DEA Loses Big Drug Case, Thanks To Illegal Wiretap Warrants Prosecutor Calls 'Procedural Errors'

from the self-inflicted-wounds-all-someone-else's-fault dept

The DOJ's counsel warned the DEA that its illegal wiretaps would get them into trouble.

"It was made very clear to the agents that if you're going to go the state route, then best wishes, good luck and all that, but that case isn't coming to federal court..."

"They'd want to bring these cases into the U.S. Attorney's Office, and the feds would tell them no (expletive) way," a former Justice Department official said.

But the DEA persisted, because it had a man [read: magistrate judge] on the inside. Judge Helios Hernandez, a state-level judge, approved five times as many wiretap warrants as any other judge in the country, acting as a rubber stamp for the DEA and the California law enforcement agencies it collaborated with. The DEA should have been running these warrant applications through a federal judge, but it seemed much happier with this arrangement.

The highly-questionable wiretap warrants have finally started to cause it problems. Brad Heath and Brett Kelman of USA Today -- the journalists who uncovered the massive, illegal wiretap program -- are now reporting that one of the faulty warrants has just cost the DEA a year's worth of surveillance efforts and, quite possibly, a significant amount of seized assets.

Federal drug agents spent months watching a tiny California jewelry store sandwiched between an auto parts shop and an apartment house with bars on its windows. They secretly recorded its owner’s phone calls and intercepted couriers carrying away boxes full of cash, sometimes stuffed with $100,000 or more. For more than a year, they gathered evidence that the store was laundering millions of dollars for drug traffickers.

[...]

Prosecutors determined that wiretaps the U.S. Drug Enforcement Administration used as the core of its investigation were illegal and couldn’t be used in court. Four suspects went free, and they want the government to give back nearly $800,000 drug agents seized.

The problem with the warrants used in this case were numerous. First, many of the suspects were prosecuted in San Bernardino while the wiretap warrants themselves were issued by the friendly courts in Riverside. On top of that, the warrants -- which were supposed to be signed only by a top prosecutor -- were signed by lower-level lawyers. This practice ran afoul of a restriction enacted in response to the FBI's abuse of wiretaps to surveil civil rights leaders in the 1960s.

Because Riverside District Attorney Paul Zellerbach rarely felt the need to comply with this restriction, hundreds of granted warrants are equally suspect. More cases are likely to be tossed in the future. Defense lawyers as far away as Kentucky and Oregon (where Riverside-granted warrants were deployed) are taking a closer look at the government's paperwork.

The most ridiculous reaction has come from the head of the office that just saw all of its evidence tossed. According to San Bernardino's top prosecutor, illegal wiretap warrants are no big deal -- certainly not worthy of having a yearlong investigation nullified.

“These people were dealing in drugs, and they are guilty, and because of a procedural issue and a suppression motion, they got away with it,” said Mike Ramos, the district attorney in San Bernardino, Calif., whose office prosecuted the case.

Man, those "getting away with it" grapes look incredibly sour. For many years, it has been the DEA and local law enforcement "getting away with it." These "procedural errors" never seemed to concern the agencies that used illegally obtained evidence to put people in prison. It's not until one gets away that anyone expresses an opinion on hundreds of illegal wiretap warrants. And the statement that's delivered isn't one of regret or contrition, but one of resentment that "guilty" people can also benefit from "procedural errors."

Filed Under: 4th amendment, dea, helios hernandez, riverside, san bernardino, warrants, wiretaps

SEC, DOJ And Law Enforcement Want To Rewrite Email Privacy Law Update... In Their Favor

from the updated-for-government-needs-and-wants dept

The SEC (Securities and Exchange Commission) has been fighting much-needed updates to the ECPA (Electronic Communications Privacy Act) for a few years now, claiming that treating old email like new email would somehow strip it of its power to investigate and punish wrongdoing. For no discernible reason, legislators decided to treat electronic mail like physical mail, designating unopened emails over six months old "abandoned" and accessible by almost anyone using nothing more than a subpoena.

Moving the law towards logic would insert a warrant requirement for old emails, bringing them under the same protection as emails less than 180 days old. But it's not just the SEC that's resistant to changing the law. It's also local law enforcement and the DOJ itself, both of which have greater powers than the SEC when it comes to accessing electronic communications.

The most recent hearing featured testimony from the SEC, DOJ and, for no discernible reason, the Tennessee Bureau of Investigation. The consensus is that the law should be updated, but not that part of it (SEC) and only if it makes it easier for law enforcement to obtain more stuff without warrants (DOJ, TBI).

The SEC's argument against the introduction of a warrant requirement is that it would prevent the agency from obtaining other user data from ISPs using only a subpoena, glossing over the fact that it likes having warrantless access to tons of email.

When we conduct an investigation, we generally will seek emails and other electronic communications from the key actors via an administrative subpoena – a statutorily authorized mechanism for gathering documents and other evidence in our investigations. In certain instances, the person whose emails are sought will respond to our request. But in other instances, the subpoena recipient may have erased emails, tendered only some emails, asserted damaged hardware, or refused to respond – unsurprisingly, individuals who violate the law are often reluctant to produce to the government evidence of their own misconduct. In still other instances, email account holders cannot be subpoenaed because they are beyond our jurisdiction.

It is at this point in an investigation that we may in some instances, when other mechanisms for obtaining the evidence are unlikely to be successful, need to seek information from the internet service provider (ISP). H.R. 699 would require government entities to procure a criminal warrant when they seek the content of emails and other electronic communications from ISPs. Because the SEC and other civil law enforcement agencies cannot obtain criminal warrants, we would effectively not be able to gather evidence, including communications such as emails, directly from an ISP, regardless of the circumstances.

