Lawsuit: Cops Trashed An Attorney's Home In Retaliation For Successfully Defending A Suspect Against Murder Charges

from the system-never-likes-being-beaten dept

An attorney in Virginia found out what happens when you make cops angry. According to Cathy Reynolds' lawsuit, the Roanoke PD targeted her for some extra attention after she successfully defended her stepson from murder charges.

Prosecutors really wanted Darreonta Reynolds for murder, but security camera footage from the convenience store where the shooting took place appeared to show Reynolds shooting Jean De Dieu Nkurunziza in self-defense when Nkurunziza came after him with a gun. The jury agreed with the defense's case, acquitting Reynolds after ninety minutes of deliberation.

This apparently angered someone somewhere in the Roanoke Police Department because this is what happened next. From the lawsuit [PDF]:

Just three days after D. Reynolds acquittal, Defendants targeted Ms. Reynolds for retaliation. Defendants broke down the front door of Ms. Reynolds‘ home after she had offered to let them in, "searched" Ms. Reynolds' home for an individual by destroying her personal possessions, including those entirely irrelevant to a search for a person and left Ms. Reynolds traumatized, knowing that she could be targeted by police for engaging in constitutionally protected activity.

There may be some open dispute about the motivation for these actions, but the actions themselves can't be denied. The raid drew a crowd, some of whom filmed the PD's violent entry into the unlocked house -- the same house Reynolds had left unlocked and invited the officers to search. It also attracted the attention of a local news crew.

The lawsuit fills out the details of the raid. And the narrative throws a considerable amount of shade at the participating officer with one impeccably worded paragraph.

Despite both screen door and storm door at the front entrance of Ms. Reynolds' home remaining unlocked, SWAT officers used an entry tool attached to the front of an armored vehicle to puncture the screen door and rip it free from Ms. Reynolds' home in its entirety.

In so doing, SWAT officers damaged the screen door beyond repair, heavily damaged the door frame surrounding the front entry, and tore vinyl siding from the exterior of Ms. Reynolds' newly remodeled home.

SWAT officers then entered Ms. Reynolds' home by turning the doorknob of the storm door which remained on Ms. Reynolds' home, still unlocked, and pushing the door open in the manner a door is designed to operate.

Nice.

But that wasn't the end of the destruction. Remember, officers were searching for a 17-year-old murder suspect, not an easily hidden amount of contraband.

During the search of Ms. Reynolds' home, SWAT officers opened and searched all the drawers in Ms. Reynolds' kitchen and detached Ms. Reynolds' appliances from the walls of her home.

SWAT officers flipped the mattresses off all the beds in Ms. Reynolds' home and tore all of the clothes from the closets in the bedroom.

SWAT officers tore the cushions off Ms. Reynolds' furniture and emptied the contents of open soda cans onto the floor.

What the fuck.

On top of that, Reynolds alleges the warrant affidavit was nothing but a bunch of lies stitched together carelessly to give the PD permission to destroy her house -- a warrant rendered unnecessary by Reynolds' consenting to a search hours earlier. The narrative in that affidavit involves an ATF officer, their CI, and the assumption that the most likely place for a wanted murderer to be hanging out would be at the house of an attorney who had just successfully defended someone from a murder charge.

Given the timing and the three hours of apparently gleeful destruction, this certainly looks retaliatory. And, of course, it will be portrayed by the PD as just regular old cop stuff completely unrelated to local prosecutors and PD detectives "losing" a murder case. The end result of these efforts can't be denied. Neither can the violent entry which was captured by citizens' cameras. All that's left is the defensive assertions of "reasonable" officers -- all of which felt tearing apart an attorney's house was the best way to locate a human being.

