After Fielding Third Case On Point, Court Finally Decides Curtilage-Violating 'Knock And Talks' Are Clearly Unconstitutional

from the qualified-immunity-is-garbage dept

You can violate Constitutional rights and still dodge liability. You just have to do it in a way that doesn't immediately summon precedential cases on point. That's the beauty of qualified immunity, the doctrine the Supreme Court decided was needed because expecting law enforcement to operate within the confines of the Constitution is just too much to ask.

Fairfield County, Ohio's SCRAP (Street Crime Reduction and Apprehension Program) unit plays fast and loose with the Constitution -- and with the county's apparent blessing. A case examined by the Sixth Circuit Court of Appeals details a search the SCRAP chose not to call a search that resulted in the discovery of marijuana plants -- and further contraband once a warrant was secured. The defendants -- Neil Morgan and Anita Graf -- asked for the evidence to be suppressed. They argued the initial "knock and talk" violated the Fourth Amendment, tainting the more thorough search that followed.

Acting on a tip, the county's SCRAP unit went to the defendants' residence and basically surrounded it, placing two officers approximately five feet from the house in the backyard. It was from this vantage point the marijuana plants on the second floor balcony were spotted -- something not visible to those approaching the house from more "public" directions. The court agreed and vacated their sentences. This lawsuit against the officers and the county ensued.

The Sixth Circuit Court notes [PDF] this knock-and-talk tactic -- surrounding the house prior to knocking -- clearly violated the Fourth Amendment.

Under that commonsense approach, the area five-to-seven feet from Morgan’s and Graf’s home was within the home’s curtilage. Even when the borders are not clearly marked, it is “easily understood from our daily experience” that an arm’s-length from one’s house is a “classic exemplar of an area adjacent to the home and ‘to which the activity of home life extends.’” The right to be free of unwarranted search and seizure “would be of little practical value if the State’s agents could stand in a . . . side garden and trawl for evidence with impunity.”And the right to privacy of the home at the very core of the Fourth Amendment “would be significantly diminished” if the police—unable to enter the house—could walk around the house and observe one’s most intimate and private moments through the windows.

But not only were the SCRAP unit members positioned on the sides of the house, they were in the backyard, too. Indeed the backyard is where they discovered the marijuana plants, the cause of the injuries alleged by Morgan and Graf. And “the law seems relatively unambiguous that a backyard abutting the home constitutes curtilage and receives constitutional protection.” Daughenbaugh, 150 F.3d at 603; see also United States v. Jenkins, 124 F.3d 768, 773 (6th Cir. 1997). That is true especially when, as here, there are no neighbors behind the house and the backyard is not visible from the road.

The court points out there's nothing ambiguous about this particular violation in this jurisdiction: backyards and standing only a few feet from a house are both intrusions that must be supported by something more than the officers had when they approached the residence. The SCRAP team had no warrant, but it went about its business as though it had this permission slip to bypass Fourth Amendment protections.

The county argued no warrant was needed, citing officer safety and exigent circumstances. The court says both assertions are ridiculous.

Instead of showing a particular and immediate risk, the county argues that concern for officer safety generally allows police to enter the curtilage and form a perimeter. Yet rather than citing a case supporting that position, the county argues that drugs and guns often go together. Maybe. But that is no more than a general statement of correlation; and generic possibilities of danger cannot overcome the required particularized showing of a risk of immediate harm. See id. at 961. But, even if the officers knew that Morgan had a weapon, “[t]he mere presence of firearms does not create exigent circumstances.” United States v. Johnson, 22 F.3d 674, 680 (6th Cir. 1994).

The court then goes further: to apply the county's "officer safety" theory, the whole Fourth Amendment would need to be thrown out.

What is more, the county’s position would create an exception that would swallow the rule. It might be safer for the police to enter the curtilage to form a perimeter; it would certainly be easier to stop someone who might flee by establishing some sort of barrier to that flight. Indeed, many (if not most) Fourth Amendment violations would benefit the police in some way: It could be safer for police without a warrant to kick in the door in the middle of the night rather than ring the doorbell during the day, and peering through everyone’s windows might be a more effective way to find out who is cooking methamphetamine (or engaging in any illegal behavior, for that matter). But the Bill of Rights exists to protect people from the power of the government, not to aid the government. Adopting defendants’ position would turn that principle on its head.

The county also tried to argue the search wasn't a search because the officers said it was a "knock and talk," despite the presence of officers inside the curtilage. No good, says the Sixth Circuit.

The subjective intent of officers is irrelevant if a search is otherwise objectively reasonable, but subjective intent cannot make reasonable an otherwise unreasonable intrusion onto a constitutionally protected area.

The court says the SCRAP unit had no warrant, no exigent circumstances, and no other plausible warrant exception to offer. Open and shut for qualified immunity, you would think, but apparently no one violated rights in this particular fashion previously, so…

Despite these long-settled standards, one case from this circuit, although incorrectly decided, requires that we grant qualified immunity. That case, Turk v. Comerford, decided within a month of the ‘knock and talk’ in this case, found that the law was not clearly settled against a factual background that was, in every material way, the same as here.