As is (sort of) admitted in the SEC's testimony, the current law provides more protection for physical documents than electronic ones. However, SEC Director Andrew Ceresney spins this as an argument against modifying the ECPA.

Some have asserted that providing civil law enforcement with an ability to obtain electronic communications from ISPs in limited circumstances would mean electronic documents enjoy less protection than paper documents. That is not accurate. Indeed, as currently drafted, H.R. 699 would create an unprecedented digital shelter – unavailable for paper materials – that would enable wrongdoers to conceal an entire category of evidence from the SEC and civil law enforcement.

The DOJ and Tennessee Bureau of Investigation also express alarm at the proposed rollback of subpoena powers, but they use the kidnapping of children, rather than financial misconduct, as their starting points.

While the DOJ admits the 180-day cutoff period makes very little sense, it suggests no fixes along those lines. Instead, it suggests warrant exceptions for Pen Register statutes (information about communications) be aligned with those in the Wiretap Act (the communications themselves) so DOJ agencies can acquire the data along with the communications when operating a wiretap. It makes a certain amount of sense, but it's actually just the DOJ asking for the less-stringent set of exceptions (tied to the Wiretap Act, believe it or not) to be applied across the board.

It also asks for legislators to better define what can be accessed with certain orders to eliminate "inconsistency" in judge behavior.

The Fifth Circuit has interpreted this provision to require a court to issue a 2703(d) order when the government makes the “specific and articulable facts” showing specified by § 2703(d). See In re Application of the United States, 724 F.3d 600 (5th Cir. 2013). However, the Third Circuit has held that because the statute says that a § 2703(d) order “may” be issued if the government makes the necessary showing, judges may choose not to sign an application even if it provides the statutory showing. See In re Application of the United States, 620 F.3d 304 (3d Cir. 2010). The Third Circuit’s approach makes the issuance of § 2703(d) orders unpredictable and potentially inconsistent; some judges may impose additional requirements, while others may not.

(Hey, judicial inconsistency isn't much fun for defendants, either.)

Once again, the DOJ is looking for a less-stringent standard to be applied, rather than truly looking to bring this law into the 21st century. Its plea for "technologically-neutral" handling of communications data is similarly focused on applying a lower standard to the acquisition of communications, no matter their source.

The Tennessee Bureau of Investigation, on the other hand, argues that an updated ECPA would put too much power in the hands of ISPs and other entities responsive to law enforcement warrants and subpoenas.

H.R. 699 goes far beyond the commonly stated goal of modernizing ECPA by requiring a search warrant for all stored content. In fact, it creates protections for a wider range of stored electronic evidence that could pose a greater hindrance to law enforcement than protections afforded evidence stored on a computer inside a house or office. Searches in response to ECPA process are performed by service providers, not by law enforcement officers, and H.R. 699 extends the notice provisions previously necessary only with lesser levels of process like subpoenas along with the probable cause standard. The end result is that law enforcement has to get a search warrant to access more evidence, and must bear the added burden of notice requirements that were previously limited to lesser process, without the benefit of controlling the execution of the warrant.

Apparently, any increase in difficulty -- no matter its relation to the Fourth Amendment -- is unacceptable.

Because H.R. 699 in its current form imposes burdens that will make our job harder without offering any relief in other areas, we urge the committee not to pass H.R. 699 without amending the bill to reflect greater sensitivity to the concerns of the state and local law enforcement community. When we have to get a warrant, it should mean something; right now, H.R. 699 turns the compulsory process of a search warrant into a subpoena with a higher proof requirement.

The Bureau's Richard Littlehale further lays out his argument for lowered requirements by claiming entities being served with legal paperwork have been less than helpful in the past.

In many instances, we are unable to utilize evidence that would be of enormous value in protecting the public because the technologies used to carry and store that information are not accessible to us, no matter what legal process we obtain. That may be because of technological problems, but just as frequently it is because of non-technical barriers to access. The companies that retain these records are often unable or unwilling to respond to law enforcement’s lawful demands in a timely manner, and there are few consequences for an incomplete or inaccurate response. The primary emergency disclosure provision in the section of ECPA that we use to obtain stored content is voluntary for the providers, not mandatory, and even where emergency access is granted to law enforcement, in some instances, there is insufficient service provider compliance staff to process legitimate emergency requests quickly.

Littlehale's argument appears to be a paraphrasing of Pat Paulsen's satirical campaign slogan: if we (law enforcement) have to up our standards, up theirs! He apparently feels ISPs, etc. don't face enough legal penalties for not immediately handing over everything law enforcement demands, whether they have the capability to do so or not. Littlehale wants warrant service under a modified ECPA to more closely resemble warrant service at a residence: where cops announce their presence after they've entered and destroyed everything they touch in search of evidence. He can't handle the fact that private entities maintain control of digital communications sought and that his agency (and others) must approach them (rather than drive up on their lawns and shoot grenades through their windows) with the proper paperwork and wait until responsive information is gathered and turned over.

Much like the DOJ and the SEC, Littlehale doesn't want an updated law. He wants a law rewritten to treat digital communications like physical communications, bringing the barrier to access and the expectation of privacy down to the lowest level possible. That's what is really being discussed here. Not a rewrite of an outdated law to reflect the reality of modern communications, but ways to make an already law enforcement-friendly law even friendlier.

