Court Shuts Down Feds' Attempt To Expand The 'Border Search' Exception To Cover Inland GPS Monitoring

from the short-gov't:-everything-with-the-borders-should-be-subject-to-the-border-exc dept

Cyrus Farivar of Ars Technica has put together a hell of a read from a suppression order obtained by defendants in a drug case. It involves a truckload of cheese danishes, cocaine trafficking, and the US government's attempt to apply the "border exception" everywhere in the United States.

At the heart of it is a GPS tracking device. The government installed it on a truck driven by suspected drug smugglers when it crossed the Canadian border into the US. It then used that device to track the truck as it traveled down to California. The resulting bust only uncovered some bags of sugar, but a previous stop of the same truck had turned up 194 kilos of cocaine.

The defendants in the case have had the evidence suppressed. The ruling [PDF] was handed down late last month. It points to the Supreme Court's 2012 Jones decision, which held that placing GPS devices on vehicles was a search under the Fourth Amendment. Warrants are needed to place the devices. Long-term tracking is also out of the question if warrants aren't obtained.

The government argued it didn't need a warrant because it placed the device on the truck at the Canadian border. This would be the "border exception" to the Fourth Amendment -- one carved out by the courts which allows all kinds of warrantless searches to be performed in the name of border security.

But the judge doesn't buy this attempt to salvage ill-gotten evidence. The government cites a number of cases involving searches of vehicles performed at the border -- some more invasive than others -- where warrants weren't needed. The court finds these citations unavailing because they don't actually address what happened here: the placement of a GPS device at the border which was subsequently used to track a vehicle as it traveled far beyond the Canadian border.

The Court doubts that an analysis dependent on the physical aspects of the search is appropriate here where the search extends beyond the initial installation of the device.

And, having taken the Jones decision into account, the court definitely isn't going to allow the government to effectively expand the border search exception to cover searches performed well within the nation's borders.

[T]his Court is hesitant to mechanically apply the border search doctrine where the search stretches far beyond the conduct at the border to create a "precise comprehensive record of a person's movements." [...] Ultimately, the Court concludes the placement of a GPS device on a vehicle at the border, combined with the subsequent tracking of data over a prolonged period away from it, cannot be justified by the border search exception.

Wait, says the government, what about the extended border search doctrine, where we can perform warrantless searches so long as someone or something came across the border recently and we think something criminal is going on? The court says continuous monitoring isn't the same thing as a search dependent on two separate, but linked, predicates. This was a search that began at the border and never stopped.

While the initial placement of the GPS devices on Defendants' truck occurred at the border, the subsequent monitoring of the data over the almost 48 hours constitutes a continuous search… [I[t is this unceasing search over that period that precludes application of the extended border search doctrine.

The court also shuts down the government's request for other exceptions to be applied. The government tried to explain the discovery would have been "inevitable" based on its prior reconnaissance of the truck's route, but the court points out the same route wasn't taken this time and the FBI didn't actually know for a fact where it would eventually end up. It made assumptions but didn't have supportable facts.

As for the good faith exception, the court points out the only controlling case came from the Supreme Court, and it's pretty difficult to imagine well-trained federal agents with all their expertise would not be aware of the warrant requirement. Furthermore, there have been no opinions since Jones that explicitly carve out a "border exception" for GPS tracking device usage. It appears the government did nothing to ensure its actions were legal or Constitutional before engaging in this extended search.

The Court is not persuaded the good faith exception stretches to encompass the government's reasoning for its application. There is no evidence the agents were advised by an attorney that they need not obtain a warrant. Nor has the government been able to point the Court to any precedent that could have served as a basis for the purported 48-hour rule or its looser application to semi-trucks.

The evidence is gone -- what there was of it. The government isn't abandoning its prosecution and it may ask the Ninth Circuit to allow it to apply the border search exception anywhere it wants to. But for now, it's been told the exception doesn't cover hours of inland monitoring, which is a conclusion federal agents should have been able to reach on their own -- long before engaging in 48 hours of continuous rights violations.

Filed Under: 4th amendment, border exception, border search, exemption, gps, illegal search, supreme court, tracking

Guy Gets Tossed In Jail For Contempt Charges Because Cops Say They Need To Unlock His Phones To Get Evidence Of Drug Possession

from the power-hungry-idiots-on-a-fishing-trip dept

There's a Fifth Amendment case developing in Tampa, Florida revolving around cellphones, passcodes, and contempt charges. (h/t Dissent Doe)

William Montanez has just been jailed for 180 by a Florida judge for refusing to unlock two phones seized from him by police. This happened in an extremely unorthodox fashion. In court, the judge said "Unlock them," and Montanez was handed both phones. He claimed he couldn't remember the passcodes, saying they both had been recently purchased. No passcode, no freedom, the judge instantly ruled.

