Court Says There's Nothing 'Reasonably Suspicious' About The Odor Of Marijuana In A State Where Marijuana Is Legal

from the this-should-be-obvious dept

When cops complain about marijuana legalization being the slippery slope to a crime-ridden, apocalyptic hellhole, they're really only complaining about the removal of one of their favorite excuses for searching vehicles, houses, and people without a warrant.

For years, the odor of marijuana has been a blank check for warrantless searches. But when marijuana possession is no longer a crime, it stands to reason the odor of marijuana is no more "suspicious" than the odor of gasoline or fresh bread or a litter box. These are all just things now -- non-criminal things. And yet, cops can't seem to let this go, even years after the contraband is no longer contraband.

A recent decision [PDF] by an Oregon appeals court -- a state where marijuana has been legal since 2015 -- reaffirms the legality of possessing marijuana and firmly reminds the state's law enforcement they need far more than a whiff of marijuana to engage in further hassling of citizens. (via FourthAmendment.com)

In this case, a state trooper followed his nose to an arrest for drug trafficking. It started with a traffic stop:

Defendant was driving a rental car from Grants Pass, Oregon, to Denver, Colorado. He was stopped for a traffic violation while driving on Highway 140 in Lake County. The trooper who stopped him smelled an “obvious” odor of “marijuana” upon approaching the car. Defendant did not appear to be impaired or intoxicated. Defendant did appear to be nervous—he had shaky hands and a slightly shaky voice when handing over his driver’s license and rental agreement. From training and experience, the trooper knew that Grants Pass is a “source city” for marijuana, that Colorado has a market for “low-cost high-quality marijuana out of Oregon,” and that people “commonly” use rental cars to unlawfully transport marijuana to avoid the risk of forfeiting their own vehicles if caught.

Using nothing more than his "training and experience" and the "obvious" odor of marijuana, the trooper concluded the defendant was trafficking drugs. He extended the stop to ask more questions. The defendant ultimately admitted he was driving 17 pounds of marijuana to Denver, Colorado.

But does all of this (which really isn't that much) add up to "reasonable suspicion?" The court says it doesn't. First, the court says the driver's nervousness is a non-factor.

One of the facts—defendant’s nervousness—is not significant to our analysis. As we have recognized repeatedly, “nervousness alone is entitled to little weight when evaluating reasonable suspicion.”

Nor is the driving of a rental car from one state to another, no matter what the trooper may have imagined the purpose for traveling from Oregon to Colorado was.

As for the fact that defendant was driving a rental car from Grants Pass to Denver, the act of traveling on a public highway known to be part of a “drug trafficking corridor” does not give rise to reasonable suspicion that any particular person traveling on the highway is trafficking drugs.

As the court notes, interstate highways are used by everyone, not just drug traffickers. To assume efficient travel is purely the domain of traffickers is ridiculous.

So it all comes down to the trooper's powerful sense of smell and an odor which -- in the absence of anything else suspicious -- is indicative of nothing, given the state's legalization of marijuana.

With that in mind, we note that, beyond the odor of marijuana being “obvious” when the trooper approached defendant’s car, there was no evidence as to how strong the odor was. A very small amount of marijuana may create an “obvious” odor, depending on the circumstances. There also was no evidence as to whether the odor was of fresh marijuana (as the trooper’s suspicion of delivery might suggest) or burnt marijuana (as his consideration whether defendant was impaired or intoxicated might suggest). Nor was there evidence about the locus of the odor, such as it coming from defendant, his passenger, the luggage in the back seat, or the trunk.

Furthermore, identifying an odor gives no one -- not even a well-trained trooper -- any idea how much marijuana is being smelled.

Finally, there was no evidence that the trooper had training or experience that led him to recognize what he smelled as fresh marijuana in a larger quantity.

This may be bad news for the state's drug task forces, but maybe they should concentrate on illegal drugs that are far more dangerous and corrosive to people's health. Weed may make for easy busts, but when it's legal, it takes a whole lot more to make its odor suspicious. Finding in favor of the state would subject a wide swath of law-abiding citizens to extended traffic stops and warrantless searches.

We are unprepared to say that, as to any person driving a rental car on a public highway in Oregon that is also used by drug traffickers, any odor of marijuana gives rise to reasonable suspicion of unlawful delivery of marijuana.

It's a long stretch to move from "smells like marijuana" to "this is drug trafficking." The trooper took that leap of faith and lucked out. But only momentarily. The evidence is suppressed and the state no longer has the evidence it needs to convict this driver of drug trafficking.

Filed Under: 4th amendment, oregon, reasonable supicion

No Qualified Immunity For Cops Who Made Stuff Up To Justify Seizing A Man's Phone For Twelve Days

from the but-what-if-terrorism-or-what-not dept

Here's an interesting decision [PDF] by the Eighth Circuit Court of Appeals. On one hand, it says cops can possibly hassle people for filming them if they can find almost any reason at all to justify it. On the other hand, it says they definitely cannot take people's property (cameras, phones) just because their nearly unjustified hassling gave them the opportunity to seize it.

Here's the setup for the multiple rights violations, courtesy of the Appeals Court:

Daniel Robbins was recording illegally parked vehicles from a public sidewalk adjacent to the Des Moines Police Station when officers approached him and asked him what he was doing. Robbins was uncooperative, and the officers temporarily seized him and his camera and cell phone.

This probably would have gone unhassled if it hadn't occurred near a police station. When citizens record officers on their home turf, they become inordinately defensive. Claims of terrorist attacks or the War On Cops™ often arise, even though -- as officers should be painfully aware -- anything they do on public property is observable by the public. The presence of recording equipment shouldn't change a thing.

Nevertheless, the Des Moines police officers decided to make it a thing. Someone referred to here as a "detective" decided to (inadvertently) make a federal case about a citizen recording illegally-parked cars and cops going to and from the station. He had reasons.

While walking towards his car, Detective Youngblut observed Robbins recording vehicles as well as officers and civilian employees entering and leaving the police station. Because he was aware that vehicles had recently been stolen from and vandalized in that area, and because he was aware of a previous incident in which two officers had been murdered by a person with a history of filming the police, Detective Youngblut approached Robbins to make an inquiry.

LOL. OK. Well, let's just ground all the planes and hassle every passenger because one time people flew planes into buildings, killing a few thousand people. While this "suspicion" may have justified a quick, consensual Q&A with Robbins, "Detective" [these scare quotes will be even more justified in a moment…] Youngblut decided to go further.

Other officers -- apparently similarly offended by this reckless display of First Amendment rights -- got to Robbins first. And they applied pressure.

Robbins refused to identify himself or respond to law enforcement inquiries, explaining “I’m taking pictures because it’s perfectly legal for me to do so.” Lieutenant Leo initiated physical contact when he lifted the back of Robbins’s shirt, grabbed his forearm and placed it above his head, and patted him down. Robbins repeatedly asked what about his conduct was illegal, and the officers responded that while he was not doing anything illegal, he was suspicious.