Oh wait. Someone did violate rights this way. Something directly on point. The court settled the law, right? Clearly established going forward and all that? Nope. The defendants lose because the court failed to do its job twice.

Although Hardesty and Turk are outliers, Morgan and Graf cannot overcome their burden of showing that the law was clearly established at the time of the search in this case. In those two cases, this court should have reaffirmed long-settled Fourth Amendment principles. Cf. Rogers v. Pendleton, 249 F.3d 279, 289–90 (4th Cir. 2001) (denying qualified immunity and reasoning that allowing access to curtilage based on reasonable suspicion would “eviscerate the principle of Oliver and Dunn that the curtilage is entitled to the same level of Fourth Amendment protection as the home itself”). But it did not.

So, because the court screwed up, the officers get their qualified immunity -- despite "knock and talk" cases directly on point being (mis)handled in this circuit. The county, however, does not get off so easily.

It is uncontested that the county’s policy required officers to enter “onto the back” of any property during every ‘knock and talk.’ And as acknowledged by the sheriff and members of the SCRAP unit, that policy did not give any leeway for the officers to consider the constitutional limits that they might face. The SCRAP unit did not weigh the characteristics of properties to determine what parts of the properties were curtilage (and thus off limits). The policy gave no weight to the core value of the Fourth Amendment—one’s right to retreat into his or her home “and there be free from unreasonable government intrusion.” Collins, 138 S. Ct. at 1670 (quoting Jardines, 569 U.S. at 6). Quite the opposite: the policy commanded that the SCRAP unit ignore those limits. It was not one employee’s interpretation of a policy that caused Morgan’s and Graf’s injuries—the policy was carried out precisely as it was articulated. And so, because the county’s policy itself was the cause of Morgan’s and Graf’s injury, the county should be held liable under Monell.

Third time's the charm. The next litigant will be able to move forward with their case should officers decide putting someone in the backyard is justified during a knock-and-talk. But for the three previous sets of plaintiffs, the law managed to remain "unsettled" until just now, even with blatant Fourth Amendment violations the county will have to answer for in court.

Filed Under: 4th amendment, curtilage, knock and talk, ohio, scrap, sixth circuit

Court Sends Cop Back To Prison For Bogus 'Contempt Of Cop' Arrest

from the classic-seven-words-you-can't-say-to-cops-skit dept

It shouldn't take an appeals court to reach this conclusion, but that's the route taken most frequently by people challenging their convictions. Former sheriff's deputy Matthew Corder doesn't want to serve time after being convicted of depriving Derek Baize of his constitutional rights, and so we've ended up at the Sixth Circuit Court of Appeals. (h/t Sixth Circuit Blog)

This all stems from a "contempt of cop" incident. Baize returned home one night to find Deputy Corder parked in his parking spot in front of his home. Baize asked what was going on, only to be told to "mind his own business." Baize then asked the deputy to move his car so Baize could park in front of his house. The deputy said he'd move his car "when he was ready."

Nonplussed by the behavior of this supposed public servant, Baize told the deputy to "fuck off." Deputy Corder asked for clarification. Baize responded: "I did not stutter. I said 'fuck off.'" Baize then walked into his house. Corder claimed he yelled for Baize to stop. Baize said he didn't hear this. It really doesn't matter. Citizens are under no legal obligation to engage in conversations with law enforcement officers. The deputy's testimony indicates Baize wasn't committing any crime nor was he wanted for a suspected criminal act when he walked away from the yelling deputy.

Baize went into his house. The deputy followed. He banged on the door and told Baize to come outside. Baize refused, again well within his rights. Baize also pointed out Corder might want to get his paperwork in order if he wanted to set foot in the residence. The following was all caught on Corder's body camera:

Baize opened his front door but left his screen door closed. Defendant opened Baize’s screen door and told Baize to come outside “or there are going to be issues.” Baize repeatedly refused, saying that defendant needed a warrant, but defendant responded that he did not “need no warrant.” Defendant told Baize that “right now you’re out here hollering at me and you ran in there, which means there’s exigent circumstances.” Baize again refused to come outside. Defendant reached inside Baize’s home to grab Baize, who braced himself against his doorjamb and said “you are not allowed in my house.” Defendant then entered Baize’s home, grabbed Baize by the back of the neck, and began to arrest him. Defendant’s fellow deputy, Billy Allen, arrived and assisted with the arrest. Defendant tased Baize into submission and completed the arrest.

Corder was wrong multiple times during this interaction. He did need a warrant to enter the residence. Given the circumstances, it seems highly unlikely he could have obtained one, having only the probable cause of being disrespected while parked in someone else's driveway. He was also wrong about the circumstances. There's nothing "exigent" about someone entering the home where they live, even if there's a law enforcement officer on the lawn trying to find some way to regain control of the situation.

Nevertheless, Corder entered the home and arrested Baize, ringing him up on the two bullshit charges: fleeing (in the second degree) and resisting arrest. Baize was nailed with $1500 cash bond. The judge refused to allow an unsecured bond because Baize had been arrested for "evading" the deputy. Baize couldn't afford the full $1500 and spent two weeks in jail. During that stay, he lost his job.