The police have a warrant and claim that's all they need to demand access to the phones' contents. But that's predicated on a string of events that seem constitutionally-dubious, to say the least.

An emergency petition [PDF] (via Florida You Judge) to challenge the judge's contempt ruling (and the warrant itself) has been filed by Montanez's attorney, Patrick Leduc. The petition details the traffic stop and arrest of Montanez, which appears to contain a handful of constitutional violations.

Montanez was pulled over for failure to yield. During this stop, a K-9 unit was brought to the scene to sniff Montanez's car after he refused to consent to a search. This is already questionable. The Supreme Court's ruling in Rodriguez makes it clear regular traffic stops aren't supposed to be fishing expeditions. If no reasonable suspicion presents itself (and refusing consent isn't suspicious activity), officers aren't allowed to extend stops to further badger drivers into relinquishing consent or bring a dog to scene to ask its permission for a search.

At this point, it's unknown how much time elapsed between the initiation of the traffic stop and the drug dog's arrival. All that's clear from the petition is that the dog wasn't there when the traffic stop began. Whatever the case, Montanez was never issued a citation for the infraction supposedly triggering the stop.

After the dog told the cops it was ok to perform a warrantless search, officers found a misdemeanor amount of marijuana, supposed THC oil (tested only with a drug field test, so…), and a handgun. The passenger of the car was a felon, so it was illegal for him to have it. The same can't be said for Montanez. Again, this may have been mooted by Montanez's mother claiming to own the handgun -- something the state has yet to disprove or even offer an opinion about.

Montanez did claim possession of the marijuana and alleged byproducts. Open-shut misdemeanor offense… except that officers seized his two cellphones and obtained a search warrant for them. This was predicated on one thing: a text message saying "omg did they find it" being received on one of the cellphones during the traffic stop.

Whatever "it" is, the officers appear to have found it. Since all the evidence needed to support the misdemeanor possession charges was already in the hands of law enforcement, why the compelling need to search the seized phones? According to the search warrant affidavit [PDF], the phones will apparently contain evidence of the crimes Montanez is charged with, which would seemingly be entirely supported by the marijuana and (alleged) THC oil already in their possession.

[T]here is now being stored on said Cellular iPhone certain evidence, to-wit: images, text messages, files, telephone numbers, call logs, graphic files, digital media and/or digital files, and any other media that can store digital files and/or digital media. Phone records, records of Internet Service Providers, E-mails and other electronic data, including but not limited to passwords telephone numbers, Emails, Instant messages or text message storage, computer images, computer programs and system documentation; documents files or any other computer data relating to passwords.

Which can provide evidentiary value in proving a violation of the Laws of the State of Florida, to-wit:
the Laws prohibiting: Possession of Cannabis Less Than 20 grams, Possession of Drug Paraphernalia and Possession of a Firearm During the Commission of a Felony

The felony listed here would be carrying the possession of a firearm by a felon. The only felon in the vehicle was the passenger, but it looks like prosecutors want to hang this on Montanez, despite the only other possible felony available being drug trafficking -- and the evidence on hand simply doesn't support that charge.

In any event, there's zero chance Montanez's phones will carry additional evidence of the charged criminal acts, which are all predicated on evidence the police have already obtained. The warrant appears to be a fishing expedition to try to prove Montanez is actually a drug dealer so the felony charge sticks. The two misdemeanor charges already have all the evidence prosecutors need, so police are pressing forward with zero probable cause to nail Montanez with a felony. The problem is, the probable cause has to come before the search, not after it, and that's why his lawyer is challenging the warrant.

The prosecution's request for contempt of court charges cites another state case as support for compelled passcode production. But the case cited here couldn't be more different than this one. While it does deal with compelled password production and contempt charges, it also deals with charges of voyeurism and an unchallenged warrant.

First off, there's a significantly better chance evidence of voyeurism might be contained in a seized cellphone. Second, the warrant in this case is being challenged, which makes it an entirely different judicial animal than the case cited.

As it stands now, Montanez is going to spend six months in jail for preventing police from rooting around in seized cellphones for evidence they don't need and which would likely be highly irrelevant to these criminal proceedings. The police can't show probable cause for this search because none exists. And yet, the judge trying the case demanded Montanez unlock the phones in court and when he failed to do so (Montanez claimed he could not remember the passcodes), the judge tossed him in jail to, I guess, jog his memory.