Filed Under: cathy reynolds, darreonta reynolds, intimidation, police, police brutality, roanoke, search warrant, swat teams, virginia

Documents Show SFPD Ignored The Press Pass The Department Had Issued To Brian Carmody In Order To Place Him Under Surveillance

from the whatever-keeps-the-surveillance-going dept

As details continue to come out about the San Francisco Police Department's raid of a journalist's home last year, the more it appears as though there was a concerted effort by the PD to ignore both the First Amendment and the state's journalist shield law.

From the beginning, investigators knew someone from within the police department had leaked a coroner's report to Brian Carmody, a local "stringer." But the department didn't limit itself to tracking down its inside source. It placed Carmody under investigation, targeting his phone records, location data, and, finally, his home. The department's chief, Bill Scott, spent two weeks defending the raid before deciding it was OK to blame officers for actions he explicitly improved.

Five warrants linked to the investigation have been tossed by the courts that issued them. Carmody has received a $369,000 settlement for his rights being violated. And more details continue to come to light, showing the department personnel involved never came anywhere close to operating in good faith.

Last month, it was revealed that the officers sent to raid Carmody's home were instructed to turn off their body cameras. This allowed the PD to write its own narrative of the search without anything more neutral possibly exposing lies or omissions.

Fox affiliate KTVU is continuing to dig into this story and has uncovered even more damning information about the investigation of Carmody and the raid of his home. First, the SFPD was well aware (or should have been) Carmody was a journalist, and that targeting him for surveillance would be problematic and unconstitutional.

While pointing investigators to Carmody, the chief’s office failed to give the investigators a crucial detail: He had a valid press pass.

A reporter does not need a press pass to be protected by the Shield Law. But by issuing Carmody a press pass, the department recognized he was a working journalist.

This may have been an oversight. Or it may have been a deliberate withholding. But either way, the investigation began after the leaked report appeared on a local news station, which should have made it clear journalists were involved at some level and perhaps some due diligence was in order. It's hard to believe the SFPD didn't do an internal search of its own records first to dig up what they could about Brian Carmody before seeking search warrants.

That takes us back to the warrants. Five judges quashed the five warrants they had issued once news came to light that Carmody was a journalist. But there were seven warrants and the first warrants allowed the SFPD to, in essence, go back in time and put officers on Carmody's tail.

Investigators then began writing a series of warrants – seven in all – allowing them access to the officers’ phone records, and Carmody’s geo locations and call information.

The Police Department used the locations to retrace Carmody’s steps around San Francisco in hopes of catching him and his source on video doing the handoff.

This led to two more warrants -- the two that haven't been tossed out by judges. These targeted four places Carmody had visited, including a restaurant and a coffee shop. Video recordings were obtained from all four but investigators were unable to find any footage of Carmody meeting with his police source. When this failed, cops staked out Carmody's home for more than a month before seeking a warrant to search his home.

As for the warrant applications themselves, they were supposed to be reviewed by an assistant district attorney before being submitted to a judge. None of the seven warrants were submitted to the DA's office. Unfortunately, this isn't further evidence of a concerted effort by investigators to illegally target a journalist. This is just standard operating procedure for SFPD officers, who apparently rarely bother to follow the department's rules.

But [Captain William] Braconi wrote that in his nearly two decades as an investigator “rarely if ever” did an assistant district attorney review a search warrant before it was submitted to a judge.

This is a very ugly mess. And it's obviously not the only time the SFPD has broken internal guidelines and state laws to pursue investigations. If they were this comfortable pursuing a journalist over a report one of their own leaked, investigators have undoubtedly abused their power in smaller, less noticeable ways before. The more that's uncovered about the case, the more it appears the city got off pretty cheaply by paying Carmody only $369,000.

Filed Under: 1st amendment, brian carmody, journalists, press pass, raids, search warrant, sfpd

Court Has No Problem With All House Residents Being Forced To Hand Over Fingers To Law Enforcement

from the fifth-amendment-five-finger-discount dept

A ruling has been handed down by a federal judge finding the government's demands for fingerprints from multiple residents of a house does not implicate the Fifth Amendment. [h/t Brad Heath]

The underlying case -- still under seal -- bears some resemblance to one we discussed here about a year ago. Law enforcement sought a search warrant for a residence, which would allegedly house devices containing child pornography. The devices were suspected to be Apple products, which can be opened with fingerprints. The warrant asked for permission to compel the residents to supply their fingerprints -- both to unlock the devices and to ascribe possession to the person whose fingerprint unlocked them.