On top of that, the prosecutor and Baize's public defender agreed on an order of dismissal (without Baize's knowledge) stipulating that he agreed there was probable cause to arrest him for these charges. This was presented to the judge as something Baize had agreed to, even though it obviously lacked Baize's signature.

Following all of this, Deputy Corder was indicted by a grand jury and convicted on both counts after a four-day trial. Corder appealed his conviction, raising questions about the sufficiency of evidence against him as well as jury instructions regarding the Fourth Amendment and the physical boundaries of residences protected under this amendment. Corder asserted Baize's decision to answer the door after he began knocking on it somehow generated probable cause for a fleeing/evading arrest. The Sixth Circuit Appeals Court [PDF] doesn't buy it.

[W]e reject defendant’s theory that the fifth element — “in fleeing or eluding the person is the cause of, or creates a substantial risk of, physical injury to any person” — was satisfied when Baize resisted arrest after returning to answer the door. For defendant to have had probable cause to arrest Baize for fleeing and evading, he must have had probable cause to believe that all of the elements of the crime were satisfied at the moment he sought the arrest. Wesley v. Campbell, 779 F.3d 421, 429 (6th Cir. 2015). By defendant’s own account, however, the fifth element — Baize’s creation of the risk — was not satisfied until after defendant initiated the arrest and Baize physically resisted. See Trial Tr. vol. II at 160:11-161:5 (defendant admits that he did not make the decision to arrest until “we were trying to bring [Baize] out [and] he resisted”) (PageID # 832-33); Def. Br. at 18 (“The substantial risk of injury occurred when Baize resisted arrest . . . .”). It is therefore impossible, under defendant’s theory, that defendant had probable cause to believe Baize had met all of the elements of fleeing and evading when defendant made the decision to arrest.

As for his argument that he did not cross the threshold to effect the arrest (or, conversely, that circumstances allowed him to enter the home without a warrant), the appeals court points to the deputy's own body camera footage as evidence of Corder's Fourth Amendment violations.

Defendant’s body camera shows Baize open his inner door, leaving the screen door shut. Defendant was unable to cross the threshold and touch Baize without opening the screen door himself (which he did), and all the while Baize remained several feet removed from his threshold, inside of his home. Baize was not exposed to the same degree of public view, speech, hearing, and touch as though he was on his porch.

As to the allegedly faulty jury instructions, the court has this to say:

Defendant’s proposed jury instruction is also legally flawed, as it incorrectly suggests that the hot-pursuit exception to the warrant requirement applies any time a suspect retreats into his home, no matter the circumstances…

Even if defendant’s proposed instruction contained a properly limited definition of the hot-pursuit exception, defendant fails to explain how the exception applied to his decision to enter Baize’s home. In Kentucky, second-degree disorderly conduct is a misdemeanor, Ky. Rev. Stat. § 525.060(2), and there was no physical evidence of disorderly conduct that Baize could have destroyed.

This isn't Corder's first outing as a defendant. He's faced lawsuits before for misconduct, excessive force, and other civil rights violations. This David Meyer Lindenberg post for the now-defunct FaultLines details 20 years of abusive behavior by Deputy Corder.

In 1997, when Corder was an officer with the Louisville PD, a man named John Dennis Wilson accused him of pepper-spraying him in the face as he sat handcuffed in the back of a police car. Notably, Corder’s police report didn’t mention any pepper spray, and he failed to file a use-of-force report in violation of department policy. After Wilson sued him in federal court, Corder admitted everything. The city settled with Wilson for $15,000 ($22,500 in 2016 money). Corder was not punished.

On New Year’s Day, 1998, Corder arrested Adrian Reynolds, 34, who was wanted on a domestic violence charge. When other officers arrived on the scene, they found Reynolds with a broken face and Corder’s uniform soaked in blood: Corder had repeatedly beaten Reynolds in the head with his fist and flashlight. An internal affairs investigation cleared Corder, though the arrest made the news when prison screws beat Reynolds to death six days later.

Also in January, 1998, Corder was sued by 36-year-old Gary Branham after Corder punched him in the face and pepper-sprayed him while moonlighting as security for an amateur boxing tournament. Although Corder hit Branham with a number of charges, including disorderly conduct, they were all dropped when Corder failed to appear at Branham’s preliminary hearing. Branham’s suit was resolved when a jury found in favor of Corder and the city. Corder was not punished.

In October, 2002, Corder pulled a gun on and arrested a man for trying to repossess Corder’s SUV. This earned him his first trip to criminal court. According to the Louisville chief of police, Robert White, who fired Corder in 2003, Corder tried to make a deal with the repo company: in exchange for releasing the arrested worker, they’d let him keep the car.

This history -- along with Corder's history of lying to police investigators about his misconduct -- forms the basis of Corder's Fifth Amendment argument. Corder believed the jury was unfairly prejudiced when his past lies to police departments he worked for were brought up during cross-examination. The court denies Corder on this one as well, pointing out jurors had every right to know whether the officer on the stand was a trustworthy person.

Defendant argues that permitting cross-examination concerning his lies to internal affairs investigators in 1991 and 1998 violated both his Fifth Amendment right against self-incrimination and Federal Rule of Evidence 608(b). (Def. Br. at 34.) Over defendant’s objection, however, the district court permitted the government to elicit defendant’s testimony admitting these lies. The district court based its ruling on Brown v. United States, 356 U.S. 148 (1958), concluding that defendant’s testimony about his own truthfulness had opened the door to such cross-examination.

