Kansas Court Rejects Government's 'Reverse Warrant,' Sets Ground Rules For Future Requests

from the getting-some-of-that-crucial-bulwarking-done dept

We haven't seen a lot of legal challenges to so-called "reverse warrants." This is likely due to their relative novelty. It's probably also due to the fact that no one "targeted" by these warrants knows about them until well after an investigation has been closed.

Reverse warrants don't target people or places. They target (and I'm using that term loosely) areas roughly defined/confined by GPS coordinates. Everything inside the geofence is a target. Working backward from the data obtained from companies like Google, investigators try to determine which of these data points is their suspect.

For the time being, it's mostly up to the judges reading the warrant affidavits to raise challenges to the methods used or the broadness of request. And, so far, we've only seen one rejection of a reverse warrant, albeit one rejected twice by consecutive judges (a magistrate and a district court judge).

Now we have one more rejection to examine, coming to us via FourthAmendment.com. A magistrate judge in Kansas has rejected [PDF] the government's attempt to obtain location data from Google. The magistrate notes that judges all over the nation should expect to see more of these as time goes on and should be aware of the constitutional issues at play when the government works backwards from bulk data to identify a criminal suspect. Because this investigative technique is only expected to become more common, this judge has decided to set some ground rules for the government's future attempts to work its way backwards to probable cause.

The court issues this written order not only to address the subject application, but also to provide guidance for future search warrant applications involving geofence technology given the relatively sparse authority on this issue.

And the court is doing this because this warrant just doesn't cut it, constitutionally speaking.

Here, the application and accompanying affidavit are not sufficiently specific or narrowly tailored to establish probable cause or particularity. The court therefore denies the application without prejudice.

The order doesn't detail the federal crime suspected of being committed but does note it involves a heavily trafficked business. The government is seeking location data on every device in the area during a one-hour period. That isn't narrow enough for the court.

The application here establishes probable cause that a crime was committed at the subject business establishment during the relevant one-hour time period. However, it does not establish probable cause that evidence of the crime will be located at the place searched—that is, Google’s records showing the location data of cell phone users within the geofence boundaries.

The court notes it's obviously true that Google's data would show what devices were in the business during this time period, but goes on to point out the flaws in the warrant affidavit. The warrant request, as written, fails to provide a link between the data sought and the suspected criminals.

The court has considered the agent’s statements in the current application based on his training and experience, and finds that they are too vague and generic to establish a fair probability—or any probability—that the identity of the perpetrator or witnesses would be encompassed within the search. For beginners, the affidavit does not suggest that any relevant perpetrator or witness even had a smartphone. In Arson, the court relied on an affidavit that explained that that co-conspirators probably would have been coordinating their efforts by phone. Here, the affidavit contains no analogous explanation, whether based on the agent’s training and experience or based on the facts of the investigation. To the contrary, the affidavit suggests only that the culprit was a lone pedestrian in the early morning hours who was caught on surveillance footage. The affidavit conspicuously omits any suggestion that the surveillance footage shows that the individual had a cell phone.

Almost everyone carries a phone wherever they go. Almost. And there's no reason to believe the phone being gradually targeted here would be transmitting location data to Google. Android devices may make up 85% of the market, but that's not enough market share for the court to ignore the assumptions made by the agent seeking the warrant. iOS users don't always send location data to Google. Android users have the option to deny Google access to location data. The judge says there's too much unknown to allow this warrant to be granted without modification.

The judge also says the warrant makes a mockery of probable cause by allowing the government to treat every person in the area as a suspect until proven otherwise.

The application also does not address the anticipated number of individuals likely to be encompassed within the targeted Google location data. This also goes to the particularity requirement, which is intertwined with probable cause. If a geofence warrant is likely to return a large amount of data from individuals having nothing to do with the alleged criminal activity—as in Pharma I & II—the sheer amount of information lessens the likelihood that the data would reveal a criminal suspect’s identity, thereby weakening the showing of probable cause.

And that may result in a whole lot of incidental targeting that could negatively affect the rights and freedoms of people who had nothing to do with the alleged crime.

[T]he geofence boundary appears to potentially include the data for cell phone users having nothing to do with the alleged criminal activity. The boundary encompasses two public streets, so anyone driving their automobile by the target location during the relevant time period could be identified in the data. Google Maps also indicates that the subject building contains another business, which the application does not address. The government is also seeking data within the geofence’s “margin of error,” meaning that it seeks location-point data outside of the geofence but which could conceivably fall within the geofence if the margin of error would permit the device to be located within the parameters. See Pharma II, 481 F. Supp. 3d at 745 n.11 (describing the margin of error). As a result, the warrant may return data from users who are outside of the radius of the geofence. Id. Google Maps shows that the area just outside of the perimeter of the geofence includes residences and other businesses that could be implicated by the margin of error.

The government supplied no data or specifics on the expected margin of error nor did it explain what steps it would take to ensure it only gathered as much info as needed to identify its suspect.

The court also says the time period of the data sought is far too long and too disconnected from the criminal activity.

The application also does not adequately justify the time period requested. It seeks an hour of data, which is longer than what was at issue in either Pharma I & II or Arson. And the nexus between the alleged criminal activity and this one-hour duration is weak. According to the affidavit, video surveillance footage shows the suspect at three discrete times. The proposed geofence’s temporal scope ranges from just before the second sighting to approximately 10 minutes after the suspect fled the scene. The affidavit does not explain why the government does not seek data from the time period surrounding the first sighting, and it does not explain why the government seeks data for the entire period between the second and third sighting.

The government will be given another chance to request this data. But it will need to provide far more information and include far more limitations than it did with its first pass. This is now the minimum expectation for reverse warrants, at least in this court.

The court… issues this opinion to provide fair notice that geofence warrant applications must sufficiently address the breadth of the proposed geofence and how it relates to the investigation. It is not enough to submit an affidavit stating that probable cause exists for a geofence warrant because, given broad cell phone usage, it is likely the criminal suspect had a cell phone. If this were the standard, a geofence warrant could issue in almost any criminal investigation where a suspect is unidentified. The Fourth Amendment requires more, particularly where the warrant implicates the privacy interests of individuals who have nothing to do with the alleged criminal activity.

If the government wants to work its way backwards to a suspect, it needs more particularity and better probable cause to do so.

