San Francisco PD Raids Journalist's Home To Find Out Which One Of Its Cops Leaked An Autopsy Report

from the tfw-an-internal-investigation-ends-up-inside-a-civilian's-house dept

If someone at your police department has leaked a sensitive documents, how should you respond?

A. Conduct an internal investigation to find the source of the leak

B. Raid a journalist's home

If you're the San Francisco Police Department, you do both.

San Francisco police on Friday raided the home of a freelance journalist who provided three Bay Area television stations with a copy of a police report into the death of Public Defender Jeff Adachi, the journalist and police officials said.

Bryan Carmody, a freelance videographer known in the industry as a stringer, told The Chronicle that San Francisco police executed a search warrant at his Outer Richmond District home and Western Addition office and seized his computers, cell phones and other electronic devices.

Whoever leaked it, did it quick. The autopsy report appeared on newcasts only hours after the public defender collapsed in his apartment. An internal investigation was opened following some public criticism of the PD's handling of sensitive info. The leaking of this document suggested someone in the force wanted to take a shot at the public defender (and fierce critic of the PD) only hours after his passing by letting the public know about the illegal substances found in Adachi's system. City officials recognized this and came down hard on police officials.

In response, the SFPD has apparently decided to externalize its internal investigation. While it's possible this raid will ultimately result in the discovery of the leaker, this end does not justify the means. Law enforcement does serious damage to protected speech when it goes after journalists to out their sources. If the SFPD had restricted its investigation to its own officers, journalists wouldn't be feeling a chill descending on their line of work.

And this all came about because the SFPD can't take "no" for an answer. Journalists should protect their sources. If they don't, they soon won't have any. Courts have recognized the need to protect sources, as have a handful of journalist shield laws around the nation.

“The search warrant executed today was granted by a judge and conducted as part of a criminal investigation into the leak of the Adachi police report,” said David Stevenson, a police spokesman.

He added that the “actions are one step in the process of investigating a potential case of obstruction of justice along with the illegal distribution of a confidential police report.”

[Journalist Brian] Carmody said two inspectors with the Police Department’s Internal Affairs Bureau “politely asked” for his source on the Adachi report two weeks ago, but he declined to reveal the person’s name.

This is a dangerous game the SFPD's playing. It's betting a court won't find a stringer protected by California's journalist shield law. There's no case law stating affirmatively that freelance journalists are covered by this law, but the text of the law suggests stringers who sell footage, photos, and information to other journalists are probably protected.

A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

That's not going to play well in court. The state's shield law provides absolute immunity in criminal prosecutions and contempt hearings when the journalist is not being criminally charged. It doesn't appear anyone's planning on charging this journalist with a criminal act… at least not at this point. And yet, the PD decided to treat him like a criminal to search for evidence needed to close its internal investigation. There's a good chance the SFPD misrepresented what Carmody did for a living to sneak the warrant past the judge and the state's shield law. And with this possibly bogus warrant, it seized 15 computers, "numerous tablets," and Carmody's personal cellphone. If Carmody decides to sue, it's going to be very difficult for the SFPD to defend its actions.

Filed Under: 4th amendment, bryan carmody, jeff adachi, journalism, sfpd, source protection

Electronic Warrants And Roadside Blood Draws Are The New Normal For DUI Checkpoints

from the jetsons-were-so-wrong-about-so-much dept

A few years ago, the National Highway Traffic Safety Administration brought down the heat on itself by teaming with local law enforcement to set up roadside blood/saliva draws. The plan was to compile data on impaired driving, but the "voluntary" sample stations were staffed by cops who flagged motorists down, leading many to believe this was just another DUI checkpoint.

Now that the NHTSA is out of the picture, local law enforcement is taking care of this itself. Only it very definitely is mandatory and any data-gathering would be incidental to the real purpose of these checkpoints: arresting impaired drivers. It's 2019 in America and we can only now proudly say we're the Home of the Roadside Blood Draw.

It was about 6:30 on a Friday night in January when Phoenix Police Det. Kemp Layden pulled over a white Jeep Cherokee that was speeding and weaving in and out of its lane.

The 47-year-old driver spoke slowly, his eyes were red and watery, and his pupils were dilated. The inside of the Jeep reeked of marijuana, and the driver failed a field sobriety test, which includes walking heel-to-toe and standing on one leg.

He told the officer he had smoked marijuana a few hours earlier and taken a prescription sedative the night before, police say. The man passed a portable breath test — he wasn’t drunk. But Layden suspected he was impaired by drugs, which the test can’t detect.

A DUI police van equipped with a special chair and table for blood testing pulled up. The man refused to submit to a blood draw. So Layden grabbed his laptop and filled out an electronic warrant, or e-warrant, which was transmitted directly to a judge.

Within 10 minutes, Layden had a search warrant. Another officer drew the man’s blood. A lab report later confirmed he had active THC and a sedative in his blood.

Roughly 80 minutes after he was stopped, this driver had traded his vehicle for a DUI citation.

This will become more common as time goes on. With the legalization of marijuana use in several states, there's a new form of impairment that can't be caught with a breathalyzer. While there's definitely a law enforcement interest in limiting impaired driving, there's also a lot of fiduciary pressure to continue to bust drivers generate revenue even when the driver's drug of choice isn't alcohol... and the driver may not even actually be impaired.

