The FBI Can't Get Into The Dayton Shooter's Phone. So What?

from the time-to-exploit-some-deaths dept

A high-profile act of violence has brought FBI complaints about device encryption to the surface again. This has been a long-running theme with the agency, one amplified recently by domestic surveillance advocate/Attorney General William Barr. Barr claimed encryption was creating a more dangerous world for everyone. Barr's claims echoed those of successive FBI directors. Both Barr and Wray continue to talk about device encryption despite having (so far) refused to update the number of encrypted devices the FBI can't access.

As Barr warned in his rant against encryption, all it would take is one major attack to sway public opinion to the government's side.

I think it is prudent to anticipate that a major incident may well occur at any time that will galvanize public opinion on these issues.

Well, the FBI is talking about encryption again with lawmakers. But with all due respect, Mr. Barr, this ain't it, chief.

Top FBI officials informed congressional lawmakers this week that they have been unable to access the smartphone of the suspected gunman in the Dayton, Ohio, mass shooting, two sources told The Hill.

In a briefing about the weekend shootings in Dayton and El Paso, Texas, FBI Deputy Director David Bowdich told House Democrats that the agency is in possession of what’s believed to be Connor Betts’s primary phone but can’t open it because it requires a passcode, according to the two sources who took part in Wednesday's briefing.

Two mass shootings in 24 hours could have provoked the public response Barr is looking for. But it didn't. These shootings had nothing to do with encrypted devices, even if the FBI felt it needed to inform lawmakers it couldn't get into a dead suspect's phone.

The question is why the FBI needs to do this. Like its previous skirmish with device makers over the encrypted contents of the San Bernardino shooter's iPhone, this complaint features a dead suspect and the highly-dubious implication that there's something of value contained in the locked device. There's no investigation being impeded by inaccessible data. The shooter is dead and the shooting is over.

The FBI -- and William Barr -- likely truly believe encryption backdoors will make investigations easier and prevent criminal acts. But there's nothing in the recent past that suggests their beliefs are well-founded. These are the speculations being used to undermine the security of millions of peoples' devices. The only thing the government has to offer is the fact that sometimes phones produce usable evidence. But criminal acts were prevented and/or prosecuted for years before a large majority of the public decided to start carrying tracking devices loaded with tons of personal info with them wherever they went.

Then there's the dishonesty: intellectual and otherwise. Most of what's offered as arguments for backdoors is intellectually dishonest. The FBI's failure to inform the American public about the true number of locked devices in its possession is the regular kind of dishonest. So is the assertion made by the FBI that it could be "months or years" before it can access the phone's contents. Multiple companies offer devices that can (supposedly) bypass any device's encryption, including the latest iPhones. The FBI and DOJ simply pretend these options don't exist when talking to Congress, law enforcement agencies, and the general public.

Every tragedy is an opportunity. The FBI isn't going to let these pass without attempting to capitalize on them. Unfortunately, it seems our country is capable of generating an endless amount of tragic opportunities. And it only takes one to give the government everything it wants.

Filed Under: chris wray, dayton, encryption, fbi, going dark, william barr

Dashcam Recording Instantly Undercuts Officers' Concocted Reason For A Traffic Stop

from the in-car-petard dept

Dashcams -- unlike body cameras -- have been around for years. So while it might be understandable an officer could forget his actions are being documented by his new-ish body camera-- say, when he heads into an alley to plant evidence -- it's difficult to draw the same conclusion when an officer apparently forgets his dashcam is recording his bogus traffic stop.

In a criminal case resulting in suppressed evidence, Officer William Davis of the Dayton (OH) Police seems to have done exactly that. His bogus traffic stop resulted in the discovery of marijuana and a firearm, but none of that matters now. What was captured by his cruiser's dashcam undercut his assertions and sworn testimony. That has lead to an Ohio appeals court's memorable decision, in which it's declared the lower court was correct to rely on dashcam footage -- rather than the officer's testimony -- when the two narratives diverged. (via FourthAmendment.com)

On a dark, rainy night Officer Davis and Officer Bryan Camden were speeding down a street when a vehicle pulled out in front of them. (Literally speeding: speed limit was 35 mph. Despite the adverse driving conditions, the cruiser was travelling at 43 mph.) Apparently miffed he had to ease back to the posted speed limit, Officer Davis (with Camden's help) began to compose an alternate reality in which a traffic violation had occurred. The problem for the state -- which hoped to retain the evidence obtained during the resulting traffic stop -- is the entire thing was caught on camera. This included the officers' retcon of events in progress. From the decision [PDF]:

As the cruiser approached the intersection of Hoover and Elmhurst, Wilson’s vehicle (a 2015 Chevy Traverse SUV) turned right from Elmhurst onto Hoover in front of the cruiser. Officer Davis testified that only two or three car lengths separated the vehicles when Wilson pulled out and that he (Davis) “had to hit the [brakes] to avoid running into the rear of [Wilson’s] vehicle;” the trial court found this testimony to be not credible. Instead, after a review of the cruiser video, the trial court found that Wilson pulled onto Hoover “no less than 306 feet – or more than eighteen (18) car lengths – in front of the cruiser.” The trial court further stated that “[a] slamming on of the cruiser’s brakes would necessarily have precipitated a sudden dip of the cruiser’s nose – a dip completely absent on the video.” Rather, the trial court found that the cruiser “gently decelerated” from a speed of 43 miles per hour to the posted speed limit.

No traffic violation occurred and yet the officers seemed determined to stop the vehicle that had mildly offended them with its entry into traffic.

The officers remarked to each other about the out-of-state license plates on Wilson’s vehicle (a rental) and discussed towing Wilson’s vehicle. When the traffic light turned green, both vehicles moved forward to turn left onto North Gettysburg. At this juncture (over one and a half minutes after Wilson pulled onto Hoover), the officers engaged in the following exchange, which the trial court concluded was “staged”:

Davis: “He pulled out there, pulled right in front of me!”

Camden: “He pulled out in front of us.”

Davis: “Had to hit the brakes to avoid * * *.”

Camden: “Yeah, they had a – a failure to yield.”

Courts usually look the other way when dealing with pretextual stops. That has scaled back a bit in the wake of the Rodriguez decision, but still remains in play if a court can find some way to believe an officer might have believed a traffic violation had occurred. These officers might have received the same deference if only their cruiser's camera hadn't made it crystal clear the violation was completely concocted by two officers looking for a reason to pull someone over.

A stop and a search ensued, resulting in citations for failure to yield and marijuana possession, as well as an arrest for improper handling of a firearm in a vehicle. Officer Davis claimed this was a by-the-book search and arrest. But to do so, he had to continue misrepresenting the events while under oath.

Davis testified that he provided Miranda warnings to Wilson and that Wilson answered a few questions and then requested an attorney. For reasons that Davis could not explain at the suppression hearing, the Miranda warnings and statements by Wilson following those warnings were not recorded on the cruiser video.

The appeals court then quotes the lower court, stating that if any traffic violation occurred here, it was committed by the police officers, rather than the person they pulled over.

[T]he Court finds as a matter of fact and law that Defendant did not fail to yield to the cruiser because the cruiser was not proceeding in a lawful manner. Rather, the cruiser was itself speeding on a dark, rainy night at low visibility further compromised by road glare. By proceeding in such a reckless manner – and in violation of both state and local law – Ofc. Davis forfeited the preferential status afforded a lawful driver under the right-of-way statute.

With no good faith in evidence anywhere, the good faith exception is denied. The appeals court also dismisses the state's claim the lower court overstepped its bounds by doing its own calculations on the distance between the vehicles involved. Nor did the trial court err on its finding there was no articulable suspicion a moving violation had occurred, thus no reason for the officers to perform a stop.

On this record and with deference to the trial court’s factual findings, we cannot find error in the trial court’s legal conclusion that the officers lacked a reasonable suspicion of criminal activity, namely a violation of R.C. 4511.43(A), to justify the traffic stop. The trial court specifically found that the officers were exceeding the speed limit when Wilson turned onto Hoover Avenue and that the cruiser merely “gently decelerated” to the posted speed limit after Wilson turned onto the road; there was adequate distance (regardless of the specific number of feet or car lengths) between the cruiser and Wilson. Given the trial court’s findings, which are substantially supported by the record, the officers had no reasonable suspicion that Wilson’s actions created an “immediate hazard” and that he failed to yield when he turned onto Hoover. In the absence of a reasonable suspicion of criminal activity, the trial court did not err in suppressing any evidence found as a result of the unlawful stop.

With the evidence gone, the charges should soon be dismissed. This will negate two felonies and a misdemeanor, thanks to an officer who apparently forgot his dashcam was on. There's nothing quite like being burnt by your own recording. The easiest fix -- but least likely to occur -- is to perform your public servant duties in accordance to the law and with an eye on respecting the rights of those you serve. Unfortunately, this seems to be a last resort -- something only to be done after tampering with recordings or routine "failure" to active recording devices has run its course.

Filed Under: bryan camden, dashcam, dayton, evidence, lies, ohio, police, traffic stop, william davis