Appeals Court Denies Immunity To Bored Cop Who Decided To Turn A Natural Death Into A Murder

from the nothing-more-dangerous-than-someone-with-more-power-than-usefulness dept

What happens when you add a bored cop to a cold case? Bad things. Very bad things. That's the moral of the story conveyed by this Seventh Circuit Appeals Court decision [PDF].

Actually, calling it a decision is overstating the conclusions. Apparently, the plaintiff, the defendants, and the lower court all made matters far more confusing than they needed to be, leaving the Appeals Court with a muddied record, unclear assertions from all parties, and open questions as to whether qualified immunity on Fourth Amendment claims had actually been denied.

But the path to the procedural shitshow is a full-blown horror show. An unfortunate death, a full autopsy, no sign of foul play, and yet some officer put out to pasture by his department decided he was the second coming of Columbo and mounted a concerted attempt to ruin a person's life.

Curt Lovelace's wife, Cory, died in her bed one morning while Curt was getting their children ready for school. Almost any death in a person's home will trigger an investigation. This tragedy was no exception.

Because Cory was relatively young when she died, the City of Quincy police, along with several Adams County officials, conducted a thorough investigation of her demise. All the physical evidence pointed toward a natural cause of death. It turned out that Cory was severely alcoholic, bulimic, and had been sick with flu-like symptoms for several days before she died. An autopsy revealed that Cory had been suffering from “marked steatosis of the liver.” Severe steatosis—significant fat throughout the liver—can cause the liver to become inflamed and riddled with scar tissue; at that point the person has cirrhosis of the liver, which can lead to liver failure and death. This evidence could not establish a single, indisputable cause of death, but it was more than enough to suggest an array of plausible natural explanations—chronic alcoholism, when combined with other medical conditions, can itself be fatal. Moreover, Cory’s body bore no signs of violent trauma. She had a small patch of redness under her nose, but it was more consistent with a cold or acne than with violence. And she had a small cut inside her mouth, but because it was already healing when Cory died, it was determined to have predated her death.

Curt's accounting of the events was corroborated by his children.

Investigators also verified Curt’s account of the morning in question by comparing his story to the physical evidence indicating time of death. Curt recounted that Cory was supposed to take their three school-aged children to school that day, as Curt was scheduled to teach a class at a local university. But Cory was still unwell when she woke up. They decided that Curt would cancel his class and take their children to school instead. At one point Cory came downstairs to help get the children ready, but she was feeling very weak, and so Curt helped her back upstairs and into bed. Curt then took the children to school at around 8:15 am. He was back at the house by 8:35 am, but he did not go upstairs until around 9 am, when he discovered that Cory had died. The police interviewed Curt’s three oldest children; all three corroborated this timeline. In particular, all three confirmed that they had seen their mother alive and moving about on the morning in question.

The autopsy, as noted above, saw no evidence of foul play. There was a question raised about the level of rigor mortis observed by the doctor performing the autopsy, but responders to the scene saw nothing out of the ordinary, noting the body was still warm, pliable, and displaying a minimum amount of lividity. An EMS attendant was able to raise Cory's arms to a position above her heart so he could attempt to revive her. Her arms remained in the position the EMS tech had moved them to as rigor mortis set in. The investigation was closed shortly thereafter with law enforcement concluding this was a tragic death, not a homicide.

For most of a decade, the case remained closed. But then a cop with too much time on his hands turned his idle hands into the devil's cold case unit.

There the story should have ended. But seven years later, Detective Gibson set in motion a second act. Formerly one of the Quincy police department’s canine officers, Gibson had been reassigned to elder services after his dog retired. But the new role did not keep him busy, it seems, and so to pass the time he made a habit of reviewing files from old cases. One photo of Cory’s body in the Lovelace file caught Gibson’s attention in November 2013. In it, her arms were raised in what appeared to Gibson to be an unnatural position. He concluded that Curt had suffocated Cory with a pillow the evening before her death was reported, that rigor had set in overnight, and that her arms had stayed put when the pillow was removed sometime the next morning. This was, as we already have noted, wild speculation; Gibson was simply looking at photos that were taken after [the EMS tech had] repositioned Cory’s arms.

Unfortunately, the Quincy PD did not tell the detective to get back to his real work and stop trying to turn closed investigations into ongoing investigations. Detective Gibson managed to rope in a coroner who had spent a few minutes at the home moving Cory's body. Coroner Keller -- years after the fact and prompted by Detective Gibson's enthusiasm for refusing to leave the past unmolested -- made a number of claims supportive of the detective's murder theory.

[Keller] claimed, apparently without notes or other corroboration, to recall that Cory’s body had been in full, not partial, rigor, and that the room had smelled bad, as if her body had already begun to decompose. Those claims, if true, would have supported Gibson’s alternate timeline and contradicted Curt’s account. But no other eyewitness, including several who had spent far more time on the scene than Keller, had reported a similar degree of rigor or mentioned any strong odor. Moreover, Keller made no effort to explain how someone could have moved Cory’s arms if Keller was correct.

Detective Gibson and his coroner co-conspiracist discarded everything that didn't agree with the "Curt killed Cory" theory. They began shopping this narrative around to other medical examiners, hoping to obtain an autopsy report that turned the grieving husband into his wife's murderer.

They started in early January 2014 with Dr. Derrick Pounder. But after hearing Gibson’s theory, Dr. Pounder explained in an email that “rigor is not a reliable method of estimating time of death.” And he advised Gibson that Cory could have spoken to her children that morning, just as Curt claimed, and then been dead with her arms at some stage of rigor 90 minutes later. Gibson did not write up a report memorializing Dr. Pounder’s conclusions.

In late January, Gibson and Keller consulted Dr. Scott Denton. Like the original investigators, Dr. Denton quickly dismissed the redness above the lip and small cut in the mouth as irrelevant. And he, too, homed in on the liver as the most likely cause of death. In February, Gibson met with Dr. Denton in person, but again he made no record of Dr. Denton’s opinions. Nor did Dr. Denton himself submit any report at the time.

They also went back to the person who had performed the original autopsy and tried to get her to change her mind about the cause of death. This effort failed. So did their fourth attempt to secure a medical report in their favor from Dr. Shaku Teas. Teas not only agreed with the other medical experts the pair had approached, but was so troubled by Detective Gibson's actions, she testified on behalf of Curt Lovelace during his trial.

Fifth time was the charm.

Gibson and Keller’s fifth and final attempt to secure a favorable expert opinion took place in April and May, when they presented the case to Dr. Jane Turner. That time, they took a more aggressive approach. Rather than providing Dr. Turner with an accurate and complete picture of the evidence and allowing her to draw her own conclusions, they provided her with selected background “facts.” They told Dr. Turner that Cory was in full rigor before the paramedics arrived (not mentioning that this was at least disputed), told her about the minor injuries to Cory’s lip and mouth but omitted any mention of the benign explanations for those injuries, and falsely suggested that another expert—Dr. Denton—had already all but confirmed the suffocation theory. Most damningly, they told Dr. Turner about the position of Cory’s arms, but not that the arms had been repositioned by the paramedics. Dr. Turner, making it clear that her conclusions rested solely on the information that had been presented to her, prepared a report supporting the suffocation hypothesis.

Using this, Detective Gibson had Curt Lovelace arrested. Lovelace was incarcerated for 21 months because he was unable to make bail. His first trial ended with a mistrial because of a hung jury. Prosecutors went after Lovelace again, but he was more prepared for the second trial. Documents obtained through FOIA requests uncovered a lot of Detective Gibson's attempts to build a murder case out of a previously undisputed natural death. This time around, a jury acquitted Lovelace after two hours of deliberation.

The lawsuit followed. Unfortunately for Curt Lovelace, he might not be able to hold Detective Gibson and his coroner buddy liable for wrecking his life. There are questions about whether or not Fourth Amendment claims were preserved for appeal. There are also questions as to whether the lower court has even made a decision on the qualified immunity the defendants are seeking. A lot of this mess will return to the lower court to get sorted out, which means there's still a chance the detective and the coroner will be able to utilize qualified immunity to have the case tossed.