[...]

On the record before us, as well as the authority offered by defendant, we conclude that the district court did not abuse its discretion in ruling that defendant waived his Fifth Amendment right as to his prior statements to police investigators. Defendant’s belief in the veracity of his charges against Baize was a chief issue in the case against him, and he voluntarily took the stand to vouch for that belief. Evidence of defendant’s willingness to lie to other police departments to protect himself from allegations of misconduct is relevant to, and probative of, whether he would lie to the Bullitt County Sheriff’s Office for the same general purpose.

Matthew Corder swings and misses on all arguments. This means he'll head back to prison to serve the remainder of his 27-month sentence. He should count himself lucky. He was facing a possible eleven years for both counts. With any luck, Corder's imprisonment will serve as a cautionary tale for officers who think they can arrest people just because they feel they haven't been shown the respect they think they deserve. If a cop wants to tell you to "mind your own business" when he's parked in your driveway, you should feel free to tell him to "fuck off" without worrying about losing your job and your freedom.

Filed Under: contempt of cop, derek baize, matthew corder, police, sixth circuit

Cop Shuts Off Dashcam During Drug Dog Sniff. Appeals Court: This Is Fine.

from the can't-give-those-hard-working-officers-enough-slack dept

If cops have the ability and opportunity to record a traffic stop, should it be held against them when they don't? Arguments have been made to that effect for a few years now. Dashcams have been in wide use for at least a couple of decades. Law enforcement agencies all over the US are issuing body cameras to officers. But it seems whenever something questionable happens, footage is nowhere to be found, or what there is of it is almost useless.

Unfortunately, years of discussion by (mainly) defense lawyers hasn't resulted in policy changes. Worse, it hasn't budged the judicial needle much. In rare cases, the absence of footage is used against officers, but in those cases, it mainly seems to be because efforts were made to destroy footage already captured.

In this case [PDF] reviewed by the Sixth Circuit Appeals Court, no effort was made post facto to destroy footage. Instead, an officer proactively prevented footage from being created by disabling the dashcam recording the traffic stop. (via FourthAmendment.com)

The defendant made a few different arguments for suppression of evidence obtained via a search of his vehicle. Citing Rodriguez, he claimed the wait for the K9 unit unnecessarily prolonged the traffic stop. The appeals court disagreed, saying its interpretation of the Supreme Court's decision gives officers about 20 minutes to freely violate citizens' rights.

Defendant next argues that the search violated the Fourth Amendment because the officers extended the stop beyond the time required to investigate the traffic violation in order to conduct a canine sniff. The district court determined that the delay was not excessive, relying upon United States v. Collazo, 818 F.3d 247, 257-58 (6th Cir. 2016), in which we countenanced a traffic stop that exceeded twenty-one minutes based on the totality of the circumstances. Here, the district court observed that the canine unit appeared within ten minutes of the stop, the car’s paperwork, which was a rental, did not include any of the passengers as authorized drivers, and the GPS information indicated that defendant had been out-of-state, which was prohibited by the terms of his parole. While these factors might individually have an innocent explanation, the court found that “from a law enforcement perspective all that adds up . . . to a reasonable suspicion for an extension, which . . . wasn’t very long anyway.”

This completely ignores Supreme Court precedent, which made it clear it wasn't the length of the rights violation, but rather the violation itself. Once the purpose of the traffic stop has been achieved, any fishing expeditions by law enforcement past that point are Constitutional violations, whether it's five minutes, ten minutes, or a half hour. A holding like this makes it that much easier for officers to slow roll traffic stops so they can run a drug dog around a car they stopped for a lane change violation. That's what appears to have happened here and both courts (district, appellate) said this is fine.

Trooper Boven returned to his cruiser after collecting everyone’s identification and ran the information through two law enforcement databases to check for outstanding warrants and to confirm that Mercedes Hunt was a valid driver. Defendant contends that Trooper Boven entered the information slowly in order to prolong the traffic stop until the canine unit arrived, which it did shortly after he finished processing the licenses.

In this case, there was plenty to be reasonably suspicious about, hence the call for the K9 unit. But once the K9 unit arrived something strange happened. The officer turned off his dashcam, ostensibly to "protect" the confidentiality of an informant.

Once Deputy Osbun arrived, Trooper Boven explained the situation to him to “keep him in the loop” and for officer safety. He also turned off the dashboard camera. According to his testimony, he did so to prevent information about the confidential informant from coming to light in case the stop revealed no drugs. After speaking with Deputy Osbun, however, Trooper Boven apparently forgot to restart the dashboard camera and, as a result, there is no footage of the search of the car. In total, twenty minutes elapsed before the camera was restarted.

The defendant challenged this, stating the missing footage prevented him from directly challenging the supposed probable cause generated by the dog's nose. And there were sufficient reasons on record to warrant doing so.