This is leading to two things: an increase in electronic warrants sent at odd hours to judges who will likely approve any boilerplate sent from a DUI checkpoint... and a whole bunch of minimally-trained officers running roadside blood drives out of police vans.

The good news is some training is actually happening. The bad news is certified training is the exception, not the rule.

At least nine states have law enforcement phlebotomy programs: Arizona, Indiana, Maine, Minnesota, Ohio, Pennsylvania, Rhode Island, Utah and Washington state, and Illinois is starting one, according to the national highway safety agency.

That doesn't mean every ad hoc blood draw is a communicable disease vector staffed by officers using your arm to rack up OJT hours. In Arizona, for instance, officers must have 100 hours of training before they perform blood draws and must perform the job in OSHA-approved environments. But that doesn't mean every agency is as demanding as the ones in Arizona are, so the experience may be far more unpleasant than a normal DUI checkpoint.

[S]ince officers aren’t in the healing profession, [defense attorney Donald] Ramsell said, they’re not concerned about pain reduction or hitting a vein. He cited the case of a client arrested in Arizona who had a blood draw in a police DUI van.

“The officer poked him at least 15 times, and because he has a medical condition it was next to impossible to draw enough blood to fill a 10-cc tube,” he said, referring to the size of the tube in cubic centimeters. “Those knuckleheads just kept poking the hell out of him. They only got 3 ccs.”

The only thing keeping this from being even worse is a 2016 Supreme Court decision. Without it, these blood draws wouldn't even have a hasty judicial scrawl at the bottom of a dozen pages of boilerplate authorizing Officer Nurse to take blood from drivers' arms. Meanwhile, officers are touting the speed of this new dystopian feature as a win for the public, since the guilty parties will be able to processed into the criminal justice system in less than half the time.

According to Utah Highway Patrol Trooper Janet Miller, a certified phlebotomist, “It’s been a great tool not only for law enforcement but for the individual placed under arrest.

“Instead of spending three to six hours with the officer, it’s been cut down to one to two,” she said. “They can get to the jail sooner and get out sooner.”

Win-win, I guess.

Filed Under: 4th amendment, blood draws, dui, dui checkpoints, electronics, police, searches, traffic stops, warrants

Coalition Of Rights Activists And Journalists Wants To Know Why DHS, CBP, And ICE Are Spying On Activists And Journalists

from the can't-be-authoritarian-without-exceeding-your-authority dept

Early this March, documents obtained by NBC San Diego showed the DHS was targeting journalists. activists, and immigration lawyers for enhanced screenings and device searches by the CBP. The previously-secret database held dossiers on people suspected of doing nothing more than participating in Constitutionally-protected activity.

The DHS provided no explanation for this collection of dossiers. The CBP attempted to explain its participation in rights violations by first claiming it was necessary to secure the border. Then it said every one of the 59 journalists, lawyers, and activists in the leaked documents were "present" during "violence" that "broke out at the border" last November. That these people would be present at such an event is unsurprising, given the amount of attention being paid to our southern border and immigration in recent months. That the CPB would decide this justifies dossiers, enhanced screenings, and invasive device searches is a bit more disturbing, as it has the potential to negatively affect a number of Constitutional rights.

The Center for Democracy and Technology -- along with dozens of humans rights activists and journalist entities -- have sent a letter to the head of the DHS, demanding this surveillance stop immediately and that an investigation be opened to determine this effort's origins, as well as its extent. It also demands DHS and CBP hand over all policies, guidelines, and documents detailing what information the agencies collected during this possibly-unlawful surveillance.

But there's more to the letter than demands and expressed concerns. CDT's letter also recounts further details that have come to light over the past couple of months, including ICE joining the unconstitutional party to engage in immigration and customs enforcement by… surveilling political protests?

In addition to CBP, ICE engaged in questionable conduct that threatens the rights of free expression and association. ICE-HSI created a spreadsheet of protests that occurred in New York City between July 21 and August 17, 2018. The list contained the names of the groups sponsoring each protest, the political goal of the protest, and the number of people who signed up on Facebook to attend the protest. One spreadsheet was labeled “Anti-Trump Protests.” ICE’s surveillance activity does not appear to be predicated upon any suspected violation of a law ICE enforces.

While we do not see evidence that ICE created records with personally identifying information, it is unambiguous that ICE documented First Amendment-protected activity, which may violate the Privacy Act of 1974 and warrants further investigation. To the extent ICE is monitoring and creating records of First Amendment-protected activity of U.S. citizens and lawful permanent residents, and to the extent such records are not pertinent to and within the scope of its authorized law enforcement activity, such conduct is in violation of the Privacy Act.

The DHS and its subsidiaries are keeping the homeland secure by using Constitutional rights as a doormat. There's nothing about this surveillance and targeting that even remotely suggests the end result will be a safer America. There can be little doubt these activities are being engaged in almost solely for the purpose of dissuading journalists from covering border activities, immigrants from finding good legal representation, and activists of all sorts from expressing their displeasure with the government.

The answers these entities are seeking probably won't arrive any time soon. Most likely, it will take pressure from Congress, along with a number of FOIA lawsuits, to make this information public. The current administration seemingly has no problem with the collateral damage its border-focused directives are creating. And with zero pressure to fall in line with the Constitution coming from up top, it's likely these abuses will continue unabated for immediate future.