This case stinks all over. Nothing should move forward until the cops give a better accounting of their actions during the stop and come up with something better than "we just really want to look at his phones" under the heading "input probable cause." But chances are this will all end in Montanez spending an indefinite amount of time in jail without ever having been convicted of a crime.

Filed Under: 4th amendment, contempt, encryption, illegal search, locked phones, william montanez

Court Says There's No Remedy For Person Whose Vehicle Was Subjected To Civil Forfeiture After An Illegal Search

from the 4th-Amendment-meets-local-statutes-and-no-one-wins-but-the-government dept

A bizarre case comes out of the Texas court system -- landing squarely in the middle of a legal Bermuda Triangle where illegal searches meet civil asset forfeiture… and everything is still somehow perfectly legal. (via FourthAmendment.com)

The facts of the case: police officers arrested Miguel Herrera and seized his 2004 Lincoln Navigator. An inventory search of the vehicle uncovered drugs and the state moved to seize the vehicle itself as "contraband" using civil (rather than criminal -- this is important) asset forfeiture. Herrera argued that the stop itself was illegal and anything resulting from it -- the drugs and the civil seizure of the vehicle -- should be suppressed.

The Supreme Court of Texas examines the facts of the case, along with the applicable statutes, and -- after discarding a US Supreme Court decision that would have found in Herrera's favor -- decides there's nothing he can do to challenge the seizure. He can't even move to suppress the evidence uncovered following the illegal stop -- the same search that led to the state seizing his vehicle under civil forfeiture statutes.

The presiding judges spend several pages (including two concurrences) discussing the aspects [PDF] of this case in detail, but cannot bring themselves to exclude the evidence obtained from the illegal search, much less return Herrera's vehicle to him.

First, the court decides that the deterrent effect of suppressing the evidence is outweighed by the cost to society.

In this case… the exclusion of admittedly relevant evidence imposes a substantial social cost. Here, the vehicle and the evidence found within it are indisputably relevant—if the state shows by a preponderance of the evidence that the vehicle was “used or intended to be used in the commission of” a felony under the Controlled Substances Act, then it is “contraband.” If it qualifies as contraband under Chapter 59, then it “is subject to seizure and forfeiture.”

[...]

Additionally, applying the exclusionary rule here ostensibly results in returning a vehicle “used or intended to be used” in the commission of drug crimes to its owner. See CODE CRIM. PROC. art. 59.01(2)(B)(i). Applying the rule to Chapter 59, therefore, would likely have the undesirable effect of politely handing such vehicles—or computers, money, weapons, or whatever else—back to those who might put them to criminal use.

The court moves on to dismiss the Supreme Court's 1965 decision (One 1958 Plymouth Sedan v. Pennsylvania), suggesting not only that things have changed too much over the past 50 years to consider it relevant, but also -- unbelievably -- that the seizure of a person's assets via civil forfeiture is not a form of punishment.

[T]he legal and jurisprudential landscapes have changed significantly since Plymouth Sedan was decided in 1965, weakening some of the opinion’s underpinnings. For one thing, Plymouth Sedan was decided at “a time when [the Supreme Court’s] exclusionary-rule cases were not nearly so discriminating in their approach to the doctrine,” yet more recently the Court has “abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits.” Thus, the Court’s more recent jurisprudence, and its now well-established cost-benefit analysis, controls our analysis. And, as discussed, the “deterrences against [illegal searches] are substantial—incomparably greater than the factors deterring warrantless entries when Mapp [and Plymouth Sedan] [were] decided.”

Finally, in Plymouth Sedan, the forfeiture proceeding’s “object, like a criminal proceeding, [was] to penalize for the commission of an offense against the law.” See 380 U.S. at 700. Chapter 59 forfeitures, on the other hand, are expressly civil and non-punitive; indeed, “[i]t is the intention of the legislature that asset forfeiture is remedial in nature and not a form of punishment.”

It's hard to see how civil asset forfeiture isn't a form of punishment. Without having to prove an asset was illegally obtained or used in criminal activity, the state can simply take cars, money, houses, etc. away from citizens simply by providing a limited amount of evidence suggesting these might have been related to criminal activity. And if the state is wrong, it's still a long, uphill battle for anyone seeking to have their property returned. This is even admitted by the court in the same paragraph.

While this provision certainly relates to criminal activity, it does not require any proof that a person committed a crime—it only requires that the state prove by a preponderance of the evidence that the property is contraband.

The court then concludes that neither the Fourth Amendment nor the state's civil forfeiture statutes provide a remedy for Herrera -- at least not one the court is willing to grant.