Defendant contends that the lack of a visual record of the search undermines his ability to challenge the legitimacy of the canine alert to narcotics. First, there are no records maintained of the dog’s prior performance in the field. Second, Deputy Osbun recalled up to six false alerts at the suppression hearing, which defendant contends is a significant number given that dogs are deployed only when the presence of drugs is suspected. Third, the lack of dashboard camera footage makes it nearly impossible for defendant to challenge whether Deputy Osbun’s interaction with the dog may have influenced its subsequent alert. Finally, defendant characterizes the missing video footage as “spoliation” for which the government must be held responsible.

The district court, however, didn't view this as spoliation of evidence. For the most part, the legal argument is sound. You can't ruin evidence that doesn't exist. The problem is that if you can prevent such evidence from ever existing, you can probably get your questionable actions excused by the courts.

The Appeals Court affirms the lower court's decision. While the totality of the circumstances makes this a less-than-ideal test case, the fact remains too much slack is being cut by the courts. The camera could have been left on. Any concerns the trooper had about his informant's confidentiality could have been addressed by the department. They could have been presented to the court prior to turning over the footage in case redactions were warranted. But shutting off a camera during a stop -- especially a pretextual stop where an officer deliberately slowed down his ticket-writing duties to bring a drug dog to the scene -- should be treated as a failure to preserve evidence by law enforcement.

In this case, the Sixth Circuit does double damage: it ignores the issues raised by cops disabling cameras during traffic stops, and gives officers in its jurisdiction 20 minutes in which to violate rights (and the Supreme Court's Rodriguez decision) without fear of reprisal.

Filed Under: dashcam, drug dogs, police, sixth circuit, transparency

Sixth Circuit Says Cell Site Location Data Just A Business Record; No Warrants Required

from the what-Smith-v.-Maryland-has-wrought dept

To date, four appeals courts have entered opinions on whether cell site location info is covered by the Fourth Amendment. So far, only the Fourth Circuit Court of Appeals has found this to be worthy of a warrant. All others find CSLI to be covered under the Third Party Doctrine. These cases all deal with historical cell site location info, usually obtained in bulk with subpoenas. Near real-time tracking using tower pings is another issue entirely -- one that's rarer because a) obtaining rolling CSLI from a provider is a pain and b) everyone's using Stingrays now.

The Sixth Circuit Court of Appeals is the fourth appeals court to find CSLI isn't covered by the Fourth Amendment. By this point, the arguments against greater privacy protections are all too familiar.

It's Just Metadata:

Content, per this distinction, is protected under the Fourth Amendment, but routing information is not.

It's not as precise as other tracking methods, so not really a problem:

The defendants argue that the government’s collection of those records constituted a warrantless search in violation of the Fourth Amendment. In making that argument, however, the defendants elide both the distinction described above and the difference between GPS tracking and the far less precise locational information that the government obtained here.

The amount of data gathered by the FBI is impressive. Relying on orders issued by three different magistrate judges, the FBI obtained 6-7 months of location info for 16 different cellphones. The coarse location info (accurate to within a half-mile in most cases) helped place two of the suspects near the scene of a couple of robberies. The suspects' attempt to suppress the evidence gathered by these orders made it all the way up the chain to the Appeals Court -- only to find the court affirm the lower court's denial of their motion.

The court quotes from 1979's Smith v. Maryland decision -- the cornerstone of a majority of pro-Third Party Doctrine arguments -- but fails to see any difference between obtaining call routing info tied to a non-mobile landline and information wholly unrelated to any communications generated by mobile phones as they connect to towers..

The court also quotes law enforcement's favorite argument: that people should know things they "share" involuntarily with cell providers are also things they involuntarily share with the government.

[A]ny cellphone user who has seen her phone’s signal strength fluctuate must know that, when she places or receives a call, her phone “exposes” its location to the nearest cell tower and thus to the company that operates the tower.

As in other cases dismissed using this same rationale, this representation of what people should or shouldn't know isn't just inaccurate (and highly dismissive of people who don't realize this give-and-take is part of cellphone operation) but it's also disingenuous. People likely know they generate some sort of location information. What they don't assume is that law enforcement can access records of their movements without a warrant.

The opinion also name-drops the Stored Communications Act -- part of the abysmal Electronics Communication Privacy Act -- as part of the reason the court won't be extending an expectation of privacy to location data.

Some other points bear mention. One is that Congress has specifically legislated on the question before us today, and in doing so has struck the balance reflected in the Stored Communications Act. The Act stakes out a middle ground between full Fourth Amendment protection and no protection at all, requiring that the government show “reasonable grounds” but not “probable cause” to obtain the cell-site data at issue here. See 18 U.S.C. § 2703(d). The defendants and the ACLU effectively ask us to declare that balance unconstitutional. There is considerable irony in that request. The Katz standard asks whether the defendants’ asserted expectation of privacy “is ‘one that society is prepared to recognize as reasonable[.]’” Smith, 442 U.S. at 740 (quoting Katz, 389 U.S. at 361). Here, one might say that society itself—in the form of its elected representatives in Congress—has already struck a balance that it thinks reasonable.

Hardly. The ECPA is a farce -- one that the government has used for years to obtain communications in bulk without a warrant.