Filed Under: 4th amendment, kansas, reverse warrant
Companies: google

Kansas Supreme Court Says Cops Can Search A House Without A Warrant As Long As They Claim They Smelled Marijuana

from the I-love-the-smell-of-exigency-in-the-morning dept

The Kansas Supreme Court has just given cops a pass to treat residents' homes like cars on public roads. Being in a car greatly diminishes your Fourth Amendment protections and many a warrantless search has been salvaged by an officer (or a dog) testifying they "smelled marijuana" before tearing the car apart.

Unlike a car on a public road, a person's home has traditionally been given the utmost in Fourth Amendment protections. The bar to search a home is higher than the bar to search a vehicle. Cops aren't supposed to be walking up to windows to peek inside. Nor at they supposed to hang out by the door, hoping to catch a whiff of something illegal.

But that's exactly what they'll be able to do now. If they can find a reason to approach someone's home, all they need to do is declare they smelled marijuana to get past the front door without a warrant. This completely subjective form of "evidence" can be used as probable cause to effect a warrantless search.

The stupefying opinion [PDF] opens with an equally-stupefying bit of exposition:

While on routine surveillance at a local convenience store, Lawrence Police Officer Kimberly Nicholson checked a vehicle's license plate. That records check indicated the car had been stopped several weeks earlier with Irone Revely driving. It was noted there was an active arrest warrant for Revely's brother, Chayln Revely. Nicholson confirmed Irone was the driver, and she believed the passenger matched Chayln's description.

Nicholson followed the vehicle, looking for a traffic violation that would permit a vehicle stop and might allow the officer to confirm the passenger's identity. No violation occurred, so Nicholson followed the vehicle to an apartment complex. The passenger got out and ran into an apartment. Irone trailed behind. Nicholson approached and asked Irone if the person who ran into the apartment was his brother. Irone did not answer and continued walking toward the apartment with Nicholson following.

I'm still trying to wrap my mind around the phrase "routine surveillance at a local convenience store" that's just casually dropped into the opening of the opinion as if that collection of words made any sort of sense. Is this how we're spending our law enforcement dollars? Hanging out by local businesses and running plates? It seems, at best, incredibly inefficient.

That being said, the 7-11 stakeout (or whatever) led Officer Nicholson to the door of Lawrence Hubbard's apartment. That's when the law enforcement magic happened:

Nicholson later testified she was about 2 feet from the front door when Hubbard exited. She further testified she "smelled a strong odor of raw marijuana emanating from the apartment." The officer questioned Irone and Hubbard about the smell. Hubbard denied smelling anything and said his lawyer told him humans cannot detect a marijuana odor.

(That last sentence is equally stupefying. Marijuana does have an odor. That being said, that odor is not always present when an officer claims it is. See also: every search predicated on the smell of marijuana that fails to turn up any marijuana.)

More officers had arrived by that time and decided they might need a warrant. The officers told everyone present to leave until the apartment could be searched. Three officers, including Nicholson, performed a "security sweep" to make sure everyone had left. During this sweep, officers saw drug paraphernalia, a gun, and a locked safe. The warrant arrived and the safe was pried open, resulting in the discovery of 25 grams of marijuana.

Now, let's look at Officer Nicholson's claim:

Nicholson said she "smelled a strong odor of raw marijuana emanating from the apartment."

Here's what was found:

[O]fficers pried open the safe and found 25.07 grams of raw marijuana inside a Tupperware container…

So, from two feet outside the doorway, Officer Nicholson smelled raw marijuana located in Tupperware container inside a locked safe inside a bedroom inside the "back bedroom" closet. That's the story she stuck with, which seems facially unbelievable given the facts of the case.

Whatever, says the Kansas Supreme Court. Officer Nicholson was declared credible, given her past nasal expertise. The same with the other officer, who also smelled raw marijuana through the Matryoshka-esque layers shielding the contraband from random apartment visitors.

Among its factual findings, the court concluded: (1) Nicholson had "detected the smell of raw marijuana 200 to 500 times and burnt marijuana 100 to 300 times" in her law enforcement training and professional experience; (2) when Hubbard came out of his apartment, closing the door behind him, both Nicholson and Ivener could smell what they identified as the odor of raw marijuana coming from the apartment; (3) Ivener testified the smell was "potent" and "overwhelming…"

LOL at "overwhelming." One burnt cig and 25 grams in a locked safe inside a sealed Tupperware container. Officer Ivener is more bloodhound than human and is obviously credible as fuck. This third attempt to suppress the evidence fails because the state Supreme Court says assertions that cannot be proven are all that's needed to waive probable cause search requirements. If an officer claims to smell marijuana, the exigent circumstances exception to the warrant requirement kicks in. After all, preventing someone from flushing weed down the toilet is more important than ensuring the rights of the policed.

[W]e agree with the panel that the probable cause plus exigent circumstances exception permitted the warrantless sweep. Therefore, to the extent the paraphernalia evidence and the search warrant were fruits of a warrantless search, the sweep was not illegal and the challenged evidence is not subject to exclusion.

The sound you hear accompanying this sentence is the Constitution being run through the shredder like Banksy artwork:

We hold that the totality of the circumstances surrounding a law enforcement officer's detection of the smell of raw marijuana emanating from a residence can supply probable cause to believe the residence contains contraband or evidence of a crime.

There's all officers need to obtain a warrant. And since you can't have anyone destroying the evidence you claim you smell while you're waiting for a warrant, you get a free warrantless peek.

The panel focused on the second, fourth, and fifth Dugan factors. Under the second, the court highlighted Ivener's testimony that he did not know how many people had been in the apartment originally and whether they all left, so the officers could not know whether everyone was out. This weighs in the State's favor. Under the fourth factor, the panel noted there was evidence the occupants were aware of the officers' presence, so this also weighs in the State's favor because it demonstrates anyone staying behind would be alerted to the likelihood of an impending search.