Even if the state is not statutorily empowered to unlawfully seize contraband, (and it is not), what is the remedy for failure to comply with article 59.03(b)? Herrera argued in his motion to suppress—and argues now—that the remedy is exclusion. Yet what is the source of this exclusionary remedy? As discussed above, it is not the Fourth Amendment. The constitutional rule applies only when its deterrence benefits outweigh its heavy social costs, and that is not the case here. Nor does Chapter 59 provide for exclusion. To start, article 59.03(b) deals with seizure of the property to be forfeited; it does not concern itself with other evidence that might be used to prove property is subject to forfeiture. Thus, we reject Herrera’s argument that evidence found during the seizure should be excluded under article 59.03(b).

Moreover, while article 59.03 appears to limit officer conduct as to seizure of property subject to forfeiture, it does not provide a remedy—much less exclusion—for a violation of that apparent limitation. Articles 59.03(a) and (b) provide for how property subject to forfeiture may be seized. Article 59.03(c) requires the peace officer who seized the property to provide the attorney representing the state with a sworn statement including, among other things, “a list of the officer’s reasons for the seizure.” In the forfeiture proceeding, that attorney must then “attach to the notice [of seizure and intended forfeiture] the peace officer’s sworn statement.” See CODE CRIM. PROC. art. 59.04(b). Yet, despite providing fairly detailed notice requirements such as these, Chapter 59 never mentions excluding or suppressing property subject to forfeiture, even if such property is unlawfully seized…

By finding no remedy workable or worthwhile in the face of societal cost, the Texas Supreme Court has given law enforcement another way to salvage evidence obtained by illegal searches: simply seize the "container" (house, car, boat, etc.) the evidence was discovered in.

As defense attorney John Wesley Hall notes in his post on the case, this decision will also encourage more questionable asset forfeitures because the court here has declared it's unwilling to entertain notions of deterrence when dealing with "non-punitive" civil seizures.

I disagree with the lack of deterrence because the seizure for forfeiture is immediate, before booking, and it’s part and parcel of the police arsenal to punish the defendant before trial; that along with a high bail. Besides, the police help finance their drug enforcement operations with forfeitures, even when there’s no prosecution. It’s contingent fee law enforcement.

It's a state Supreme Court decision, so it's precedential. That's the bad news. The (potentially) good news is that it touched on an issue previously handled by the US Supreme Court, so it could be pushed up the judicial ladder back in the direction the ignored decision emanated from. Of course, this Supreme Court has been very inconsistent on Fourth Amendment issues and seems particularly willing to punt on issues it would rather not address directly.

Filed Under: 4th amendment, civil forfeiture, illegal search, miguel herrera, remedies, texas

Amtrak Officer Misleads Traveler About Drug Dog Behavior In Order To Perform An Illegal Search

from the the-tool-that-does-it-job-even-when-it-does-nothing-at-all dept

Drug dogs are permission slips for warrantless searches. That's it. They may have been legitimate when they first became part of law enforcement work, but they've devolved into malleable props in the ongoing farce that is the the Drug War. Despite these failures, they're heralded by law enforcement as superpowered miracle workers who can do things like sniff out hidden people in moving vehicles full of other (non-hidden) people.

Dogs often alert to nothing at all, either because they're relatively terrible at sniffing out contraband or because they're responding to cues (conscious or unconscious) from their handlers. Drug dogs have also been spotted alerting enthusiastically to things they have a natural fondness for, like sausages and cheese. And, because a drug dog can be said to have done whatever a cop says it's done, they can be used to "justify" a warrantless search even when they've done nothing at all. (h/t FourthAmendment.com)

Shaun Estes, who was traveling by train from Chicago to California, was confronted by Amtrak detectives (yes, there is such a thing) while smoking a cigarette during a brief stop in Reno, Nevada. Detective Madhu Kurup approached Estes based on nothing more than the fact that Estes' one-way ticket had been purchased with a credit card belonging to someone else. Seeing this on the passenger manifest, Kurup requested the assistance of local officers and their drug dog. That's when things went from bad to worse to farcical.

Estes was asked if he was carrying any drugs, weapons or [cash register noise] "large amounts of money." Estes claimed he wasn't. Kurup asked for permission to search Estes' cabin and belongings. Estes refused. Kurup then informed him that a drug dog was on the way and that his belongings would be seized while a warrant was obtained if the dog alerted.

From the suppression order:

When the police dog was led down the hallway by Estes’ room, it showed some interest outside of the room, but did not “alert” on the room. The officers knew they could not seize Estes’ belongings and obtain a search warrant due to the lack of a positive alert by the dog.