Surprisingly, the magistrate judge rejected the government's request. The government appealed the magistrate's rejection, kicking it up a level in the federal court system. The court notes in its ruling [PDF] its reviews of magistrates' decisions isn't normally adversarial, but this case raises some questions in need of additional viewpoints.

Ordinarily, review of the magistrate judge’s decision on a warrant application would be ex parte. But because the magistrate judge’s thoughtful opinion addressed a novel question on the scope of the Fifth Amendment’s privilege against self-incrimination, the Court invited the Federal Defender Program in this District to file an amicus brief to defend the decision (the government did not object to the amicus participation). The Court is grateful for the Federal Defender Program’s excellent service in fulfilling this request.

The decision here comes down on the side of the government, decisively so. But that may be due to the specifics of the fingerprint application. Rather than directly asking the residents of the searched home to use Apple's TouchID to unlock the devices (which would require a specific finger known only to each resident), law enforcement officers will choose which finger each suspect must apply to the device.

Specifically, the constitutional text on which the right is premised only prevents the government from compelling a person from being a “witness” against himself. U.S. Const., amend. V. The Fifth Amendment provides, in pertinent part: “No person … shall be compelled in any criminal case to be a witness against himself.” Witnesses provide testimony, so that specifically is the forbidden compulsion: the government cannot force someone to provide a communication that is “testimonial” in character…

The same holds true for the fingerprint seizure sought by the government here. As noted earlier, and worth emphasizing again, the government agents will pick the fingers to be pressed on the Touch ID sensor, Affidavit ¶ 39 n.9, ¶ 41, so there is no need to engage the thought process of any of the residents at all in effectuating the seizure. The application of the fingerprint to the sensor is simply the seizure of a physical characteristic, and the fingerprint by itself does not communicate anything.

The court likely would have reached the same conclusion even if the government had demanded residents choose fingers themselves. (The court does not state -- nor is it reflected anywhere in the court's discussion -- that law enforcement is limited to one finger from each resident. To keep this from becoming a mockery of the court's intent, you would think this would be the case. Nothing on the record indicates, however, that the government gets one finger per person.)

What's depicted here clearly falls in line with previous decisions related to the Fifth Amendment implications of providing fingerprints to unlock devices. Physical properties like fingerprints haven't been considered testimonial because they're apparent, visible, and clearly linked to the individual under suspicion. Handing over a fingerprint requires no "testimonial" effort, courts have decided, even if the non-testimonial action produces a wealth of incriminating evidence.

The compelled production of passwords and PINs is still an open issue. How open is a matter of (judicial) opinion. So far, refusing the government's offer to provide the keys to possibly incriminating evidence has only conclusively proven to be a good way to spend an indefinite amount of time in jail. But it at least provides the slimmest hope a judge will find demands for passwords a violation of the Fifth Amendment. The case for fingerprints being testimonial hasn't found much sympathy in the courts, despite the application of fingerprints ultimately being every bit as revealing as typing in a password.

Filed Under: 4th amendment, 5th amendment, finger prints, search warrant, warrant

Government Drops Facebook Search Warrant Gag Order At Eleventh Hour

from the preventative-action dept

Facebook has won its challenge against a warrant gag order. Unfortunately, it's more of a case of the government forfeiting than the social media giant raising a successful challenge.

Details from the case are limited, but the warrant appears to target protesters arrested during Trump's inauguration. Nearly eight months after having the gag orders challenged, the government has decided to let Facebook inform users affected by the government's demand for 90 days of Facebook activity from three accounts. But there's no victory here for Facebook, because it appears the government is merely seeking to avoid losing the case and having gag order-unfriendly precedent established in a district where it does a whole lot of secretive work.