Filed Under: 4th amendment, doj, ecpa, reform, sec, warrants

IRS Looking To Purchase Another Stingray; Promises To Start Obtaining Warrants

from the will-continue-to-investigate-murders-in-its-spare-time dept

Now that it's been a few weeks and we're used to the idea that the IRS has a Stingray device, more information has arrived to put us slightly more ill at ease. Sen. Ron Wyden asked IRS head John Koskinen some pointed questions about the IRS's cell tower spoofer ("WTF?" wasn't one of them) and has received some answers.

The IRS assures Wyden -- and by extension, the American public -- that it only uses them correctly and in a limited fashion through its criminal investigation division.

IRS use of cell-site simulation technology is limited to the federal law enforcement arm of the IRS, our Criminal Investigation division. Only trained law enforcement agents have used cell-site simulation technology, carrying out criminal investigations in accordance with all appropriate federal and state judicial procedures.

The IRS has only one* Stingray at this point, but is acquiring another, because you just can't have enough cell site simulators these days. It will also start obtaining warrants, in accordance with the DOJ's non-legally-binding suggestion that its agencies do so going forward.

*Possibly two -- see Marcy Wheeler's comments towards the end of this post.

But everything it said above about its Stingray use being limited to the IRS's Criminal Investigation division isn't exactly true. It may have sent its agents out to assist other law enforcement agencies with their work, but it did not limit its Stingray usage to its own investigations.

In addition, IRS-CI has used the cell-site simulator to assist in four non-lRS-CI investigations, one other federal and three state investigations. The federal case was a Drug Enforcement Agency (DEA) federal grand jury narcotics investigation, and tracked one cellular device. In this instance, IRS-CI operated the cell-site simulator, based upon the appropriate federal court order obtained by DEA, and followed all applicable laws under the guidance of an Assistant United States Attorney. The three state cases were non-grand jury investigations involving attempted murder, murder, and gun trafficking, and tracked six cellular devices.

So, the IRS sent its Stingray out to assist other agencies with their investigations. It's understandable that the DEA would be aware the IRS had a Stingray in its possession, but the three state investigations were performed by local agencies that somehow knew to ask the IRS if it had a cell site simulator they could borrow.

Even more absurd is the fact that the IRS is in the process of acquiring another cell site simulator. It's not as though it's worn the other one out, as Marcy Wheeler notes.

In other words, over the course of its almost 4 year life, the Stingray has tracked just 44 devices.

That seems to suggest this tracking isn’t just a quick one-off, otherwise they wouldn’t need another device, as they’re currently in the process of getting.

Perhaps however, this is a testament to the obsolescence of these devices. In his response to Wyden, Koskinen doesn’t mention the Stingray IRS bought in 2009, suggesting it may not be in use anymore.

The government is sure blowing through these expensive surveillance toys in quick succession.

If everything adds up (including Daniel Rigmaiden's exposure of the IRS's cell phone tracking efforts in his case), this would be the third device the IRS has purchased -- or at least the third it will have access to. Stingrays aren't cheap and at ~4 deployments a year, it would seemingly make more sense for the IRS to borrow one from another federal agency when it needs one, rather than acting as a small-time Stingray lending library for state agencies.

If Wheeler's other conjecture is accurate -- that these devices need periodic replacement -- then Harris is no different than a host of other tech manufacturers who make planned obsolescence an integral part of the business model.

Filed Under: 4th amendment, imsi catcher, irs, privacy, stingray, warrants

California Police Used Illegal Wiretap Warrants In Hundreds Of Drug Prosecutions

from the all-aboard-the-suppression-train dept

Earlier this month, Brad Heath and Brett Kelman of USA Today reported that the DEA was running a massive amount of wiretap applications through a single judge in Riverside County, California. Judge Helios Hernandez has signed off on five times as many wiretap warrants as any other judge in the United States.

The DEA, being a federal agency, is supposed to be running its wiretap warrant applications past federal judges, rather than county judges, but has seemingly found itself a very willing participant in its southern California surveillance dragnet.

The DOJ isn't particularly thrilled with the DEA's warrant funneling. A handful of unnamed federal proecutors stated the agency had been previously warned that its use of a local court meant there was little chance the DOJ would offer its blessing for prosecution at the federal level. Notably, the DOJ legal staff wasn't concerned enough about the potential illegality of the DEA's actions to stop it from routing everything through Hernandez's courtroom. They were only irritated enough to tell the DEA to keep its tainted evidence out of federal courts.

So, a federal agency has already been exposed as participating in likely illegal activity related to one of the most intrusive surveillance options it has at its disposal. Now, Heath and Kelman are back with more bad news from Riverside. It's not just the feds. It's also the locals.

Prosecutors in the Los Angeles suburb responsible for a huge share of the nation’s wiretaps almost certainly violated federal law when they authorized widespread eavesdropping that police used to make more than 300 arrests and seize millions of dollars in cash and drugs throughout the USA.

The violations could undermine the legality of as many as 738 wiretaps approved in Riverside County, Calif., since the middle of 2013, an investigation by USA TODAY and The Desert Sun, based on interviews and court records, has found. Prosecutors reported that those taps, often conducted by federal drug investigators, intercepted phone calls and text messages by more than 52,000 people.

This 4th Amendment-violating joint task force involved local cops, federal agents and a very complicit District Attorney's office. As Heath and Kelman explain, changes made to federal law in the 1960s (and upheld by the Supreme Court in 1974) as a response to the exposure of the FBI's secret surveillance of civil rights leaders require the government to obtain authorization from the presiding DA before heading to court with a wiretap warrant request.