There's a credible Fourteenth Amendment claim that survives completely intact, though. This appears to have been argued somewhat poorly at the lower level, but the Appeals Court says there are enough facts in dispute that the lower court should not have awarded qualified immunity on that count. That's reversed, which means both claims will hopefully be handed over to a jury to sort out just how badly these government employees fucked over Curt Lovelace and how much it should cost them. But that also means any closure -- much less compensation -- is still probably years away for the man one cop decided might be a murderer.

Filed Under: 7th circuit, bored cop, police, qualified immunity

Seventh Circuit Says Riley Doesn't Apply To Searches Of Parolees' Phones

from the nestled-in-one-of-many-warrant-exceptions dept

In 2014, the Supreme Court extended Fourth Amendment coverage to the contents of cell phones. Prior to that ruling, cops had successfully argued that searching the contents of someone's cell phone was no different than searching the contents of their pockets when arresting them. Claims -- bad ones -- were made about "officer safety" and, for the most part, courts tended to agree. If the pants pocket argument didn't work, cell phones -- with their wealth of personal information and private communications -- were analogized as the digital equivalent of car trunks or address books.

This protection only extends so far, as one parolee has discovered. The key is in the wording of the Supreme Court's Riley decision, which apparently doesn't cover someone being arrested for parole violations. But the Seventh Circuit Court of Appeals decision [PDF] seems to undercut some of the findings of the Riley decision, which recognized the personal nature of these computers capable of being carried in someone's pocket. In doing so, it appears to say this enhanced expectation of privacy simply doesn't apply to anyone on parole or probation.

The opening paragraph appears to show something that oversteps the bounds of the search incident to arrest, at least in relation to the parole violation.

Henry Wood was arrested for violating his parole. Midway through the arrest, parole agents found methamphetamine hidden underneath the back cover of his cellphone. An investigator later extracted the data from his cellphone, revealing child pornography.

While the discovery of drugs may have been inevitable, given its location, it's unclear why this investigator decided a forensic search of the phone's digital contents was necessary. While Wood had served time on meth charges, the discovery of meth doesn't alone appear to justify a full search of his phone. The violation he was picked up for was failing to report to his parole officer. His phone was seized as "evidence" during his arrest and the phone search was performed -- without a warrant -- a week later.

Parolees do have a lowered expectation of privacy in just about everything, but it doesn't seem this agreement signed by Wood covers the contents of his phone.

I understand that I am legally in the custody of the Department of Correction and that my person and residence or property under my control may be subject to reasonable search by my supervising officer or authorized official of the Department of Correction if the officer or official has reasonable cause to believe that the parolee is violating or is in imminent danger of violating a condition to remaining on parole.

The crime was failing to report. The search of the outside of the phone led to the discovery of meth. The phone search was in service of... ??? It seems the search of the device occurred mainly because investigators believed Wood's parole agreement allowed them to perform one without seeking a warrant.

The Appeals Court says there's nothing wrong with this. Riley only covers certain situations.

Wood asks us to apply Riley v. California to parolees. The primary problem with this request is that Riley dealt with searches incident to a lawful arrest. The Supreme Court carefully tailored its analysis to that context and expressly recognized that “other case‐specific exceptions may still justify a warrantless search of a particular phone.”

Wood pointed out he was arrested and the phone search could plausibly be called "incident to arrest." The Seventh Circuit doesn't care for this argument. Instead, it says it could be plausibly argued Wood was never out of law enforcement's custody at any point, so the arrest wasn't a new event but rather just an unfortunate continuation of his incarceration.

Wood maintains his arrest rendered Samson inapplicable and instead triggered Riley. On its face, this seems plausible—Wood was arrested, making him an arrestee, and Riley is about arrestees. But a parolee is on the “‘continuum’ of state‐imposed punishments,” one step removed from incarceration. See Samson, 547 U.S. at 850. A custodial arrest would not increase a parolee’s privacy expectations by placing him outside Samson’s reach. Upon arrest, Wood’s status was not transformed from parolee to arrestee, but from parolee to parolee‐arrestee, so Samson continued to apply.

In the court's eyes, the needs of the state (keeping an eye on parolees, reducing recidivism) justify the lowered expectation of privacy for parolees, making them (and their property) subject to warrantless searches. The court says the Supreme Court expressly referred to this carveout when establishing its warrant requirement for cell phone searches.

Reducing recidivism is an independent goal of the parole system, exclusive from those discussed in Riley, and it would be frustrated by imposing a warrant requirement because it would incentivize concealment of criminal activity.

And that's the end of the discussion for now. Riley doesn't apply to devices owned by parolees. They may have been granted a small percentage of their rights in exchange for their continued good behavior, but apparently a warrant requirement for phone searches isn't one of them. There's nothing more personal for some people than their phones, but if you're still working off your debt to society, the state can access your personal data and private conversations on a whim.

Filed Under: 4th amendment, 7th circuit, device searches, parolees, phones, privacy, riley, searches

Seventh Circuit Says (Reluctantly) That 18 Months Of Pole-Mounted Camera Surveillance Isn't Unconstitutional

from the Fourth-Amendment-rights-slightly-down-on-active-trading dept

The Seventh Circuit Court of Appeals has issued a very well-written and thoughtful decision [PDF] on the Constitutionality of long-term surveillance via pole-mounted cameras.

The tricky thing is the "expectation of privacy." For years, it has often been decided that anything the public can view has no expectation of privacy. A person's front door -- easily observable by passersby and neighbors -- has no expectation of privacy. The location data collected by cellphone towers? No expectation of privacy, since these records have been "seen" by service providers. License plate numbers/vehicle location data, even when gathered millions of times a day around the nation? No expectation of privacy.

In recent years, the tide inadvertently created by the Supreme Court's 1967 Katz decision has started to recede a bit. As always-on surveillance (including the steady stream of useful information generated by smartphones) increases, courts have tried to rein in this unprecedented expansion of surveillance capability by defining "reasonable" as things police officers could actually do without the aid of all this new tech. If it's impossible for a cop to watch the same front door 24/7 for weeks on end (and provide specific recall of comings and goings days or weeks after they occurred), then there's perhaps some expectation of privacy even in public places.

The Supreme Court's Carpenter decision placed some limits on the gathering of records stored by third parties, ruling that these too contain some inherent expectation of privacy.

Into the mix comes the Seventh Circuit's decision, which seems a bit at odds with current case law on the subject of long-term surveillance. But it opens with a pretty accurate projection of the near future: something that will continue to wreak havoc on long-held notions about personal privacy, as well as long-lasting precedent that found nothing wrong with the government gazing steadily at people's yards and doorsteps.

One day, in a not-so-distant future, millions of Americans may well wake up in a smart-home-dotted nation. As they walk out their front doors, cameras installed on nearby doorbells, vehicles, and municipal traffic lights will sense and record their movements, documenting their departure times, catching glimpses of their phone screens, and taking note of the people that accompany them.

These future Americans will traverse their communities under the perpetual gaze of cameras. Camera-studded streets, highways, and transit networks will generate precise information about each vehicle and its passengers, for example, recording peoples’ everyday routes and deviations therefrom. Upon arrival at their workplaces, schools, and appointments, cameras on buildings will observe their attire and belongings while body cameras donned on the vests of police and security officers will record snippets of face-to-face or phone conversations. That same network of cameras will continue to capture Americans from many angles as they run errands and rendezvous to various social gatherings. By the end of the day, millions of unblinking eyes will have discerned Americans’ occupations and daily routines, the people and groups with whom they associate, the businesses they frequent, their recreational activities, and much more.

The court says the Katz ruling has created circular reasoning that largely benefits the government, rather than the people whose rights the government is entrusted to protect.