Ah. Not illegal. Just worth getting uptight about. The officers ordered Robbins to leave. He refused. So they got even stupider. They demanded Robbins ID himself. This was also wrong. Iowa has no law requiring citizens to ID themselves when interacting with police officers.

But it wouldn't have mattered for Robbins. Why? Because the man with all the investigative skills -- Detective Youngblut -- told the officers to just make something up.

Detective Youngblut suggested that the officers “just make a suspicious activity case . . . [and] confiscate the camera until we have a reason for what we’re doing.”

Swell. If you don't have a REAL reason for doing something, just find ANY reason.

Robbins asked if he was under arrest and being detained against his will. The answer to both questions was yes, provided by the detective who said to make something up. At that point, the illegality started to pile up.

The officers seized Robbins’s cell phone and camera. Detective Youngblut photographed Robbins for his file and then told him that he was free to go. The encounter lasted approximately twelve minutes.

The "encounter" may have lasted 12 minutes, but the seizure of Robbins' phone and camera lasted 12 days. Robbins lost both on May 10. It wasn't until his lawyer spoke to the police department that his items were returned.

Unfortunately, the court says all of this bullshit -- including the detective suggesting someone just make something up -- isn't a violation of Robbins' First Amendment rights. According to the Eighth Circuit, there was enough non-made-up suspicion to justify the rousting of Robbins.

Here, law enforcement officers observed Robbins recording both vehicles near the police station and officers and civilian employees entering and leaving the police station. The officers also possessed other significant information: they were aware of recent criminal activity involving cars parked in the area, and they were aware of a previous filming and stalking incident that escalated into the murder of two officers. Armed with this knowledge, Officer Youngblut approached Robbins and asked him what he was doing. Robbins was non-responsive, evasive, and confrontational. Officer Youngblut reasonably found Robbins’s behavior suspicious.

Robbins’ behavior that went beyond any constitutionally protected recording activity when combined with the officers’ knowledge about vehicles being stolen and vandalized in the area and the previous filming that led to officers being murdered could cause an objectively reasonable person in the officers’ position to suspect Robbins was up to more than simply recording the police. Under these circumstances, we can neither say that the officers’ conduct was objectively unreasonable under clearly established law, nor in violation of the First Amendment.

According to the court, Robbins' filming of police was suspicious enough to justify this interaction. But it was not suspicious enough to justify the seizing of his recording equipment. And definitely not enough to justify holding onto it for 12 days.

The officers argued they never arrested Robbins, therefore the court should bypass analysis of the seizure of Robbins himself. The court says it's pretty clear Robbins was arrested, even if momentarily. That much was made clear by Detective Youngblut, who told Robbins he was both arrested and detained.

Having failed to sway the court with this "non-arrest" argument, the officers went fishing for arrest reasons. One theory was "loitering." Wrong, says the court.

Viewing the facts in a light most favorable to Robbins, a reasonable officer would not have believed he had probable cause to arrest Robbins for loitering because there is no evidence Robbins was blocking the sidewalk or disrupting the activity of the police station.

The other theory was Robbins providing officers with a false name when hassled: "John Doe." Wrong again, says the court. This fake name wasn't presented until after Robbins was already under arrest. It's impossible to arrest someone for something they didn't do until after they were arrested.

Despite there being a clear warrant requirement for search and seizure of cellphones following the Riley decision, the cops argued their seizure of Robbins' recording equipment fell into a "narrow exception'' that covers "brief detentions" of personal property that are "minimally invasive." But the officers could not explain how a 12-day seizure was "brief," even if it was "minimally invasive." GTFO, says the Eighth.

The Supreme Court concluded that a ninety-minute detention of a suspect’s luggage based only on reasonable suspicion was unreasonable.Regardless of whether the Place exception applies to personal effects such as cell phones and cameras, the duration of the seizure – twelve days – was unreasonable.

The refusal to return the property to Robbins made it worse. And it shows Detective Youngblut really hasn't earned that title.

In addition, the officers did not tell Robbins with any precision when or how he would get his property back. Rather, Detective Youngblut told Robbins he was investigating a homicide and would apply for a search warrant “at some point.” Detective Youngblut disposed of his suspicions and the need for a search warrant after discovering Robbins had a YouTube page dedicated to illegally-parked vehicles. Even so, Detective Youngblut continued to detain Robbins’s property until his counsel demanded its return.

Owning a fishing rod doesn't automatically make you a great fisherman. And it sure as shit doesn't make you a good detective. This was a punitive seizure and Youngblut couldn't even be bothered to come up with a credible excuse for separating Robbins from his phone and camera for 12 days.

The court says being a jerk isn't a crime. None of this was justified.

Under the facts of this case, the governmental interest, presumably to dispel whatever suspicion the officers had about Robbins, does not outweigh the intrusion to Robbins. The seizure was unreasonable in the absence of arguable probable cause. See Place, 462 U.S. at 707–10.

The defendants alternatively argue that Robbins’s uncooperativeness gave them probable cause to seize his property. This argument fails for the reasons stated above. The defendant officers violated Robbins’s clearly established right to be free of unreasonable seizures of his property, see id., and are not entitled to qualified immunity.

The case heads back to the district court. The officers -- including this so-called "detective" -- will have to take their chances on a jury finding illegal arrest and follow-up seizure were somehow justified. This seems unlikely. Chances are Robbins will receive a settlement before a jury has a chance to receive instructions from a federal judge. The officers may have had their reasons to approach a man filming a police station, but nothing they did after they approached him was Constitutional.

Filed Under: 4th amendment, daniel robbins, des moines, phones, qualified immunity, seized property

Fifth Circuit Tosses Child Porn Conviction Predicated On Unconstitutional Searches Of Three Cellphones

from the looking-for-evidence-of-a-crime-not-being-charged-is-pretty-fatal-to-probable-ca dept

There's a warrant requirement for cellphone searches, thanks to the Supreme Court's Riley decision. But not every search is, um, warranted, even when officers have a search warrant in hand.

A case [PDF] recently handled by the Fifth Circuit Court of Appeals makes this point clearly and effectively. It's the "effective" part that matters the most. A search that went outside the boundaries of the affidavit's stated purpose has resulted in a vacated child porn conviction.

It all started with a traffic stop -- one that first led officers to believe they'd made a drug bust.

Brian Matthew Morton was stopped for speeding near Palo Pinto, Texas. After the officers smelled marijuana, he gave consent to search his van. Officers found sixteen ecstasy pills, one small bag of marijuana, and a glass pipe.

Then things got a little weird.

When, however, they discovered children’s school supplies, a lollipop, 14 sex toys, and 100 pairs of women’s underwear in the vehicle, they became more concerned that Morton might be a pedophile.

But the arrest was for drug possession, since the rest of the items, while concerning, were not illegal to possess. Texas Dept. of Public Safety Trooper Burt Blue applied for a warrant to search three cellphones found in the van. But if the trooper had suspicions about possible child porn production/possession, he didn't bother to add that to the search warrant affidavit.