However, in Riverside County, home to 20% of the nation's approved wiretap warrants, this approval process was frequently delegated to the DA's underlings. Former DA Paul Zellerbach -- who presided over the massive increase in Riverside County wiretap applications -- rarely performed this task himself.

Despite a federal court ruling that only the district attorney himself should usually approve wiretaps, Zellerbach said in two interviews over the past month that he could not recall having reviewed or personally authorized any of the county’s wiretap applications and said he was unaware of the details of the requests. Instead, he said, he delegated that job to one of his assistants.

“I didn’t have time to review all of those,” Zellerbach said. “No way.”

A 2013 Ninth Circuit Appeals Court decision says Zellerbach (and other DAs) can delegate this authority, but only when the District Attorney isn't physically available ("absent") and designates someone to act in their place. For Zellerbach, this exception was the rule. His delegation of the approval process often occurred while he was present in his office, as Heath and Kelman discovered.

[R]ecords show Riverside prosecutors routinely requested wiretaps on days when he was working. Federal court records show prosecutors applied for five wiretaps Feb. 18, 2014, for example, when Zellerbach appeared at a news conference to talk about metal thefts. The next week, prosecutors applied for nine more wiretaps on a day when Zellerbach’s office posted a photo on Twitter of him meeting with a delegation of Chinese officials in his office conference room. In each case, reports by the federal court administrative office list [Assistant DA Jeffrey] Van Wagenen, not Zellerbach, as the person who approved the surveillance.

Not only has the DEA been acquiring wiretap warrants in a way that makes the cases too toxic for the DOJ to pursue in federal court, but the apparently illegality of the District Attorney's actions should make the cases toxic anywhere. Any evidence obtained directly or indirectly from the wiretaps could easily be suppressed. The fact that so many warrants lead back to a single judge and a single DA's office means defendants shouldn't have too much trouble determining whether this apparently illegal surveillance helped build a case against them.

The DOJ may be unwilling to do anything more than publicly (but anonymously) express its disgruntlement, but at least the district attorney's office is in new hands. The new DA (Mike Hestrin) has aligned his officer's wiretap policy with the 9th Circuit Court's ruling. He has said, however, that he will defend his predecessor's wiretap orders if they are challenged in court.

Filed Under: california, dea, riverside, warrants, wiretaps

Illinois Magistrate Judge Lays Down Ground Rules For Stingray Device Warrants

from the law-enforcement-agencies:-'Is-there-someone-else-we-could-talk-to?' dept

It looks like a few law enforcement agencies might be doing some judge-shopping in the future. Magistrate judge Iain D. Johnston has announced -- via an order in a (mostly) sealed drug investigation case -- that agencies will no longer be able to come to him to get their Stingray-related orders rubber stamped.

His order points out that there's still hardly any information in the public domain about Harris Corporation's cell-site simulators, and even less so in terms of legal precedent.

[T]he manufacturer of cell-site simulators (a company called the Harris Corporation) is extremely protective about information regarding its device. In fact, Harris is so protective that it has been widely reported that prosecutors are negotiating plea deals far below what they could obtain so as to not disclose cell-site simulator information.

[...]

So where is one, including a federal judge, able to learn about cell-site simulators? A judge can ask a requesting Assistant United States Attorney or a federal agent, but they are tight lipped about the device, too; in all likelihood because of the NDAs…

The Court could attempt to learn about the device on the Internet. See Stingray Phone Tracker, http://en.wikipedia.org/wiki/Stingray_phone_tracker (last visited October 19, 2015). But most reasonable people know to be highly skeptical about what they read on the Internet, particularly in Wikipedia posts… [These] articles often rely on secondary source material, including the possibly untrustworthy Internet websites.

Unfortunately, the one place where a person will be unable to find much discussion of cell-site simulators is case law. In the Matter of the Application of the United States of America for an Order Authorizing the Installation and Use of a Pen Register and Trap and Trace Device, 890 F. Supp. 2d 747, 752 (S.D. Tex. 2012) (“Regardless of what it is called, there is scant case law addressing the equipment.”). And even case law that discusses stingrays refers to newspaper reports as authority on these devices.

Judge Johnston recommends magistrates at least read the DOJ's own guidelines for electronic surveillance. Unfortunately, this document is a decade old and portions of it have been overwritten by the DOJ's recent guidance on the use of Stingray devices. But it's better than nothing. And "nothing" has been the goal of both law enforcement and law enforcement agencies over the past several years -- something that has been achieved in large part thanks to the FBI putting its own NDA between Stingray-related information and courts, defendants and, in some cases, prosecutors.

Using what little information he's been able to gather, Johnston has produced a set of ground rules for Stingray warrant applications. There are Constitutional issues raised by the use of Stingray devices, which collect device information (including location) even when the phone part of the phone isn't in active use.

As Johnston points out, agencies using these devices routinely collect and store information on thousands of non-suspects, thanks to the catch-it-all nature of cell-site simulators. Like anything else Stingray-related, these agencies show little interest in discussing how this non-hit information is handled. Because of this, Johnston says the following guidelines will need to be followed if law enforcement agencies want him to sign off on cell-site simulator warrants.

When a cell-site simulator is used, the Court will impose three requirements: the first relates to the manner in which the device is used; the second relates to the destruction of innocent third parties’ data; and the third explicitly prohibits the use of innocent third parties’ data.

