Court To Cops: Waiting Sixteen Months To Search A Seized Phone Violates The Fourth Amendment

from the turn-times-so-ridiculous-general-contractors-are-aghast dept

A recent case handled by an Illinois Appeals Court has some interesting things to say about cellphones and searches. It also contains some rather interesting assertions by law enforcement, which apparently didn't feel all that compelled to search a seized phone for more than a year after it was seized. (via FourthAmendment.com)

It's a drug and gun case, with the defendant facing two felony charges. Lamar Meakens was arrested following a traffic stop where contraband was discovered and his phone was seized. Here's how the court sums up that initial interaction in its opinion [PDF]:

Just after midnight on May 28, 2017, a Naperville police officer stopped defendant for speeding. Based on an odor in the car, the officer called for a canine search. The searching officers found eight $100 bills (several of which had identical serial numbers), a loaded .40-caliber handgun, and two unlabeled pill bottles, which in turn contained bags that held pills marked Xanax, a green leafy substance, and a white powder. While defendant was in the back of the squad car, he used the iPhone at issue to make a call.

The cops took everything they found, including the cellphone Meakens was using. The record is unclear as to why the cops took this phone but the court points out in a footnote that it should have been released to Meakens when Meakens was released from custody.

We note that a cell phone is not contraband; therefore, defendant’s cell phone should have been returned to him upon his initial release.

But that's not what happened. The PD instead decided to hold onto Meakens' phone for nearly sixteen months. It was only shortly before the trial began that officers finally sought a warrant and performed a search of the seized phone.

When the government was asked why it had taken so long to seek a warrant, it claimed that the delay was irrelevant. After all, taking a person's phone away for sixteen months hardly inconveniences them. Also Meakens was in jail where he wouldn't have access to it anyway.

The State, however, argued that an iPhone is, by its nature, easily replaceable. Therefore, the possessory-interest impact of seizing a suspect’s cell phone is necessarily less than, for instance, seizing a suspect’s luggage. The State also argued that defendant’s possessory interests were at a minimum while he was held in jail.

It's amazing that a government can still pretend the contents of a phone are analogous to the contents of someone's luggage, as the State implies here. But its explicit argument is even worse: it pretends it's more of an inconvenience to be without the contents of a suitcase than to be without a cellphone -- an item people use to communicate with others, engage in any number of essential services which can be accessed online, and otherwise revolve their lives around.

But that's the case the State made. And that's the arguments the trial court sided with.

The Appellate Court is far less sympathetic to the State's assertions.

Given the extraordinary delay in seeking a warrant and the State’s complete lack of diligence, we conclude that defendant’s possessory interest in the phone outweighed the interest the State had based on its probable cause to search the phone.

To begin with, the State had an obligation to seek a search warrant and perform a search in a timely manner. Waiting more than a year to do so causes more harm to the person deprived of the property since it allows the party doing the seizing to set the timetable for its return to whatever the State wants it to be, rather than what might benefit the person whose property has been taken. Shifting the dynamic completely in favor of law enforcement and its apparently expansive definition of "timely" violates rights.

The State’s diligence in seeking a search warrant also goes to the measure of its interest. Here, the State cannot claim any diligence. It waited until just before trial to obtain a warrant, about 15 months, and it did not explain its delay. We are aware of no delay longer than 13 months that a court has deemed reasonable.

The Court then cites the Supreme Court's Riley decision, which made it clear a phone was not just some featureless storage device but an often indispensable piece of equipment that's rarely separated from its owner. The State's assertion the seizure of a phone is, at best, a minor inconvenience vastly (and deliberately) underplays the role these devices play in people's lives.

Here, the State argues that, because cell phones in general are easily replaced, the seizure of a smartphone does not place a high burden on the person from whom it is taken. That is not a safe assumption. To be sure, some of the personal data accessed from a smartphone may be in “cloud” storage—“stored on remote servers rather than on the device itself.” Riley, 573 U.S. at 397. As noted in Riley, “users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.” Riley, 573 U.S. at 397. However, if a smartphone is seized, only the data in the cloud is potentially accessible to the user and then not always conveniently. For a typical person, only the seizure of a personal vehicle is likely to cause equal or greater disruption.

Nor are they easily replaced for other reasons. As the court notes, other than vehicles, cellphones might be the most expensive items people own.

The Appellate Court also rejects the assertion that being in jail eliminates someone's possessory interest in a seized phone. A phone is still a powerful communication tool, whether or not it can physically be accessed by its owner. Seizing this terminates lines of communication that might otherwise have remained open, even for incarcerated people.

A smartphone carries with it a history of a person’s communications. Therefore, if a detainee can give another access to his or her smartphone, that person can serve much more effectively as the detainee’s agent than would be possible if the phone were seized, thus limiting the disruptive effect of the detention. By contrast, a person released on bond will likely be inconvenienced but generally not be rendered incommunicado. It is thus possible that the seizure of a smartphone is more disruptive to a pretrial detainee than to a person who has been released. We thus cannot dismiss defendant’s possessory interest as inherently minimized by his jailing.