The dissent says the lower court did not do enough to vet the officers' claims about their ability to identify the odor of raw marijuana a few dozen feet away from where it resided inside a sealed container inside a locked safe. It points out that if officers want to be considered experts on the odor of marijuana, they should be treated as expert witnesses when testifying. Instead, the lower court accepted their claims of expertise (the hundreds of past marijuana odor sniffs) but then decided they should only be held to the same standard as a lay person giving non-expert testimony. From the dissent:

The officers in this case were not testifying as mere lay persons. On the contrary, they specifically stated that the origin of their ability to smell and identify the source of their olfactory perception as raw marijuana stemmed from their brief exposure to the identified odor during their study at one or more police academies, followed by their experience with numerous cases in which they had successfully detected the substance. This uncontroverted dependency between the officers' training and experience on the one hand and the opinions they expressed on the other hand qualified their testimony about detecting the strong, potent, or overwhelming odor of raw marijuana as expert opinion testimony.

[...]

As urged by the defense, the science, if any, behind the officers' apparently sincere belief in their professed ability to detect an odor of raw marijuana should have been subjected to vetting under the rule of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), which is now codified in subsection (b). The officers' expert opinion testimony should have been admitted on the critical issue of the existence of probable cause at the time of the sweep of the apartment only if "(1) [t]he testimony [was] based on sufficient facts or data; (2) the testimony [was] the product of reliable principles and methods; and (3) the witness[es] ha[d] reliably applied the principles and methods to the facts of the case." K.S.A. 2017 Supp. 60-456(b). The district judge erred by failing to exercise her gatekeeping function under subsection (b).

This would have given the defendant a chance to raise a Daubert challenge during trial, which could have resulted in the lower court finding in his favor on the unconstitutional search argument. Rather than officers simply saying "Oh, I've smelled weed a lot and also this time," they'd actually have to provide some evidence of their claims. Is there anything "scientifically valid" about claiming to have experienced the "overwhelming" odor of raw marijuana safely ensconced in a goddamn safe? Probably not. But we'll never know because Kansas courts won't apply that standard. And the state's courts will never have to apply the standard because the top court has stated it's now OK for cops to rescue a warrantless search simply by saying they smelled something illegal.

Filed Under: 4th amendment, kansas, kansas supreme court, marijuana, police, smells

Ignorance Of The Law Is No Excuse, Court Tells Cop

from the one-small-stopgap-in-a-torrent-of-unearned-forgiveness dept

We've grown accustomed to law enforcement being given a pass for not knowing the laws they're enforcing. A 2014 Supreme Court decision made being ignorant precedential, providing cops with an out citizens can't use. Ignorance of the law can be the best excuse when it's a cop trying to keep his evidence from being thrown out of court.

With rare exceptions, courts have said it's okay for officers to predicate stops on perceived traffic violations, rather than actual traffic violations. Officers really have to make an effort to run afoul of the Supreme Court-created Fourth Amendment loophole.

Another rare exception to the Heien rule has surfaced. The Kansas State Court of Appeals has denied an officer's attempt to salvage a stop and the evidence derived from it by asking for an application of the "ignorance of the law is an acceptable excuse" band-aid. The appeals court isn't willing to allow an officer's personal interpretation of motor vehicle laws to stand in for the actual wording of the law used as an excuse to pull a driver over. (via The Newspaper)

In this case, the driver was ultimately charged with DUI and not operating a vehicle with an ignition interlock device. The defendant argued the stop wasn't reasonable under the Fourth Amendment because the violation stated as the reason for the stop wasn't actually a moving violation.

The officer argued it was. At the center of the case were the vehicle's tail lights. The left light was broken. The other two -- right and middle -- were still functional. Highway Patrol Officer Reed Sperry testified that he was mistaken about Kansas' tail light law. From the decision [PDF]:

Sperry admitted that he misunderstood the law about brake lights. He testified that he mistakenly believed that Lees' brake lights needed to be as widely spaced laterally as practicable and mounted at the same height. In other words, he thought that both the left and right brake lights had to be working and that the middle brake light did not count. Sperry testified that he stopped Lees for a brake light violation, and he said nothing about any intent to perform an inspection under K.S.A. 8-1759a.

Despite this, the state argued that the officer's mistake shouldn't result in the suppression of evidence. It pointed to the Supreme Court's Heien decision while arguing the officer's "reasonable" mistake did not make the stop unlawful.

First, the state appeals court goes to the state law to see if it contains any ambiguous language. Nope.

In Kansas, the requirements for stop lamps are set forth in K.S.A. 8-1708(a) which states that "[e]very motor vehicle . . . shall be equipped with two (2) or more stop lamps meeting the requirements of subsection (a) of K.S.A. 8-1721."

K.S.A. 8-1721(a) states: "Any vehicle may be equipped and when required under this act shall be equipped with a stop lamp or lamps on the rear of the vehicle which shall display a red or amber light, or any shade of color between red and amber, visible from a distance of not less than three hundred (300) feet to the rear in normal sunlight, and which shall be actuated upon application of the service or foot brake, and which may, but need not, be incorporated with one (1) or more other rear lamps."

As the court notes, the undisputed evidence shows the driver's car had two (2) working tail lights, even with the left side light burnt out. The US Supreme Court's decision happens to be directly on point, since it also deals with tail lights and state laws. Surprisingly, this doesn't help Officer Sperry. In the Heiein case, the law used to predicate the stop was unclearly-worded. The same can't be said for the Kansas law.

Applying Heien and Pianalto, the State asserts that Sperry's mistake of law about the brake light violation was objectively reasonable, rendering the traffic stop lawful. But as Lees points out in his brief, the statutes at issue in Heien differ from the statutes at issue here. In Heien, it was ambiguous how many functioning brake lights the statute required; but the Kansas statutes are clear that only two functioning brake lights are required.

Again, the definition of "reasonable" must be applied to the officer's misinterpretation of the law. Remarkably, the Kansas appeals court says the standard of reasonableness for officers is higher than the standard for citizens.

Reading K.S.A. 8-1708(a) and K.S.A. 8-1721(a) together, no reasonable officer would think that the law required brake lights to be spaced laterally as far as practicable and mounted at the same height, as Sperry wrongly believed; neither statute suggests such a requirement in any way. Granted it may be reasonable for the average citizen to believe the law likely requires left and right brake lights, but law enforcement officers are not average citizens. They must reasonably study the laws they are duty bound to enforce.

If officers are finding it difficult to stay on top of the laws they're supposed to enforce, maybe they need to have a few chats with lawmakers and remind them that quality is better than quantity. Officers expect citizens to know the details of laws officers themselves are unclear on. Courts seems to expect it, too. That's completely backwards. It's like expecting a client to know the law better than their legal representation.