Filed Under: 4th amendment, activists, cbp, dhs, ice, reporters, surveillance

Massachusetts Judge Says ATF Can Apply A Suspect's Fingerprints To Unlock An IPhone

from the five-finger-Fifth-Amendment-discount dept

It looks like a passcode still beats a fingerprint when it comes to securing your info. Maybe not from criminals, but definitely from the government. Lisa Vaas of Naked Security reports the ATF has received permission from a federal judge to apply a suspect's fingerprints to a phone to unlock it.

[T]he document, issued on 18 April, Massachusetts federal district judge Judith Dein gave agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) the right to press a suspect’s fingers on any iPhone found in his apartment in Cambridge that law enforcement believes that he’s used, in order to unlock the devices with iPhone Touch ID.

The warrant [PDF] authorizes ATF agents to "press the fingers (including the thumbs)" of suspect Robert Brito-Pina to the "Touch ID sensor of any Apple cellular phone" recovered during the search. Brito-Pina is suspected of buying and selling weapons -- neither of which are permissible given his felon status. The ATF apparently believes evidence of this will be found on Pina's iPhone.

There doesn't appear to be any limit on how many fingers the ATF can use to unlock the phone. The warrant says only that officers will decide which fingers to apply. Presumably, that means all of them (including thumbs), since there's no language limiting officers to a certain number of finger applications. The only thing preventing every finger from being applied during the search is the iPhone itself, which will require a passcode after five wrong fingerprint applications.

The phone's nexus is established pretty thoroughly in the warrant application, which much of the sting operation using an arrestee-turned-informant being carried out via text messages. The government moved to unseal the warrant five days after applying for it, suggesting it has already executed this warrant.

The weird thing about the warrant application, which thoroughly details the sting operation and the ATF's surveillance of the suspect, is it appears the swearing agent isn't actually sure Pina owns an iPhone.

Given the popularity of Apple brand devices, I believe it is likely that I will find Apple brand devices such as an Apple iPhone at the Target Location.

And, despite authorizing the agents to only use Pina's finger to unlock any recovered iPhones, the warrant still contains boilerplate stating agents may demand fingerprint applications from anyone at the searched residence.

In some cases, it may not be possible to know with certainty who is the user of a given device, such as if the device is found in a common area of a premises without any identifying information on the exterior of the device. Thus, it will likely be necessary for law enforcement to have the ability to require any occupant of the Target Location to press their finger(s) against the Touch ID sensor of the locked Apple device(s) found during the search of the Subject Premises in order to attempt to identify the device's user(s) and unlock the device(s) via Touch ID.

This case likely won't budge the needle on the Fifth Amendment question. At least, not yet. If Pina wants the evidence gleaned from the iPhone suppressed (assuming there is an iPhone), there may be further discussion of this crucial issue in the future. Most judicial decisions on the use of biometrics to unlock devices have sided with government, asserting that faces and fingerprints are "non-testimonial," even if they're the gateway to plenty of evidence that will be used against the defendant. But there have been a few judges who've taken contrary stances, so the issue is far from settled.

Filed Under: 4th amendment, 5th amendment, atf, fingerprints, massachusetts, search, unlock

Washington State Supreme Court Tries, Fails To Protect The Rights Of The State's Residents

from the no-points-for-effort dept

A correct conclusion was almost reached by the Washington Supreme Court… but it was foiled by the fact that only eight justices reviewed the case. Here's the backstory to the decision that almost was, via Nick Sibilla of Forbes.

The case began more than three years ago in Shoreline, Washington when a late-night shouting match between Solomon McLemore and his girlfriend prompted a bystander to dial 911. When the officers arrived and repeatedly demanded to be let in, the yelling stopped though no one answered the door. After 15 minutes and still no response, police heard glass shattering and, suspecting domestic violence, began forcing their way inside. As the officers broke down the door, McLemore told police that they were infringing on his rights and that they needed a warrant. Officers also heard McLemore tell his girlfriend to tell police that she was ok.

Once inside, police determined that the woman was not injured and promptly threw McLemore in handcuffs. But McLemore wasn’t charged for domestic violence. Instead, police arrested McLemore for “obstructing a law enforcement officer,” which involves “willfully hinder[ing], delay[ing], or obstruct[ing] any law enforcement officer in the discharge of his or her official powers or duties.” For refusing to open his door to police, McLemore was convicted for obstruction and sentenced to 20 days of house arrest.

The issue before the court should have been a foregone conclusion, but the court's headcount helped prevent that from happening.

Here's the question: is a citizen obligated to grant the government access to their residence in the absence of warrant? The answer should obviously be, "No." It certainly shouldn't be obstruction charges. It's not that there aren't exceptions to the warrant requirement. It's whether or not citizens have a legal duty to assist officers with their warrantless entry.

The officers definitely had a legitimate exception at their disposal. A report of possible domestic violence gives officers all the permission they need for a warrantless entry under the community caretaking function. Entering the apartment to ensure any possible victims weren't in need of medical care or other assistance is justifiable. McLemore, however, refused to allow the officers to enter without a warrant.

But a valid warrant exception doesn't automatically place a burden on homeowners to allow officers inside. McLemore's refusal to open the door and, once officers were inside, refuse to help officers sort out the domestic situation shouldn't be a crime. That was the conclusion originally reached by the nominal "majority" of the split court [PDF].

Criminalizing the refusal to open one's own door to a warrantless entry would be enormously chilling and inconsistent with our deeply held constitutional values.

[...]