That's what the detective knew. But this is what he actually did.

However, Kurup did not advise Estes that the canine had not alerted on Estes’ room. Instead either Kurup or Moore told him that the dog had shown strong interest in the room. According to Kurup, Estes then responded that he had a small amount of marijuana in his room and he then gave his consent to Kurup to search the room and Estes’ baggage. According to Kurup, Estes opened his luggage bag in the room and removed a small bag of marijuana and Kurup then, with Estes’ consent, searched the remainder of the bag and found a 9mm Kel-Tec handgun.

The government tried to claim Estes had voluntarily consented to the search. Estes maintained there was nothing "voluntary" about the entire situation -- beginning with him being ordered to end his phone call all the way through to the officers' misleading portrayal of the drug dog's actions. The court agrees with Estes.

The United States has not met its burden to show that consent by Estes was freely and voluntarily given. When initially asked, Estes expressly refused to consent to the search of his room or his bags. Kurup then advised Estes that a police dog would be deployed and if the dog gave a positive alert, Estes’ items would be seized and a search warrant would be obtained. The threatened seizure of Estes’ bags is significant when it is considered that Estes was traveling by train across the country, and this incident was occurring during a brief stop along his journey to California. Then, shortly after being told that an alert of Estes’ room by the police dog would result in his bags being seized, Estes was informed that the dog had shown strong interest in the room. No one explained to Estes the difference between an “interest” and an “alert” by the dog, and it was shortly afterward that the disputed consent by Estes was given. The context in which the statements were made strongly suggested that if Estes did not now consent to a search, his bags would be seized and a search warrant would be obtained. Particularly after refusing to consent to a search just minutes before, the court does not find that a free and voluntary consent to search then occurred.

Going further, the court notes that it is "troubled by the lack of credibility which permeates Kurup's testimony in this case."

First, there's Kurup's portrayal of his premeditated search attempt as something approaching serendipity.

Kurup described a very consensual and casual conversation with Estes on the train platform. The fact is that the encounter with Estes had been carefully planned by the drug interdiction team composed of Kurup, Detective Moore, and canine Officer Hill. The only purpose of their being together at the Reno train station was to confront Estes and to act within an approximate ten to fifteen minute period of the train’s temporary stop. When Kurup approached Estes on the train platform, there was an obvious immediacy in the encounter. The denial by Kurup of Estes being involved in a cell phone conversation on the train platform, of directing Estes to get off the phone and not hearing repeated return calls by Erika Dean in the several minutes following the conversation, raises serious questions concerning Kurup’s description of a seizure-free atmosphere surrounding Estes as well as Kurup’s credibility in general.

Then there's Kurup's misleading depiction of the drug dog's actions.

Further concern arises after the dog did not alert to the room, which was a fact only appreciated by Kurup and the police officers. Notwithstanding the clear lack of probable cause for a search and seizure, Estes was then informed that the dog had shown serious interest in the room. Estes would likely have no idea of the difference between an alert and only interest in the room. The “serious interest” comment was obviously imparted with the hope that it would bring about a consent by Estes to a search of his room and luggage. At no time was Estes told of his right to refuse consent.

Finally, while Kurup alleges Estes gave consent, there is no independent verification of this actually happening.

Kurup’s credibility is further strained by the consent then attributed to Estes. Although Kurup and the two police officers were at the train stop together for the ten to fifteen minute period for the specific purpose of investigating Estes and his possible involvement with drugs, Estes’ voluntary consent to search testified by Kurup was not witnessed at any time by either of the two police officers. No attempt was made by Kurup to have Detective Moore or Officer Hill witness or confirm the alleged consent by Estes, no attempt was made to create an audio recording of Estes’ consent, and no attempt was made to obtain a written consent from Estes although a consent form is a standard form used in Reno police investigations.

And, just like that, the marijuana baggie and illegal weapon are gone. The average citizen isn't going to know the difference between "interest" and an "alert" when watching a drug dog in action -- something officers like Kurup are more than happy to take advantage of. And, as this case highlights, the difference between the two apparently has little effect on law enforcement's actions. Kurup likely thought he had a chance to snag a pile of guilty cash or at least participate in a decently-sized drug bust. Instead, all he found after misleading Estes and engaging in a warrantless search was an illegal possession charge -- one that won't stick with all of the supporting evidence stripped away.