Here are the details, from Zoe Tillman at Buzzfeed.

According to court papers filed jointly by Facebook and the US attorney's office in Washington on Wednesday, prosecutors determined that the underlying investigation that prompted the search warrants — the details of which are under seal — had "progressed ... to the point where the [nondisclosure orders] are no longer needed."

The announcement came less than 24 hours before an appeals court in Washington, DC, was set to hear arguments in the case. According to the joint filing, a lower court judge vacated the nondisclosure orders at the government's request, making Facebook's appeal of those orders moot. The lawyers asked the District of Columbia Court of Appeals to dismiss the case, and the court granted that request on Wednesday afternoon.

This leaves the government's case intact and mostly buried. The now-lifted gag order wasn't indefinite: it allowed Facebook to notify users 30 days after info was handed over to the government. But so far, no info has been handed over, which means the clock hasn't budged on eventual disclosure. Now Facebook can inform the users affected, but the government's removal of the gag order suggests disclosure never posed any real risk to the government's investigation.

The government probably sensed things wouldn't go completely its way after the DC Appeals Court asked other interested parties to submit briefs on the issue. Multiple tech companies have challenged government search warrants and gag orders in last few years, resulting in a handful of small wins on the civil liberties front. Faced with this shift in judicial behavior, the government ditched this case just before public arguments were set to begin.

The lack of a positive precedential rulings hurts, but there's no shortage of gag order challenges to be had. As Facebook's own data shows, more than half the requests it receives from US law enforcement come with gag orders attached. The FBI's liberal use of National Security Letters adds to that percentage, but statutorily-limited reporting makes it impossible to tell how often the feds demand info and vows of silence simultaneously.

Filed Under: doj, gag order, inauguration, search warrant, social media
Companies: facebook

Judge Grants Search Warrant Demanding Info On Everyone Who Searched For A Certain Person's Name

from the way-to-act-as-a-check-against-gov't-abuse dept

The standard for warrants is probable cause. The warrant obtained by Edina, MN police doesn't even approach reasonable suspicion. In its attempt to locate the person behind a fraudulent bank transfer, the Edina police have asked Google to bring them everyone, as public records enthusiast Tony Webster reports.

A Minnesota bank received a call in January from who they thought was Douglas, their customer, asking to wire transfer $28,500 from a line of credit to another bank. To verify the transaction, the bank relied on a faxed copy of his passport. But it wasn’t him, the passport was fake, and the transfer request was fraudulent.

The Edina Police Department figured out that while searching Google Images for the victim’s name, they found the photo used on the fake passport, and investigators couldn’t find it on Yahoo or Bing. So, they theorized the suspect must have searched Google for the victim’s name while making the fake passport.

Edina Police Detective David Lindman detailed this theory in an application for a search warrant filed in early February, asking the Court to authorize a search warrant for names, email addresses, account information, and IP addresses of anyone who searched variations of the victim’s name over a five-week period of time.

Supposedly, the warrant [PDF] limits Google's search for searches to the Edina area, but that puts Google in the position of determining who was located where when these searches were made. Not that Google is likely to fulfill this request, warrant or not. There's nothing approaching probable cause in the warrant -- just the minimum of "detective" work that failed to uncover similar images in response to search terms at Yahoo and Bing.

Incredibly, this isn't the Edina PD's first attempt to obtain search results and the identifying information associated with them. In the warrant, Detective David Lindman notes he'd already served Google with an administrative subpoena, which Google rejected because it demanded content rather than transaction records.

Detective Lindman apparently feels Google's rejection was BS.

Though Google Inc.'s rejection of this administrative subpoena is arguable, your affiant is applying for this search warrant so that the investigation of this case does not stall.

