Judge Not Too Concerned That 68-Year-Old Woman's House Was Raided Because Someone Used Her Open WiFi To Post A Threat

from the an-IP-address-isn't-a-person dept

We’ve written before about faulty legal activities based on nothing stronger than an IP address. An IP address is not a person, but many entities have decided it’s “close enough.” Fortunately, the judicial system has (occasionally) stepped in to correct this assumption, usually in the context of copyright infringement lawsuits.

There are those in the law enforcement arena that know an IP address can’t be used as an identifier. Careless statements get made about the “danger” of open WiFi connections, or it’s suggested that accessing open networks should be illegal. This doesn’t have much to do with keeping citizens safe, but it does have everything to do with easing law enforcement’s investigative workload.

A lawsuit filed against the Evansville, Indiana police department is being allowed to move forward. [pdf link] The suit centers on the raid of a 68-year-old woman’s house — a raid predicated on an IP address related to an unprotected WiFi connection.

In June of 2012, threats against the police department were posted to Topix.com.

The following posts were discovered under the heading “EPD leak!!! All officers addresses are being passed around Evansville”:

“Me n my boys need them copys asap.need to pay a few a visit.”

“[Chief] Bolin lives behind parkside”

“Lol at all da cops commenting,f#+k the police.you mfs need to b taught a lesson,always harassing n violating mfs rights. 4th of July a cops house gonna got hit.dont care about your kids or btchs lives.I dnt even care about my own life.I got my reasons…times ticking.?”

“Cops be aware.Note:I am proud of my county,but I hate police of any kind..I have explosives.:) made in America.Evansville will feel my pain.guess who’s in the river.”

The police — possibly tipped off by a news reporter (there were also unverified claims about the FBI contacting the EPD) — began an investigation. The EPD subpoenaed Topix and the local cable provider to discover the user’s information. The information traced back to 68-year-old Louise Milan’s house. Information was verified by police wardriving, confirming that there was an open WiFi connection in the vicinity of Milan’s residence.

Also discovered during the initial surveillance was known gang member Derrick Murray, who was two houses down sitting on his mother’s porch.

A search warrant for the Milan residence was obtained, but notably did not include mention of either Derrick Murray or the unsecured wireless network. Instead, the warrant request asserted that the device from which the threats had been posted was actually in Milan’s home.

The request also stated that “in order for a particular electronic device to utilize a particular IP address, . . . [it] requires the electronic device to be IN the residence of 616 E. Powell Avenue to access the internet provided . . . to the residence.”

Further investigation uncovered the criminal activities of Milan’s stepson, Anthony Milan and HIS son, Anthony Milan, Jr. This was used by the EPD — despite neither of these Milans having resided at Louise Milan’s residence for over four years — to tie Milan’s home in with the online threats.

Using this information — much of it faulty or circumstantial — the EPD determined that the only “safe” way to approach the Milan residence was a SWAT raid. This plan moved ahead despite statements made indicating the EPD knew it was raiding the wrong person’s house.

This decision was made, and ultimately carried out, despite the fact that Murray—and not Milan or her relatives—was identified during the “pre-raid briefing” as likely being “ultimately responsible” for the threats.

Helmet cam video of the raid shows how it went down. It was not a “no-knock” warrant, but the “knock” delivered by the SWAT team had very little to do with announcing its presence and everything to do with giving itself permission to smash through the front door and hurl flashbangs into the house.

Louise Milan and her 18-year-old granddaughter were cuffed and led from the house at gunpoint. Their computer was seized. Two days later, the police raided Derrick Murray’s residence and recovered the device used to post the threats to Topix. Notably, Murray watched the raid of Milan’s house go down from the comfort of his mother’s porch.