And the Court won't allow the government to reverse-engineer a justification for holding onto the phone for nearly sixteen months.

The State notes that, at defendant’s trial, its witness testified that suspects found with contraband drugs and weapons often use cell phones to photograph the contraband. The State argues, “While [defendant’s] possession of [the] cell phone would ordinarily have no evidentiary value apart from the contents, in this circumstance, possession of a cell phone, and its later discovered contents, corroborated [the inference that] Defendant knowingly possessed contraband.”

This rule, applied to the circumstances here, does not favor the State. The State’s own argument shows why this is so. It was only the “later discovered contents” that gave the phone evidentiary value. If the police had discovered within days of defendant’s arrest that the phone contained only innocuous texts with defendant’s family and cat pictures, then, by the State’s own argument, the phone would have lacked evidentiary value. That discovery would thus remove justification for the phone’s continued seizure. This appears to be an instance of the State attempting to justify the seizure by its fruits. Such arguments are attractive but mistaken; the exclusionary rule would be meaningless if it only excluded the results of fruitless searches.

There goes the search. And there goes the conviction. A new trial awaits and the government will have to do without the evidence it wanted so badly it could barely be bothered to search for it.

Filed Under: 4th amendment, delay, illinois, lamar meakens, mobile phones, naperville, searches, warrants

Naperville, IL Development Project Forced To Drop Name To Avoid Public Confusing It With City 1.7K Miles Away

from the under-the-bridge dept

Lots of trademark disputes are stupid. Lots of trademark disputes portray a great deal of hand-wringing that is laughable at best. And lots of trademark disputes end up being settled despite not being even remotely valid. But very few trademark disputes have to do with the naming and promoting of commercial developments when the geography that separates them is over 1,700 miles.

But that's the case in the recent news that the City of Naperville in Illinois has dropped the name of its Water Street District development due to a complaint by the city of Henderson in Nevada.

It seems the city of Henderson, Nev., “owns exclusive, nationwide rights” to use the name Water Street District, and fired off a letter to Naperville officials in 2017 after learning the city and Water Street businesses were using the same name to refer to the area where the Hotel Indigo, Sparrow Cafe, Southern Tide and other stores, restaurants and a parking deck are located, according to city documents.

“The letter asserted that the use of that phrase by the city of Naperville and by the Water Street property owner is unauthorized and violates the city of Henderson Redevelopment Agency’s trademark rights protected by registration with the U.S. Patent and Trademark Office in August of 2014,” city documents said.

This is where I remind everyone yet again that trademark law stipulates that infringement only happens in cases where there is real or potential confusion in the public as to the source of a product or an affiliation between two entities. In this case, the two locations concerned are quite literally more than 1,700 miles apart. I know this because Naperville is roughly a seven-iron away from my home, whereas the Nevada dessert is most definitely not. So what possible confusion could be had in this case? None, of course.

Now, Henderson attempts to come off as something of a reasonable good guy in all of this by allowing Naperville and the developer to still name its development Water Street District, but neither can actually, you know, tell anybody that via the normal marketing means.

While Henderson does not have an issue with Naperville’s continued use of Water Street District as part of ordinances previously approved, the settlement between the two cities and the property owner specifies neither will use Water Street District when otherwise referring to the development.

That means the phrase will not appear in newsletters, directories, maps or on goods, such as hats, pullovers, shirts, mugs, beach bags or metal key chains, city documents said.

Which is a shame, honestly. It's understandable why folks roll their eyes at this type of threat and simply cave as the easier option, but it sure would be nice to see some fight from entities so unfairly and absurdly targeted.

Filed Under: henderson, illinois, naperville, nevada, trademark, water street district

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EFF: Data Collected From Utility Smart Meters Should Be Protected By The Fourth Amendment

from the I-always-feel-like-somebody's-watching-me dept

For years, electric utilities have increasingly embraced smart meters. Roughly 65 million of the devices have been installed in the United States over the last few years, with 57 million of them in consumer homes. The meters provide innumerable benefits to utility companies, often delivering an ocean of new remote access and monitoring tools to better manage the network and reduce meter reading truck rolls. The benefits to consumers (outside of accuracy) have been less notable, including interference with some home routers, as well as the fact that a number of models have been shown to be relatively easily hacked.

In addition to hackability, the sheer volume of data being gobbed up by utility companies tells an awful lot about you (when you wake, when you sleep, when you're home or away). This has, at times, sparked outrage from locals in places like Naperville, Illinois, where, since 2011, meter opponents have been fighting the intrusive nature of the devices:

"...Opponents say the meters provide so much information that everyone from cops to criminals to marketing departments can learn when people are home and what they do when they're there. Last year, the anti-meter movement fell just short of collecting enough signatures to place a question on the ballot asking residents to decide whether the devices should be removed. They also have a pending federal lawsuit against the city alleging that their constitutional right to due process has been violated."