Despite its best intentions, this expectations-based Katz test has paved the way for a perilous circularity for new technology. Specifically, our current formulation of a Fourth Amendment search often turns on whether a used technology becomes widespread. Stated differently, as society’s uptake of a new technology waxes—cars, GPS devices, cameras, and the Internet come to mind—expectations of privacy in those technologies wane. In today’s interconnected, globalized, and increasingly digital world, for example, Americans largely accept that cell phones will track their locations, their Internet usage will leave digital footprints, and ever-watching fixed cameras will monitor their movements. These evolving expectations thus continually undermine themselves.

As long as the government moves discreetly with the times, its use of advanced technologies will likely not breach society’s reconstituted (non)expectations of privacy. The upshot: the Katz test as currently interpreted may eventually afford the government ever-wider latitude over the most sophisticated, intrusive, and all-knowing technologies with lessening constitutional constraints.

At the center of this case is eighteen months of continuous surveillance by three cameras installed near Travis Tuggle's property. Two kept constant watch on Tuggle's home and an adjoining parking area. The third was aimed mainly at a nearby shed owned by Tuggle's co-defendant, Joshua Vaultonburg. The cameras could be controlled remotely and recordings could be accessed at any time at a nearby FBI office, where the recordings were stored. This led to recordings of nearly 100 suspected deliveries of meth, which soon led to a raid of the premises and the arrest of Tuggle.

Tuggle challenged the Constitutionality of this surveillance. He raised two arguments. First, he argued each individual camera was a violation of his privacy rights. The court disagrees, pointing out Tuggle took no steps to prevent these areas from being observed by members of the public or law enforcement, such as erecting fences around the surveilled areas. Given these facts, the court says this argument fails.

In this case, Tuggle knowingly exposed the areas captured by the three cameras. Namely, the outside of his house and his driveway were plainly visible to the public. He therefore did not have an expectation of privacy that society would be willing to accept as reasonable in what happened in front of his home. See Evans, 27 F.3d at 1228. The Fourth Amendment accordingly did not require officers to “shield their eyes” (or their cameras) when passing by Tuggle’s “home on public thoroughfares.” See Ciraolo, 476 U.S. at 213.

And for that, society bears part of the blame.

We likewise conclude that, under a straightforward application of Kyllo, the isolated use of pole cameras here did not run afoul of Fourth Amendment protections. Today, cameras are in “general public use.” Kyllo, 533 U.S. at 40. Now more than ever, cameras are ubiquitous, found in the hands and pockets of virtually all Americans, on the doorbells and entrances of homes, and on the walls and ceilings of businesses.

[...]

In sum, the government used a commonplace technology, located where officers were lawfully entitled to be, and captured events observable to any ordinary passerby. The government did not invade an expectation of privacy that society would be prepared to accept as reasonable. Accordingly, the isolated use of pole cameras here did not constitute a Fourth Amendment search.

Tuggle also raised a "mosaic" argument, claiming the combined eighteen months of footage from three cameras intruded on reasonable expectations of privacy. Unfortunately, the Seventh Circuit can't find any Supreme Court precedent to overrule Katz, much less something that would turn a continuous series of Constitutional non-violations (the individual cameras and their approximation of a police officer's eye) into a prolonged Constitutional violation. While there are decisions at lower levels in both state and federal courts, there's no precedent at the appellate level stating that long-term surveillance via camera is a Fourth Amendment violation, with the exception of the Fifth Circuit (surprise surprise!), which held that anything over 30 consecutive days requires a warrant.

Faced with these depressing facts, the Seventh Circuit says it has no choice but to give the government a pass on long-term surveillance. Unlike more comprehensive surveillance (like cell site location data), this monitoring may have allowed the government to draw some conclusions about who came and went from the house, but didn't delve deeply enough into Tuggle's own movement to create a Constitutional violation.

Unlike those technologies, the cameras here exposed no details about where Tuggle traveled, what businesses he frequented, with whom he interacted in public, or whose homes he visited, among many other intimate details of his life. If anything, far from capturing the “whole of his physical movements,” id. at 2219, or his “public movements,” Jones, 565 U.S. at 415 (Sotomayor, J., concurring), the cameras only highlighted Tuggle’s lack of movement, surveying only the time he spent at home and thus not illuminating what occurred when he moved from his home.

The final decision from the Appeals Court is reluctant.

Although we now hold that the pole camera surveillance of the exterior of Tuggle’s home did not constitute a Fourth Amendment search, we are not without unease about the implications of that surveillance for future cases. The eighteen-month duration of the government’s pole camera surveillance—roughly four and twenty times the duration of the data collection in Carpenter and Jones, respectively—is concerning, even if permissible.

It backstops this reluctant conclusion by saying the courts and the nation's lawmakers will need to do more to protect citizens from increasing surveillance as technology continues to advance and high-powered surveillance tools not only become ubiquitous, but deployed by citizens themselves for their own use.

Barring a transformation in governing law, we expect this chronicle of cameras to repeat itself again and again with the evolution of far more invasive technologies. Today’s pole cameras will be tomorrow’s body cameras, “protracted location tracking using [automatic license plate readers],” drones, facial recognition, Internet-of-Things and smart devices, and so much more that we cannot even begin to envision. New technologies of this sort will not disappear, nor will the complicated Fourth Amendment problems that accompany them. If anything, we should expect technology to continue to grow exponentially. And if current technologies are any indication, that technological growth will predictably have an inverse and inimical relationship with individual privacy from government intrusion, presenting serious concerns for Fourth Amendment protections.

And it's probably time for the Supreme Court to rethink the conclusions of Katz, should the opportunity arrive. What was once impossible is now mundane.

Indeed, almost four decades ago, when considering a respondent’s argument that “twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision,” the Court reserved judgement because, “if such dragnet type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Knotts, 460 U.S. at 283–84. As this case illustrates, round-the-clock surveillance for eighteen months is now unextraordinary.

This denial of Tuggle's motion to suppress is well-written and well-reasoned, even if it comes to a conclusion that does nothing to rein in extensive, prolonged surveillance by the government. While most opinions have a few highlights worth reading, the Seventh Circuit has delivered a comprehensive discussion that addresses the complicated issue without dragging the reader through the case law weeds. While it would have been nice to see the Seventh join the Fifth in prohibiting long-term surveillance without a warrant, at least this decision appears to have been handled with incredible care and raises questions Congress and other courts will need to answer sooner rather than later.

Filed Under: 4th amendment, 7th circuit, pole-mounted cameras, privacy, surveillance

Court: Planning To Get A Warrant Is As Good As Actually Having A Warrant When Searching A House

from the thoughts-and-affidavits dept

What do you give a DEA agent who has everything (but a warrant)? If you're the Seventh Circuit Court of Appeals, you give them the warrant -- the one agents obtained hours after they performed the search of someone's home. From the conclusion of the court's decision [PDF]:

All agree: the DEA entry team entered Huskisson’s house unlawfully. We do not condone this illegal behavior by law enforcement; the better practice is to obtain a warrant before entering a home. Ordinarily, the evidence found here would be excluded. But because the government had so much other evidence of probable cause, and had already planned to apply for a warrant before the illegal entry, the evidence is admissible.

It's not just the "better practice." It's a Constitutional requirement. Probable cause alone does not give the government permission to search a person's home. Probable cause simply gives the government what it needs to obtain a warrant to search a home. The home is given the utmost protection by the Fourth Amendment. Here's what the Supreme Court had to say about this issue in 1961:

At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.

Planning on getting a warrant is not -- and has never been -- the equivalent of obtaining a warrant.

The footnote under this conclusory paragraph is as useless as the Seventh Circuit's opinion, which gives the government a free pass to search first, affidavit later, so long as they have enough probable cause to support a warrant application.

See Order Den. Mot. to Suppress at 9–10, ECF No. 76; Order Den. Pretrial Mot. at 6, ECF No. 165 (denying defendant’s motion to reconsider denial of suppression motion); Trial Tr. vol. 2 at 298–99, ECF No. 211 (posttrial order again denying motion to suppress). Additionally, as noted above, at trial three DEA agents testified the plan was always to seek a warrant once Hardy had confirmed there were drugs in Huskisson’s home.

The beginning part says the lower court came to the same conclusion: a warrant in mind is as good as a warrant in hand. The second part just confirms the facts of the case: the DEA agents searched a house before obtaining a warrant.