I'm guessing Google's not going to be sending anything in response to this warrant, either. This is likely to be challenged by the company. If it isn't, anything turned over to the Edina PD will be highly suspect in terms of admissible evidence. There's no probable cause contained in the warrant application -- only the theory that any information obtained might help the investigation move forward.

Will this lead to Edina officers raiding homes because someone searched for the name "Douglas [REDACTED]" during the specified time period? Quite possibly. It obviously won't take much effort to get those warrants signed, not if judges are willing to turn law enforcement wishes into reality, without asking for anything (like actual probable cause) in return.

Filed Under: 4th amendment, edina, minnesota, police, probable cause, search warrant, searches
Companies: google

The NSA Lost In Court, So This DMCA Notice Is Totally Valid

from the not-how-any-of-this-works dept

The misuse of DMCA notices to remove unwanted information from the web has been well-documented here. The "right to be forgotten" has sort of codified this behavior, but only applies to citizens of certain countries.

James Kutsukos would like something removed -- a search warrant application hosted by the ACLU, which details a US Postal Service investigation which culminated in his being convicted for marijuana distribution. It's easy to see why Kutsukos would want this removed:

It's far less simple to divine why the ACLU should feel compelled to remove it.

Kutsukos has his reasons.

Re: This needs to be taken off ASAP NOW THAT THE NSA LOST THEIR CASE

[...]

Explanation of complaint
this must be removed now. info@jamesrisk.com

The NSA hasn't "lost" any "cases," so far. I assume the "lost case" Kutsukos is referring to is Judge Leon's determination that the Section 215 bulk collection was unconstitutional (back in December of 2013). This would predate the April 1, 2014 timestamp on the takedown notice (which, for some reason, appears to have been received by the ACLU one year before Kutsukos sent it).

If so, then the decision had not been overturned by the Appeals Court yet, so it was technically still in the loss column. Even so, there's nothing about this that involves the NSA. The investigation was initiated by the US Postal Service and later involved the FBI.

The evidence obtained by the postal inspector consisted of text messages sent using Google Voice, which is not one of the providers implicated in the NSA's bulk collection efforts. (At least as far as we know... The phone metadata program [which also sweeps up other "business records"] targets telcos, not Google. Google's data is likely gathered under a different authority using a separate NSA collection program.)

So, it looks like either a misreading of Judge Leon's decision or -- as we've seen in other cases -- a sad attempt to intimidate a takedown recipient by throwing around government agency acronyms.

Either way, the document remains intact on the ACLU's servers and in Google's search results for Kutsukos, which lead off with a link to the affidavit.

And, because his woeful takedown attempt has been archived for posterity, Kutsukos is once again linked to a document he'd rather bury.

Filed Under: censorship, dmca, huh?, james kutsukos, nsa, search warrant, takedowns

Narcotics Team 'Loses' $294,000 In Seized Cash Because It Omitted The Location To Be Searched From Its Search Warrant

from the [LOCATION-TK]-[INSERT-FACTS-AND-SUCH] dept

Mississippi drug warriors had their eye on nearly $300,000 in "forfeited" funds but threw it all away by issuing one of the most deficient search warrants ever. It's not that it was loaded with errors or questionable probable cause assertions. It's that it omitted perhaps the single most important element of a search warrant -- the location being searched.

Appellant Mississippi Bureau of Narcotics (hereinafter “the State”) had a search warrant signed and executed at the home of Bobby Ray Canada and Beverly Turman. Section one of the search warrant, denoting the location for the search to be executed, was completely blank. The State collected, among other things, $293,720 from the home, and the State then filed a civil forfeiture action. Canada and Turman filed a summary judgment motion, arguing that the search warrant was blank and void, and therefore, the search violated their Fourth Amendment Rights. The trial judge granted the summary judgment motion. The State appealed. We hold the summary judgment motion to be well taken and affirm.

The State didn't deny that its officer had served a warrant with a blank space where the location to be searched should have been. But it claimed it had supporting documentation that made this omission irrelevant.