Shortly thereafter, Milan filed suit against the police department and the city of Evansville, claiming her rights were violated by the SWAT team raid. [pdf link]

Judge William T. Lawrence addresses each of Milan’s complaints and, unfortunately, dismisses most of them. For Milan’s claim of unreasonable search and seizure, Lawrence states:

When Detective Brown made this statement, however, he knew that an unsecured Wi-Fi network in a residence may be accessed from outside the home. The Court is troubled by Detective Brown’s statement. Even so, the Court finds that his statement did not render the search warrant invalid. Even if Detective Brown had stated that Milan’s router could be accessed from outside the home, the warrant would still be supported by probable cause. The threats were made using Milan’s IP address; “though it was possible that the transmissions originated outside of the residence to which the IP address was assigned, it remained likely that the source of the transmissions was inside that residence.”

The dismissal of the false arrest claims follows in line with Judge Lawrence’s determination that the search warrant was valid, despite Detective Brown’s false assertions. If the search warrant was valid, the detainment was valid. That Milan was only detained for 20 minutes also factored into this decision.

But when it comes to Milan’s accusation of unreasonable force, Judge Lawrence finds enough evidence to allow the lawsuit to proceed.

Officers are allowed to use tactics and force they deem necessary to control a potentially dangerous situation. Law enforcement agencies are granted a lot of leeway by the courts when it comes to raids like these. But Judge Lawrence finds the EPD’s assertion that the methods used were necessary because of the potential danger short on evidence of actual danger.

He points again to the the fact that the pre-raid briefing made it clear that Derrick Murray — not anyone in the Milan residence — was the most likely suspect. The fact that the posted threats declared July 4th (still two weeks away at the time of raid) to be the day the acts would be carried out also indicated that there was minimal danger in approaching the Milan residence.

Furthermore, the police chief invited a news crew to be on hand for the raid (as “repayment” for the threat tip) — again suggesting the danger level was rather low. Coupled with the fact that the SWAT team broke through the glass door and threw (rather than carefully placed) distraction devices into the home within seconds of arrival brings Judge Lawrence to the following conclusion.

It is questionable whether the officers had sufficient time to look inside to ensure that no one would be injured by the devices. It is also undisputed that the officers were not carrying a fire extinguisher during the search. These facts lead the Court to conclude that there are questions of fact regarding whether the Defendants’ actions were unreasonable and excessive. Thus, summary judgment on this issue is not appropriate. The Court therefore DENIES summary judgment as to this claim.

Then Judge Lawrence goes further, declaring that the excesses of the EDP’s use of force are enough to strip it of qualified immunity.

As detailed above, the decision to use the SWAT team and the distraction devices was made based solely on the nature of the threats and the small possibility that Milan, Sr., Milan, Jr., or Marc were responsible for the threats and would be found inside Milan’s home—that is it. The officers, however, did not see any of those men enter or leave Milan’s residence during their period of surveillance. Additionally, the officers suspected that Milan’s WAP was unsecured and that Murray was “ultimately responsible” for the threats long before they executed the search warrant at Milan’s home. Thus, there was little—if any—evidence that they would encounter a violent person. As discussed above, there was also no emergency situation (as the threat was for July 4), the officers did not carry a fire extinguisher, and the videos arguably indicate that the officers did not have sufficient time to look inside the residence for individuals who might be harmed before tossing (rather than placing) the distraction devices into Milan’s home. Lastly, there did not appear to be a dangerous point of entry. It was a clear day, and the front door (but not the storm door) was open when the SWAT team arrived.

For these same reasons, the Court also concludes that the EPD’s use of force “so clearly exceeded the bounds of reasonableness in the circumstances that it cannot be said to lie near the ‘hazy border between excessive and acceptable force’ along which qualified immunity shields officers from liability for their snap judgments, if those judgments prove to be wrong upon further reflection.” Id. at 786. These were not snap judgments; they were methodical and deliberate decisions, which were based on limited facts and an incomplete investigation. A reasonable officer would know that the EPD’s actions were constitutionally excessive.

While Judge Lawrence’s decision to overlook Detective Brown’s portrayal of an open WiFi network as a positive indicator of a device’s location is unfortunate, his refusal to grant summary judgement against claims of excessive force and his stripping of the principals’ qualified immunity somewhat mitigates this. This entire debacle was based on a purposefully wrong assertion, but the Evansville PD has been spared having to answer directly for this misrepresentation.