When using these devices, law enforcement agencies must make every reasonable effort to limit the amount of information gathered from innocent third parties. As an example, Johnston says pursuing a suspect may find police parked in front of a full stadium. If this is the case, the Stingray device should not be deployed as the ratio of non-hit data would be astronomical. As he points out, any reasonable law enforcement agency would prefer not to dig through tons of irrelevant data to find the devices they're actually looking for.

This leads directly to the second requirement: the destruction of innocent third party data. Johnston won't allow agencies to sit on data for the 90 days or six months they're accustomed to (see also: the very few guidelines issued for the use of automatic license plate readers by law enforcement).

[L]aw enforcement officers must immediately destroy all data other than the data identifying the cell phone used by the target. The destruction must occur within forty-eight hours after the data is captured. The forty-eight hour time frame is designed to have some consistency with other Fourth Amendment principles…

And it's not enough for agencies simply to claim they will destroy non-relevant data within 48 hours. They also must deliver to the court confirmation that the destruction of non-hit data has been completed.

Finally, Johnston's rules forbid the use of non-hit data for any other reason, heading off potential Stingray fishing expeditions by law enforcement agencies.

[L]aw enforcement officers are prohibited from using any data acquired beyond that necessary to determine the cell phone information of the target. A cellsite simulator is simply too powerful of a device to be used and the information captured by it too vast to allow its use without specific authorization from a fully informed court.

The order notes that this applies to any federal agency working with local law enforcement. The FBI, DEA and US Marshals all must comply with Johnston's stipulations, so any local agency looking to work around the new rules can't send in a federal rep with a warrant request, or vice versa.

If Johnston's court becomes a place law enforcement agencies avoid, their actions will make it clear they have little respect for the Fourth Amendment and would rather use power surveillance tools indiscriminately and without additional oversight.

Filed Under: 4th amendment, iain johnston, imsi catcher, stingray, warrants

Connecticut Police Announce Plan To Open Unlocked Vehicles And Seize Valuables

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

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

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

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

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

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

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

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

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

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

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

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

State v. Matalonis

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

State v. Garrison

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

State v. Graham

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

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

Grotheer says all laws are open to interpretation.

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

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

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

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

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

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

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

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

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

Thank you for reaching out about this…

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

Thanks again…

Laurence…

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

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

The IRS Has A Stingray As Well Because Of Course It Does

from the you-get-a-Stingray!-and-you-get-a-Stingray!-every-agency-gets-a-Stingray! dept

Did this sort of thing come about because someone at the nation's most hated agency whined that "everyone else was getting one?" Because there seems to be no logical explanation for this:

The Internal Revenue Service is the latest in a growing list of US federal agencies known to have possessed the sophisticated cellphone dragnet equipment known as Stingray, according to documents obtained by the Guardian.

Invoices obtained following a request under the Freedom of Information Act show purchases made in 2009 and 2012 by the federal tax agency with Harris Corporation, one of a number of companies that manufacture the devices.

No explanation will be forthcoming. The documents The Guardian obtained were heavily redacted and requests for comments were met with silence. But there it is: the IRS not only has a Stingray, but it paid $65,000 to upgrade it to the Hailstorm model, allowing it to continue to intercept calls and data without being locked out by upgraded cell networks.

It appears the agency does have the legal authority to deploy the devices. (The IRS is part of the Treasury Department and not subject to the new, exception-loaded warrant requirement handed down by the DOJ.)

[Former IRS Deputy Commissioner Mark] Matthews said there are currently between 2,000 and 3,000 “special agents” in the IRS who form the criminal investigation division (CID). They have the ability to get PEN register orders – the only authority needed to use Stingray devices.

Considering the criminal activity the IRS investigates most frequently -- tax evasion -- rarely involves highly-mobile suspects or the use of burner phones, it seems unlikely the IRS's Stingray sees much use. Then again, it does partner with other law enforcement agencies in criminal investigations, presumably under the Al Capone Theory of "tax evasion, if nothing else."

He said the IRS on its own usually uses gentler investigation tactics. But increasingly, investigating agents from the agency are brought on board for joint operations with the FBI and other agencies when the latter need financial expertise to look at, for example, money laundering from drug organisations.

Even if the IRS is frequently assisting with these investigations, it's pretty much guaranteed that whatever agency it's partnering with already has this technology on hand. The IRS's acquisition of a cell tower spoofer would seem to be redundant, at best. Then again, maybe it's redundancy the government wants. Can't have drug-running suspects slipping out of sight just because the local DEA office's Stingray is in the shop.

Of course, the IRS's Stingray could become the go-to device in the future, if federal law enforcement agents are looking for a way to circumvent the DOJ's new warrant requirement. They could send IRS agents with pen register paperwork to obtain permission to deploy cell tower spoofers.

But at the same time, the IRS's Stingray device seems to be more a product of "because it's available" thinking. Why not have one on hand, just in case? When the news arrives that Fish and Wildlife or the US Postal Inspector's Office has one, it will be greeted with "of course they do" shrugs, because that's just the way things go these days.The US government is sold on the "essentialness" of cell tower simulators and with funding for devices often tied to ever-swelling budget lines for Wars A (Drugs) and B (Terrorism), no agency should have to go without.

Filed Under: hailstorm, irs, stingray, surveillance, warrants
Companies: harris corp.

Law Enforcement And The Ongoing Inconvenience Of The Fourth Amendment

from the Bill-of-Suggestions,-apparently dept

The Fourth Amendment somehow still survives, despite the government's best efforts to dismantle it… or at the very least, ignore it.