Even under the more limited protections afforded by the Fourth Amendment than our own constitution, "[w]hen law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak."

[...]

Under the limited construction of the statute required by our constitution, a defendant's conduct that amounts to passive delay will not sustain an obstruction charge.

That was the correct conclusion to reach. It would have brought the state in line with the rest of the country. As the ACLU noted in its amicus brief, Washington is the only place where "an individual can be convicted for peacefully refusing a warrantless home intrusion."

Less than a day after the court had decided to join the other 49 states in decriminalizing non-criminal behavior, the court recounted its votes and decided the tie was actually a loss for state residents.

It is hereby ordered that that the lead opinion of Gonzalez, J., filed April 18, 2019, in the above entitled case is changed as indicated below.

On page 17, line 2 of the slip opinion, beginning with "We", strike all material down to and including "opinion." on line 3 and insert:

We in the lead opinion would hold the city presented insufficient evidence to sustain McLemore's conviction and remand to the trial court for further proceedings consistent with this opinion. However, we recognize this opinion has garnered only four signatures. "Therefore, there being no majority for the reversal of the judgment of the trial court, it necessarily stands affirmed, and the order of this court is that the judgment appealed from be and it is hereby affirmed." Peterson v. City of Tacoma. 139 Wash. 313, 313, 246 P. 944 (1926).

Thanks to this reversal of its own reversal, cops can continue to arrest people for exercising their rights. That's no way to run a judiciary. Equally concerning is the fact that four justices apparently decided the lousy status quo wasn't worth upending. A reversion to an "enormously chilling" standard shouldn't be an acceptable conclusion, but that's all Washington residents have left until this is appealed to the highest court in the nation.

Filed Under: 4th amendment, obstruction, solomon mclemore, warrant, washington

CBP, ICE Have No Idea If Their Thousands Of Warrantless Device Searches Are Actually Making The Country Safer

from the so-essential-we-can't-even-be-bothered-to-justify-it dept

An ongoing lawsuit by the EFF and ACLU challenging warrantless device searches at the border has uncovered some disturbing news. The CBP and ICE have guidelines that govern these searches but they're so expansive they allow these agencies to search any device for almost any reason. We know this because it came straight from the agencies in their testimony during this case.

The government has long argued -- mostly successfully -- that the our rights as Americans (and those we extend to those entering our country) simply don't apply at the border. Why? The best the government can offer is that national security trumps the Constitution within 100 miles of any border, port, or international airport. Securing the nation apparently can't be done without violating rights, so rights will just have to be violated.

The CBP has been searching devices with increasing frequency over the past couple of years, providing plenty of ammo for court challenges. Unfortunately, none have been successful. But maybe this damning testimony showing the government granting itself all sorts of leeway might finally result in some restoration of our rights at our borders. The many details of border search policies are detailed in the EFF/ACLU's motion for summary judgment [PDF], asking the court to side with Americans and their rights, rather than exaggerated claims about the insecurity of our nation.

The CBP's policies place almost no restrictions on searches of devices. Basic searches -- which involve an agent paging through a phone's contents manually, rather than using another device to perform a forensic search -- can be done with zero reasonable suspicion.

Policy allows officers to retain devices for as long as they want. The policy says retention shouldn't exceed five days, but there is no upper limit to how long the CBP can hold onto a device with supervisory approval. The policies also allow the CBP to retain data from devices even when it has no probable cause to do so.

This information is then shared with a number of other agencies, which the CBP can't be bothered to vet.

The CBP Policy permits officers to share information retained from electronic devices with federal, state, local, and foreign law enforcement agencies. Exh. 19 (CBP 2018 Directive) at § 5.5.1.3, Bates 122.

CBP does not know how long other government entities keep the information they receive from CBP’s border searches of electronic devices. Exh. 13 (CBP 30(b)(6) depo.) at 200:2–12.

CBP does not monitor whether other government entities impermissibly retain the information CBP shares from border searches of electronic devices. Exh. 13 (CBP 30(b)(6) depo.) at 203:7–204:3

If the CBP wants to, it can turn over seized devices to ICE. ICE has its own policies, but it also does not need reasonable suspicion to perform a basic search. Unlike the CBP, ICE says it has up to 30 days to perform a device search. Again, this soft cap on retention can be removed by a supervisor, giving the agency indefinite possession of someone else's devices.

Unlike the CBP, ICE actually destroys info that isn't relevant to its work. But that may not matter much because ICE is also allowed to share this info with other agencies and does not make any destruction demands when its does so.

If a person has been flagged by CBP's "Automated Targeting System," the information pulled from their devices can be stored for more than a decade.

If an advanced search of an electronic device yields information that a CBP officer deems of law enforcement benefit, then the officer will copy it into ATS.

[...]

ATS stores copies of data from travelers’ devices, not officers’ narrative descriptions of that data. Exh. 13 (CBP 30(b)(6) depo.) at 190:10–19.

ATS stores copies of data from travelers’ devices for 15 years or “the life of the law enforcement matter,” whichever is longer. Exh. 23 (CBP 2017 ATS PIA) at Bates 1037.

The number of device searches by the CBP continues to escalate, up from 5,085 in 2012 to 33,295 in 2018. These numbers are likely lower than the actual number of searches the agency performed because CBP officers aren't all that great at filling out paperwork -- something that happened to the plaintiffs in this lawsuit.