The facts of the case don't help. They don't really explain two consecutive courts' decision to treat a warrantless search as a Constitutional search. The DEA was working with a cooperative drug dealer it had already arrested, using him to set up drug buys with its target, Paul Huskisson. DEA agents listened in on phone calls their informant made, building up plenty of probable cause to support the arrest of Huskisson and the search of his house. Agents listened in on nine calls over the course of a day discussing a drug purchase.

The DEA wanted corroboration Huskisson had illegal drugs inside his house. Agents sent their informant into the house to complete the purchase. The informant gave the drug task force team (DEA agents plus local drug warriors) the signal that he'd seen the methamphetamine inside the house. At that point, law enforcement entered the house and arrested everyone inside. Huskisson refused to consent to a search of his house, but the meth was out and plainly visible to officers.

A few hours after this search, the DEA finally applied for a search warrant.

[T]he warrant application contained the following two sentences that underlie this appeal: “The law enforcement officers observed an open cooler with ten saran wrapped packages that contained suspected methamphetamine. The suspected methamphetamine later field tested positive for the presence of methamphetamine.” The magistrate judge issued a search warrant for Huskisson’s house around 10:30 p.m. the night of Huskisson’s arrest, about four hours after the initial entry.

The lower court said this was fine. Even without the lines about the meth the warrant contained enough probable cause to support a search of the house. So does the appeals court. In both cases, the fact that a house was searched without a warrant is handwaved away by the existence of other probable cause and supporting evidence. But that still doesn't address the illegal entry in the first place.

Nothing in the opinion does. The entire discussion revolves on whether or not the meth seen in plain sight after the illegal entry influenced the obtaining of a warrant four hours after the search occurred.

The court carefully weighed the evidence from both sides; when faced with two inconsistent statements from the same witness, the court credited one based on the totality of the evidence. In so doing, the district court concluded that an errant statement by Detective Kinney did not outweigh the other evidence of the government’s plan to request a search warrant, regardless of what they found in the house.

Because the presence of drugs in plain sight apparently didn't nudge the needle on the warrant request (and despite the affidavit including the drugs in plain sight), the lack of a warrant doesn't affect anything. That appears to be the Seventh Circuit standard: as long as law enforcement has some probable cause and plans to seek a search warrant at some point, it can step inside someone's home and take a look around. Everything else explaining away the removal of a warrant requirement is nothing more than rights-damaging filler.

Filed Under: 4th amendment, 7th circuit, dea, warrant

Seventh Circuit Ignores Two Supreme Court Decisions To Hand Out Bad Precedent On Cell Site Location Info

from the doing-nothing-would-have-been-more-useful dept

The Seventh Circuit Appeals Court has issued a dubious ruling [PDF] on cell tower dumps -- one that appears to ignore the Supreme Court's decision declaring warrants are needed to obtain cell site location info. The criminal conduct leading to this questionable finding clearly shows robbing cellphone stores is a particularly bad idea. (h/t Orin Kerr)

[Lawrence] Adkinson and others, in July 2015, robbed a T-Mobile phone store in Clarksville, Indiana, and then a Verizon store in Kentucky the next day. With handguns drawn, they stole approximately 100 cell phones and other items. They later robbed nine additional stores, including three more T-Mobile stores.

T-Mobile investigated the first robberies. As part of its investigation, T-Mobile conducted “tower dumps”: it pulled data from cell sites near the first two victim stores to identify which phones had connected to them—and thus were close to the crimes. From these dumps, T-Mobile determined that only one T-Mobile phone was near both robberies and that Adkinson was an authorized user on that phone’s account.

T-Mobile shared this information with law enforcement, leading to Adkinson's arrest and conviction. Adkinson sought to suppress the evidence law enforcement obtained from T-Mobile, citing the Carpenter decision. If the appeals court had simply pointed out the Carpenter decision does not apply retroactively and moved on, it would have avoided the number of issues it has created with this published opinion, which will set precedent for the circuit.

The least troubling holding is this: T-Mobile did not act as a government agent when it forwarded the results of its internal investigation to law enforcement.

The government responds that the Fourth Amendment was not violated, and we agree for three primary reasons. First, T-Mobile is a private party, and Adkinson has not shown that it was the government’s agent. “A search or seizure by a private party does not implicate the Fourth Amendment” unless the private party “is acting as an instrument or agent of the government.” United States v. Shahid, 117 F.3d 322, 325 (7th Cir. 1997) (internal quotation omitted). To demonstrate agency, Adkinson must establish either that T-Mobile agreed to act on the government’s behalf and to be subject to its control or that the government ratified T-Mobile’s conduct as its own. United States v. Aldridge, 642 F.3d 537, 541 (7th Cir. 2011) (citing RESTATEMENT (THIRD) OF AGENCY §§ 1.01, 4.01 (2006)). T-Mobile, however, acted in its own interest to prevent more robberies of its stores and recover its property when the company furnished data to the government; there is no evidence that it expected to receive any benefit from the government. Providing that data did not transform T-Mobile into an agent of the state.

When a private party hands info to the government, the government doesn't need a warrant to look at whatever has been provided. As long as the government isn't actively encouraging this sharing of information with promises of payments or perks, the Fourth Amendment won't be violated.

But the court goes further than that, suggesting the Carpenter decision doesn't cover tower dumps.

The case did not invalidate warrantless tower dumps (which identified phones near one location (the victim stores) at one time (during the robberies)) because the Supreme Court declined to rule that these dumps were searches requiring warrants. 138 S. Ct. at 2220. Adkinson also relies on policy guidance from the Department of Justice about cell-site data. But that policy guidance, by its own terms, “is not intended to and does not create any right, benefit, trust, or responsibility.”

But that's not what the Supreme Court said. The court said cell site location info is protected by the Fourth Amendment. It did not stick a time limit on historical cell site data, declaring collections over x amount of days to be a search under the Fourth Amendment. Instead, it simply noted the obvious: cellphones are tracking devices people carry with them everywhere they go. This vast amount of precise location info should not be only a subpoena away from the government's possession.

[W]e hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.

There was no carve-out for tower dumps in the Supreme Court's decision. There's one now in the Seventh Circuit.

More troubling is the court's declaration that -- contrary to the Supreme Court's finding -- clicking OK on a EULA somehow waives the privacy protections the Supreme Court extended to cell site location info.

Adkinson’s Fourth Amendment rights were still not violated because Adkinson consented to T-Mobile collecting and sharing his cell-site information. A defendant can voluntarily consent in advance to a search as a condition of receiving contracted services. See Medlock v. Trustees of Indiana Univ., 738 F.3d 867, 872 (7th Cir. 2013). As a condition of using a phone serviced by T-Mobile, Adkinson agreed to T-Mobile’s policy that T-Mobile could disclose information when reasonably necessary to protect its rights, interests, property, or safety, or that of others. And T-Mobile, in accordance with its policy, shared information with law enforcement after one of its stores was robbed at gunpoint.

If this is what the court wants to believe, then the Carpenter decision no longer exists in the Seventh Circuit. Every cellphone owner agrees to have information collected when they purchase a phone and use the provider's phone service. They may agree this information can be handed over to law enforcement, but the Supreme Court clearly said this does not negate their privacy interest in the information shared with service providers.

As Orin Kerr points out, this ruling also ignores precedent set by another recent Supreme Court ruling. In Byrd, the court held that people who rent cars have a privacy interest in the rented vehicle, one that isn't overcome by the driver not being "authorized" by the rental agreement. In both cases, the court stated that contractual agreements with private companies are not enough to eliminate citizens' Fourth Amendment protections.

What could have been an open-and-shut case reaffirming two obvious conclusions -- the lack of inherent retroactivity in the Carpenter decision and the inability of private searches (T-Mobile's investigation) to violate Fourth Amendment protections -- is instead a mess of precedential hot takes that directly contradict two recent Supreme Court decisions. Citizens residing in this circuit have just been informed their Fourth Amendment isn't worth as much as it is elsewhere in the country.