Now, as to the lowered bar for obtaining CSLI -- a proxy version of location tracking -- historical data, especially one as "coarse" as CSLI is likely not going to be found to be worthy of Fourth Amendment protection… at least not by the courts. (Even in the Fourth Circuit decision, the concern was about the quantity of records obtained, rather than that they were obtained without a warrant.) As the opinion somewhat notes in its nod to Congress, this is an issue that needs to be addressed by legislation that more accurately reflects the privacy expectations of the public. The Stored Communications Act does not.

But courts do need to be wary of relying on Smith v. Maryland and constantly deferring to the Third Party Doctrine. Even in its coarse, historical form, CSLI reveals far more about a person's movements than law enforcement could obtain through any other warrantless method than following suspects in person. Law enforcement should not be prevented from availing themselves of technological advances, but the benefits need to be balanced against the public's expectations of privacy in records generated and collected as a result of phone usage.

Certainly, no one objects to pen registers for call routing data, but people honestly do not consider themselves to be nothing more than massive databanks the government can dip into with the most minimal of court oversight. Given the fact that many law enforcement agencies are deploying cell site simulators under the cover of pen register orders, the new normal should be an expectation of privacy in involuntarily-generated location data. Law enforcement likely finds coarse location data to be accurate enough for indictments and prosecutions and the continued denial of Fourth Amendment protection only encourages them to obtain CSLI with a court order rather than clear the higher evidentiary hurdles presented by the use of GPS devices.

Unfortunately, without Congressional action, most courts can only rely on legal precedent -- and the bulk of it considers parties generated by members of the public but collected and stored by companies to be unprotected by the Fourth Amendment. The only thing that's going to take Smith v. Maryland off the judicial table is new legislation or a Supreme Court decision declaring location data to have an expectation of privacy. The former seems almost as likely as the latter, but neither can truly be considered inevitable.

Filed Under: business records, cell site location, csli, sixth circuit, third party doctrine, warrants

Sixth Circuit Appeals Court Prepares To Consider The Privacy Implications Of Mugshots

from the in-the-middle,-the-presumption-of-guilt dept

The Sixth Circuit Court of Appeals is preparing for an en banc hearing on whether there is a privacy interest inherent in mugshots, or whether they are simply public records that can be obtained with an FOIA request.

For the most part, mugshots have been considered public records. This has led to a shady mugshot-posting cottage industry, as well as an equally-shady mugshot-removal cottage industry.

Whatever success these businesses enjoy is mostly due to a flaw in public perception. Despite the nation's justice system being built on the presumption of innocence, a large percentage of the population views "arrested and charged" as being no different than "found guilty." (Federal law enforcement databases -- used for background checks -- reinforce this perception by entering arrested persons' info when booking, but routinely failing to remove it when charges are dropped or the person is found innocent.)

Despite these flaws, there is a public interest in arrest and booking information, not necessarily because the public deserves to know every detail of every mundane arrest, but because findings to the contrary lend themselves to the burial of information that is definitely in the public's interest, like information pertaining to the alleged criminal acts of their public servants.

The information under dispute in this case involves a federal law enforcement agency and the indictment of three local law enforcement officers.

The opinion by a three-judge panel of the 6th U.S. Circuit Court of Appeals ends a years-long battle led by the Detroit Free Press. The paper sued the Justice Department in 2013 after the Marshals Service denied a reporter’s request for booking photos of Detroit-area police officers indicted on federal charges.

The appeals court found there were privacy concerns yet to be addressed in the public release of booking photos and information, but ultimately upheld the lower court's ruling ordering the DOJ to release the photos to the Detroit Free Press.

The en banc hearing will apparently consider these deeper issues. The presiding judge noted that a person's "visage" (as it pertains to a mugshot) is not simply a neutral bit of information. It is, in the public's mind, an expression of guilt.

The DOJ argued on behalf of the people its agencies arrest, noting the bizarre fact that a person's privacy interests actually increase the "guiltier" they get.

DOJ attorney Frank admitted at the hearing that the existing delineation mystified him.

"A person innocent before the law has no privacy interest [in a mug shot release], but someone convicted and serving time has a privacy interest," Frank said. "I can't wrap my head around that."

Citing rulings from sister circuits that run counter to the Sixth Circuit's process, Frank explained that "all we are asking is for the court to find the privacy interest in mug shots is greater than non-trivial."

As nice as it is to hear the DOJ express these concerns, its ultimate goal is to obtain the final say on the release of booking photos via a wholly internal process.

U.S. Circuit Judge David McKeague questioned the application of such a test, which would, in theory, balance an individual's right to privacy against a public interest in obtaining the pictures.

Frank explained that an individual at the Justice Department would review each request for information to determine if there was a public interest in releasing the mug shots.

McKeague pressed the attorney: "The presumption is that [requesters] don't get the pictures, correct?"

Frank agreed, but was quick to point out that in most cases, "there is no public interest."

On the other side, the Detroit Free Press, through its lawyer, Herschel Fink, is arguing that the presumption that these records are public should remain intact. The paper is looking for a broader decision that will settle issues related to other government agencies, rather than leaving it limited to one wing of the DOJ and the arrests it performs.

Fink meanwhile contended that the current system is a perfect application of "checks and balances," and also provides the individual with the "right to be forgotten" after court proceedings have concluded.