CBP determines the number of border searches of electronic devices in a given period by calculating the number of closed or completed Electronic Media Reports (“EMRs”). Exh. 26 (Defs. Interrog. Responses) at #11. EMRs are sometimes called “IOEMs.” Exh. 13 (CBP 30(b)(6) depo.) at 201:7–9.

CBP officers sometimes do not complete EMRs after conducting border searches of electronic devices. Exh. 27 (DHS OIG 2018 Report) at Bates 973, 978; Exh. 13 (CBP 30(b)(6) depo.) at 248:18–249:9.

For example, on August 28, 2017, CBP officers searched the smartphone they seized from Plaintiff Nadia Alasaad’s bag. Exhs. 15 & 16 (Answer and Complaint) at ¶¶ 73–74, 76. Defendants have no records, including EMRs, documenting that search. Exh. 26 (Defs. Doc. Responses) at #17.

We have to assume the same thing is happening with ICE. Unfortunately, we don't know how often ICE searches devices because the agency has conveniently decided not to track that information.

Despite both agencies claiming to be very concerned about national security and immigration law violations, a lot of what ICE does has nothing to do with either.

ICE asserts that agents may conduct a warrantless or suspicionless border search of the electronic device of a traveler:

a. Who is suspected of violating tax laws, to find emails reflecting the tax law violations. Exh. 14 (ICE 30(b)(6) depo.) at 29:4–8, 31:5–12.

b. Who is suspected of hiding assets in bankruptcy, to find emails reflecting the hiding of assets. Id. at 33:4–22.

c. Who is an executive of a company suspected of criminally dumping toxins into a river, to find emails reflecting the illegal dumping. Id. at 31:14–23, 32:2–8.

d. Who is suspected of violating consumer protection laws, to find evidence reflecting the consumer protection law violations. Id. at 32:10–33:2.

e. Who is suspected of money laundering, to find emails or other evidence reflecting money laundering, including the creation of corporations and accounts and the structuring of deposits. Id. at 41:3–42:13

ICE likely searches devices for evidence of any number of criminal activities unrelated to immigration or customs enforcement. Multiple federal agencies are making use of the border exception by proxy, asking ICE to perform the warrantless searches they can't.

ICE’s decisions to conduct warrantless or suspicionless border searches of electronic devices are informed by information or requests from other government agencies. Exh. 26 (Defs. Interrog. Responses) at #17. See also Exh. 14 (ICE 30(b)(6) depo.) at 189:9–190:21, 191:18–192:3. These agencies include the Bureau of Alcohol, Tobacco, Firearms and Explosives, Internal Revenue Service, Secret Service, Federal Bureau of Investigation, State Department, state and local police departments and county sheriffs, and foreign law enforcement agencies. Exh. 14 (ICE 30(b)(6) depo.) at 194:13–201:25.

It's not just the Fourth Amendment being ignored at the borders. It's also the First Amendment. ICE testimony shows it searches the devices of journalists if they've made any contact with suspected terrorists or "foreign sources of interest to the government," regardless of whether or not the journalist is suspected of wrongdoing.

Despite a stated need to use Constitutional rights as a doormat in the interest of the greater good -- i.e., securing the nation -- neither agency can say for sure these invasive warrantless searches are actually making the country safer.

CBP and ICE do not know how many warrantless or suspicionless border searches of electronic devices uncover digital contraband. Exh. 26 (Defs. Interrog. Responses) at #13; Exh. 13 (CBP 30(b)(6) depo.) at 68:10–14; Exh. 14 (ICE 30(b)(6) depo.) at 44:25–45:7.

CBP and ICE do not know how many warrantless or suspicionless border searches of electronic devices uncover potential evidence of criminal activity. Exh. 13 (CBP 30(b)(6) depo.) at 68:15–20; Exh. 14 (ICE 30(b)(6) depo.) at 338:18–24.

CBP does not know how many warrantless or suspicionless border searches of electronic devices result in prosecution or conviction. Exh. 27 (DHS OIG 2018 Report) at Bates 982.

ICE does not know how many warrantless or suspicionless border device searches result in criminal arrests or indictments, or referrals to other law enforcement agencies. Exh. 36 (ICE/HSI Priority Requests) at Bates 93.

This is the tradeoff: we lose our rights and, in return, we get a shrug. It's time for the judicial system to stop cutting the federal government so much "national security" slack.

Filed Under: 4th amendment, cbp, device searches, ice, record keeping

Massachusetts' Top Court Says Warrants Are Needed For Real-Time Cell Site Location Info

from the this-means-you,-Stingrays dept

Five years ago, the Massachusetts Supreme Judicial Court got out ahead of the tech curve by declaring that state law enforcement would need warrants to seek historical cell site location info. This predated the US Supreme Court's Carpenter decision by four years. The state court's prescient decision was compelled by the state's Constitution, which provides greater protections than the United States' Constitution.

But no matter which Constitution was used, the court found that the Third Party Doctrine shouldn't cover CSLI because, while everyone uses cellphones to communicate with each other, not a single cellphone user carries one around just to create tracking data for the government.

A recent decision by the same court expands protections for cellphone users -- going further than Carpenter's protection of historical cell site location info. As the ACLU's Kade Crockford points out, real-time acquisition of location info now comes with a warrant requirement. This covers more than service provider-assisted "pings." It also covers one of law enforcement's favorite toys.