The State responded, arguing that the proceedings should be stayed because the affidavit and the underlying facts and circumstances sheet, listing the location of the search, were sealed by the State for other investigations, and they were needed to show the validity of the search warrant in the instant case. The State alleged that Judge Brown had seen and signed the affidavit and the underlying facts and circumstances sheet when he signed the search warrant. After the search warrant was signed – but before the search warrant was executed – both documents were sealed.

So the State briefly unsealed the documents to show the trial judge that, yes, the warrant was clearly and significantly deficient, but look, we wrote down the location in other places. The trial judge remained unimpressed by the officer's inability to fill out a search warrant properly. Summary judgement was granted and the State appealed, arguing that the warrant was still valid (really?) and even if it wasn't, the "good faith" exception applied.

The State’s argument hinges on the incorporation of the affidavit and the underlying facts and circumstances sheet. Yet the record before the Court contains neither the affidavit nor the underlying facts and circumstances sheet. In effect, the State has asked us to make a ruling on something that has not even been presented to us.

Despite the State's failure to produce these documents, the appeals court still entertained the government's argument. Even while pretending to have the relevant information in front of it, the court still found the government's arguments weak and unappealing.

Based on a plain reading of both the Mississippi and United States Constitutions, the State’s case fails; the warrant is void and unenforceable on its face. 5 ¶11. Further, in Miller v. State, 93 So. 2 (Miss. 1922), the Court faced a similar issue where one section of a search warrant was completely blank. In Miller, the search warrant was blank as to the name of the person to be searched and the place to be searched at the time of its execution. Id. at 2. After the warrant was executed, the proper person and place was filled in on the warrant. The Court held that “[a] blank warrant or a blank affidavit amounts to nothing."

As to the so-called "technical error" that resulted in the lack of a very important search warrant element, the court finds that the very malleable "good faith" exception cannot be stretched to cover this omission.

A warrant with a blank section cannot even rise to the level of “failing to particularize” a place. It is clearly, facially defective, and the whole premise of the good faith exception would be negated if we were to find the exception applies. Thus, we hold that the good faith exception does not apply, and the instant issue is, therefore, moot.

The Fourth Amendment wasn't erected to be an irritant to law enforcement and a criminal's best friend. It was put in place to protect citizens from government officials and employees who hold vastly more power than those whose lives they intrude on in the course of their duties. Walking around with a warrant that doesn't specify where or what is to be searched is no better than simply demanding random homeowners open their doors and allow the police to root around in their belongings. That's simply not allowed. If the government wants to breach the privacy of someone's house, it needs the proper paperwork. This clearly wasn't proper and this officer's omission -- although likely not intentional -- gave the warrant no more power than a random page torn from a notebook.

In doing so, the State just "lost" nearly $300,000. Given the state of asset forfeiture, it would be clearly erroneous to equate large amounts of cash with guilt, despite our government's proclivity for doing exactly that. The perverted incentives of asset forfeiture programs may have led to this glaring omission, as the drug task force named in the filing appears to have rushed through filling out its warrant in its haste to crack open a private residence and avail itself of the sweet, sweet cash it expected to find waiting inside.

Filed Under: asset seizure, beverly turman, bobby ray canada, details, mississippi, search warrant

Judge Says Raid On Twitter User Perfectly Fine Because Officers Can Enforce Non-Existent Laws Provided They Have 'Probable Cause'

from the in-the-weeds-finding-some-weed dept

There's been an update of sorts in the Peoria Mayor v. Twitter Parody fiasco, although reading the headlines attached to most of these articles tells a much different story than what's actually contained in the body. This has nothing to do with the parody account owner's (Jon Daniel) lawsuit against the city [pdf], filed with the assistance of the ACLU. (Many headlines actually lead with this, as though the filing of the lawsuit didn't actually happen over a month ago.)