Trooper Blue’s affidavits for the search warrants mentioned no concerns about child exploitation; instead, the warrants purported to seek more evidence of Morton’s criminal drug activity based on Trooper Blue’s training and experience—fourteen years in law enforcement and eight years as a “DRE-Drug Recognition Expert”—as well as the drugs found in Morton’s possession and his admission that the drugs were in fact marijuana and ecstasy.

Here's what the affidavits claimed -- that Trooper Burt would be searching for evidence of drug possession.

It is the belief of affiant that suspected party was in possession of and is concealing in [the cellphones] . . . [e]vidence of the offense of Possession of [ecstasy], possession of marijuana and other criminal activity; to wit telephone numbers, address books; call logs, contacts, recently called numbers, recently received calls; recently missed calls; text messages (both SMS messages and MMS messages); photographs, digital images, or multimedia files in furtherance of narcotics trafficking or possession.

That's a weird thing to search phones for, especially when the suspect was arrested because of the drugs he had in his possession. The affidavits claimed the phones would be searched for evidence of "other criminal activity," and asked for blanket permission to search almost everything on the phones for more evidence. But the final part of this statement narrowed the scope back to a pinpoint, indicating exactly what Trooper Blue would be searching the phones for: evidence of "narcotics trafficking or possession."

Once investigators got into the phones, they completely forgot they were supposed to be looking for evidence of drug possession and trafficking.

While searching the phones’ photographs, Trooper Blue and another officer came across sexually explicit images of children. The officers then sought and received another set of warrants to further search the phones for child pornography, ultimately finding 19,270 images of sexually exploited minors. The government then indicted Morton for a violation of 18 U.S.C. § 2252(a)(2) for the child pornography found on his three cellphones. The subject of drugs had vaporized.

Brian Morton attempted to suppress the original warrants -- the ones seeking evidence of drug possession -- claiming they were not supported by probable cause. The trial court ruled in favor of the government and Morton was sentenced to nine years in prison on child porn possession charges.

On appeal, the government admitted it needed separate probable cause to search each category of information targeted by warrants. A warrant to search a phone is not a blanket permission slip. Since phones carry more personal information than most people's houses at this point, the Fourth Amendment bar is raised.

The government still believes it should be able to use the good faith exception to excuse any lack of specific probable cause to search the phones for evidence of drug crimes. The court isn't willing to give the government a pass on this. While probable cause may have supported a search of text messages, IMs, and phone contacts (because to buy drugs, a person generally has to communicate with a dealer), it did not support the search of the photos that led to Morton's conviction on child porn charges.

[T]he affidavits also asserted probable cause to believe that the photographs on Morton’s phones contained evidence of other drug crimes, and on this claim, they fail the test of probable cause as related to the crime of possession. That is, they fall short of raising a “substantial chance” that the photographs on Morton’s phones would contain evidence pertinent to his crime of simple drug possession.

Trooper Blue may have "fourteen years of experience" as a drug warrior, but his assertion photos on the phones would contain further evidence of drug possession is highly flawed. It presupposes something not inherent in the amount of drugs found in Morton's van.

The syllogism that Trooper Blue offers to gain access to Morton’s photographs does not provide adequate grounds for the extensive search. In short, the syllogism is (1) Morton was found with personal-use quantities of drugs; and (2) drug dealers often take photos of drugs, cash, and co-conspirators; it therefore follows that (3) the photographs on Morton’s phones will provide evidence of Morton’s relationship to drug trafficking. The fallacy of this syllogism is that it relies on a premise that cannot be established, namely that Morton was dealing drugs. And here, Trooper Blue disregarded key facts that show that the evidence did not support probable cause that Morton was a drug dealer.

The trooper only found a single, small bag of marijuana and a few ecstasy pills. He did not find anything that would have suggested Morton was a dealer, like scales, packaging, or weapons. Also, as the court points out, Morton was originally charged with "possession," not "trafficking." This further indicates the trooper did not actually believe Morton was a dealer.

And that nullifies the searches of Morton's photos -- the ones that took the investigation in an entirely new direction.

Since it seems that no evidence supported probable cause to believe that Morton was dealing in drugs, the affidavit leaves us with only the allegations that (1) Morton was found with drugs so (2) it therefore follows that the photographs on Morton’s phones will provide evidence of Morton’s crime of drug possession. With only this bare factual support that Morton possessed drugs, the affidavits contain nothing to link Morton’s marijuana and ecstasy with the photographs on his phones. The affidavits thus do not create a “fair probability” or a “substantial chance” that evidence of the crime of drug possession will be found in the photographs on Morton’s cellphones. Therefore, under these facts and based on the specific language in these affidavits, we hold that probable cause was lacking to search Morton’s photographs for proof of his illegal drug possession.

The government gets no "good faith" award for relying on faulty warrants. Just because a judge signed off on the requests does not mean the requests were justified, even if they ultimately resulted in issued warrants.

Here, even giving the magistrate’s determination the deference due, we hold that the magistrate did not have a substantial basis for determining that probable cause existed to extend the search to the photographs on the cellphones. Even if the warrants provided probable cause to search some of the phones’ “drawers” or “file cabinets,” the photographs “file cabinet” could not be searched because the information in the officer’s affidavits supporting a search of the cellphones only related to drug trafficking, not simple possession of drugs. There was thus no substantial basis for the magistrate’s conclusion that probable cause existed to search Morton’s photographs, and the search is not saved by the magistrate’s authority. The search was unconstitutional, not subject to any exceptions, and the evidence must be suppressed as inadmissible.

And, since the initial searches weren't based on probable cause, the subsequent searches following the discovery of child porn are irrevocably tainted. The evidence is thrown out and, without the thousands of child porn photos, the government has nothing left but some sex toys, women's panties, and a lollipop. That might be a little creepy in this context, but there's no law forbidding people from driving around with unusual items in their vehicles.

Filed Under: 4th amendment, 5th circuit, csam, mobile phones, riley, searches

Eighth Circuit Strips Qualified Immunity From Cop Who Pulled Over A Driver For Flipping Her Off

from the so-powerful...-and-yet,-so-sensitive dept

It should be pretty clearly established by now that giving the finger to public officials (in every case listed here, police officers) is protected expression. Even if the expression isn't protected, it sure as shit doesn't justify detainment, arrest, or the seizure of someone's property.

Decisions have been handed down by both state and federal courts saying giving a cop the bird is protected expression. And if it isn't necessarily protected (due to courts not seeing anything that justifies deciding this point in certain), it's pretty clearly not evidence of any criminal act, no matter how much offended cops wish it to be.

If you're a cop on the receiving end of this hand gesture, it's best to just move on. Choosing this hill to die on just means the officer now has multiple ways to lose their qualified immunity. First, there's the Fourth Amendment violations, which include detaining people when no actual criminal activity is suspected. Then there are the First Amendment issues, which included illegally retaliating against people for exercising their rights.

The Eighth Circuit Court of Appeals is the latest to add to this body of case work that says engaging in any law enforcement response to a flipped bird is unwise, at best. In this case, the officer who decided it was impossible to ignore an erect middle finger has lost her qualified immunity. This decision [PDF] not so gently reminds cops that being an asshole isn't a crime. (If it was, can you even imagine the number of cops under indictment?)