Crucially, the ruling takes a different approach from the Supreme Court’s Carpenter decision in one key respect: Instead of confining its mandate to the narrow circumstances of the case before the Court, the ruling extends the warrant protection to other types of real-time cellphone tracking, including where the government uses its own technology rather than requesting the assistance of cellphone companies. In a huge victory for Massachusetts residents, the ruling explicitly specifies that it additionally applies to law enforcement’s use of so-called “stingrays,” also known as cell-site simulators, or devices that police can use to directly track cellphones—enabling police to cut out the cellphone company from the equation entirely.

As the court points out in its decision [PDF], manipulating a person's phone to reveal its location has nothing to do with third-party records or phone users' implied relinquishment of this tracking data. The only party involved is the government. The service provider may be involved, but the phone's owner certainly isn't.

The intrusive nature of police action that causes an individual's cell phone to transmit its real-time location raises distinct privacy concerns. When the police ping a cell phone, as they did in this case, they compel it to emit a signal, and create a transmission identifying its real-time location information. [...] This action and transmission is initiated and effectively controlled by the police, and is done without any express or implied authorization or other involvement by the individual cell phone user. See id. (noting that cell phone ping is "undetectable to the [cell phone] user"). Without police direction, such data would also not otherwise be collected and retained by the service provider.

This active inducement of a signal, solely for the purpose of locating a phone, is something invasive enough it requires a warrant. Since that's all Stingrays do -- induce all phones in the area to cough up identification/location info -- there's no way Stingrays aren't covered by this ruling. The court is clear law enforcement means and methods that subvert societal expectations are unreasonable. Hence the need for warrants.

We confidently conclude that such police action implicates reasonable expectations of privacy. Indeed, society reasonably expects that the police will not be able to secretly manipulate our personal cell phones for any purpose, let alone for the purpose of transmitting our personal location data.

The footnote attached to this paragraph specifically references Stingray devices. And it makes it clear this ruling covers whatever new tech/method law enforcement uses to obtain real-time location info, preemptively instituting a warrant requirement for future tech developments.

We recognize that the government's ability to compel a cell phone to reveal its location is not limited to the pinging that occurred in this case. For instance, law enforcement in other jurisdictions have used "cell site simulators" to track down persons of interest by "trick[ing] all nearby phones" into revealing their location information (quotations omitted). State v. Andrews, 227 Md. App. 350, 379 (2016). Nor do we doubt that as technology continues to advance, the government will develop new ways to compel an individual's cell phone to reveal its location. The privacy concerns raised by pinging a cell phone apply equally to any circumstance where the cell phone's location information is generated as a direct result of the government's manipulation of an individual's cell phone.

It's a solid ruling. And it shows some states are going to set the pace in tech/privacy cases simply because their state Constitutions provide residents with more protections than are found at the federal level. If we can't get a unified stance from the top court in the land, maybe we can piece it together state-by-state.

Filed Under: 4th amendment, cell site location info, csli, massachusetts, privacy, warrants

Appeals Court: Chalking Tires For Parking Enforcement Violates The Fourth Amendment

from the extra-4th-with-bonus-pun-topping dept

A rather surprising conclusion has been reached by the Sixth Circuit Court of Appeals: a common parking enforcement tool of the trade may be unconstitutional.

Not everyone who's been ticketed multiple times for parking violations has made a federal case of it. Alison Taylor did, though, arguing that Saginaw, Michigan's practice of "chalking" tires was a violation of her Fourth Amendment rights. Taylor had been ticketed fifteen times when she decided to sue. The court sides with her, finding that marking tires to determine whether a vehicle has been parked too long constitutes not just a search, but an unreasonable one, under the Fourth Amendment.

The Appeals Court opinion [PDF] leads off with an almost unforgivable pun:

Parking enforcement officers return to the car after the posted time for parking has passed, and if the chalk marks are still there—a sign that the vehicle has not moved—the officer issues a citation. Alison Taylor, a frequent recipient of parking tickets, sued the City and its parking enforcement officer Tabitha Hoskins, alleging that chalking violated her Fourth Amendment right to be free from unreasonable search. The City moved to dismiss the action. The district court granted the City’s motion, finding that, while chalking may have constituted a search under the Fourth Amendment, the search was reasonable. Because we chalk this practice up to a regulatory exercise, rather than a community-caretaking function, we REVERSE.

The route the court takes to reach this conclusion is circuitous and somewhat amusing, especially if one imagines Saginaw city reps watching with increasing dismay as their "easy win" assumptions are dismantled paragraph by paragraph.

The Appeals Court references the Supreme Court's Jones decision to arrive at its determination that chalking tires = search. In that decision, the Supreme Court punted on the issue of tracking devices as searches, opting instead to find the warrantless placement of the device on someone's car as an intrusion in and of itself, a "trespass" onto someone's private property -- in this case, a car.

In recent years, however, the Supreme Court revisited the seldom used “property-based” approach to the Fourth Amendment search inquiry in United States v. Jones, 565 U.S. 400 (2012). Under Jones, when governmental invasions are accompanied by physical intrusions, a search occurs when the government: (1) trespasses upon a constitutionally protected area, (2) to obtain information. Id. at 404–405.

The car may be parked on a public street when chalking occurs, but the placement of chalk on the private property of a citizen is a "trespass" with the intent of gathering information (how long the car has been parked in a certain spot).