Judge Thomas Keith ruled that police had probable cause to perform the raid at Daniel's residence -- which also netted his roommate, Jacob Elliott, with felony drug possession charges when marijuana and paraphernalia were discovered. And it's Elliott who's actually in court seeking to have charges dismissed and the warrant invalidated.

The argument against the warrant itself is solid. FOIAed emails show internal discussions between the Peoria PD and the Mayor's office, one of which includes the Chief of Police himself saying there are no laws being broken.

Mayor/Manager, I reviewed this matter with Detective Feehan. He is in the process of shutting down the account as you saw from my last email. This phony Twitter account does not constitute a criminal violation in that no threats are made. I'm not sure if it would support a civil suit for defamation of character. I'm not an expert in the civil arena but my recollection is that public officials have very limited protection from defamation. I asked (Feehan) about identity theft and he advised it did not qualify because the statute requires the use of personal identifying information such as a social security number, DOB, etc., and a financial gain form (sic) the use of that information.

Shortly after the raid and the ensuing debacle, the prosecutor dropped the (admittedly) bogus charges against Daniel.

Peoria County State’s Attorney Jerry Brady decided the offender must commit false personation in person. Using that reasoning, he didn’t charge Jon Daniel, the creator of the parody account, who also lived at the house.

This is the argument being used by Elliott's legal rep. If no crime was committed -- and the statute used to secure the warrant not applicable -- then the warrant should be thrown out, along with anything discovered during the raid.

But the judge doesn't see it that way. He says the police had "probable cause," even if the probable cause was (to put it nicely) misinformed.

Keith’s ruling means police had to reasonably think they would find items related to the parody Twitter account such as phones, flash drives, computers or similar things in Elliott’s bed or closet.

This is stuff the police did find. But the officers also looked under Elliott's pillows and in his closet. Judge Keith still wants them to answer for that.

Peoria police officers will testify Oct. 8 to explain why they looked under Elliott’s pillow and in a closet in his room, where police said they found the drugs in a gift bag.

As for the underlying cause being premised on a law that didn't say what police (and Mayor Ardis) wanted it to say, Judge Keith is less decisive.

Elliott’s attorney, Dan O’Day, sought to have the warrant declared invalid, arguing that police made a mistake and that anything found in the house should be thrown out of court.

Keith said he couldn’t make such a finding. He said the law was vague, and there was no case law that could guide judges on what legislators meant when they wrote the law.

But the prosecutor could make that decision, without the intercession of legislators or case law. He simply found that the law did not apply to Daniel's Twitter account and dropped the charges. Keith seems to be unable to wrap his mind around the fact that a warrant served to seize items and detain someone for not committing a crime is inherently flawed. That this was all uncovered after the raid took place does not excuse actions directed and led by a police chief and detective who admitted in emails that they knew the law didn't apply.

The "probable cause" was bogus from the start. The officers' actions in Elliott's bedroom aren't relevant because the whole search was a farce predicated on a deliberate misreading of a statute. The warrant may as well have stated it was seeking evidence of "harboring office supplies" or "manufacturing sandwiches without a license" for all the legal force it actually had behind it. While the warrant application lists "cocaine, heroin and drug paraphernalia" as things "reasonably" believed to be on the premises (no specific mention of marijuana or any other drugs, however), the statute clearly stated as the motivating force is False Personation, which doesn't cover Jon Daniel's Twitter account.

The police went after a Twitter account holder who had violated no laws and netted themselves a drug bust. The fact is, the police had no right to enter the premises in the first place and certainly shouldn't benefit from items seized that had nothing to do with the electronics (or other items) specified in the warrant application.

Keith's obeisance to "probable cause" is ridiculous but you can't expect much more from a former prosecutor who minored in cybercrime and majored in death sentences.