But that's how law enforcement operates day in and day out. Pretextual stops happen hundreds of times a day based on legal violations officers may only think have occurred. It's not until someone challenges the stop itself in court that the reasonableness of the officer's actions is even questioned. What we see on the surface in the handful of cases that reach this level of review is only a tiny percentage of the legally-unreasonable stops made daily by law enforcement. And it's unlikely to change until more courts hand down decisions like this.

Filed Under: heien rule, ignorance of the law, kansas, police, pretextual stop

Kansas Legislature Introduces Two Bills Mandating Speedy Release Of Police Body Cam Footage

from the thinning-the-blue-line dept

Two new bills have been introduced in the Kansas state legislature with the intent of forcing law enforcement agencies to turn over body camera footage in a timely manner. They appear to have been prompted by the family of a man shot and killed by police officers late last year. It took police 11 weeks to turn over footage of the incident. Even then, it wasn't as though the footage was given to the executor of Dominique White's estate. Instead, White's father was "granted access" to the the body cam footage, which means he was able to watch the video on police equipment at a police station by himself with no other surviving family members.

This is the state of Kansas' current laws regarding body camera footage. Very few people are given access to footage and, with rare exceptions, the footage remains completely in the hands of law enforcement. The only people granted access to footage at this point in time are subjects of recordings, parents of minors who are subjects of recordings, attorneys for a recording subject, or a person's heir.

These bills aim to change that. The Senate bill [PDF] would require law enforcement agencies to produce footage for these recipients within 24 hours of a request. It would also add to the list of viewers, albeit with an additional delay. Anyone requesting video footage would have access to it within 30 days if the recording contains use of force resulting in injury or death. Agencies would still be able to redact footage in certain instances (mainly to remove the name/face of an officer currently under investigation) but would have to remove redactions once this investigation concludes. And slow-rolling an investigation won't help police keep footage at least partially buried: the law says all redactions must be removed within 270 days.

The House bill [PDF] speeds up that timetable. Both require a 24-hour turnaround for subjects of body cam footage, but the House bill would force law enforcement agencies to turn over video to anyone requesting it within five days of the use of force incident.

Needless to say, law enforcement agencies aren't happy with the proposed laws. Critics from affected departments spoke up against the bill by insinuating citizens were too stupid to handle unredacted footage of use of force incidents.

Body cameras don’t have the same perspective as the officers, said Greg Smith, a special deputy/sheriff’s liaison with the Johnson County Sheriff’s Office.

“If you’re looking for this to be some kind of panacea to fix police and community relations, this is not the bill,” he said.

Olathe Police Chief Steven Menke said a body camera is a tool but “rarely tells the entire story.”

“We cannot lose sight of the fact that police officers have the same due process rights as every other citizen,” he said.

Shorter law enforcement: trust cops, not your lying eyes. Yes, body cameras "rarely tell the entire story," but that objection is never raised when footage clears officers of wrongdoing or shows subjects apparently engaged in criminal acts. And cameras are not a panacea. But burying footage behind legislated barriers is about as far removed from a "panacea" as law enforcement can get.

It's true a 24-hour turnaround time is extremely tight, especially if the responding agency doesn't have much practice handling camera footage and/or applying redactions. That being said, too long of a grace period for redaction just invites stonewalling, even when footage is edited and ready to go. Without hard limits on production, everyone's still going to be subjected to interminable waits to access body cam footage.

The complaint by the local police union is even more nonsensical.

"If this bill becomes law, law enforcement agencies would be forced to disclose the video long before their criminal and/or administrative reviews are completed," said Blaine Dryden, president of the Kansas State Lodge of the Fraternal Order of Police. "Unquestionably, the disclosure with this much haste is not accompanied by any substantial factual context that a complete investigation provides."

Law enforcement agencies are Johnny-on-the-spot when it comes to delivering rap sheets, surveillance footage, questionable social media posts, or whatever else puts victims of excessive force in a bad light. But they're oh so reluctant to turn over footage showing officers engaged in questionable behavior. Somehow we're expected to wait for everything to get sorted out over the next several months-to-years before we're allowed to take a look at footage officers captured in public while performing their public duties.

The clock is ticking on these bills and legislators pushing for the new laws claim they're being met with law enforcement stonewalling.

Sen. Molly Baumgardner, R-Louisburg, a supporter of the bill, said the issue of providing access to police recordings has been around the Legislature for at least three years, and she said opponents of the measure have so far been reluctant to negotiate.

If they can wait it out, the legislative deadline for bill passage will come and go with the bills still in the starting dock. That's only a few days away. Without forward progress, the bills will idle until the next session and may not be picked up again until next year.

It's unrealistic to think the release of footage will single-handedly reform law enforcement agencies. But allowing them to maintain the opaque status quo will result in zero change whatsoever. Hopefully, at least one these bills will move forward before the deadline and start making its way towards the governor's desk.

Filed Under: body cameras, kansas, police, transparency

Court To Cops: Residing In A State Where Marijuana Is Legal Does Not Automatically Make A Motorist 'Suspicious'

from the half-a-nation,-under-suspicion dept

Colorado legislators legalized recreational marijuana use and now law enforcement agencies in bordering states are camping out on highways hoping for easy busts. All roads in and out of the state are now "drug corridors." This has led to suspicionless stops and seizures by police officers -- predicated on nothing more than a vehicle being on a strip of highway leading to or from a supposed "source" state.

Not every bust goes as easily as officers might have hoped. Nebraska deputies tried to make drug conspiracy charges stick to a pair of Minnesotans arrested while on their way to Colorado with more than $60,000 in cash. The conviction didn't stick because it isn't against the law to conspire to perform an act that is legal in another state. It's illegal to buy or sell marijuana in both Minnesota and Nebraska, but not in Colorado, where the two were headed. The charges went away but the $60,000 in cash is likely going to remain in Nebraska law enforcement's possession.

Another traffic stop in another Midwestern state has been ruled unconstitutional, partially because Kansas law enforcement officers believed the driver being a resident of marijuana-friendly Colorado was pretty much all the reasonable suspicion they'd need to perform a search.