[O]nce we determine the government has trespassed upon a constitutionally protected area, we must then determine whether the trespass was “conjoined with . . . an attempt to find something or to obtain information.” Id. at 408 n.5. Here, it was. Neither party disputes that the City uses the chalk marks for the purpose of identifying vehicles that have been parked in the same location for a certain period of time. That information is then used by the City to issue citations. As the district court aptly noted, “[d]espite the low-tech nature of the investigative technique . . . , the chalk marks clearly provided information to Hoskins.” This practice amounts to an attempt to obtain information under Jones.

That's not the end of the analysis. Warrantless searches are permitted if the search is reasonable. The city claimed the chalking/search was reasonable because of a reduced expectation of privacy when parked on a public street. Alternatively, it argued the search was reasonable under the community caretaking exception.

The reduced expectation of privacy exception argument fails because a car legally parked on a public street -- absent any other indicators of criminal activity -- cannot generate the probable cause needed to justify a warrantless chalking. At the point the tire is marked, no law has been broken, nor is there any justifiable suspicion the driver intends to violate the law by parking for longer than is allowed.

As for the community caretaking function, the Appeals Court finds this argument just as weak. The caretaking function is not supposed to be investigatory or carried out with the intent of collecting evidence. Marking a tire gives the government information it can use later to issue parking tickets. This does nothing to make the community safer.

The City fails to carry its burden of establishing that the community caretaker exception applies in this instance. First, on these facts, the City fails to demonstrate how this search bears a relation to public safety. The City does not show that the location or length of time that Taylor’s vehicle was parked created the type of “hazard” or traffic impediment amounting to a public safety concern. Nor does the City demonstrate that delaying a search would result in “injury or ongoing harm to the community.” Washington, 573 F.3d at 289. To the contrary, at the time of the search, Taylor’s vehicle was lawfully parked in a proper parking location, imposing no safety risk whatsoever. Because the purpose of chalking is to raise revenue, and not to mitigate public hazard, the City was not acting in its “role as [a] community caretaker[.]”

The finding is narrow, but it's enough to steer the city of Saginaw to other methods of parking enforcement -- which unfortunately could see an increase in the use of automated license plate readers or surveillance cameras to accomplish the same ends.

The City does not demonstrate, in law or logic, that the need to deter drivers from exceeding the time permitted for parking—before they have even done so—is sufficient to justify a warrantless search under the community caretaker rationale. This is not to say that this exception can never apply to the warrantless search of a lawfully parked vehicle. Nor does our holding suggest that no other exceptions to the warrant requirement might apply in this case. However, on these facts and on the arguments the City proffers, the City fails to meet its burden in establishing an exception to the warrant requirement.

This doesn't mean the government won't ultimately secure a win for tire chalking. What it does mean is the case heads back down a level for more exploration of the issue. This is a ruling on an appealed motion to dismiss by the city. All this means for Alison Taylor is her case isn't dead yet. But if this holds up, a lot of cities using similar enforcement methods are going to have to try a different approach. Unfortunately for those in the Sixth Circuit's jurisdiction, this may mean more reliance on ALPRs and other tech that has its own unanswered privacy-related questions.

Filed Under: 4th amendment, 6th circuit, chalking tires, parking, parking enforcement

Federal Agent: Using A Taped Box To Send Stuff Overnight Via FedEx Is Suspicious Behavior

from the nothing-more-evil-than-a-convenient-shipping-option dept

Here's how we're fighting the War on Drugs. Lots of stuff going on, but not much seems to be happening in terms of actually, you know, keeping drugs from ending up in buyers' hands. The byproduct of the problem -- the cash -- is all anyone seems interested in.

As Brad Heath points out in his tweets referencing this in rem complaint, federal agents camp out at major air traffic hubs looking for nothing but cash. As we've covered here earlier, the DEA is actually paying TSA agents to search for cash and alert officers if any amount worth seizing rolls through checkpoints.

The same thing is happening in FedEx hubs. In this case, officers from the DHS, Indiana State Police, Indiana Metro PD all combined to stop some cash from traversing the country from Ohio to Arizona.

The filing lets us know what the government finds suspicious in terms of packaging and sending stuff around the country: everything. If you like using FedEx and their new boxes, but apply a bit too much tape, you might be a drug dealer. From the complaint [PDF]:

Based on information and experience, task force officers can easily identify suspicious packages with indicators, such as newly-bought boxes bought from the shipping company, overnight shipping, and excessive taping at the seams of the box.

Boxes, tape, and overnight shipping are literally what FedEx is known for. Yes, these officers uncovered a lot of suspicious stuff once they were IN the boxes -- packages of cash wrapped in fabric softener sheets -- but they needed something to justify the search of the boxes in the first place. I'm sorry, but "information and experience" asserting little more than what hundreds of FedEx customers do every day just doesn't cut it.

Sure, they ran a dog around the boxes and it alerted, but cash will probably prompt alerts anyway, given how much of it has circulated close to drugs or has been used as a drug delivery device. (A "blind" drug sniff is mentioned later, suggesting the dog and boxes were tossed into the room without a handler. It's a nice control but doesn't mean much when there's already been an alert with the handler present. If the dog had "failed" to detect drugs without the handler present, this simply would have been omitted from the warrant.)