Filed Under: false personation, illinois, jacob elliott, jim ardis, jon daniel, parody, peoria, probable cause, raid, search, search warrant

Prosecutors In 'Sexting' Case Apparently Obtained Search Warrant To Photograph Teen's Penis

from the combating-child-porn-by-creating-forced-child-porn dept

Julian Sanchez alerts us to a crazy story in the Washington Post (which, it should be noted, appears to be sourced from one side of the case, so recognize the potential bias), accusing prosecutors in a "sexting" child porn case of going so far as to get a search warrant to take a photograph of the defendant's "erect penis" in order to compare it to the one in a video he sent his girlfriend.

A Manassas City teenager accused of “sexting” a video to his girlfriend is now facing a search warrant in which Manassas City police and Prince William County prosecutors want to take a photo of his erect penis, possibly forcing the teen to become erect by taking him to a hospital and giving him an injection, the teen’s lawyers said

Like many other similar cases, this involves two teenagers sexting each other. We can all admit that this is a rather stupid thing to do, but it would be crazy not to recognize that this happens quite frequently with teens these days. It's already a pretty big stretch to try to twist those cases into "child porn" cases, but various prosecutors have been doing exactly that for years now. In this case, the 15-year-old girlfriend sent her 17-year-old boyfriend a photo of herself, and he sent back the video. The mother of the girl complained, and prosecutors went after the boy for "two felony charges, for possession of child pornography and manufacturing child pornography."

If that already seems fairly questionable, prosecutors apparently decided to take things to the next level when the boy refused to plead guilty:

The male teen was served with petitions from juvenile court in early February, and not arrested, but when the case went to trial in juvenile court in June, Foster said prosecutors forgot to certify that the teen was a juvenile. The case was dismissed, but police immediately obtained new charges and also a search warrant for his home. Police also arrested the teen and took him to juvenile jail, where Foster said they took photos of the teen’s genitals against his will.

The case was set for trial on July 1, where Foster said Assistant Commonwealth’s Attorney Claiborne Richardson told her that her client must either plead guilty or police would obtain another search warrant “for pictures of his erect penis,” for comparison to the evidence from the teen’s cell phone. Foster asked how that would be accomplished and was told that “we just take him down to the hospital, give him a shot and then take the pictures that we need.”

The teen declined to plead guilty. Foster said the prosecutor then requested a continuance so police could get a search warrant, which was granted by substitute Juvenile Court Judge Jan Roltsch-Anoll.

So, if you're keeping score at home, what we have is (1) two teens (stupidly, but not that surprisingly) sending each other revealing photos/videos of each other in a consenting manner that could be seen as "child porn" solely based on their age and (2) law enforcement forcing the boy to create more such "child porn" in an effort to pressure him into pleading guilty to two felony child porn charges. How does that make any sense at all? Can anyone actually claim that the "forced" photo by police and the followup search warrant, with the plan to "inject" him in a hospital to photograph his erect penis, is somehow less problematic than the original sexting video?

Filed Under: child porn, manassas city, prince william county, prosecutors, search warrant, sexting

Is Taking A Photo Of An iPhone A 'Copy'?

from the do-words-have-meaning? dept

There are still some serious questions about the legality of the police's decision to search the home of Gizmodo reporter Jason Chen and to seize his computers as part of their investigation of the iPhone prototype story. However, with the unsealing of the search warrant, some are noticing some oddities. Reader johnjac highlights that the police defense of the need for the search warrant claims that Jason "created copies of the iPhone prototype in the form of digital images and video." While it may just be either a misstatement or an awkward use of the word, it does seem like a strange description of what happened, designed to make the judge think that the "risk" was much greater than it actually was. If there were actual "copies" of the device being made, that might be an issue. But photographing or videotaping a device is hardly making copies. But, of course, in an age where many in the world are trying to falsely equate "copies" with "theft," suddenly the idea that Jason was able to "copy" the iPhone prototype via the magic of a camera makes his actions seem that much more nefarious than they really were.

Filed Under: copies, iphone, jason chen, search warrant
Companies: apple