Ruben Garcia sued officers from the New Hope, Minnesota police department after being hassled excessively by Officer Kaitlyn Baker, whom he first encountered near a local school.

The first encounter was innocuous, but somehow laid the groundwork for officious retaliation later in the day.

On February 1, 2016, Officer Baker was on school patrol at Sonnesyn Elementary in New Hope, Minnesota. That morning, Garcia drove by the school and saw Officer Baker motion for him to stop his vehicle. He stopped. Officer Baker shouted for him to slow down, but Garcia responded that he was going the speed limit. Garcia then drove away. Officer Baker did not issue Garcia a citation.

Had this been the end of it, there would be no federal case. But both parties persisted. Unfortunately, the party with the thinnest skin had the power, the gun, and the badge. Ruben Garcia rolled by the school later that day, again encountering Officer Baker. He sent his love.

Later, in the afternoon, Garcia again saw Officer Baker at the school. This time, he extended his hand out of his car window and raised his middle finger at Officer Baker as he drove past her.

This was apparently too much for Officer Baker. She activated her dash cam and followed Garcia. Her only reason for this initial pursuit was captured by her camera: that Garcia had "flipped [her] off" and supposedly had "argued about speed when children" were present.

Engage bullshit. Baker pulled Ruben over and began to make stuff up.

Officer Baker approached Garcia on his passenger side window. Using his phone, Garcia began to video the traffic stop and then asked Officer Baker why she pulled him over. She replied, “You drove by and you flicked me off and I’m curious as to why you did that.” Id. at 01:07–01:11. Garcia asked if his actions were illegal, and Officer Baker replied that there was a woman with her children at the school patrol and that his actions constituted disorderly conduct.

"There was a woman with her children at the school patrol." That was the alleged reason for the stop. The real reason was in the first part of Officer Baker's statement: "you flicked me off and I'm curious as to why you did that."

Baker demanded ID and insurance info. Twice. Garcia refused. Twice. He stated the officer was violating his First Amendment rights. Baker did what cops often do when faced with accusations of rights violations: she called for backup. Garcia escalated.

Officer Baker asked Garcia for his license several more times. He replied that he would give her the license but repeatedly asked her if she was going to shoot him.

Garcia then asked for Baker's badge number. She stated he could find it on the citation she was going to write him.

Two more officers showed up. Baker demanded Garcia hand her his "goddamn D.L." He refused. Officer Anthony Gust approached the vehicle. Garcia still refused to hand over his license. Having run out of lawful options, Officer Baker decided to try some unlawful approaches.

Officer Baker walked around the vehicle to Garcia, yelling for Garcia to get out of his vehicle. She opened the driver’s side door and demanded that Garcia get out of the vehicle. Officer Baker then grabbed Garcia as he stepped out of the vehicle, placed him against his vehicle, and handcuffed him. Officer Baker threw Garcia’s wallet on the ground. Officer Gust helped Officer Baker hold Garcia against the vehicle.

This "suspicion" was helpfully corroborated by another backup officer, but one who had (wisely) chosen not to respond to an extended middle finger with a search and seizure.

Officer Baker also told the arriving officers that Garcia would not give her his license and “that’s why he’s taking a timeout for right now.” Id. at 05:02–05:05. Officer Johnson related that once he saw Garcia’s license plate, he realized that Garcia had raised his middle finger at him before.

Having found nothing criminal about Garcia's admittedly abrasive actions, Baker and the other officers gave him back his wallet and sent him on his way. Garcia got the last word.

Officer Baker held Garcia in the car for around seven minutes, and during that time, he continued to talk to her about how the officers were dangerous and unprofessional. Officer Baker issued Garcia a citation. Officer Gust then took Garcia out of the squad car and removed his handcuffs. As Garcia left, he yelled “f**k you” at the officers. Id. at 12:56–12:58. He then drove away in his vehicle.

A hero drives among us.

Garcia was cited for disorderly conduct and [checks police recording] a license plate violation. Let's hear more about this "violation."

As to the license plate violation, Officer Baker noted in her incident report: “During the traffic stop, I observed the license plate having a plastic cover over the entire plate and a red plate frame obstructing the view of the month and year stickers.” Ex. 1 at 38, Garcia v. City of New Hope, No. 0:17-cv-03574-NEB-ECW (D. Minn. Nov. 19, 2018), ECF No. 51-1. She later clarified that she noticed the license plate during the crosswalk encounter and mentioned the violation in the wrong portion of her incident report. Officer Baker also stated that she did not inform Garcia of the license plate violation because she could not have a conversation with him. Garcia denies that he had a cover or frame over his license plate.

Ohhhhhhhhh. It wasn't about Officer Baker's "curiosity" about Garcia's hand gestures. And it wasn't really about the people in the crosswalk. It was about a license plate violation the court says it can't clearly see on the recording and the protected speech the court says is protected.

The court says the record isn't clear either way when it comes to the license plate violation. It's possible there was a legitimate reason to stop Garcia.

[T]he district court determined that even if Officer Baker made a mistake, it was a reasonable mistake. The court noted that the other officers saw the frame, the license plate was not clearly discernible on the squad car video, and Garcia entered into the Agreement instead of disputing the violation.

But there's also no exoneration. The facts are still disputed. No other officer offered testimony that backed up Officer Baker's claims about a license plate violation. As long as this question remains unsettled, even an honest mistake of the law isn't enough to grant qualified immunity… especially given the other facts at hand.

It is true that we have found that an officer made a reasonable mistake about a license plate violation where the license plate was not centered on the front bumper and “it was dark outside, making it difficult for [the officer] to fully scan the vehicle for a front license plate.” United States v. Payne, 534 F.3d 948, 951 (8th Cir. 2008). But the blurry video does not show that Officer Baker’s view of the license plate was hindered. In fact, the video depicts a clear day and shows that Officer Baker—who was right behind Garcia’s car—had a clear view of the license plate. Officer Jacobs’s testimony and the blurry video are not enough to show that Officer Baker had an objectively reasonable belief—based on the totality of the circumstances—that the license plate was unlawfully covered.

The court then says Garcia's decision to enter into an agreement on the license plate charge has no bearing here. It's not an admission of guilt. The agreement he signed does not contain any admission or stipulation that Garcia's license plate violated state law. No qualified immunity on the BS "license plate violation" excuse for this stop.

Therefore, at this stage of the litigation, Officer Baker is not entitled qualified immunity based on the absence of a Fourth Amendment violation because there is a genuine dispute of material fact as to whether she had probable cause to conduct a traffic stop of Garcia’s vehicle.

That cues a reversal of the lower court's decision. It was clearly established -- and Officer Baker does not contend otherwise -- that probable cause is required for a traffic stop. An extended middle finger is not probable cause.

And there's no qualified immunity for targeting a single finger. The court reiterates that indicating the police should fuck themselves is protected speech.

Garcia’s raising his middle finger at Officer Baker is a rude and offensive gesture but nonetheless, under current precedent, is a constitutionally protected speech activity.

