to help it "win" the Drug War.

Filed Under: 4th amendment, adamou djibo, dhs, mobile phones, peek, surveillance, warrants

Fourth Amendment Update: 'Community Caretaking' Narrowly Defined; 'Inevitable' Discovery No Excuse For Illegal Discovery

from the searches,-seizures-still-need-to-be-reasonable dept

Here's a brief roundup of Fourth Amendment-related court decisions in which judges have pushed back against law enforcement's insistence that these warrantless searches were completely justifiable.

The "community caretaking" aspect of law enforcement -- the part where the "protect" part of "protect and serve" gets a brief nod -- is often used as an excuse to perform a warrantless search, both before and after the fact. The underlying intent is honorable. If an officer sees a potentially stranded vehicle on the side of the road, he can approach the driver and attempt to render assistance. If an officer notices a broken window, he can approach the house or business and try to determine whether or not a burglary has occurred. Officers can also enter homes to render aid if they believe someone is in danger. All good things, but often abused to perform "plain sight" searches of property without a warrant.

In Kansas, a judge had no sympathy for the state's argument that an officer's stop of a vehicle was permitted under its "community caretaking" guidelines. As the court pointed out, most of the aspects of the "caretaking" more closely resembled regular police business: the investigation of criminal activity.

Based on Officer Vogt’s testimony, the sheriff department’s community caretaking policy requires its officers to check on any vehicle that is either parked along the side of the road or abandoned for public safety. Moreover, if a vehicle is located in a rural area, as Morales’ vehicle was, officers are to make sure that the vehicle is not stolen or a part of some other crime that the officers might uncover by running the vehicle’s license tag.

Because Morales’ vehicle was located in a rural area at 2:30 in the morning, it was readily apparent that Officer Vogt was operating under the second prong of the sheriff department’s formal community caretaking policy: to make sure that Morales’ vehicle was not stolen or was not a part of some other criminal activity. This position is supported by the fact that Officer Vogt had the dispatcher run Morales’ license plate tag immediately upon pulling in behind Morales’ vehicle.

When the driver is present in the vehicle, running the tag through law enforcement databases serves no "caretaking" function. The Sheriff's Department may consider it to be a key element of its public safety efforts, but the court doesn't.

As a result, the sheriff department’s community caretaking policy is not “‘totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'” Grabauskas, 33 Kan. App. 2d at 214-15 (quoting Cady, 413 U.S. at 441). In fact, Officer Vogt testified that the detection of crime was the principle reason for running a license plate tag in a rural area. Obviously, this policy violates the legal principles of Grabauskas, Gonzales, and Marx.

Calling it one thing ("community caretaking") while doing another (running plates for stolen vehicle hits) doesn't magically turn an investigation into roadside assistance. The court cites none other than Abraham Lincoln in its rebuttal of the state's arguments.

“‘How many legs does a horse have?’
“‘Four,’ said the witness.
“‘Right’, said Abe.
“‘Now, if you call the tail a leg, how many legs does a horse have?’
“‘Five,’ answered the witness.
“‘Nope,’ said Abe, ‘callin’ a tail a leg don’t make it a leg.'” Lamon v. McDonnell Douglas Corp., 19 Wash. App. 515, 534-35, 576 P.2d 426 (1978) (Andersen, J., dissenting).

Thus, officers calling a stop a public safety stop does not make it so, especially when there is an expressed investigatory component to their stated community caretaking policy.

As we've noted here before, being in a vehicle does terrible things to your Fourth Amendment rights. A person's home, however, is still considered mostly unassailable in terms of Fourth Amendment protections.

In this Florida case, bondsmen came across a grow operation while looking for a fugitive. They turned this info over to the police department. Rather than use this probable cause to obtain a warrant, the PD decided to search the house without one. Officers obtained a form of consent from the resident (coerced) and search the premises. When the evidence was challenged, the officers claimed they could have gotten a warrant, what with all the probable cause they had. On top of that, the government argued the grow operation would have been "inevitably discovered" had they actually sought a search warrant.

The court is unimpressed.

The question before this Court is whether the inevitable discovery rule requires the prosecution to demonstrate that the police were in the process of obtaining a warrant prior to the misconduct or whether the prosecution need only establish that a warrant could have been obtained with the information available prior to the misconduct. We conclude that permitting warrantless searches without the prosecution demonstrating that the police were in pursuit of a warrant is not a proper application of the inevitable discovery rule.

While "inevitable discovery" can sometimes "save" evidence obtained during a warrantless search, applying this reasoning to a situation where officers could have gotten a warrant but chose not to would allow the exception to swallow the rule. The court won't allow this to happen and points out that the Fourth Amendment isn't something law enforcement only needs to respect when it's convenient for it to do so.

The constitutional guarantee to freedom from warrantless searches is not an inconvenience to be dismissed in favor of claims for police and prosecutorial efficiency. While it is true that here the police were already in possession of the information leading to the evidence before the misconduct, they failed to pursue a legal means to attain this evidence… With no valid consent, and no pursuit of a search warrant, there are no legal means present that would have led to the evidence. In this way, the discovery was not inevitable notwithstanding the police misconduct, and the rule cannot be applied.

As we've seen time and time again, law enforcement often seems convinced warrants need only be sought after every warrantless option has been exhausted. That's not the way it's supposed to work, but it appears to be standard operating procedure. Fortunately, there's the occasional pushback from judges to keep this abuse from spiraling (further) out of control.

Filed Under: 4th amendment, privacy, searches, surveillance, warrants