The Tenth Circuit Court of Appeals -- in stripping away the immunity granted to two Kansas Highway Patrol officers by the lower court -- points out the many flaws in the officers' reasoning. [PDF link]

Peter Vasquez was pulled over because his temporary tag was unreadable. Once the temporary tag had been verified as legitimate, he should have been free to go. Instead, it was merely the start of a fishing expedition by the officers, who hoped to find the Colorado resident in possession of an illegal substance.

In the car, [Officer] Jimerson told [Officer] Lewis that Vasquez was notably nervous and that there were items covered in the front and back seat of the car. Jimerson sent Lewis to check on Vasquez, to “see how nervous he [was]” and to “get a feel for him.” Upon returning, Lewis told Jimerson that Vasquez “look[ed] all scared to death.” Jimerson then checked Vasquez’s proof of insurance which indicated Vasquez also had insurance for two newer cars. Jimerson, suspecting Vasquez was transporting illegal drugs, called Trooper Jason Edie to bring a trained drug dog.

Lewis returned to Vasquez and asked where he worked. Vasquez responded “We own a store called Boutiques at Brighton.” Lewis also asked why Vasquez was not driving one of the newer cars listed on his proof of insurance. Vasquez stated that he bought the newest car for his girlfriend. Further, Vasquez told Lewis that he was moving to Maryland, which prompted Lewis to ask “Where’s all the stuff if you’re moving?” Vasquez replied that he already had moved most of his belongings.

Lewis issued Vasquez a warning… and then decided to keep pushing Vasquez to give the officers consent to search the vehicle. Vasquez refused. Officer Lewis apparently felt refusing a search was something only guilty people do.

After the refusal, Lewis said that he suspected Vasquez was “probably involved in a little criminal activity here” and detained him.

The drug dog sniffed the vehicle without alerting. Nothing illegal was discovered during the officers' subsequent search of the car. Vasquez sued the officers for their illegal search. The officers delivering this list of "suspicious" behavior in defense of their actions.

They argue the following factors created reasonable suspicion: (1) Vasquez was driving alone late at night; (2) he was travelling on I-70, “a known drug corridor”; (3) he was from Colorado and was driving from Aurora, Colorado, “a drug source area”; (4) the back seat did not contain items the Officers expected to see in the car of someone moving across the country; (5) the items in his back seat were covered and obscured from view; (6) he had a blanket and pillow in his car; (7) he was driving an older car, despite having insurance for a newer one; (8) there were fresh fingerprints on his trunk; and (9) he seemed nervous.

The Appeals Court is unimpressed with the officers' "reasonable suspicion" Frankenstein's monster.

Such conduct, taken together, is hardly suspicious, nor is it particularly unusual.

Completely unimpressed.

Neither the dissent nor the Officers explain how these factors, taken together, indicate suspicious behavior. The Officers instead recite them as a list of unrelated facts… [O]fficers must explain why the factors considered together are suspicious, and not simply recite isolated factors, leaving it to the courts to glean how they create reasonable suspicion.

Other attempts by the officers to salvage their illegal search are met with similar disbelief by the court.

The Officers also argue that Vasquez gave vague or inconsistent answers to questions about his travel plans. However, the Officers do not explain what these answers were or why they were contradictory. On reviewing the record, which contains a video recording of the interactions between the Officers and Vasquez, we cannot find anything even arguably inconsistent in Vasquez’s answers.

But it's the officers' insistence that Vasquez's status as a resident of Colorado somehow matters that ires the court most -- as if simply living in a supposed "drug source state" were enough to justify not only a stop, but a search as well. The court not only smacks down these two officers, but every lazy, presumptuous law enforcement officer who would use similarly faulty reasoning to justify detaining motorists.

As we have said previously, “that the defendant[] [was] traveling from a drug source city—or . . . a drug source state—does little to add to the overall calculus of suspicion.” Such a factor is “so broad as to be indicative of almost nothing.” Moreover, our fellow circuits have concluded the state of residence of a detained motorist is an “extremely weak factor, at best” in the reasonable suspicion calculus because “interstate motorists have a better than equal chance of traveling from a source state to a demand state.”

See also: this post. The appeals court goes on to show what this "source state" garbage means in practice.

Currently, twenty-five states permit marijuana use for medical purposes, with Colorado, Alaska, Oregon, Washington, and Washington, D.C. permitting some recreational use under state law. Thus, the Officer’s reasoning would justify the search and seizure of the citizens of more than half of the states in our country. It is wholly improper to assume that an individual is more likely to be engaged in criminal conduct because of his state of residence, and thus any fact that would inculpate every resident of a state cannot support reasonable suspicion. Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate.

The court makes an excellent point. The "you ain't from around here" theory of policing hasn't gone away. Agencies focused on drug interdiction and/or forfeiture have declared pretty much every major interstate highway to be a drug corridor. The appeals court points out that it would have been equally suspicious for Vasquez not to have been utilizing I-70 to travel from Colorado for Maryland. There's just no way to win, not when so many traffic stops have so little to do with the violations (real or imagined) officers cite before getting down to the real business of seeking consent for vehicle searches.

Filed Under: colorado, drug corridors, kansas, marijuana, nebraska, peter vasquez, seizures

Nineteen-Hour 'Standoff' Ends With Law Enforcement Officers Destroying An Empty House

from the we'll-teach-you-to-be-vacant! dept

The Cherokee County (KS) Sheriff's Department engaged in a fruitless 19-hour standoff with a vacant residence. On the 20th hour, the fugitive house was finally taken down.

A SWAT truck with a battering ram attached was used to poke holes and tear apart the house in an attempt to drive the nonexistent suspect out. As deputies became unable to find him, they began taking their frustration out on couches, beds, lamps, clothing, toys, and even the family’s Christmas tree was ripped through a window and smashed to bits.

The entire time, Nita Lane, the homeowner, was trying to tell the cops that Alexius was not there and does not live there.

The sheriff, quite expectedly, remains unapologetic. Despite being told by the victim that Alexius was not in her house, [Sheriff David] Groves maintains that his officers acted in the best possible manner.

“It appeared using that tool [infra-red camera] there was somebody in the attic. As it turns out, now we know that was incorrect. But nonetheless that was the information we were operating under at the time,” said Groves.

The write-up at The Free Thought Project contains a decent summation of the ridiculous ordeal, but the real fun comes in reading the play-by-play at the Joplin Globe, which captures the shifting narrative provided by the Sheriff's Department.