Any detainment originating from this would logically deter people from engaging in protected speech. No qualified immunity here either.

Officer Baker does not dispute that Garcia’s right to be free from First Amendment retaliation was clearly established at the time of his arrest. “Criticism of law enforcement officers, even with profanity, is protected speech.”

[...]

Based upon the record before us, we hold that the district court erred in granting qualified immunity to Officer Baker on Garcia’s First Amendment retaliation claim.

There's a dissenting opinion. And it's ridiculous. Judge Shepherd prefers to believe First Amendment speech should be subjected to the same standard as Fourth Amendment violations. If anyone did everything Garcia did during these interactions with local officers, Officer Baker should have been free to believe making some shit up to justify detaining someone for offending her was cool and Constitutional.

In my view, Garcia’s conduct was prolonged and goes beyond that of constitutionally protected speech. Garcia made the obscene gesture while driving through a school zone in broad daylight while a crossing guard was present. He extended his head and entire arm out of the car while raising his middle finger. Further, Garcia’s aberrant and aggressive behavior, which included the obscene gesture, occurred after a previous contentious encounter that morning with Officer Baker at the same school crossing. Although an officer is expected to exercise more restraint than the average citizen in responding to offensive or critical speech, I believe the facts here demonstrate an escalation of offensive and aggressive behavior that both disrupted and interfered with Officer Baker’s ability to monitor the school crossing.

[...]

Further, even if Garcia has shown the violation of a constitutional right, it was not clearly established on February 1, 2016, that driving through a school zone during school hours and in the presence of a crossing guard, leaning his entire head and arm out the window of his vehicle to raise his middle finger, all following a confrontation about Garcia’s rate of speed in the same location earlier that day, was protected by the First Amendment.

Sorry, Judge. But that's not how the First Amendment works. Even under the extremely permissive qualified immunity guidelines, the limits of the First Amendment are pretty clearly defined. And it's pretty clear Officer Baker's -- despite her belated obfuscation -- real reason for pulling over Garcia was to punish him for being rude to her. This addition to the opinion only shows one judge would forgive officers for punishing citizens for hurting their feelings. Ridiculous.

Filed Under: 1st amendment, 4th amendment, 8th circuit, anthony gust, free speech, giving the finger, kaitlyn baker, minnesota, new hope, police, qualified immunity, ruben garcia

Obscure Analytics Tool Helps Cops Make Sense Of All That Location Data They're Grabbing Without A Warrant

from the flying-under-the-radar-love dept

FOIA requests, leaked documents, data breaches, Congressional testimony… all of these have led to the outing of cellphone surveillance tech utilized by law enforcement. As far back as 2014, Chris Soghoian -- former ACLU "technologist" and current Senator Wyden advisor -- was telling cops their "secret" Stingray devices weren't all that secret anymore.

But the market for tracking people via their cellphones remains uncornered. For the most part, Stingrays (cell tower spoofers) need warrants to operate. The same goes for demanding weeks or months of historical cell site location data from service providers.

The courts may be deciding there's a bit more Fourth Amendment to go around these days, but cops seem to be deciding there's more Fourth than ever that should be avoided. New tools, toys, and tactics are in play. "Reverse warrants" contain the word "warrant," but they demand info on every cellphone user in a certain area at a certain time, flipping probable cause on its head. Data brokers collecting location data from apps sell access to law enforcement agencies, allowing them to engage in tracking that would be unconstitutional if it involved cell service providers.

There's a lot of data flowing towards law enforcement agencies. But it's useless if it can't be analyzed. That's where a little known company steps in, giving cops a way to wrangle all that subpoenaed data into something actionable. The Intercept's Sam Richards has the details.

Until now, the Bartonville, Texas, company Hawk Analytics and its product CellHawk have largely escaped public scrutiny. CellHawk has been in wide use by law enforcement; the software is helping police departments, the FBI, and private investigators around the United States convert information collected by cellular providers into maps of people’s locations, movements, and relationships. Police records obtained by The Intercept reveal a troublingly powerful surveillance tool operated in obscurity, with scant oversight.

CellHawk’s maker says it can process a year’s worth of cellphone records in 20 minutes, automating a process that used to require painstaking work by investigators, including hand-drawn paper plots. The web-based product can ingest call detail records, or CDRs, which track cellular contact between devices on behalf of mobile service providers, showing who is talking to whom. It can also handle cellular location records, created when phones connect to various towers as their owners move around.

It's yet another law enforcement middle man. Service providers and brokers collect data. Law enforcement asks for this data -- often without a warrant. CellHawk ensures the data is usable. And it's apparently been flying under the radar for years, mainly because it's not engaged in harvesting this info.

But CellHawk isn't a harmless interloper. It's maximizing the impact of data gathered from hundreds of apps and innate cellphone behavior. The company claims it can turn ride-hailing app data into usable "intelligence" and morph millions of GPS data points into a rich tapestry of movements and interpersonal connections.

While CellHawk remains mostly diplomatic on its website, materials sent to potential customers bluntly inform them how powerful the company's analytic software is. Marketing materials tell investigators they'll not only be able to determine whether a suspect was at a crime scene, but CellHawk will let them know where they spend most of their time, whether they've been anywhere "unusual," and the most likely location of their bedroom.

The software has plenty of law enforcement fans. And those fans are writing their own rules to use the tool, since it appears to fall between the cracks of Fourth Amendment jurisprudence. This is the gap where law enforcement does a lot of work, guided only by their certainty that rights haven't been violated in this particular way in their jurisdiction prior to their deployment of tools like CellHawk. While Supreme Court precedent suggests warrants are best for tracking people via cellphone data, agencies like the Hennepin County Sheriff's Department (MN) seem to believe a lower standard applies.

It stated that the office needed “[r]easonable suspicion,” which was deemed “present when sufficient facts are established to give … a basis to believe that there is, or has been, a reasonable possibility that an individual or organization is involved in a definable criminal activity or enterprise.”

Make hay while law remains unsettled, as the saying goes. Hawk Analytics is roping in as many law enforcement customers as it can, taking advantage of the lack of on-point court rulings to sell data analytics to agencies engaged in questionable harvesting of location-tracking data. The Intercept's informal FOIA poll found CellHawk in use in multiple states by multiple departments. It appears the FBI is also a fan of CellHawk's work, which means the company now has nationwide coverage (so to speak), even if it has yet to find local buyers.

Hawk Analytics is smart. It's built for the long run. Even if courts find mass collections of location data worthy of Fourth Amendment protections, cops will still be looking for someone to help them parse all the data they've obtained. Third-party data brokers may see their fortunes fall, but CellHawk will still be there to analyze the output of those that survive.

Filed Under: 4th amendment, analytics, cellhawk, law enforcement, location data, police, private data
Companies: hawk analytics

DEA Ditches Location Data Vendor Currently Being Investigated By Congress

from the convenient-corrective? dept

The Supreme Court ruled that law enforcement agencies needed a warrant to obtain cell site location info. The ability to turn third parties (like telcos) into proxy long-term tracking devices concerned the court, which decided this wasn't permissible under the Fourth Amendment. Every American carries a cellphone. But just because they do doesn't mean they agree the government should be able to track their movements with them.