Filed Under: amtrak, drug dog, illegal search, madhu kurup, shaun estes

Paper That Couldn't Be Bothered To Report On Local Police Misconduct Fires Off Editorial Insulting Writer Who Actually Did

from the unearned-superiority dept

As we recently covered here, a few Aiken, South Carolina, police officers engaged in a steady procession of Constitutional violations during a traffic stop predicated on nothing more than a (fully legal) temporary plate. Shirts were lifted and breasts exposed. At least one cop spent a considerable amount of time probing the passenger's anus. For all intents and purposes, it was a roadside raping, performed under the color of law.

The horrific traffic stop is the focus of a federal lawsuit… and a whole lot of belated scrambling by law enforcement and city officials. Radley Balko of the Washington Post, who broke the story, found himself on the receiving end of a sneering, condescending editorial by the Aiken Standard -- the local paper which had no interest in covering the lawsuit until after national internet hellfire began raining down on the town it serves.

The editorial is worth reading all the way through, if only to experience the surreality of being talked down to by an editor who wouldn't know unbiased journalism if it showed up at his desk wearing a blue uniform and told him to kill an unflattering story.

First, the editorial -- even as it throws shade at Balko for being a mere "blogger" -- acknowledges that it didn't even pick up on this story until after it had been covered at Balko's Washington Post blog. From that point, it only gets worse. These three sentences are enough to give you some idea of how underqualified the Aiken Standard editorial staff is to be entering into a heated debate over journalistic priorities or law enforcement misconduct. (It also must be noted that the paper feels perfectly fine criticizing Balko's blogging while not providing readers a link to his post so its readers can view the source material for themselves.)

We’re not criticizing the blog writer’s assertions since we are as ardent protectors of the First Amendment as is The Washington Post.

Our point is that The Washington Post blog was rooted in opinion, which is how the blog should be regarded. It’s not a news story conveying information from a neutral perspective. The incident also didn’t happen last week or even last month. It happened 17 months ago.

First off, the First Amendment not only protects criticism, it practically demands it. This editorial -- as horrendous and misguided as it is -- is the "more speech" the First Amendment encourages. If you don't like something someone wrote, write something of your own rebutting it. There's no need to pretend the First Amendment is there to saddle up your High Horse and act as your squire during your trip down the High Road. And, for that matter, the editorial does criticize Balko's assertions, along with taking cheap shots at his lowly blogger status (for the Bezos-owned paper serving one of the nation's largest subscriber bases).

As for the Aiken Standard being concerned about "neutral perspectives," it would have been nice for it to have any perspective at all prior to a mere "blogger" making public news that it should not only already have known about, but should have addressed in print months ago.

Even stupider is the idea that horrific violations have some sort of expiration date. Lawsuits take time -- generally being the tail end of a process in which other, less expensive options are exhausted first. Just because it didn't happen within the last week doesn't mean it's not worthy of coverage. But that's apparently the Aiken Standard's standard.

Towards the end of its piece, it takes time to thank law enforcement for the hard work they do when not violating citizens' rights.

Police officers face danger every day. They’re not perfect, but they lay their lives on the line every day so we can be safe.

For a paper making the claim that "opinions" from "bloggers" are worth less than its "neutral" reporting that allows "every stakeholder" to have their say, it sure sounds like the Aiken Standard is issuing absolution before all the facts are in.

Ken White at Popehat responded to the Aiken Standard's blog-slamming editorial with an opinionated blog post of his own. Again, his is worth reading all the way through, but for much different reasons than the Aiken Standard's. He calls the paper out for claiming to be the arbiter of neutrality and civility with two paragraphs that should serve as a stinging rebuke for every reporter granting law enforcement officials vast amounts of deference while still claiming to be a member of the Fourth Estate.

Civility is a good thing, even when discussing controversial subjects. It's a goal I often fall short of, but a goal nonetheless. Civility even on heated subjects is a good thing because of humility: we may be wrong about the things we are angriest about. It's a good thing because of proportionality: our sense of what is outrageous enough to provoke incivility may be idiosyncratic. It's a good thing because of perspective: the world is full of people ready to be uncivil to us about things we have every damn right to do, and if we encourage incivility we'll get what we ask for.

[...]

But civility can take pernicious forms. It's pernicious if we shy from calling out outrageous and despicable conduct. It's pernicious when we give armed government officials the benefit of the doubt because the culture tells us they're brave and nice. It's pernicious when we don't demand public explanations for conduct because the conduct is horrifying and unseemly. Most of all, it's pernicious when we decide that civility is substantive rather than procedural. Civility weighs against gratuitous shouting, insults, and threats. But civility does not require that we let the government beg the question. It does not require that we accept, as true, the premises about government power that have been served to us since birth.