Law enforcement agencies seemingly have never met a warrant they didn't like. They'll do everything they can to avoid getting one, even though the process appears to be little more than [INSERT PROBABLE CAUSE] [OBTAIN WARRANT].

New Jersey was one of the last states to pay lip service to the warrant requirement for vehicle searches, but recently overturned that because it seemed to be too much of an inconvenience for officers (and drivers [but really just officers]). The court noted that the telephonic warrant system no one had bothered using didn't seem to be working very well, and so the warrant requirement had to go.

Everywhere else, there's any number of ways law enforcement officers can avoid seeking warrants. Exigent circumstances, bumbling ineptitude/warrant-dodging d/b/a "good faith," the Third Party Doctrine, coming anywhere near a national border, dogs that always smell drugs, the superhuman crime-sensing skills of patrolmen, etc.

Even when an incident lends itself to the successful acquisition of a warrant, law enforcement still seeks ways to avoid taking this step. Here are two such incidents -- both called out by judges -- in which warrants could have been easily obtained, but simply weren't.

Tennessee:

Captain Greg Workman of the Elizabethton Police Department (“EPD”) testified that on August 14, 2012, he received a dispatch at 1:47 a.m. to a single-car accident on Milligan Highway. He arrived at the scene within five minutes of the dispatch and found a white BMW “intertwined with a metal pole in the Milligan Grocery parking lot” and an individual, later determined to be the Defendant, lying outside of the driver‟s side door. Captain Workman observed another individual in the passenger seat of the car and attempted to make contact with the Defendant to determine the number of occupants in the car and their identities. The Defendant appeared to have an open fracture to his left leg and was “obviously in pain” and “confused.” He was unable to recall the number of occupants in the car or the identity of the individual in the passenger seat. While assessing the scene, Captain Workman smelled an “odor of alcohol, but could[ not] determine whether or not it was coming from [the Defendant] or from the vehicle.”


Because of his injuries, the Defendant was soon transported by ambulance to the Johnson City Medical Center (“JCMC”). Captain Workman testified that he “knew it was a possibility” that the Defendant was under the influence of alcohol at the time of the accident, and based on the totality of the circumstances, he believed that “exigent circumstances existed and [the police] needed to draw blood as soon as [the Defendant] got to the hospital.” He explained, “[There was] a high impact collision to a fixed structure[,] . . . [and the Defendant] was lying in the roadway with an open fracture to his leg. We [were] concerned not only about the injuries that we observed externally, but [also] the internal injuries that he could have[.]” He directed an officer to follow the ambulance and obtain a blood sample from the Defendant.

So, a person with a broken leg on his way to being confined to a hospital bed needed to be tested for his blood alcohol content. The officer claimed "exigent circumstances" prevented him from seeking a warrant. But exigent circumstances hardly describe an immobile, hospitalized person. And the officer freely admitted he had plenty of warrant acquisition options.

On cross-examination, Captain Workman testified that he observed the Defendant for approximately 45 seconds to one minute while on the scene. He also stated that he had investigated three mandatory blood draw cases and had never sought a search warrant to draw the suspect‟s blood. He agreed, however, that he had drafted approximately 40 search warrants in his career and had taken 20 to 25 search warrants to a nearby judge‟s house “at all hours of the night.” He further agreed that two judges lived within a few miles of the accident scene and were willing to receive officers at any hour of the night to sign search warrants. He acknowledged that the EPD has search warrant templates and that search warrants can be drafted based on knowledge received from other officers. He also acknowledged that the officers on the scene had cell phones and radios but stated that there were no officers on duty at the police station at the time of the accident. He conceded that four of the 11 officers that responded to the scene had experience drafting search warrants.

A suspect in a hospital bed… eleven cops on the scene… and two judges a few miles away. And yet, no warrant was sought. When the court punched holes in the "exigent circumstances" excuse, the police tried to use the state's "implied consent" statute. (Basically, by operating a motor vehicle, you consent to blood draws and other sobriety tests.) But the court pointed out that the officers predicated their actions on "exigent circumstances" and they can't have it both ways.

Despite these [implied consent] arguments on appeal, the State conceded at the suppression hearing that this case involved a “non-consensual blood draw” and relied solely on exigent circumstances to justify the search… Accordingly, we conclude that the State has waived our consideration of this issue and decline to address it.

Conviction reversed, evidence suppressed and remanded to the lower court for a retrial. All for the lack of warrant any of the eleven responding officers could have sought during the time the driver was en route to the hospital.

California:

Police engaged in a long standoff with a suicidal subject whose only alleged crime was to fire a gun into the woods which he thought were unoccupied. Every window in the house was broken by tear gas canisters, and he didn’t come out. The police threw in a throw phone to communicate with him, but he wouldn’t pick it up. Finally, he was killed by a police sniper to prevent him from committing suicide.

The standoff lasted twelve hours. In the early morning hours, the tactical team thought it might need a few things, but a warrant wasn't one of them.

The Team maintained the siege of the house all night without seeking a warrant. They did request and receive coffee, granola bars, and hot chocolate. Fewins later indicated that he never considered asking for a warrant because he believed it was unnecessary. Asked to explain why he would not need a warrant to arrest Carlson in his home, Fewins referred to his earlier speculation that the shot into the woods might have constituted “reckless discharge of a weapon”—a misdemeanor.

The Sheriff's Department claimed exigent circumstances excused it from seeking a warrant. While the lower court bought the argument, the appeals court found this much harder to believe.

Thus, the district court believed that exigent circumstances existed at 9:00 p.m. when the tactical response team began surrounding Carlson in his house and continued unabated for more than twelve hours until the sniper killed him there the next morning.