No problem, said federal law enforcement agencies. We'll just get the same data from new sources -- ones not specifically mentioned in the Carpenter decision. Data brokers harvesting location data from phone apps sell access to government agencies, allowing them to bypass the warrant requirement.

This new source of data location has become a concern for some legislators, which have demanded answers from agencies like the IRS and CBP about their acquisition and use of this data. One company -- Venntel -- is currently facing a Congressional investigation of its data selling practices. This hasn't stopped CBP from buying data to track immigrants. But it has perhaps led to one agency -- one with a long history of bulk collection violations -- to ditch its contract with Venntell. Joseph Cox fills in the details at Motherboard.

The Drug Enforcement Administration abruptly cancelled its contract with Venntel, a U.S. contractor that sells location data harvested from ordinary apps installed on people’s phones around the world.

The news signals that although Venntel's smartphone location data may be popular with some federal agencies, including Customs and Border Protection (CBP) which Motherboard found spent nearly half a million dollars to access the data, other law enforcement bodies may have less use for such technology.

As Cox's report suggests, this may not be an indicator of reluctance to engage with a vendor currently under investigation. Instead, it may indicate some agencies find the harvested data less useful than others. The data CBP accesses allows it to track people's movements on both sides of the border, which is far more useful than scattershot data that may not deliver anything of value to DEA agents seeking to make a drug bust.

The DEA's cancellation was rather abrupt, suggesting it didn't feel like paying for something it didn't see itself using.

Keith Chu, communications director for the office of Senator Ron Wyden, described to Motherboard a conversation that his office had with the DEA.

"On DEA, they told our office: '[The Venntel contract was] terminated on our end before the first 30 days of the one year period of performance after determining it would not fit our needs,'" Chu said.

Then again, the DEA may have just cancelled this contract temporarily. The company is being investigated by Wyden and the senator has asked a lot of questions agencies may not feel like answering. Perhaps the DEA may re-engage when the heat dies down. Or it may seek to obtain this data from a different broker -- one not currently targeted by a Congressional investigation. Given the restraints on collecting location data from service providers, any parallel source of data is still preferable to seeking a warrant.

If it's not useful now, there's a chance it will be in the future. That's why Congress needs to act. And if it doesn't, the courts need to examine this data collection under the constraints of the Carpenter decision and decide whether it's ok for law enforcement to dodge warrant requirements that would seem to apply to ANY tracking of individuals, even if the data is sourced from third party data brokers.

Filed Under: 4th amendment, cbp, congress, dea, irs, location info, privacy
Companies: venntel

TSA Oversight Says Agency's Suspicionless Surveillance Program Is Worthless And The TSA Can't Prove It Isn't

from the it-works-in-the-sense-that-it-employs-people dept

The TSA's "Quiet Skies" program continues to suffer under scrutiny. When details first leaked out about the TSA's suspicionless surveillance program, even the air marshals tasked with tailing non-terrorists all over the nation seemed concerned. Marshals questioned the "legality and validity" of the program that sent them after people no government agency had conclusively tied to terrorist organizations or activities. Simply changing flights in the wrong country was enough to initiate the process.

First, the TSA lost the support of the marshals. Then it lost itself. The TSA admitted during a Congressional hearing that it had trailed over 5,000 travelers (in less than four months!) but had yet to turn up even a single terrorist. Nonetheless, it stated it would continue to trail thousands of people a year, presumably in hopes of preventing another zero terrorist attacks.

Then it lost the Government Accountability Office. The GAO's investigation of the program contained more investigative activity than the program itself. According to its report, the TSA felt surveillance was good but measuring the outcome was bad. When you're trailing 5,000 people and stopping zero terrorists, the less you know, the better. Not being able to track effectiveness appeared to be a feature of "Quiet Skies," rather than a bug.

Now it's lost the TSA's Inspector General. The title of the report [PDF] underplays the findings, stating the obvious while also understating the obvious: TSA Needs to Improve Management of the Quiet Skies Program. A good alternative title would be "TSA Needs to Scrap the Quiet Skies Program Until it Can Come Up with Something that Might Actually Stop Terrorists."

I mean…

TSA did not properly plan, implement, and manage the Quiet Skies program to meet the program’s mission of mitigating the threat to commercial aviation posed by higher risk passengers.

In slightly more detail, the TSA did nothing to set up the program correctly or ensure it actually worked. The IG says the TSA never developed performance goals or other metrics to gauge the effectiveness of the suspicionless surveillance. It also ignored its internal guidance to more effectively deploy its ineffective program.

Here's why:

This occurred because TSA lacked sufficient, centralized oversight to ensure the Quiet Skies program operated as intended.

There were some positives, but they were limited. The DHS and TSA set up information sharing programs, and performed quarterly reviews to remove passengers from the Quiet Skies watchlist. But that's about it. And, as the IG points out, these steps don't add up to anything that might quantify its success rate or justify its existence.

The failure had a trickle down effect, showering the air marshals who thought the program was useless (if not illegal) with second-hand shame.

After almost two years of flight coverage, FAMS [federal air marshals] could not provide outcome-based performance measures to show that its surveillance of Quiet Skies passengers who had already received enhanced screening at checkpoints was the most efficient use of its limited resources.

As for the good news about the periodic removal of people from the TSA's suspicionless surveillance, it's not without its bad news. The IG says the TSA didn't do it in a timely fashion or, you know, correctly.

The Implementation Plan requires TSA and DHS to conduct quarterly oversight reviews of Quiet Skies’ risk-based, intelligence-driven rules created and updated by I&A. However, in 2017 and 2018 TSA identified software algorithm and system malfunctions that resulted in passengers not being removed from the Quiet Skies List after [redacted].

And the TSA had problems with the people it had added to this watchlist, failing to ensure they got all the surveillance and checkpoint friskings they apparently deserved.

As currently designed, TSA cannot ensure all Quiet Skies passengers receive enhanced screening at checkpoints in accordance with its Implementation Plan.

[...]

We reviewed results from TSA inspections conducted from October 2015 through February 2019, in which inspectors found incidents related to the Boarding Pass Printing Result requirement. From our review of 16 incident reports, we identified [redacted] in which the boarding passes either were not designated as needing enhanced screening or the aircraft operator did not ensure the passenger received enhanced screening at the checkpoint.

Unfortunately, the number of failures is redacted. But given the TSA's track record elsewhere, it's probably safe to assume the failure rate was above 50%.

The IG recommends the TSA fix everything that's broken. That's most of the program, it appears. The TSA agrees… to a point. The TSA disagrees that it did not "properly plan or manage" the program, including its lack of metrics. According to the TSA's response, the fact that a few dozen targets (out of the thousands trailed by the TSA) showed up on other watchlists is an indication the program is a success.