Filed Under: 7th circuit, cell site, csli, location info, privacy, supreme court

Court Tells Cops Playing Hunch Roulette Is No Way To Run An Investigation

from the you're-free-to-go,-they-surrounded dept

There are many routes law enforcement can take to end up in the promised land of Probable Cause. But the point of departure matters. While a routine (read: pretextual) stop can develop into a situation where a search is justified, the same can't be said about the search at the center of this recent Seventh Circuit Court of Appeals decision. While it's true probable cause may take time to develop, it needs to be an organic process starting with reasonable suspicion, not a series of guesses being explored until one of them pays off.

No arrest was effected during this extended/distended process, but officers still keep appellant Fausto Lopez quasi-detained until they could find something to arrest him for. It all started with a questionable tip. From the decision [PDF]:

Law enforcement officers detained and frisked defendant-appellant Fausto Lopez after observing him and his brother load paper bags into Lopez’s garage. The officer who ordered the stop had a “hunch” that the bags contained drug-trafficking contraband. That hunch was wrong. It had been based on a tip the officers had obtained the previous night from an informant detained for suspected drug trafficking. The informant stopped cooperating with the officers as soon as he was out of their sight.

Ah, the reliable CI -- a person whose interest in remaining out of jail would never result in the production of bogus information. At that point, Lopez should have been free to go. The officer was wrong and there was no evidence of criminal activity. But that's not what happened.

After finding no contraband, the officer who had ordered the stop realized that his hunch had been mistaken. Nevertheless, eight officers continued to detain Lopez. At one point during this detention, the lead officer told Lopez that he was “free to go.” Yet the officers kept possession of Lopez’s cellphone and keys, effectively restraining his liberty to leave and stripping the assurance of meaning.

"Free to go" means "free to go," not "free to go but without your phone or vehicle." In this case, the "free to go" appears to have been offered up as a disclaimer -- an attempt to pre-absolve the officers for the constitutional violation that came next.

While Lopez was still detained, the officers eventually obtained his permission to search his house based on another hunch that Lopez kept drugs there. This second hunch proved correct. Officers recovered drugs and a gun from the home.

The court points out that, despite the officers' assurances Lopez wasn't being detained and was free to go, it was obvious neither of these statements were true.

The lead officer told Lopez that the police were doing an investigation but cautioned that he was not under arrest and did not have to answer the officers’ questions. The officer also told Lopez he was free to go. Still, since Lopez was already at home and the officers had taken possession of his van, his car keys, and his cellphone, it is hard to see what practical effect this assurance might have had.

The officers then obtained permission to search the garage from Lopez. Again, they failed to find any drugs, paraphernalia, money, or weapons. All this was done while Lopez was "free to go" -- in other words, enter his own home via a garage containing no less than eight police officers, one of whom still had Lopez's phone and car keys in his possession. The incongruity continued until the cops secured "consent" to search Lopez's home. At this point, drugs, money, and a gun were recovered.

The lower court found in favor of the government, somehow deciding an officer saying someone is free to go makes everything that occurs after that consensual, even if it's clear the person was never free to go. The appeals court disagrees with everything about the lower court's decision, starting with initial encounter in Lopez's garage. This first search of Lopez was predicated on a tip from an informant who immediately stopped talking to police officers (and did not answer his phone) as soon as he was cut loose from custody. Zero investigatory work was done to corroborate the tip or the tipster's reliability. What officers observed did not align at all with what the informant told them they would see if they approached Lopez's residence. Nonetheless, without even reasonable suspicion, officers searched Lopez and began questioning him.

The initial seizure of Lopez fell short of the Fourth Amendment’s requirements for Terry stops. Remember the facts in the tip: The informant said that during a typical transaction he drove a white Chevrolet Malibu into the garage, and the exchange of drugs for money took place inside the garage after closing the door. On the day of the seizure, however, the police observed a white van pull up next to the garage while the brothers exited the vehicle and unloaded paper bags into the garage from the alley. No courier; no white Malibu or similar vehicle; no concealing the vehicle inside the garage to avoid witnesses. The officers’ observations that day simply did not corroborate, even roughly, the informant’s story. The officer who decided to stop Lopez could only guess what was in the bags Lopez carried—he operated on no more than a hunch. He and his fellow officers failed to undertake “even a modicum of additional investigation” to see if the Lopezes’ or others’ actions matched the informant’s tale or to wait for Lopez’s actions to create an independent basis for reasonable suspicion.

The court goes on to point out that accepting the government's arguments would place citizens' life and liberty solely in the hands of criminal suspects hoping to avoid jail time. If officers are willing to act on tips from suspected criminals without further corroboration, it strips all reasonableness from "reasonable suspicion."

People under police investigation themselves could too easily deflect suspicion by redirecting law enforcement’s attention to others. If an unreliable and uncorroborated tip were enough to justify an immediate move to seize and question the subject, we would be restricting everyone’s liberty based on the optimistic hope that those who name names during interrogation do so in good faith. The reasonable-suspicion threshold sets a lower bar for state action than probable cause, but that bar has not slipped so low as to allow unreliable tips like this one to trigger the humiliating, involuntary seizures and sometimes violent encounters that we justify under the bland and familiar phrase “Terry stops.”

The government also argued Lopez gave consent to search the house. That may be, says the court, but it's not truly voluntary consent despite the officers' repeated (but bullshit) assertions Lopez was free to go.

[W]hile one officer was assuring Lopez that he was free to go, the other officers still had Lopez’s keys, van, and cellphone. At least eight officers remained on the scene at his garage and house. In this case, no reasonable person in Lopez’s shoes would conclude that one officer’s words meant more than all eight officers’ actions. Lopez remained in police detention for as long as officers functionally blocked his exit by the overwhelming physical presence of eight officers and by retaining his van, car keys, and cellphone. This detention violated the limited scope of intrusion that would have been permissible even if there had been reasonable suspicion for a Terry stop.

Since Lopez was being detained in violation of the Fourth Amendment, his consent to search the house cannot be deemed voluntary. No time had elapsed, there were no intervening circumstances, and the detention was not even arguably justified after the search of the garage turned up nothing incriminating.

With that, the government loses its conviction. The evidence is suppressed and Lopez's conditional guilty plea withdrawn. An invalid stop and brief detention tainted everything that came after it. The words "free to go" are supposed to mean something. In this case, the actions of the gathered officers rendered the phrase as meaningless as "stop resisting."

Filed Under: 7th circuit, fausto lopez, hunches, law enforcement, police, pretextual stops, probable cause

Seventh Circuit Appeals Court Hands Fifth 'Good Faith' Win To FBI's Invalid Playpen Warrant

from the fixing-it-in-post dept

It doesn't appear the Supreme Court will have to resolve a circuit split on the FBI's malware warrant used in its Playpen child porn investigation. The same day the Ninth Circuit Appeals Court found in favor of the FBI, the Seventh Circuit reached the same conclusion [PDF], bringing the FBI's "good faith" total to five appellate wins versus zero losses.

The Seventh's reasoning echoes that of the other circuits: the warrant may have been invalid (seeing as its jurisdiction limits were immediately violated by the FBI's malware deployment), but the FBI was correct to rely on the magistrate's screwup.

Federal Rule of Criminal Procedure 41(b)(1) authorizes a magistrate judge “to issue a warrant to search for and seize a person or property located within the [magistrate judge’s] district.” This warrant, they say, extended to people and property located outside the magistrate’s district. Defendants contend that a void warrant is tantamount to no warrant at all, nullifying the good-faith exception.

We disagree. Even if the warrant were void ab initio, we would treat this like any other constitutional violation. We see no reason to make the good-faith exception unavailable in such cases.

I'm sure the Seventh didn't mean to make it sound like it would excuse "any other constitutional violation," but that's kind of how it reads. What the court is saying is that it won't suppress the evidence obtained with an invalid warrant. It doesn't go as far as other courts have and find that there's no deterrent effect in suppressing evidence because the illegal actions engaged in by the FBI were made legal after the fact. But it does say suppression is unreasonable because it punishes the FBI for the magistrate judge's error.