Balko's response to the Aiken Standard editorial is just as damning, but his closing paragraph really nails everything the Aiken Standard got wrong when it started believing subservience to law enforcement was the same thing as "neutral reporting." If you want to sling arrows of journalistic superiority, you'd best have your shit nailed down tight.

The most important function of the press is to be a watchdog on power. I’d think that when made aware an incident such as this, caught on video, a good newspaper would start digging around to see if there had been similar incidents. (Here’s a tip for the paper’s assignment editors: If it’s happened once, it’s probably happened before.) Instead, the Aiken editorial board has chosen to praise police and local officials, and to reserve its skepticism for the publication that reported the incident. For all its derision toward me (the 665-word editorial uses the word “blog” 10 times), maybe the Aiken Standard could stand to take a lesson or two from opinion journalism. Do that, and perhaps the next time there’s national news in Aiken, the town’s newspaper will be the outlet that breaks it.

Since the point the Washington Post broke the story the Aiken Standard couldn't be bothered to cover until it became unavoidable, there's been all sorts of attentiveness from the local paper. Multiple stories have appeared covering the fallout of these officers' actions -- which includes everything from the hasty installation of a citizen complaint review board to the city asking the FBI to open its own investigation into the incident. But nowhere in this flurry of coverage will you find the Aiken Standard walking back its petty attack on Balko and his "blogging." I suppose now that it's finally performing acts of journalism, it feels it's too far above the fray to offer an apology to Balko for its snide editorial, or to its readers for its journalistic failings.

Filed Under: 4th amendment, aiken, illegal search, police, radley balko, south carolina
Companies: aiken standard, washington post

Yet Another Court Says FBI's Hacking Tool In Child Porn Case Was An Illegal Search

from the the-4th-amendment-matters dept

Just last week, we wrote about another ruling in one of the many cases kicked off when the FBI took control over a Tor-based child porn site, called Playpen, and ran it for two weeks. While the courts have said that it was okay for the FBI to run a child porn service for two weeks as part of a sting operation, they've been having a lot more trouble with the fact that the FBI then used its control over the service to infect any visitor with malware in order to figure out who they were. In the ruling last week, in the case against Alex Levin, in the Massachusetts District Court, the court said that the malware/hacking tool represented an illegal search under the 4th Amendment and suppressed the evidence. The key issue was that the warrant was issued for searches in the Eastern District of Virginia, but Levin clearly was not there.

Now a court in the Northern District of Oklahoma, in a case against Scott Arterbury, has more or less reached the same conclusion. Specifically, Artebury's lawyers pointed out that his computer was "seized" by the malware (called the Network Investigative Technique or NIT), and that was clearly in Oklahoma, beyond the bounds of the warrant. The government tried to play some games, arguing that it was the data that was seized in Virginia when it accessed the FBI-hosted site. The court doesn't buy it. The NIT acted in Oklahoma, not Virginia:

The Court is not persuaded by this argument. The property seized in this instance was Arterbury’s computer, which at all relevant times remained in Oklahoma. The NIT warrant allowed the Government to send computer code or data extraction instructions to Arterbury’s computer, wherever it was located. The Government “seized” that computer and directed it to send certain information to the Government – all without Arterbury’s knowledge or permission. Arterbury’s computer was never in the Eastern District of Virginia and subsection (b)(2), therefore, does not apply. Furthermore, even if the property seized was electronic information, that property was not located in the Eastern District of Virginia at the time the warrant was signed. This information only appeared in Virginia after the Warrant was signed and executed and the Government seized control of Defendant’s computer in Oklahoma.

None of this, of course, is to absolve those who were actively engaged in activities around child pornography. But, as the judge notes, the FBI could have easily gotten an appropriate warrant:

Furthermore, the drafters of Rule 41 knew how to avoid the territorial limit on issuance of warrants when they wished to do so. Rule 41(b)((3) removes the territorial limitation in cases involving domestic or international terrorism. In such cases, a magistrate judge “with authority in any district in which activities related to the terrorism may have occurred has authority to issue a warrant for a person or property within or outside that district.” Rule 41(b)(3). The drafters of Rule 41 could easily have included child pornography in Rule 41(b)(3) and, thereby, avoided the territorial limitation of Rule 41(b)(1) & (2). They did not do so. The Court can only conclude that they did not intend to remove the territorial limit in cases such as the one before the Court.

The court then delves a bit deeper to determine if it should order the evidence suppressed. Even in some of the other cases where the court found the NIT to be an illegal search, it still allowed the evidence to be used, often because of the "good faith exception." But not here. After a long discussion about the good faith exception... the court explains it just doesn't apply here, because this wasn't just a technical error, but an error that destroys the entire warrant.