In October 2020, TSA's I&A reviewed Quiet Skies encounters between 2014 and 2019, and found that 58 individuals designated for additional scrutiny by Quiet Skies are now "watchlisted" in the Terrorist Screening Database as a KST [known suspected terrorist]. This data indicates that Quiet Skies are approximately 30 times more likely to pose an actual high risk than a randomly selected passenger, validating Quiet Skies' value in identifying higher-risk travel.

Nice try. But TSA already threw all plausibility out the window back in 2018 with this testimony before Congress.

The officials said about 5,000 US citizens had been closely monitored since March and none of them were deemed suspicious or merited further scrutiny, according to people with direct knowledge of the Thursday meeting.

Tell me again how 58 watchlist hits is a satisfactory metric. Cherry-picking numbers doesn't change the facts already on the record. When you go 0-for-5,000, managing to cross-reference 10-12 targets a year with another highly-questionable database isn't a win.

Filed Under: 4th amendment, air marshals, gao, inspector general, quiet skies, surveillance, tsa

DHS Inspector General Is Going To Take A Look At The DHS's Purchase Of Cell Location Data From Data Brokers

from the it's-about-time-someone-other-than-Ron-Wyden-looked-into-this dept

DHS components are buying up cell location data from third parties to track down undocumented immigrants and whoever else ICE and CBP might be interested in. The IRS is doing the same thing. So is the Department of Defense.

The location data is harvested from dozens of phone apps. This data makes its way to a variety of data brokers -- often without the explicit knowledge of app users or developers -- who then sell access to government agencies. This access seems to violate the spirit of the Supreme Court's Carpenter decision (which erected a warrant requirement for cell site location info), if not the actual letter of ruling.

This has drawn the attention of a number of Senators, including Ron Wyden. In response to Senate questions, the Inspector General for the IRS has opened an investigation into the agency's practice of buying location data from private companies.

The DHS is now undergoing the same scrutiny.

The department’s inspector general told five Democratic senators that his office would initiate an audit “to determine if the Department of Homeland Security (DHS) and its components have developed, updated, and adhered to policies related to cell-phone surveillance devices,” according to a letter sent last week to Capitol Hill and shared with The Wall Street Journal.

The letter came in response to a request in October from Sens. Ron Wyden (D., Ore.), Elizabeth Warren (D., Mass.), Sherrod Brown (D., Ohio), Ed Markey (D., Mass.) and Brian Schatz (D., Hawaii) to probe whether the purchase of commercial cellphone data on Americans for law-enforcement purposes was lawful.

This is welcome news, considering no agency has offered up a legal rationale for dodging apparent warrant requirements by purchasing data from third party brokers -- brokers who are an additional hop away from the third parties who collected the data in the first place. When even app developers aren't sure whose buying their data, it's pretty difficult to argue anyone tracked via this method knowingly and voluntarily "shared" their location with the data brokers selling access to the government.

This won't be the only investigation either. The DHS IG is also looking into other "open source" intel gathering performed by DHS agencies. The guidelines for gathering intel from social media accounts and other publicly accessible internet services hasn't been explained sufficiently and/or examined by the DHS's Congressional oversight.

Unfortunately, this investigation may not lead to the termination of this data collection. The DHS's general counsel has already declared this to be legal -- something revealed by BuzzFeed earlier this year.

In an internal memo obtained by BuzzFeed News, the DHS's top attorney, Chad Mizelle, outlined how ICE officials can look up locations and track cellphone data activity to make decisions on enforcement.

Mizelle also believes the agency can use the data without obtaining a warrant or violating the Fourth Amendment, which protects the public against unreasonable searches and seizures.

That's the pitch the DHS is making. It hasn't made that pitch publicly, however. BuzzFeed's reporting covered a leaked memo. This claim hasn't been made on the record and, given the flexible contours of the Supreme Court's Carpenter decision, there's a good chance it won't hold up in court, much less under Congressional scrutiny. But, as it stands now, these agencies are still in the location data buying business until further notice.

Filed Under: 4th amendment, data brokers, dhs, inspector general, location data, privacy

Patriot Act Used By The FBI To Collect Internet Browsing Data, Contradicting Claims Made To Oversight

from the oh-no-this-must-be-the-first-time-the-IC-has-lied-to-its-oversight-[faints] dept

The NSA shut down its bulk phone records collection -- authorized under Section 215 -- after it became apparent it wasn't worth the effort. Reforms put in place by the USA Freedom Act prevented the agency from collecting it all and sorting it out later. Instead, it had to approach telcos with actual targeted requests and only haul away responsive records. The NSA somehow still managed to overcollect records, putting it in violation of the law. The NSA hinted the program had outlived its usefulness anyway, suggesting it had far better collections available under other authorities that it would rather not subject to greater scrutiny.

But this didn't end the government's bulk records collections. It just ended the phone metadata program. The NSA still collects other records in bulk, including banking records and, oddly, books checked out by library patrons. The broad authority of Section 215 could be read to allow the government collect other records, like email metadata and internet activity. Reasoning that people voluntarily create records of their internet use by using third-party services to surf the web, the government hinted it could sweep these up just as easily as it had swept up call records.

The government's attempt to collect internet history under this authority ran into some friction earlier this year when the Senate voted to block this collection. Senator Ron Wyden directly asked the director of national intelligence (DNI) to inform the Senate whether or not agencies under its purview had gathered internet use records under this authority. He received this answer.

In a Nov. 6 letter to Mr. Wyden, John Ratcliffe, the intelligence director, wrote that Section 215 was not used to gather internet search terms, and that none of the 61 orders issued last year under that law by the Foreign Intelligence Surveillance Court involved collection of “web browsing” records.

Wyden took this response to mean that implementing a ban on collection of internet history records could be put into place without negatively affecting any intelligence gathering activities. But when the New York Times pressed DNI John Ratcliffe on specifics, a new party inserted itself into the conversation: the DOJ. According to its response, the FBI had already done the thing the DNI had just told Sen. Wyden it hadn't.

In fact, “one of those 61 orders resulted in the production of information that could be characterized as information regarding browsing,” Mr. Ratcliffe wrote in the second letter. Specifically, one order had approved collection of logs revealing which computers “in a specified foreign country” had visited “a single, identified U.S. web page.”

So, the FBI was collecting internet browsing records, albeit with an order that only targeted foreign users visiting one US web page. Still, this wasn't what the DNI originally said to Sen. Wyden. This set Wyden off. Again. The supposedly honest answer he received in response to his questions wasn't actually all that honest. As he pointed out in his statement, the belated admission raised questions about domestic surveillance and potential abuse of Section 215 authority to collect something the DNI said no one was collecting. And, if nothing changed, there was no guarantee the Intelligence Community wouldn't talk itself into believing a collection of internet browsing data would be cool and legal.

“More generally,” Mr. Wyden continued, “the D.N.I. has provided no guarantee that the government wouldn’t use the Patriot Act to intentionally collect Americans’ web browsing information in the future, which is why Congress must pass the warrant requirement that has already received support from a bipartisan majority in the Senate.”