The deterrence rationale for the exclusionary rule aims at the conduct of the police, not the conduct of the magistrate judge. See Davis, 564 U.S. at 238 (focusing the cost-benefit analysis in exclusion cases on the “flagrancy of the police misconduct” at issue). Thus, whether the magistrate judge lacked authority has no impact on the rule. As Leon explains, “[p]enalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.”

What's more troubling is that its discussion of the FBI's "good faith" grants credence to one of the FBI's more disingenuous arguments: that the malware it sent was a "tracking device" rather than a search, making its deployment from a seized server in Virginia constitutional because the FBI obviously can't control where tracking devices end up after they're deployed. This legal theory has been criticized in other courts even while finding the FBI, overall, acted in good faith. Here's a quote from the Third Circuit's decision, which calls out the FBI for its appellate-level goalpost moving.

We need not resolve Werdene’s contention that the Government waived this argument because we find that the Government’s tracking device analogy is inapposite. As an initial matter, it is clear that the FBI did not believe that the NIT was a tracking device at the time that it sought the warrant. Warrants issued under Rule 41(b)(4) are specialized documents that are denominated “Tracking Warrant” and require the Government to submit a specialized “Application for a Tracking Warrant.” See ADMINISTRATIVE OFFICE OF U.S. COURTS, CRIMINAL FORMS AO 102 (2009) & AO 104 (2016). Here, the FBI did not submit an application for a tracking warrant – rather, it applied for, and received, a standard search warrant. Indeed, the term “tracking device” is absent from the NIT warrant application and supporting affidavit.

The Seventh Circuit gives the government credit where none is due.

Perhaps the warrant impermissibly allowed the search of computers outside the magistrate judge’s district, as the defendants suggest. But the government suggests another theory. It notes that under Rule 41(b)(4), a magistrate judge can issue a warrant for the installation of a “tracking device” within the district that can track movement outside the district. Fed. R. Crim. P. 41(b)(4). The government characterizes the NIT as such a device, maintaining that its installation occurred in-district because the defendants were accessing servers located in that district. Choosing between these frameworks has split district courts across the country, which underscores the difficulty of the question.

Having done that, the court declares it won't discuss the "tracking device" any further because it has already said suppression would punish the FBI for the magistrate's error. The evidence remains in play and the convictions of all three defendants are affirmed.

The problem with these decisions is they tacitly encourage law enforcement to ask judicial permission for illegal searches because if it's granted, it's the magistrate's fault, not the officers', and evidence obtained illegally won't be suppressed. When the FBI asked for permission to engage in extraterritorial searches, the DOJ was pushing for removal of Rule 41 jurisdiction limits. It's impossible the agent swearing out the warrant was unaware of this fact. It was a bad faith request converted to "good faith" by the magistrate's approval, whitewashing the FBI's actions and making the evidence unassailable in court.

Filed Under: 4th amendment, 7th circuit, doj, fbi, good faith, playpen, rule 41

Appeals Court: City-Owned Utility Pulling Electric Use Info Every 15 Minutes Is A Search

from the but-an-acceptable-search-apparently dept

An oddball, but interesting, decision [PDF] flowing from the Supreme Court's Carpenter ruling has been issued by the Seventh Circuit Court of Appeals. While the Carpenter decision centered on the long term collection of historic cell site location information, the ruling could be applied to a number of situations where records created by citizens are stored and housed by other parties and accessible without a warrant.

This case deals with smart meters, issued by the government (via the public electric utility) to track electric use in citizens' homes. With the old meters, readings were performed by utility employees every few weeks. The new smart meters send back info on electric use every fifteen minutes. This frequency was chosen by the City of Naperville government. It could have gone with something less intrusive, but it chose this method instead.

The city was sued by citizens opposed to being snooped on by the new smart meters. The plaintiffs argued the frequent readings allowed to government to make a great deal of inferences about activities inside citizens' homes, based on the rolling delivery of energy use amounts. The district court tossed the case. So does the Appeals Court, but only after making some interesting findings. (via Orin Kerr/Volokh Conspiracy)

First, the court rules that the government's use of smart meters to retrieve information about electric usage is actually a search under the Fourth Amendment. To do that, it looks to the Supreme Court's Kyllo decision, which dealt with the warrantless deployment of thermal imaging scanners by law enforcement. That decision found deployment to be a search, even if officers never physically entered the residences being scanned. Enough could be inferred about inside activity from the thermal images to be considered a search under the Fourth Amendment. The Appeals Court says the same rationale applies here.

The technology-assisted data collection that Smart Meter Awareness alleges here is at least as rich as that found to be a search in Kyllo. Indeed, the group alleges that energy-consumption data collected at fifteen-minute intervals reveals when people are home, when people are away, when people sleep and eat, what types of appliances are in the home, and when those appliances are used. By contrast, Kyllo merely revealed that something in the home was emitting a large amount of energy (in the form of heat).

This search, performed by smart meters, has more privacy implications than the rough thermal imaging in Kyllo.

What’s more, the data collected by Naperville can be used to draw the exact inference that troubled the Court in Kyllo. There, law enforcement “concluded that [a home’s occupant] was using halide lights to grow marijuana in his house” based on an excessive amount of energy coming from the home. Id. at 30. Here too, law enforcement could conclude that an occupant was using grow lights from incredibly high meter readings, particularly if the power was drawn at odd hours. In fact, the data collected by Naperville could prove even more intrusive. By analyzing the energy consumption of a home over time in concert with appliance load profiles for grow lights, Naperville law enforcement could “conclude” that a resident was using the lights with more confidence than those using thermal imaging could ever hope for. With little effort, they could conduct this analysis for many homes over many years.

The court notes this isn't a Third Party Doctrine case, unlike the Supreme Court's Carpenter decision. This argument, raised by the city in its defense of its info collection, is unavailing. There is no third party. This dismantles the city's argument the data collection was somehow a "voluntary" exchange. The information flows from citizens' houses directly to the government. There's nothing "voluntary" about electric service provided by the government, and that's where the Carpenter decision comes in.

The third-party doctrine rests on “the notion that an individual has a reduced expectation of privacy in information knowingly shared with another.”But in this context, a choice to share data imposed by fiat is no choice at all. If a person does not—in any meaningful sense—“voluntarily ‘assume the risk’ of turning over a comprehensive dossier of physical movements” by choosing to use a cell phone, Carpenter, 138 S. Ct. at 2220 (quoting Smith, 442 U.S. at 745), it also goes that a home occupant does not assume the risk of near constant monitoring by choosing to have electricity in her home. We therefore doubt that Smith and Miller extend this far.

Ultimately, the court sides with government. Unreasonable searches need warrants. They're permission slips for things we don't want our government doing without permission from an impartial judge and without laying out the justification for the search. In this case, the flow of data to the government (in exchange for the flow of electricity from the government) is a search, but it's a "reasonable" search. The appeals court says that the government's interest in modernizing the grid and energy deployment is worthwhile and done "without prosecutorial intent." Law enforcement does not have constant access to this info. Only the utility does. Presumably, additional paperwork would be necessary if law enforcement does want access, but the court doesn't see anything on the record that suggests public utility shoulder surfing by police officers.

Smart meters allow utilities to reduce costs, provide cheaper power to consumers, encourage energy efficiency, and increase grid stability. We hold that these interests render the city’s search reasonable, where the search is unrelated to law enforcement, is minimally invasive, and presents little risk of corollary criminal consequences.

Somewhat strangely, the court decides that the more smart meters the government rolls out, the less of a Fourth Amendment issue it becomes.

Under Kyllo, however, even an extremely invasive technology can evade the warrant requirement if it is “in general public use.” While more and more energy providers are encouraging (or in this case forcing) their customers to permit the installation of smart meters, the meters are not yet so pervasive that they fall into this class. To be sure, the exact contours of this qualifier are unclear—since Kyllo, the Supreme Court has offered little guidance. But Kyllo itself suggests that the use of technology is not a search when the technology is both widely available and routinely used by the general public.