It begins on December 15th, with the site declaring "Joplin man in standoff with law enforcement in Galena." Granted, this was several hours before it was discovered that a more accurate headline would have been "Joplin house in standoff with law enforcement."

Galena police and agents with the Kansas Bureau of Investigation and the FBI served a search warrant about 9 p.m. Monday at 1009 E. Fifth St. looking for Alexius and removed a woman and four children from the home. In the course of serving the warrant, they learned that Alexius was hiding in the attic of the single-story house and might be armed.

That's not really what they learned. They used a thermal imaging camera and thought they detected someone hiding in the attic. So, the standoff began, with the sheriff confidently stating they'd be able to wait out the fugitive member of the local gang concern, "Joplin Honkies," thanks to the department's bench depth.

"Time is on our side," the sheriff said. "We have the luxury of being able to rotate officers out. At some point, he's going to have to come out of there."

Five hours later, Sheriff Groves admitted that the man the occupants of the house had already stated wasn't in the house was, in fact, not in the house.

Cherokee County Sheriff David Groves said local, state and federal law enforcement officers late into the day on Tuesday had believed that Doug Alexius, 40, of Joplin, was inside the home and armed, although no shots had been fired.

Groves said a search that ended at 5:30 p.m. concluded that Alexius was not in the home.

Left unmentioned was the damage done to the house in search of the fugitive who wasn't there. Law enforcement officers fired flash bangs into the home and used an armored vehicle-mounted ram to punch holes in the attic. The officers also tore apart the inside of the home in their futile search.

It wasn't until the following day that the damage done to the home was addressed. The FBI agreed to pay for the destruction, but Sheriff Groves refused to shoulder any of the blame, despite initiating the pointless standoff.

"As for why specific tactics were utilized or items removed, those questions would need to be directed to the teams involved in that action," Groves wrote in an email to the Globe. "The teams utilized were from the KBI and FBI. The FBI indicated yesterday (Tuesday) that they would be paying for the damages to the home."

He also wrote:

"The information we received indicates he was in the residence that morning… Either that information was inaccurate or he left prior to law enforcement arrival. We have no reason to believe that he left the residence once a perimeter was established."

This last sentence is problematic, given statements made later by other law enforcement officials.

The standoff that wasn't included police dogs, the evacuation of nearby houses, a cordoned-off block, officers from three law enforcement agencies (FBI, Sheriff's Department, Kansas Bureau of Investigation) and a plane circling overhead. Groves had "no reason" to believe the suspect had escaped undetected because that outcome verged on impossible. And yet, his statement was directly contradicted by the Kansas Bureau of Investigation two days later, starting with a justification for the havoc wreaked on the empty house:

Doug Younger, the agent for the Kansas Bureau of Investigation who oversaw part of what has been described as a standoff between agents and an armed man reputed to be a member of the Joplin Honkies gang, walked through the house of single mother Juanita Lane on Tuesday night after it was all over.

Windows were broken out and a ram had been used to batter a hole in the back of the modest white house so agents could reach the attic where Doug Alexius was believed to be hiding. Throughout the 20 1/2-hour ordeal, the children's pet rabbit scampered around the house.

Younger, who oversees the statewide SWAT team for the KBI, told the Globe on Friday that he believes Alexius was in that house the whole time although the wanted man wasn't found after agents combed through the house with the help of a robot and dogs.

"I believe he was there, but we were going to have to tear the place down to find him," Younger said.

Faith. Just the sort of thing we like to see in our law enforcement officers -- especially those willing to tear apart a family's home in service of their gut feelings. Younger actually congratulates himself for the house not being completely razed during the search for the nonexistent fugitive.

"I feel like we did due diligence, but at the same time we stopped before we tore the place to the ground," Younger said.

Good for him. But Younger still holds the belief that the wily Joplin Honky either burrowed into the house's foundation or somehow made his way past the three-agency dragnet surrounding the house. This belief helps Younger justify the damage done to the house while simultaneously allowing him to brag about his agency's admirable restraint.

The FBI will cover the damage, which is nice. The courts have already made it clear law enforcement has no obligation to reimburse property owners for damaged houses, vehicles, or personal effects. That a federal agency would step up and assist the homeowner in this fashion is commendable, even if everything leading up to that point was a debacle.

Filed Under: cherokee county, david groves, doug alexius, kansas, nita lane, police, standoff, swat

State Court Says University Can't Punish Student For Off-Campus Tweets

from the the-things-to-like-about-this-case-do-not-include-the-plaintiff dept

The Appeals Court of Kansas has upheld a lower court's decision finding it beyond the reach of a university to expel a student for off-campus behavior.

Beneath this logical conclusion are some not-so-pretty facts. The origin of the lawsuit is a "bad breakup" that resulted in criminal charges for the former boyfriend, Navid Yeasin. (h/t That Anonymous Coward)

In Johnson County during the summer of 2013, an argument occurred between Yeasin and his now ex-girlfriend after he saw messages from another man on her phone. The two drove around arguing and she asked Yeasin to let her out, but he refused. He also refused to return her phone.

She complained to the Johnson County police. Court records show Yeasin was charged with criminal restraint, battery and criminal deprivation of property. To resolve this incident, Yeasin voluntarily entered a no-contact order, meaning he could not contact his ex-girlfriend.

What Yeasin did next did not play a role in this decision, which was ultimately decided on the merits (or lack thereof) of the University of Kansas' interpretation of its own policies. But it does say something about the reach of the school's no-contact order (the school added its own on top of the one handed down by the county court), which was certainly further than it should have been.

“The Judge who entered the order ruled that it was entered by consent with no findings of abuse,” [attorney Terry] Leibold said. “In order to comply with the no-contact order, Navid removed the ex-girlfriend as a follower of his tweets. His Twitter account was private and could only be accessed by his followers.”

Yeasin still used his Twitter account to make disparaging remarks about his ex-girlfriend (referred to simply as "W" throughout the proceedings). But he never directed messages towards her. He tweeted about her but never used her name. This didn't keep the tweets from being mostly despicable and they certainly were "decoded" by those familiar with both parties, but the university's no-contact order went far enough to make even this indirect non-communication a potential violation. From the ruling:

You are hereby informed that this 'no contact' order means that you understand you are prohibited from initiating, or contributing through third-parties, to any physical, verbal, electronic, or written communication with [W.], her family, her friends or her associates. This also includes a prohibition from interfering with her personal possessions. . . . Moreover, retaliation against persons who may pursue or participate in a University investigation, whether by you directly or by your associates, is a violation of University policy.