The only other link to suspicion was the fact that the package was being shipped to Arizona from Ohio, but both the "To" and "From" labels contained the same Arizona address. God forbid you ship anything to or from Arizona -- not if any drug interdiction teams are in the area:

Parcels 6920 and 7068 drew attention for other reasons: they were heavily taped and being shipped to Arizona, known by law enforcement as a source for illegal controlled substances…

This is same assertion made about several states and major cities. Everything has a drug nexus if you're in the business of drug warring. The thing is, there's a lot of innocent activity going on in these same cities and states, but it all looks suspicious through a drug interdiction lens.

In total, there's a $108,000 being forfeited as suspected drug proceeds. The final nail in the evidentiary coffin is the background check on the package's recipient. Not sure how it all adds up to drug dealing, but I guess all crimes are gateway crimes or whatever.

Richard Reyes has a criminal history for theft, assault causing bodily injury, and criminal mischief. In 2003, Richard Reyes was found guilty of one count of theft in case number M-0111051 (Tarrant Criminal County Court, Texas). In 2003, Richard Reyes was also found guilty of one count of assault causing bodily injury and one count of criminal mischief in case numbers 0610831 and 0610832 (Travis County Court, Texas).

I'm not saying Reyes isn't a drug dealer. I'm saying this is pretty thin connective tissue if someone's trying to prove the money came from the sale of drugs. But the evidentiary bar is so low law enforcement is probably going to get to keep this cash.

Then there's the presence of a DHS agent. This allows Indiana law enforcement to profit from suspected criminal activity occurring outside of its jurisdiction. The package was sent from Ohio to Arizona but intercepted in Indianapolis. Dragging a federal agent along keeps the money from going into the coffers of coppers in the two states where drug dealing may actually be occurring. Handy that.

This is just one of dozens of similar litigation filed every year in the federal court system to take cash from people the government has no interest in arresting or charging. Somehow, seizing cash is supposed to cripple drug cartels. Seeing as civil forfeiture has experienced no serious income dips over the past 30 years, it's safe to say this process is doing nothing but enriching government agencies who prefer cash to preventing crime.

Filed Under: 4th amendment, dhs, indiana, indiana metro pd, indiana state police, probable cause, shipping, tape, war on drugs
Companies: fedex

7th Circuit Punts On Border Smartphone Searches; Says Riley Decision Doesn't Affect Anything

from the thanks-for-all-the-help,-judicial-system dept

The "border search" exception again trumps the Constitution. The Seventh Circuit Court of Appeals has determined [PDF] that the Supreme Court's Riley decision that implemented a warrant requirement for phone searches does not apply at our hypersensitive border areas. In this case, the border area affected is [squints at ruling] Chicago's O'Hare Airport.

Anyway, CBP and DHS investigators had their eyes on a man returning from a suspicious trip to the Philippines. Suspecting the man was engaged in sex tourism, he was stopped by CBP officers upon his return. Lots of things didn't add up so the CBP asked for permission to search his phone. The officers made it clear this request was simply them being polite. They were going to search his devices anyway.

After completing this check of [Donald] Wanjiku’s bags, [Officer] Toler turned his attention to the cell phone. The phone was password-protected, and Toler began by asking Wanjiku to unlock the phone. Wanjiku initially resisted but relented when Toler told him that everything was searchable at the border and that the phone would be seized, unlocked by a “lab,” and examined whether or not Wanjiku unlocked it.

A cursory examination uncovered a couple of photos that may or may not have been child porn. (The officer said he couldn't determine the subject's age and the district court found this testimony credible.) A hard drive the suspect had in his bag was subjected to a "forensic preview" that only scanned allocated space for files, rather than mirror the drive in its entirety. A similar preview was performed on the man's Samsung phone. In both cases, child pornography was discovered by agents. Further searches were performed the next day.

The defendant challenged the evidence, pointing out that the Supreme Court's Riley decision requires the use of warrants for phone searches. The government argued that it needed nothing at all to perform invasive searches of travelers' devices. The court says neither of these polar opposites are correct. It also says it really doesn't care who's right, who's wrong, or where the line should be drawn in relation to border searches and the Riley decision.

The primary positions staked out by the parties could not be more starkly contrasted. The defendant argues that nothing less than a warrant authorizes a search of electronic devices at the border. The government asserts that it may conduct these searches without any particularized suspicion at all. In the end, though, we need not adopt either of these positions, and indeed may avoid entirely the thorny issue of the appropriate level of suspicion required. Instead, we affirm the district court’s denial of the motion to suppress because these agents acted in good faith when they searched the devices with reasonable suspicion to believe that a crime was being committed, at a time when no court had ever required more than reasonable suspicion for any search at the border.

Love to watch courts avoid thorny issues affecting the privacy of millions of travelers.

The appeals court says the Supreme Court only requires reasonable suspicion for border searches. This apparently still stands despite the extra protections extended to electronic devices by the Riley decision. The appeals court cites a 1985 Supreme Court decision in defense of its unwillingness to examine the issues raised in the year of our lord two-thousand nineteen. As the Seventh Circuit sees it, the government's interest in securing the borders will always be able to undermine Fourth Amendment protections -- even when this interest encompasses things that don't actually threaten the nation's security.

The final position the court takes -- at least in this case -- is that nothing more than reasonable suspicion is needed to perform any search at the border. And that's even if the "border" is an international airport, rather than a point of entry actually located on a border. It relies on the inaction of several other appeals courts to come to this conclusion, ensuring the zero-privacy status quo will live on for at least a few more years, falling well behind the advance of portable technology.

Filed Under: 4th amendment, border search, cbp, dhs, privacy