Exigent circumstances, the judge points out, are linked to time and danger. The longer a situation lasts, the less likely it is that the circumstances are still "exigent." A standoff might seem like a tense situation, but when the suspect has done nothing threatening for several hours in a row, it's pretty tough to claim the danger hasn't dissipated past the point of exigency.

Viewing the totality of the circumstances from the perspective of a reasonable officer at the time of the first tear gas barrage, Carlson was thought to be (and actually was) alone in the house. His neighbors were safely out of Carlson’s reach (though not, as it turns out, entirely safe from the tear gas). The Team had Carlson contained with snipers and other officers carefully monitoring his floodlit house. Even after Carlson stopped responding to their negotiator, they had family members near at hand with open lines of communication. They had time to call a convenience store for refreshments; they had time to call a judicial officer.

Not exactly the most exigent of circumstances. The court goes on to call out the Sheriff for his inability to understand a warrant's purpose under the guidance of the Fourth Amendment.

The choice to call for granola bars but not a warrant appears to have been driven by the Sheriff’s misunderstanding of the Fourth Amendment. “[I]nconvenience to the officers and some slight delay . . . are never very convincing reasons . . . to bypass the constitutional [warrant] requirement.” Fewins’s approach—choosing not to even request a warrant because he thought a misdemeanor arrest warrant would not have been “handy” or “put [the Team] in a better bargaining spot”—misses the point entirely. Judicial warrants are not intended to blindly facilitate whatever course of action a sheriff prefers. They are required by the Fourth Amendment “so that an objective mind might weigh the need to invade th[e] privacy [of the home] in order to enforce the law.” The Fourth Amendment thus protects people from the power of the state by requiring judicial preapproval, time permitting, of intrusive or forceful entrances and seizures.

Instead of giving a sheriff the discretion to decide whether to seek a warrant from a neutral judicial officer based on how helpful the warrant would be to the sheriff, “[t]he point of the Fourth Amendment” is to vest the discretion to approve or deny an officer’s plan to seize a person or search a house in a “neutral and detached magistrate.” Id. The warrant requirement is relaxed when an emergency situation makes it unreasonable to delay long enough to seek one, not when—as Fewins suggests here—a warrant simply would not have been particularly useful in the field. The facts available at summary judgment raise an inference that the Team had the time—and thus the constitutional obligation—to get a warrant from a judge before entering Carlson’s house with tear gas and surveillance equipment.

Summary judgment in favor of the law enforcement agency reversed and remanded to the lower court for a trial.

A warrant is an insurmountable inconvenience, it seems, even when everything about the situation suggests it isn't.

Filed Under: 4th amendment, law enforcement, warrants

Defendants Counter Government's Arguments That Appeals Court Should Treat Cellphones As 'Personal Homing Beacons'

from the government-still-thinks-it's-1979 dept

A couple of weeks ago, the government petitioned the Fourth Circuit Court of Appeals for an en banc rehearing of its decision finding that the acquisition of historical cell site location information (CSLI) requires a warrant. The government used many of the arguments the dissenting opinions did -- mainly that CSLI should still be considered a "business record" under the Third Party Doctrine.

It argued that while the court had held that cellphone users do not voluntarily convey location data when they use their phones, they also do not affirmatively agree to provide service providers with time, date, number called and length of the phone. These are all just parts of how service providers do business. With this argument, the government hopes to equate the tracking technology of modern cellphones with the simple phone records created by landlines -- the latter of which can be obtained without a warrant.

Obviously, the two types of data are nothing alike. Landlines don't generate location information because they're in a fixed position. Cellphones -- on top of creating location records whenever a call is placed -- also create continuous location data as they hop towers to obtain signals, even while the phone is not in active use.

The defendants in the original case have filed their opposition to the government's request for a rehearing, arguing (naturally) that the court came to the correct decision the first time around.

The panel correctly decided that tracking a person using historical cell site location information (CSLI) for 221 days, without a warrant or probable cause, is dragnet surveillance that the Fourth Amendment prohibits. See United States v. Jones, 132 S. Ct. 945, 952 n.6 (2012). The government is essentially asking this Court to treat cell phones as personal homing beacons, providing it the wherewithal to follow and recreate a person’s every movement. The government seeks to do so without a warrant or probable cause, using the excuse that telecommunications providers also happen to know when and where an individual has gone and is going.

The difference between what the government did here and what George Orwell envisioned is that Big Brother’s constant surveillance through telescreens was stationary. But the surveillance here moves with citizens using a common household device carried in the pockets or purses of almost every American adult. Our Founders crafted the Fourth Amendment to require a warrant based on probable cause before the government could acquire such intimate information about a person. The panel’s conclusion that the government must comply with the warrant requirement before obtaining historical CSLI correctly applies the Fourth Amendment.

More to the point, the filing argues that the government's purported reason for the rehearing request is flawed in and of itself. The government noted the circuits are split in their opinions of CSLI's Fourth Amendment implications. The government says a rehearing will "resolve" the current circuit split. The defendants point out that a rehearing will do nothing of the sort, no matter how the court resolves its own differences from its first (divided) opinion. That's up to the nation's highest court to settle, should such a petition be granted.