On the same day the university opened its investigation into his off-campus actions, Yeasin tweeted:

On the brightside you won't have mutated kids. #goodriddens

After being informed of the university's no-contact order, he tweeted:

Jesus Navid, how is it that you always end up dating the psycho bitches?' #butreallyguys

Over the next few weeks, he tweeted the following:

Oh right, negative boob job. I remember her.

If I could say one thing to you it would probably be "Go fuck yourself you piece of shit." #butseriouslygofuckyourself #crazyassex

Lol, she goes up to my friends and hugs them and then unfriends them on Facebook. #psycho #lolwhat

These tweets were reported to the university. (No reports were made to law enforcement.) The university's Office of Institutional Opportunity and Access (IOA) sent Yeasin an email telling him that even though the tweets didn't mention W's name, they were still a violation of the no-contact order, which was expanded to cover even more potential communications.

Brooks gave Yeasin a second warning that "[g]oing forward, if you make any reference regarding [W.], directly or indirectly, on any type of social media or other communication outlet, you will be immediately referred to the Student Conduct Officer for possible sanctions which may result in expulsion from the University."

Seven hours later, Yeasin tweeted:

lol you're so obsessed with me you gotta creep on me using your friends accounts #crazybitch

Yeasin was summoned by the IOA, where he made conflicting statements about whether or not the tweets referred to W. He also made this concession:

Yeasin told McQueeney that he would not tweet anything that could be perceived as being directed at W. and he recognized doing so was a violation of both the protection order and the no-contact order.

The university moved ahead with its investigation and decided Yeasin's tweets had violated the no-contact order and expelled him, along with banning him from the campus until W. had graduated.

Yeasin then sued the university for kicking him out over incidents that had occurred off-campus, including the original confrontation that had resulted in his arrest. The lower court found in favor of Yeasin.

[G]iven its finding that the University erroneously interpreted the Student Code by applying it to off-campus conduct, the district court found that the University's decision that Yeasin violated Article 22 was not supported by substantial evidence because it failed to establish that Yeasin's conduct occurred on campus or at a university-sponsored event.

The district court ordered that the University readmit Yeasin, reimburse or credit Yeasin for his fall 2013 semester tuition and fees that he paid, and pay the transcript fees. However, the court issued a stay order at the University's request.

The appeals court agrees. It points out that the sections of the student code the university cited to support its expulsion of the student both contain wording that limits the university's discipline to actions taken on campus or during university-sponsored events.

Through every step of the disciplinary proceedings, the University relied on Article 22 of the Student Code as the basis for Yeasin's discipline. But, on appeal, the University cherry-picks a small phrase from Article 20 to argue that it did indeed have the authority to expel Yeasin for his actions in Johnson County during the summer and for his tweets in violation of the no-contact order.

The University asks us to find that the district court should have interpreted the phrase "or as otherwise required by federal, state or local law" found in Article 20 to mean that the University's jurisdiction to discipline a student for violating Article 22.A. extended to a student's off-campus conduct.

[...]

If we construed Article 20 as the University wants, we must insert words to the effect "for conduct wherever committed." The phrase then becomes, "or as otherwise required by federal, state, or local law for conduct wherever committed." If that is what the drafters of the Student Code meant, the article could have been written in that fashion.

Following this conclusion, the appeals court affirms the lower court's decision and lifts the stay order. Because the case was limited to school policies, the question of whether Yeasin's speech was protected by the First Amendment (almost definitely) isn't addressed.

While it's hard to conjure up much enthusiasm for an abusive jerk being told he's right by the appeals court, the decision prevents the eruption of negative side effects. For one, Kansas universities will still have to limit their disciplinary efforts to incidents on school property or during school-sponsored events. No one should be in any hurry to allow educational institutions to extend their reach into the private lives (and homes) of their attendees.

On top of that, there's the nature of the tweets themselves. While undeniably unpleasant and misogynistic, they were never aimed directly at W. Also unaddressed by the court's decision is the breadth of the university's no-contact order, which basically forbade Yeasin from engaging in private disparagement of his ex-girlfriend.

From Yeasin's lawyer:

The tweets made their way back to the ex-girlfriend who told the IOA about the tweets claiming the tweets were in violation of the no-contact order issued by the IOA…The tweets were no different than if Yeasin had complained to his friends about his ex-girlfriend and whatever he said ultimately reached the ex-girlfriend.”

The ruling here makes sense, even as it protects the unsavory actions and words of an apparently terrible person. But it is very much limited to the policies in place at the University of Kansas. The ruling notes that the school could claim jurisdiction over events occuring off-campus, but it apparently hadn't considered that angle until it was in the middle of a lawsuit. Expanding that reach may be the school's perogative, but any attempts it makes to control off-campus speech will only result in addtional lawsuits -- these ones predicated by the First Amendment.

Filed Under: free speech, kansas, navid yeasin, off campus
Companies: university of kansas

FBI Breaks Up Another Of Its Own 'ISIS' Plots, Where It Supplied Most Of The Planning

from the feeling-safer dept

There have been a bunch of these lately, but today the FBI gleefully announced that it had stopped a terror plot in Topeka, Kansas -- inspired by ISIS. Here's how the FBI describes its big arrest:

John T. Booker Jr., 20, of Topeka, Kansas, was charged in a criminal complaint unsealed today with one count of attempting to use a weapon of mass destruction (explosives), one count of attempting to damage property by means of an explosive and one count of attempting to provide material support to the Islamic State of Iraq and the Levant (ISIL), a designated foreign terrorist organization. Booker is expected to make an initial appearance this afternoon before U.S. District Judge Daniel Crabtree of the District of Kansas in federal court in Topeka.

Booker was arrested this morning near Manhattan, as he completed his final preparations to detonate a vehicle bomb targeting U.S. military personnel.

There have been a bunch of these arrests lately of random people supposedly planning to do something big to join ISIS. But, looking at the details in the actual complaint, it quickly becomes clear that this is yet another of the FBI's own plots. Yes, Booker appears to be an idiot who publicly proclaimed that he wanted to blow stuff up to join in the whole jihad thing, but his actual ability to do anything was basically non-existent until the FBI gave him two helpers who presented the details of the plan.