Fink also suggests the Sixth Circuit shouldn't "kowtow" to contrary decisions reached by other circuits.

Fink's involvement in this case isn't surprising, considering he has represented the Detroit Free Press for twenty-two years. However, Fink has proven he'll advocate for the First Amendment and the freedom of information only when it's most convenient for him.

In this case, he's pursuing his employer's interest in obtaining booking information for its journalistic endeavours. But roughly a year ago, he was arguing against the release of law enforcement-related information -- specifically, a list of Oakley, Michigan's (pop. 300) 100 "pay-to-play" police officers. Fink is one of Oakley's police officers and he stepped up to prevent the list from being made public, citing bullshit "terrorism" concerns.

In the undated email, Fink cited an Oct. 13 bulletin by the FBI and Department of Homeland Security that ISIS had called for attacks against law enforcement and government workers.

"To release identifying information about law enforcement personnel under such circumstances would not only result in damages against the Village, and everyone involved in such a release, it would likely be considered as having been done with malice, opening the door to punitive damages," wrote Fink.

So, Fink may be fighting for the release of other people's information but is much less willing to permit the release of his own. On the other side, the DOJ wants to consolidate its FOIA refusal powers. In the middle, there's a presumption of guilt that's nothing more than a common misperception, but often results in very real complications for those whose information has been released. Siding with members of the public who have been tarnished by this guilt-by-association also means siding with an agency seeking yet another way to withhold public records from the public. Siding with the Detroit Free Press means rubbing elbows with Herschel Fink's hypocritical stance and allowing a whole host of dubious "entrepreneurs" to use public perception against private citizens to extract fees for the removal of booking info.

Filed Under: extortion, mugshots, privacy, public records, sixth circuit

You Have No Expectation Of Privacy In Your Butt Dials

from the be-forewarned dept

The Sixth Circuit court of appeals has now made it clear: you have no expectation of privacy in your butt dials. The full ruling makes for some fascinating reading. Apparently a guy named James Huff made what must be one of the most expensive butt dials in history. Huff, who was chairman of the Kenton County Airport Board (in Kenton, Kentucky) which oversees the Cincinnati/Northern Kentucky Airport (CVG), was in Europe on a business trip. At one point, he tried to call Carol Spaw, the executive assistant of the airport's CEO, Candace McGraw, to see if Spaw could schedule a dinner reservation for him and another board member. His call failed, but after another board member with Huff successfully reached Spaw, it appears that Huff's phone, in his pocket, called again and he was -- unknowingly -- successfully connected with Spaw.

At this point, though, Huff was already talking with the other board member, Larry Savage, about possibly replacing Spaw's boss, McGraw. Spaw proceeded to then continue to listen and transcribe notes of what was being said, including recording parts of the call, which lasted for approximately an hour and a half (yes, from Italy to Kentucky, so... the price of the call alone was probably quite a lot, not counting the eventual legal costs). As for why she did this:

Spaw claims that she believed that she heard James Huff and Savage engaged in a discussion to discriminate unlawfully against McGraw and felt that it was her responsibility to record the conversation and report it through appropriate channels.

Eventually Spaw typed up the notes she had taken, hired a company to enhance the audio of the recording she made and shared both with other board members. Huff was... not happy. He (and his wife) sued Spaw, claiming illegal wiretapping under 18 USC 2511. The lower court tossed out this claim, and the Huffs appealed.

Here, the court examines whether or not Huff had a reasonable expectation of privacy in his conversation, and notes that he knew there was such a risk and had, in fact, made such errant calls in the past. Thus, he had no reasonable expectation of privacy, since it was his own negligence that resulted in the butt dial:

At his deposition, James Huff admitted that he was aware of the risk of making inadvertent pocket-dial calls and had previously made such calls on his cellphone. A number of simple and well-known measures can prevent pocket-dials from occurring. These include locking the phone, setting up a passcode, and using one of many downloadable applications that prevent pocket-dials calls.... James Huff did not employ any of these measures. He is no different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy.

The court rejects the claim, made by the Huffs, that such a ruling would mean no one had any expectation of privacy in their phone calls:

The Huffs warn that, if we do not recognize James Huff’s reasonable expectation of privacy in this case, we would deprive all cellphone-carrying Americans of their reasonable expectations of privacy in their conversations.... We disagree. Not recognizing James Huff’s expectation would do no more injury to cellphone users’ privacy interests than the injury that the plain-view doctrine inflicts upon homeowners with windows or webcams. A homeowner with an uncovered window or a broadcasting webcam lacks a reasonable expectation of privacy with respect only to viewers looking through the window that he neglected to cover or receiving signals from the webcam he left on. He would retain a reasonable expectation of privacy in his home with respect to other means of observation, for example thermal-imagery devices.... Similarly, James Huff retained an expectation of privacy from interception by non-pocket-dial means, such as by a hidden recording device or by someone covertly causing his cellphone to transmit his statements to an eavesdropper..... James Huff lacked a reasonable expectation of privacy in his statements only to the extent that a third-party gained access to those statements through a pocket-dial call that he placed. In sum, a person who knowingly operates a device that is capable of inadvertently exposing his conversations to third-party listeners and fails to take simple precautions to prevent such exposure does not have a reasonable expectation of privacy with respect to statements that are exposed to an outsider by the inadvertent operation of that device.