While it is true that the majority opinion conflicts with decisions from the Fifth and Eleventh Circuits regarding the applicability of Smith and Miller and the third party doctrine, these courts had already split with the Third Circuit. The Eleventh and Fifth Circuits held that individuals have no reasonable expectation of privacy in historical CSLI because, under Smith and Miller, individuals voluntarily disclose their location data to cellular service providers…

These splits existed before the panel’s decision. The panel thoroughly addressed all the different positions in its 134-page opinion. If any further review of this issue should occur, it should be in the Supreme Court, the only forum that can clarify the fractured state of the law. A petition for certiorari is already pending in Davis, which, if granted, would resolve these splits.

The opposition filing also notes that while the government cites several court decisions in support of its Third Party Doctrine-based arguments, it relies on nothing more current than 1979's Smith vs. Maryland -- the decision that upheld the warrantless acquisition of call routing data via pen register orders. In doing so, it bypasses the most recent Supreme Court decisions on cellphones and warrants: Riley and Jones.

Riley v. California establishes that individuals have a privacy interest in historical CSLI. 134 S. Ct. 2473, 2490 (2014). Historical CSLI generated by cell phones served as one of the Court’s chief examples of “the privacies of life” included in cell phone metadata. The Court described just how intimate and detailed location data is: “Data on a cell phone can also reveal where a person has been. Historic location information . . . can reconstruct someone’s specific movements down to the minute, not only around town, but within a particular building.” Id. The Court explained the intrusive nature of CSLI tracking by adopting Justice Sotomayor’s concurrence in United States v. Jones, 132 S. Ct. 945, 955 (2012). The unanimous Riley Court thus concluded that monitoring “a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations” infringes upon an individual’s reasonable expectation of a privacy that is protected by the Fourth Amendment.

These findings are echoed in the appeals court's decision, but the US government wants those conclusions rolled back. A patchwork of conflicting opinions on CSLI and the Fourth Amendment won't be resolved until the Supreme Court addresses the issue directly, but until then the government apparently would like to keep its warrantless options open.

Filed Under: 4th amendment, cell site location info, csli, doj, location info, mobile phones, warrants

Cops Dodge Warrant Requirement By Grabbing Two Weeks Of Data, But Entering Only 6 Hours Of It As Evidence

from the too-clever-by-much-more-than-half dept

Today's novel legal argument: take a ruling on cell site location info warrant requirements and make it fit the warrantless data haul obtained earlier by submitting only the "quantity" the court has previously OKed.

To get a sense of where we're going with this, here's a bit from the opening paragraphs of the opinion:

The defendants, Jason Estabrook and Adam Bradley, stand indicted for murder and related crimes arising out of a shooting that took place on July 7, 2012, in Billerica. They moved to suppress evidence of historical CSLI pertaining to Bradley's cellular telephone that the police initially obtained in July, 2012, without a search warrant but in compliance with 18 U.S.C. § 2703 (2006), and then, in November, 2013, reobtained pursuant to a warrant.

The CSLI was sought twice. This is the first sign that something's not quite right. Historical cell site location information doesn't change. That's the thing about history. And yet, the police obtained it twice: once with a subpoena (which was wrong) and once with a warrant (the lawful way to do it).

You see, the Massachusetts courts had already created a bright-line (of sorts) for the acquisition of cell site location data. Under the state's interpretation of its Declaration of Rights, cell site location info carries with it a reasonable expectation of privacy. This status demands the use of a warrant. An earlier decision determined that small amounts (up to six hours) of CSLI can be obtained without a warrant, as the limited time period makes acquisition much less analogous to long-term tracking.

The police knew they could only get six hours of CSLI without a warrant, but they had already grabbed two week's worth using only a subpoena. But the officers had an angle…

In this case, however, because the Commonwealth requested two weeks of historical CSLI, a search warrant was required, even though the Commonwealth proposes to use only six hours of the CSLI as evidence at trial.

That's a very opportunistic reading of the court's intentions. If the police were so inclined, they could subpoena a year's worth of CSLI and trim it down to only the most incriminating six hours of data before presenting it in court. Or they could just go fishing with subpoenas, look over the collected data and see if they could match any six hours of it to an investigation or prosecution.

The court points out the flaw in this logic, which, let's face it, the cops knew all along.

It is important to emphasize that, in terms of reasonable expectation of privacy, the salient consideration is the length of time for which a person's CSLI is requested, not the time covered by the person's CSLI that the Commonwealth ultimately seeks to use as evidence at trial.

The warrant requirement is for the "asking," not the "telling," to put it elementary school terms.

Fortunately for the police, the twice-obtained CSLI didn't harm their case too much. The defense argued that other evidence -- including statements made to the police -- should be suppressed because it originated from tainted CSLI. The court, however, concludes that a great deal of evidence was obtained independently and that only a few moments from various interviews could be traced back to inferences drawn from the cell site location info.

The court also came to the conclusion that the warrant the police sought well after it already had the subpoenaed CSLI in hand was likely legitimate, rather than just a shoddy attempt to cover up its earlier misdeed. Over the course of several paragraphs, the court lists all of the information gathered by officers prior to their issuing of the subpoena and finds it adds up to probable cause that isn't overly-reliant on the already-acquired CSLI info. The court doesn't offer any speculation as to what actually happened here, but rather points out that the CSLI was still lawfully-obtained, and anything stemming from the latter acquisition cannot be suppressed.

While this obtain-twice, admit-once method of cell site evidence acquisition didn't pay off for the criminal defendants, it at least provides another citable example of how far law enforcement agencies are willing to go to bypass the mild logistical hiccup that is obtaining a warrant.

Filed Under: 4th amendment, adam bradley, cell site location info, csli, data, jason estabrook, location info, massachusetts, seizure, warrants