First, Booker did try to do something himself, but blabbed so much about it that the FBI came and spoke to him, ruining his original plan (though they didn't arrest him then):

John T. Booker, Jr., a/k/a “Mohammed Abdullah Hassan,” (“Booker”) is a 20-year-old United States citizen who is currently living in Topeka, Kansas. In or around February 2014, Booker had been recruited by the United States Army in Kansas City, Missouri, and he was scheduled to report for Basic Training on April 7, 2014.

On March 15, 2014, Booker publicly posted on Facebook: “I will soon be leaving you forever so goodbye! I’m going to wage jihad and hopes that i die.” On March 19, 2014, Booker publically posted on Facebook: “Getting ready to be killed in jihad is a HUGE adrenaline rush!! I am so nervous. NOT because I’m scared to die but I am eager to meet my lord.” That same day, the FBI became aware of Booker’s postings based on a citizen’s complaint. The FBI was able to identify Booker based on the publically available content on his Facebook account. On March 20, 2014, Booker was interviewed by FBI agents related to his Facebook postings. After being advised of and waiving his Miranda rights, Booker admitted that he enlisted in the United States Army with the intent to commit an insider attack against American soldiers like Major Nidal Hassan had done at Fort Hood, Texas. Booker stated that if he went overseas and was told to kill a fellow Muslim, he would rather turn around and shoot the person giving orders. Booker stated that he formulated several plans for committing jihad once enlisted, including firing at other soldiers while at basic training at the firing range or while at his pre-deployment military base after completing his initial military training. Booker clarified that he did not intend to kill “privates,” but that he instead wanted to target someone with power. Booker also said that he did not intend to use large guns, but instead a small gun or a sword. Booker was subsequently denied entry into the military.

Okay, so we've established that Booker is not the sharpest knife in the drawer, but at least was willing to state his idiotic plans publicly and then admit them to the FBI. But other than denying him entry into the military, they didn't do anything else... other than try to set him up for a big arrest later. That's because a few months later, they sent an FBI informant to befriend Booker and urge him to move forward with his "blow shit up" plans:

Since on or about October 8, 2014, Booker has engaged with an individual who is, unbeknownst to Booker, an FBI Confidential Human Source (CHS 1). Booker has repeatedly expressed to CHS 1 his desire to engage in violent jihad on behalf of ISIL. For example, during a face to face conversation on October 10, 2014, Booker told CHS 1 in relevant part, that he: “was in jihad before, okay. I got captured. Okay, a long story short the people at the Masjid don’t like me because I support al Qa’ida openly. I’m not afraid, I was captured before . . . I was captured by FBI before . . . because I was with al Qa’ida.” Booker stated that he “joined the United States Army” and he “hadn’t really completed, I hadn’t really started . . . I was going to go in there and kill the American soldier.” Booker told CHS 1 that he dreamt of being in the Middle East, and then he showed CHS 1 a video on his phone of Muslims fighting American forces in Iraq. Booker said he dreamt about going with the fighters and wished he was with them. Booker told CHS 1 that he had heard about Americans joining ISIL and that Booker wanted to join, but he didn't know anyone who could help him do so.

So, here we have Booker admitting that he doesn't actually have the capabilities to join ISIS or do anything really. But, have no fear, because the FBI informant is there to help:

That same day, CHS 1 told Booker that he had a “cousin” (who is also a FBI Confidential Human Source, hereinafter referred to as CHS 2) who could get people overseas and asked Booker what he wanted to do. Booker answered, “Anything. Anything you think is good. I will follow you.”

So, now we've got a plot in which two of the plotters are actual FBI informants, while the only other guy is a guy who clearly has no idea what he's doing:

On or about March 9, 2015, while under FBI surveillance, CHS 1 introduced Booker to CHS 2, who he explained was a high ranking sheik planning terrorist acts in the United States.

Then, the plan is set in motion, with the informants basically directing Booker in what he should do -- saying that they would give him the equipment needed to build explosives, and that he should rent a storage space to keep the stuff:

Previously, CHS 1 told Booker that he (CHS 1) may send him some items for Booker to hold until the next time CHS 1 visited – perhaps a package or something in the mail. Booker told both CHS 1 and CHS 2 that his house was not safe to store things because he shares it with his cousin. At that point, CHS 2 suggested that Booker may want to rent a storage locker.

[....]

On or about March 25, 2015, CHS 1 met with Booker. During this meeting, CHS 1 told Booker that he had been “selected” to accompany Booker on his suicide mission. CHS 1 provided Booker with a list of supplies that they needed to purchase in order to build the bomb.

Booker even relied on the two FBI informants to build the (totally fake) bomb he was going supposedly going to use, and to give him a map of where he was to set it off:

The second storage unit held a large amount of inert explosive material that Booker understood was to be used to build their Vehicle Borne Improvised Explosive Device (“VBIED”). Pursuant to Booker’s plan, Booker understood that CHS 1 and CHS 2 would build the VBIED, Booker and CHS 1 would eventually deliver it to Fort Riley, and Booker would detonate the VBIED in a suicide attack. CHS 1 and CHS 2 then provided Booker with a map of the area of Fort Riley at Booker’s request.

And then, just this morning, one of the FBI informants was needed to tell Booker how the device worked so he could "blow it up."

On or about April. 10, 2015, Booker and CHS 1 drove to a location near Junction City, Kansas where they met CHS 2. CHS 2 met Booker and CHS 1 in the van in which CHS 2 had purportedly constructed the VBIED. CHS 2 explained the function of the inert VBIED to Booker and demonstrated how to arm the device. CHS 1 and Booker then drove the VBIED to an area near Fort Riley that Booker believed to be a little used utility gate that would allow them to enter Fort Riley undetected so that they could find an area to detonate the VBIED that would kill as many soldiers as possible. While Booker was making final connections to arm the inert VBIED at the gate, he was taken into custody without incident by members of the FBI.

And thus, he's been arrested. It seems pretty clear that he's not a fan of the US, but this story matches many previous stories of the FBI stopping its own plots, in which the people they arrest tend to be hapless individuals with no ability to carry out any sort of terrorist attack on their own... until the FBI shows up and provides them with the fake tools to do so.

Filed Under: doj, fbi, isis, john booker, kansas, own plot, topeka