In the court's own words, now that airplanes are a routine part of daily life, stuff viewable from overheard has a diminished privacy interest. Apparently, the same thing applies to the continuous flow of electric usage data to government utilities. Once smart meters are no longer a niche item, Americans will just have to get used to the government drawing inferences from the multiple data points it gathers daily.

This seems at odds with the Carpenter decision (which partially stems from the Supreme Court's ruling on cellphone searches). The more pervasive the tech is, the more privacy implications it raises. Once cellphones became ubiquitous, the government could no longer be allowed to treat them as tracking devices loaded with personal information that could be accessed without a warrant.

The tech in this case may be owned by the government, but the same thought process should apply. Turning peoples' homes into a steady stream of data points via the rollout of smart meters should weigh against the government's easy access, rather than be treated as a supporting argument for it. But that's the way the Supreme Court precedent sits right now, which makes for some very inconsistent Fourth Amendment applications.

Filed Under: 4th amendment, 7th circuit, carpenter, electric utility, naperville, smart meters

Appeals Court Tells Lower Court (For The Second Time) To Stop Coddling An Abusive Ex-Deputy

from the god-help-you-if-we-see-this-appealed-again dept

The Seventh Circuit Appeals Court seems a bit tired of the district court's shit. For the second time, it's remanding a case involving a convicted law enforcement officer because the lower court refuses to give the former officer the punishment he deserves. Terry Joe Smith has twice been sentenced for subjecting two arrestees to intentional and unreasonable excessive force. The facts of the case are this, as recounted by the Appeals Court's second run [PDF] at the same problem.

At trial, Smith’s fellow police officers testified against him, describing the unwarranted attacks. In the first incident, Smith punched the arrestee in the face with a closed fist, causing bleeding and swelling on his face. Two officers testified that the blow made the sound of a tomato hitting a concrete wall. At the time, the arrestee was fully under the control of four other officers, and the arrestee posed no danger to Smith. A fellow officer testified that he had been trained to refrain from striking anyone in the head with a closed fist unless he was in a “deadly force” situation because such a blow could be lethal. After that incident, Smith bragged about his behavior to other officers and mocked those who objected to his unjustified attack. The arrestee had to be removed from the scene in an ambulance.

That's only half the story. Here's the rest:

Several months later, in the second attack, Smith and other officers arrested an intoxicated man accused of battering a woman during a domestic dispute. Smith led the handcuffed arrestee to a patrol car. On reaching the car, Smith raised the man into the air, threw him face-first onto the ground and drove his knee into the man’s back with such force that the man defecated on himself. The man suffered injuries to his back and ribs. Smith later bragged that this was not the first time he had made someone defecate on himself. Again, Smith’s fellow officers testified that the arrestee was not actively resisting in any manner and that the use of force was unjustified and excessive.

Obviously, Smith liked throwing his weight around. And he had plenty of it, according to the decision's footnotes: 6' 3" and 270 pounds -- all of it apparently deployed to show these arrestees who was in "control" of the situation.

Sentencing guidelines called for 33-41 months imprisonment. The court considered some mitigating effects (community work, difficult childhood) and those calling for the harsher end of the sentencing spectrum (assaulting juveniles at a detention facility, "unaddressed anger issues," lying to investigators). For reasons not adequately explained, the district court sentenced Smith to less than half the minimum: 14 months.

Both parties appealed. In retrospect, Smith may have been better off letting the sentence ride. The Appeals Court sent the case back with instructions to either explain its downward sentencing departure better or to apply a sentence within the guidelines. It pointed out the lower court said Smith was unlikely to reoffend but did not show its homework as to why it had chosen to depart so drastically from the guidelines.

The lower court took another look at the case and… arrived at the same exact sentence. The court considered the time the officer had served as well as some steps he had taken to reintegrate himself into the real world again. It also pointed to the officer's statement as a proper expression of remorse for his wrongdoing. The Appeals Court notes the second sentencing attempt is basically a word-for-word replay of the first. It also notes Smith's "remorseful" statement mainly discussed how difficult things were for him rather than for his victims.

Smith did make a statement at his second sentencing hearing but it is difficult to find mention of his victims or much of a sense of ownership of his actions in his remarks. We reproduce in full the letter he read aloud:

Your Honor, as you may know, it is very dangerous being an ex-police officer in prison; but yet, there are little to no secrets in prison. Most inmates know why you are there before they even ask you. I had guys that hated me, not for being me but for my ex-profession. I made it clear I was no longer a sheriff’s deputy, and I was an inmate just like them; and I was there to better myself, just as they were…

There's more along these lines discussing his time in prison, but still nothing about the harm he did to the victims of his violence. Smith closed his letter by making it clear that only one person is on Smith's mind: former deputy Terry Joe Smith.

Why do I tell you this? I tell you this because you made the right decision when it came to sentencing me. I want to be an example to other judges, prosecutors that not every man that makes a mistake needs a long sentence and that when you have done everything to better yourself and when you have years left to serve – to sit and wait for your sentence to run out and the only thing you’re waiting for is an out date, it is the family, children and communities that are serving the sentence.

[...]

I can say that because of the sentence you handed me. You knew exactly what I needed to get back on track and I thank you. I hope my actions during and after my incarceration have validated your sentencing choice for me. I thank you for the opportunity you’ve given me.

Having been swayed by someone who showed no remorse for anything but his personal situation, the district court handed out the same sentence, which Smith had already served. It also stated extending his sentence would be unduly disruptive to Smith's new life. Undoubtedly so, but that's the nature of prison sentences, as the Appeals Court points out:

In addressing the need to promote respect for the law and deter others from committing similar crimes, the court mentioned that Smith had incurred two felony convictions,lost his job as a police officer, resigned his position on the city council, and lost his reputation within the community.

[...]

Losing one’s job and reputation are the normal consequences of committing a felony at work. It is unclear how these naturally occurring repercussions that are not part of any sentence would promote respect for the law and deter others from committing similar crimes.

As for the letter of regret that persuaded the lower court to do absolutely nothing about the absurdly low sentence it had imposed, the Appeals Court says this:

Smith’s statement to the court contained, at most, an acknowledgment that some—but not all—of his fellow prisoners were people like him, who had made mistakes and were seeking to better themselves. He also expressed his new-found belief that not all defendants required lengthy sentences, a principle he hoped the court would apply to him. He never mentioned his victims or his crimes unless one generously infers that the “mistake” to which he referred was senselessly beating arrestees who were already under control and posed no danger to him. He did not concede the facts of his offenses of conviction and he did not express regret for anything other than the length of a possible new sentence. It is certainly admirable that he learned in prison that prisoners are human beings like himself, but that is a far cry from an expression of remorse for the harms he caused or acceptance of responsibility for his crimes. There is nothing resembling the promised “ownership” in Smith’s remarks to the court.

With that, it's yet another trip back to the lower court to see if it can finally get its sentencing right. This court's extreme reluctance to apply the sentencing guidelines it gladly applies without question to normal defendants doesn't score it any points with the Appeals Court. The fact that the lower court needs to be told twice to do its job right looks even worse. The super-low sentence shows Deputy Smith isn't like the other prisoners he was forced to spend time with, no matter what his letter says. He's the beneficiary of judicial deference -- something lots of cops get, but is rarely enjoyed by members of the public they serve.

Filed Under: 7th circuit, police, terry joe smith

Appeals Court Says Warrantless Use Of Stingray Devices Probably OK

from the Seventh-Circuit-says-'Not-It!' dept

An interesting ruling [PDF] has been handed down by the Seventh Circuit Court of Appeals on the warrantless use of Stingray devices to locate individuals. Wisconsin police used an IMSI catcher to track down Damian Patrick for a parole violation. He was arrested while sitting in a car on a public street.

Multiple factors played into the court's decision, which found that using Stingrays without a warrant to locate people was not a Fourth Amendment violation. But it's not quite as simple as it might first appear to be. Complicating things were the circumstances of the arrest and arguments raised in Patrick's suppression request.