So, the failed lawsuit would then be the second part of why this was likely the most expensive butt dial in history.

Of course, it's not a total loss for the Huffs. As noted earlier, it wasn't just James Huff who sued, but also his wife, Bertha. Apparently part of the overheard conversation was between James and Bertha, and the court is much more receptive to Bertha's "reasonable expectation of privacy" claim. The lower court had said she didn't have a reasonable expectation of privacy, since she knew that her husband's phone might butt dial someone. The appeals court finds that to be a bit more ridiculous.

If Bertha waived her reasonable expectation of privacy from pocketdials by speaking to a person who she knew to carry a pocket-dial-capable device, she would also waive her reasonable expectation of privacy from recordings and transmissions by speaking with anyone carrying a recording-capable or transmission-capable device, i.e., any modern cellphone. The district court’s holding would logically result in the loss of a reasonable expectation of privacy in face-to-face conversations where one party is aware that a participant in the conversation may have a modern cellphone. As nearly every participant in a conversation is a potential cellphone carrier, such a conclusion would dramatically undermine the protection that Title III grants to oral communication.

And thus, the court sends it back down to the lower court to determine if Spaw's answering of the phone, listening to the call she received and taking such notes (and recording part of the call) constituted "intentional use of a device" to intercept Bertha Huff's oral communications. Most of that seems like a stretch -- though the fact that, at one point, she did have someone go get another phone with which to record the call at least raises some questions that make it not so cut and dried.

Either way, the moral of the story: don't butt dial. And, if you do: don't then discuss figuring out a way to fire the boss of the person you butt dialed.

Filed Under: bertha huff, butt dials, candace mcgraw, carol spaw, expectation of privacy, james huff, privacy, sixth circuit, wiretap
Companies: cvg

Appeals Court To Explore If A Site With 'Dirt' In The URL Loses All Liability Protections For User Comments

from the this-is-kind-of-important-for-us dept

We've covered the bizarre case of Sarah Jones vs. Dirty World (operators of the website "thedirty.com") for quite some time. If you don't recall, this former professional cheerleader/school teacher got upset when a user of thedirty.com posted some statements about her that were potentially defamatory. Rather than go after the actual person who made those claims, Jones sued the site. Well, technically, she and her lawyers first sued the wrong site, which made for quite a mess at the beginning. Eventually, though, she sued the right site, which correctly pointed out that they were protected from liability for their users statements under Section 230 of the CDA. Every court that has taken on a Section 230 case like this has ruled the same way -- that sites are not responsible for the statements of their users. Every one. Until this one. Even more ridiculous -- especially for those of us here at Techdirt -- was the fact that the judge specifically stated that one of the reasons why the site was ineligible for Section 230 safe harbors was because the site had "dirt" in its name:

First, the name of the site in and of itself encourages the posting only of “dirt,” that is material which is potentially defamatory or an invasion of the subject’s privacy.

Yikes! Given the judge's nonsensical rejection of the Section 230 safe harbors, the case went forward and the jury awarded Jones $338,000 from the site. Not surprisingly, Dirty World appealed, pointing out that the court clearly got the Section 230 analysis totally and completely wrong. David Gingras, the lawyer for Dirty World, has provided a plain language explanation of the case, the process and the importance of this, along with the opening brief of the appeal. If you're not a lawyer or haven't followed this case closely, it's a good way to catch up on the details -- including why this case is so important.

As Gingras notes, nearly every circuit in the US has ruled that Section 230's safe harbors apply to websites, and remove liability from the sites for actions taken by their users. The circuit this particular case is in -- the Sixth Circuit -- is one of only two circuits that has not taken on this issue directly. So this is the first chance for the court to do so, and it can either agree with every other court, or it can try to forge its own way, which will almost certainly lead to Supreme Court review over the nature of the Section 230 safe harbors. Given just how key those safe harbors have been to innovation and the growth of the internet, this case is incredibly important on a whole variety of levels.

While I'm most interested in the larger legal questions concerning making sure Section 230's safe harbors are kept strong and intact, there is also (obviously) the issue that impacts us directly about the use of the name and the word "dirt." The brief has a whole section explaining why the name of the site is irrelevant (citing numerous cases that agreed). However, given that our name includes "dirt" as well, I'm tempted to explore filing an amicus brief in this case on that particular issue, given that we have a... unique perspective on this particular issue. While I admit that the other points in this case are clearly more important in the long run, I'm sure that Gingras and other amici will likely be able to handle those arguments easily.

Still, this case is going to be important to follow. Either the court will confirm, yet again, the core ideals that have helped the internet, innovation and user-generated content sites to flourish over the past decade and a half, or it will put all of that at risk. Just the fact that this is up for debate is troubling enough -- and while we're hopeful that the court will rule wisely, the small possibility of a ruling upholding the initial judge is immensely troubling.

Filed Under: cda, sarah jones, secondary liability, section 230, sixth circuit, thedirty.com
Companies: dirty world, thedirty.com