I conclude that where the Rule 41 violation goes directly to the magistrate judge’s fundamental authority to issue the warrant, as in the violation presented here, it is not a “technical violation” of the Rule. The warrant is void ab initio, suppression is warranted and the good-faith exception is inapplicable.

Once again, it's looking like the FBI and DOJ's failure to respect the 4th Amendment means that evidence will be suppressed.

Filed Under: 4th amendment, alex levin, doj, fbi, illegal search, nit, playpen, scott arterbury

Former Federal Prosecutor Accuses DOJ Of Retaliatory Acts For His Refusal To OK An Illegal Search And Seizure

from the this-is-what-happens-when-you-go-through-official-channels dept

Two consecutive administrations have treated whistleblowers badly, with Obama's administration actually managing to out-evil the Bush administration in terms of persecuting and prosecuting those who have exposed governmental wrongdoing. A recently filed lawsuit covered by Courthouse News Service details the allegations brought by another whistleblower, an unnamed John Doe, who suffered retaliatory action at the hands of the DOJ from 2003-2008.

A former federal prosecutor sued the Justice Department, claiming he provided it with evidence that 9/11 hijacker Mohamed Atta was raising money for terrorism in the United States before 2000, but was fired for not signing off on an illegal search and seizure related to the case.

John Doe sued the Justice Department, Attorney General Eric Holder and the U.S. Merit Systems Protection Board in Federal Court, claiming the Department fired him for blowing the whistle on federal misconduct.

He also claims that the Justice Department smeared him Soviet style, claiming his substantive disagreements with his bosses stemmed from mental problems.

According to the filing, Doe's trouble began in 2003 when he refused to authorize an illegal search and seizure. The law enforcement agent looking for approval then decided to go over Doe's head and get it approved by his superiors, one of which was the US Attorney General. Doe disclosed this proposed search and seizure via a memo, which prevented the search from taking place and got him booted from the case.

At this point, the US Attorney's office decided Doe must be crazy.

"In the summer of 2003, the USAO [U.S. Attorney's Office] suggested that John Doe's conflicts with their leadership must be the product of a psychological condition. John Doe met with a psychologist identified by the USAO, who found no need for any treatment or assessment, viewing the matter as a leadership problem."

The psychologist found no existing problems but the retaliation didn't cease. The US Attorney's office continued to punish him for his "conduct" during his "emotional state." Doe did spend some time away from work as a result of work-related stress and anxiety, but soon after returned and continued this whistleblowing.

"John Doe made additional disclosures regarding his supervisors' misconduct from 2005 through 2008 which are protected under the Whistleblower Protection Act. These additional protected disclosures included reports of misconduct by his superiors in disciplinary proceedings, in political hirings, and in mishandling of a terrorist investigation."

Things got worse both for the prosecutor and the agency in 2008, when everything came full circle.

Though he says he was given special work accommodations to cope with stress and anxiety, it all ended in 2008 when the Justice Department came under fire from allegations that it covered up misconduct, including allegations of perjury, paying informants to set up innocent people, beating suspects and tampering with recordings. The allegations were specifically made against the agent whom Doe says asked him to authorize the illegal search and seizure in 2003.

So, even though Doe was continuing to provide valuable assistance working on terrorist-related cases (most notably, a money exchange case that involved Mohamed Atta and provided proof of a funding network that existed prior to 9/11) and had attempted to out an agent who would cause the DOJ considerable embarrassment years later, his supervisors were more concerned with his previous refusal to assist in 2003's illegal search. They ordered him to withdraw his memo stating the claim that the money exchange case was tied to the 9/11 attacks and accused him of going outside the chain of command. Soon after that, he was demoted and fired. The US Merit Systems Protection Board denied his appeal and released his private medical records to others in the DOJ.

"These actions were a concerted effort by the USAO through certain of its employees to intimidate and coerce John Doe and to humiliate and embarrass him in the eyes of the public in an effort to destroy his credibility as a witness in the new trial motions. These actions were also in retaliation for numerous instances of whistle blowing by John Doe," the complaint states.

If the allegations are true, it's another example of the government saying one thing and doing another. The government claims whistleblowers are integral to the system and even sets up minimal protections for those exposing wrongdoing. But it's only interested in hearing about certain kinds of wrongdoing. If you've come across some small examples of budget carelessness or fraud, the government is all ears. But if it's anything related to the War on Terror, especially anything concerning the many arms of the DOJ, the government not only doesn't want to hear it, but wants to make sure those who do speak up are expelled from the system and blacklisted.

Filed Under: doj, illegal search, retaliation, whistleblower