Patrick argued that the location tracking warrant (not a search warrant) was invalid. First, the tracking warrant made no mention of the Stingray the police used to locate him. Second, he argued that his personal location was not "contraband or the proceeds of a crime," making his location "off limits" to the Wisconsin PD's investigatory efforts. The court disagrees.

That sounds like an attempt to resurrect the “mere evidence” doctrine that the Supreme Court disapproved in Warden v. Hayden, 387 U.S. 294 (1967). Hayden authorized the use of warrants to get evidence to locate a wanted person. See also Steagald v. United States, 451 U.S. 204 (1981) (search warrant to enter house to look for person to arrest).

Police were entitled to use a warrant to obtain data that would help them track down Patrick’s location. Indeed, they were entitled to arrest him without a warrant of any kind, let alone the two warrants they had. United States v. Watson, 423 U.S. 411 (1976), holds that probable cause alone is enough for an arrest in a public place.

That statement, though, only refers to the arrest warrant. There's the matter of the location tracking warrant -- which only specified the use of "cell phone data," not a cell tower spoofer. That isn't addressed until later in the decision, but in terms of locating Patrick, the court feels his public location (parked on a city street) diminishes any expectation of privacy in his location. Once eliminated by the court's reasoning, it no longer matters what method the police used to locate him, at least according to the majority.

Probable cause to arrest Patrick predated the effort to locate him. From his perspective, it is all the same whether a paid informant, a jilted lover, police with binoculars, a bartender, a member of a rival gang, a spy trailing his car after it left his driveway, the phone company’s cell towers, or a device pretending to be a cell tower, provided location information. A fugitive cannot be picky about how he is run to ground. So it would be inappropriate to use the exclusionary rule, even if the police should have told the judge that they planned to use a cell-site simulator to execute the location warrant.

The appeals court never addresses whether or not the use of a Stingray constitutes a search. It weighs it against precedent in terms of call records and GPS tracking devices, and concludes that neither of those constitute a search either. (Although it does grant that the Supreme Court's Jones decision raises questions partially related to Stingray deployment -- like how long the device was in use and how precise the location data collected was.)

The government, however, conceded that it was a search ("for the purposes of this litigation"), but argued the lack of information about the device on the affidavit did not make the tracking warrant invalid. The court agrees and finds no reason to suppress the evidence. As it sees it, where Patrick was found is more important than how he was found. In the eyes of the majority, there was no privacy violation and Patrick doesn't have standing to challenge the government's search on these grounds.

We can imagine an argument that it will often be unreasonable to use a cell‐site simulator when phone company data could provide what’s needed, because simulators potentially reveal information about many persons other than the suspects. (The contrary argument is that data from simulators is current, while data relayed through phone companies’ bureaucracies may arrive after the suspect has gone elsewhere.) But if the problem with simulators is that they are too comprehensive, that would not lead to suppression—though it might create a right to damages by other persons whose interests were unreasonably invaded. Patrick is not entitled to invoke the rights of anyone else; suppression is proper only if the defendant’s own rights have been violated.

The court goes on to point out that no other appeals court has handled the issue of the constitutionality of Stingray searches… and that it's not interested in being the first to do so.

Questions about whether use of a simulator is a search, if so whether a warrant authorizing this method is essential, and whether in a particular situation a simulator is a reasonable means of executing a warrant, have yet to be addressed by any United States court of appeals. We think it best to withhold full analysis until these issues control the outcome of a concrete case.

The dissenting opinion, written by Chief Judge Diane Wood, runs far longer than the majority's opinion. Wood raises several questions about the assumptions made by the court. First, Wood points out the government has been willing to engage in very dubious practices just to keep the existence and use of Stingray devices secret.

This is the first court of appeals case to discuss the use of a cell‐site simulator, trade name “Stingray.” We know very little about the device, thanks mostly to the government’s refusal to divulge any information about it. Until recently, the government has gone so far as to dismiss cases and withdraw evidence rather than reveal that the technology was used.

Because of this, no one other than the law enforcement agents who deployed the device know exactly how it was operated and what it collected. The DOJ guidance quoted in the majority opinion does not provide any details on device usage or capabilities -- only that it has recommended the use of search warrants going forward by DOJ components. There is nothing in it that declares this guidance should be followed by local law enforcement agencies.

Wood points out that software packages for Stingray devices expand their capabilities significantly, allowing them to intercept communications as well as location data. Because the government on all levels refuses to discuss Stingray deployments, the court is left to assume all it did was scoop up location data. But that assumption may be incorrect, and if so, the government has zero interest in correcting the record.

In this case, the location warrant authorized only methods of fixing Patrick’s location that involved gathering information that would reveal his phone’s connection with cell‐ phone towers. The Supreme Court has recognized that a search of cellphone data requires a warrant. See Riley v. California, 134 S. Ct. 2473, 2494–95 (2014) The authorization of the collection of location data cannot be expanded to permit a search of the con‐ tents of Patrick’s cell phone. If the Stingray gathered information from the phone that went beyond his location, such a “search” of his phone would have been unauthorized, and suppression of the additional information (which might have pinpointed Patrick’s location) would likely be required.

Not only would the Supreme Court's Riley decision be implicated by this interception, but Title III (which controls wiretap use) would be as well. But, once again, the court is forced to assume the only thing collected was location data because that's all the government is willing to confirm. The government asserts that the Stingray collected nothing more than the same records it could have obtained without a warrant directly from service providers, albeit not in real time. However, there is seemingly no way to verify this as the government has refused to provide more details.

We are in all likelihood not looking at two interchangeable tools for gathering exactly the same information. If the facts ultimately show that the MPD had gathered the identical information in the same manner that Sprint would have used, I would concede that there is no problem. In such a case, the only difference between using the Stingray and obtaining the information from Sprint would be who gathered the information.

[...]

We do not know whether the warrant’s authorization of Sprint to “initiate a signal to determine the location of the subject’s mobile device on the service provider's network or with such other reference points as may be reasonable available” also describes the working of the Stingray that was used. If so, perhaps all is well. If the Stingray works in a different manner—for instance, by forcing the cell phone to transmit location data housed inside the cell phone rather than using a signal to locate the cell phone on the Sprint network—it might not.

The dissenting opinion also finds the majority's reasoning that the probable cause to arrest -- along with the defendant's public location -- excuses the lack of information in the warrant specifying the use of a Stingray device.

I recognize that Strieff contains language that could be stretched to suggest that a warrant’s existence, regardless of the actual causal chain, is sufficient attenuation. But elsewhere in the opinion the Court emphasized not only that the “warrant was valid” and “predated [the officer’s] investigation,” but also that it “was entirely unconnected with the stop,” and that the officer’s decision to arrest the defendant was “a ministerial act that was independently compelled by the pre‐existing warrant.”

Here, the use of the Stingray led to the arrest, and neither the arrest nor the search was a ministerial act.   It oversimplifies Strieff to focus solely on whether an intervening circumstance can be identified. That is important, but it is not enough by itself. Strieff, like all attenuation cases, also rests on two other factors: (1) the “temporal proximity” between the potentially unlawful action and the “search,” and (2) the culpability of the police misconduct. Id. As in Strieff, the relative temporal proximity in our case between the potentially illegal conduct and the search weighs against attenuation. But unlike the situation in Strieff, the facts here do not permit us to say that the MPD’s conduct was merely negligent: the police knew what they were doing. Purposeful evasion of judicial oversight of potentially illegal searches is exactly the kind of “police misconduct … most in need of deterrence.”

This decision is mostly a punt by the appeals court. It routes around most of the Fourth Amendment implications by relying heavily on the arrest warrant rather than the location warrant. The majority raises few challenges to the government's assertions about its Stingray use and obviously feels the issues it avoided dealing with here would be better dealt with anywhere but in its courtroom. While it is true there were any number of ways the police could have located Patrick, the fact is it used a Stingray device -- one it didn't disclose in its warrant request -- to do so. The decision to give the government a pass only encourages the culture of secrecy surrounding the use of cell tower spoofers.

Filed Under: 4th amendment, 7th circuit, imsi catcher, stingray, warrants