That was 2013. In 2015, the city of Naperville was forced to settle with one smart meter opponent after she sued the city and four of its police officers for violating her constitutional rights. That same year, another man sued the city over what he claimed was an unwarranted search into his home. But last fall, a federal district court in Illinois declared that Americans can't reasonably expect any privacy in the data collected by these devices, and utility collection of it is completely beyond the protection of the Fourth Amendment.

That case is currently on appeal to the United States Court of Appeals for the Seventh Circuit. And the EFF and Privacy International have asked the Seventh Circuit if they can weigh in on the case. In a blog post, the EFF points out that the court's decision was based on a misunderstanding of how the technology actually works. Basically, the court assumed that these new meters work in exactly the same way as their older counterparts, ignoring the significantly-expanded data collected:

"The court was convinced that data collected from smart meters is no different from data collected from analog meters, in terms of what it reveals about what’s going on inside the home. But that’s simply not the case. Smart meters not only produce far more data than analog meters—those set at collecting data in 15-minute intervals produce 2,880 meter readings per month compared to just one monthly reading for analog meters—but the data is also far more intimate. A single monthly read of cumulative household energy use does not reveal how energy is being used throughout the course of a day. But smart meter data does. And its time granularity tells a story about what is going on inside the home for anyone who wishes to read it."

As we've seen with cellular location data, once companies collect this information, it's often sold to any number of third parties who may be using this data in ways that aren't always in your best interests. But as Tim Cushing has occassionally noted, getting companies to be forthcoming about what they're collecting and who they may be selling it to is sometimes difficult, with at least one company suing to thwart transparency efforts on the subject in Seattle. And as Glyn Moody has also noted, this collision between privacy rights and utility data collection on the smart meter front isn't just an American phenomenon.

Filed Under: 4th amendment, illinois, naperville, privacy, smart meters

Police Chief Trying To Find Some Way To Charge Drone Operator Who Didn't Break Any Laws

from the I-AM-THE-[NONEXISTENT]-LAW dept

Don't let the fact that no crime occurred stop you from attempting to prosecute someone, Sparky. (via PINAC)

Naperville Police Chief Robert Marshall said he is consulting the city's legal department after the three-minute video posted on YouTube by user JPDrone came to his attention. Shot at night, a drone camera flies over City Hall and several downtown streets, providing a unique view of seasonal decorations while cars and pedestrians move around city streets below.

Photography Is Not A Crime points out that there is no law in Illinois that addresses what happened here. The closest the state gets to private drone prohibition involves a very specific set of circumstances.

While Illinois has passed a law making it a crime to use a drone to interfere with hunting and fishing, there are no other state laws preventing the public from using “drones,” more appropriately called RC (remote-controlled) copters.

If the local lawyers can't figure out some way to nail John Pauley for his not-illegal act, Chief Marshall is willing to go over his own head.

"Obviously, if they're flying over a public area, you have to ask if there's any risk to public safety, who's the operator and if he's abiding by the regulations set in place by the FAA," Marshall said. "There was a request from an individual who wanted to fly a drone camera overhead at Ribfest last summer, and we did not allow that."

Ah, "public safety." The one-size-fits-all hammer for every annoying nail that refuses to fit neatly into existing legal confines. The thing is, John Pauley has been very careful about his drone usage ever since his run-in with the Geneva (IL) police department officers, who expressed concern about his flying camera. Since then, Pauley has made an effort to notify proper employees before taking to the air. This includes the Naperville Police Department.

He said he called Naperville police before doing the nighttime video, which he said was filmed from less than 200 feet above the city.

This statement remains unaddressed. Neither confirmed nor denied or even acknowledged. So, it's Pauley's word against the Naperville PD's, the latter of which hasn't offered any words contradicting his claim.

Maybe Chief Marshall is just suffering from drone envy. Illinois state laws do prohibit the use of drones by law enforcement.

Section 10. Prohibited use of drones. Except as provided in Section 15, a law enforcement agency may not use a drone to gather information.

The Section 15 exceptions (and there are a lot of them) are: preventing a terrorist attack, with a warrant, imminent harm to life, locating a missing person (but notably, not as part of a criminal investigation), and crime scene/crash photography. Flying over private land for the latter also requires the acquisition of a search warrant. "Freedom from drone surveillance," as the law is titled. That applies to law enforcement only. It says nothing about private use.

The FAA may choose to fine Pauley if Chief Marshall decides to rat him out (the FAA restricts private drone usage to daytime hours), but it appears there's little he can actually do about this from his end. Marshall appears to believe that if he thinks something's illegal, it must actually be, even if all evidence points in the other direction -- really not the sort of attitude you want in a law enforcement official.

As of yet, no charges have been filed, but never underestimate the creativity of law enforcement personnel whose common sense has been shouted down by their desire to prosecute.

Filed Under: drones, john pauley, laws, naperville, police, robert marshall