Previous attempts to erect a warrant requirement for the collection of internet data or search histories have failed to reach the president's desk. This latest admission has refueled the fire to protect Americans (or visitors to American websites) from government overreach. Even if such a collection targets only foreign internet users, there's no guarantee it won't sweep up US citizens -- like pretty much every other bulk collection has.

At this point, everything is up in the air. There's a new president headed into office who might be more receptive to reform efforts, but he's also the man who served the Obama Administration -- one that wasn't all that concerned about domestic surveillance until it became impossible to ignore the documents leaked by Ed Snowden. Even then, its response was tepid at best and it still allowed IC surveillance business to continue pretty much uninterrupted -- something it used to justify extrajudicial killings based on little more than metadata. This needs to be fixed, but surveillance reform advocates still lack majority support. And the guy headed to the White House has never seemed all that concerned about surveillance abuses.

Filed Under: 4th amendment, browsing data, bulk records, doj, fbi, fisa, fisc, john ratcliffe, mass surveillance, metadata, nsa, odni, patriot act, ron wyden, section 215, usa freedom act, warrant

Ninth Circuit Says Washington Man Can Continue To Sue CBP Agent For First, Fourth Amendment Violations

from the stock-up-on-the-redress-while-you-can! dept

The Ninth Circuit Court of Appeals continues to do what other circuits far too often won't: protect citizens from their government. The Ninth Circuit is the best place to bring allegations of rights violations. It only grants immunity in 42% of cases it handles, compared to the Fifth Circuit, where cops and their qualified immunity triumph 64% of the time.

This seems to irritate the Supreme Court, which often finds itself overturning decisions bubbling up from the Ninth. But every win for Americans is another chance to establish precedent making it easier for future victims to obtain redress from courts anywhere in the nation.

This recent decision [PDF] by the Ninth will probably once again raise the hackles of the Supreme Court. This one allows a plaintiff to sue federal officers for rights violations -- something the Supreme Court has repeatedly made more difficult to accomplish. In 2017, the Supreme Court said non-US persons couldn't sue federal officers for violating their rights. It reinforced this decision in 2019, rejecting a lawsuit brought by the family of a Mexican teen who was shot ten times by a Border Patrol agent in response to some alleged rock throwing. The Border Patrol agent was on the US side of the border. His bullets traveled across the border and into the Mexican teen, killing him in Mexico. The Supreme Court shrugged and said it was unfortunate the teen died where he did. If he had only managed to die on the US side of the border, he might have had a case.

This case doesn't end in death. But it does involve federal border security and violated rights. Here's the summary of the events leading to the lawsuit:

[Robert] Boule is a United States citizen. He owns, operates, and lives in a small bed and breakfast inn in Blaine, Washington. The back property line of the land on which the inn is located touches the United States-Canada border. On March 20, 2014, Customs and Border Patrol Agent Erik Egbert stopped Boule while he was running errands “in town” and asked him about guests staying at the inn. Boule told Egbert that he had a guest arriving that day from New York who had flown in from Turkey the day before. Boule told him that two of his employees were en route to pick up the guest at SeattleTacoma (“Sea-Tac”) International Airport, about 125 miles south of Blaine. Later that day, Egbert waited in his border patrol vehicle near the inn. The entrance to the inn is on a road at the front of the property. When the guest arrived, Egbert followed the car carrying the arriving guest into Boule’s driveway.

Egbert got out of his vehicle and approached the car. From the front porch of the inn, Boule asked Egbert to leave. When Egbert refused, Boule stepped between Egbert and the car and again asked him to leave. Boule recounts that Egbert then shoved him against the car. When Boule still did not move away from the car, Egbert grabbed him and pushed him aside and onto the ground.

Egbert then opened the car door and asked the guest about his immigration status. Boule made a 911 call to request a supervisor, which Egbert also relayed over dispatch. A supervisor and another agent arrived in response to the call. After concluding that the guest was lawfully in the country, the three officers departed. Boule later sought medical treatment for injuries to his back.

That's the Fourth Amendment violation. There's also a First Amendment violation.

After Boule complained to Egbert’s superiors about the incident, Egbert retaliated against Boule. Among other things, Egbert contacted the Internal Revenue Service, asking the agency to look into Boule’s tax status.

Bringing a Bivens case against a federal officer is tricky. Federal officers are given an extra level of protection from lawsuits. Qualified immunity is pretty tough to dodge, given the reliance on (ever-decreasing) precedential rulings declaring specific actions to be rights violations. In the federal context, the small crack in the immunity door disappears almost completely. More matching specifics are needed to move a case past the immunity roadblock and only certain rights violations are recognized in the Bivens context.

Here's how the Supreme Court sees it: allegations that fall into this broad set of variances may be considered "new" and an impermissible extension of Bivens.

Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one . . . [:] A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

Good luck with that, plaintiffs. But this plaintiff's case will move on, greatly aided by the fact that he's a US citizen. Unlike the cases cited by the government, Boule is a legal resident of the United States. There's only one factor that separates this from other successful Bivens lawsuits, the court points out.

The claim against Egbert is a conventional Fourth Amendment claim, indistinguishable from countless such claims brought against federal, state, and local law enforcement officials, except for the fact that Egbert is a border patrol agent.

The court says the fact that Egbert is a border patrol agent does not excuse him from this lawsuit, even if a comparable case involved an FBI agent. The plaintiff can continue suing Egbert over his Fourth Amendment violations.

But the court goes further, extending Bivens to cover both the Fourth Amendment violation and an alleged First Amendment violation.

Boule also alleges that Egbert retaliated against him for exercising his First Amendment right to complain to Egbert’s superiors about his conduct at the inn. We have previously recognized a Bivens claim in the First Amendment context, see Gibson v. United States, 781 F.2d 1334, 1342 (9th Cir. 1986), but the Supreme Court has not yet done so.

[...]

However, we find no special factors that counsel hesitation in extending a Bivens remedy to this new context. There is even less reason to hesitate in extending Bivens here than in the context of Boule’s Fourth Amendment claim. Retaliation is a well-established First Amendment claim, available against governmental officers in general.

And, while Egbert may find a way to prevail on the Fourth Amendment allegations by discussing the latitude granted to him as a nominal securer of the nation, he's going to have to get really creative to explain why he decided to retaliate against a citizen's protected speech.

With respect to [the Fourth Amendment] claim, Egbert can legitimately argue that his actions at the inn were performed in connection with his official duties. He cannot say the same thing here, for his retaliation had no relation to, or justification based on, his duties as a border patrol agent.

This ruling increases the chances of success in lawsuits brought against federal agents and officers, and expands the minimal coverage to include rights violations that haven't previously been addressed in this circuit. But, because it does this, there's no chance this won't be appealed. The Supreme Court doesn't like lower courts expanding the narrow Bivens confines, so this has a good chance of getting overturned if the top court picks it up. Until then, it's still a win for Boule and other US citizens. And maybe this win will remain on the books if the Supreme Court feels it's been cutting the government way too much slack in cases like these.

Filed Under: 1st amendment, 4th amendment, 9th circuit, bivens claim, border patrol, cbp, erik egbert, qualified immunity, robert boule, washington