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Comments on “Judge Not Too Concerned That 68-Year-Old Woman's House Was Raided Because Someone Used Her Open WiFi To Post A Threat”

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New Mexico Mark says:

Re: Re:

Enact a new federal law. If no felony convictions occur that are directly attributable to a planned SWAT raid, the organization authorizing the raid should have to automatically compensate all victims present at the raid a minimum amount ($5k?) each for physical damages and emotional distress.

This should be automatic and proactive. The victim(s) should not have to petition, appeal, file, etc.

It might be even more interesting to specify that these fees must be paid by police unions where applicable. That might temper unions’ knee-jerk defense of indefensible actions.

tqk (profile) says:

Re: Re: Re:

… the organization authorizing the raid should have to automatically compensate all victims present at the raid a minimum amount ($5k?) each for physical damages and emotional distress.

I’m sitting at the kitchen table, chatting with my daughter, and sipping a morning cup of coffee. Porridge is bubbling on the stove, and the TV is catching me up. Out of nowhere, a window is smashed, somebody tosses in grenades, and there are shouts of “Get down on the floor with your hands behind your head” with automatic weapons leveled at us, … for running an open wifi?

$5k ain’t going to cut it. Triple it at least, and then we’ll see what the lawsuit on top of this comes up with. I’m looking for a lot of firings here, just to start. These idiots aren’t just incompetent. They’re lazy too.

Coyne Tibbets (profile) says:

Re: Re:

They won’t get even a wrist slap. Instead, the taxpayers will get another bill from a damaged citizen.

The problem with that is that it doesn’t affect the individuals that committed the infraction.

I suggest that when someone’s rights are violated, that each of the violators be required to pay 1% of the award, within limits of not less than $100 (1% of a $10,000 award) nor more than $10,000 (1% of a $1 million award).

Let’s see their enthusiasm for violating civil rights when their pocketbook is picking up the tab along with the taxpayers.

Anonymous Coward says:

“Careless statements get made about the “danger” of open WiFi connections, or it’s suggested thataccessing open networks should be illegal”

So now it would be “illegal” to not have security, but on another, i.e. encryption…..it would be “illegal” to have security……

Increasing the ability to positively indentify after their spying attempts is what it is………..all roads lead to spying

Anonymous Coward says:

Re: Re: Someone needs a SWATing

I am sure he would get swatted, they would just treat him better during the swatting than they do us normal serfs.

The whole point of a swatting is to raise an alarm urgent & serious enough that they will not slow for any due diligence before just locking & loading up and rolling out.

You idea might better but there is still the chance they will basically sweep his crimes under the rug… there are a lot of already criminal judges getting a pass.

That One Guy (profile) says:

Some good, some bad

The fact that the judge dismissed part of the case is disappointing, but the fact that he was willing to rule such that the police would lose qualified immunity when the lawsuit went forward seems pretty significant.

That’s pretty huge, unless I’m mistaken that means they can’t just hide behind their badges in the lawsuit, but actually have to justify their actions, which might take some doing considering just what they did.

indolent (profile) says:

“Two days later, the police raided Derrick Murray’s residence and recovered the device used to post the threats to Topix. Notably, Murray watched the raid of Milan’s house go down from the comfort of his mother’s porch.”

It’s like the police were trying to make it harder on themselves by giving Murray two days to hide the evidence. They’re just lucky he was dumb enough not to.

Anonymous Coward says:

Re: Re:

Not only was Murray “the most likely suspect,” the police actually took a news crew with them for the raid on Milan’s house. The PD was basically advertising the fact that they were following a trail that would lead to the source of the threats. The cops weren’t just wasting time and effort with an overboard raid, they were actually hurting their chances of getting evidence against their prime candidate.

This is stupid on so many levels, that I almost have to think that someone on the police force was intentionally waving a red flag in Murray’s face, telling him to format his hard drive & toss his laptop in the river.

Maybe I’ve just seen “The Departed” too many times. In any event, it’s lucky for the cops that Murray is the sort of guy who could be outwitted by a wilted cabbage.

Anonymous Coward says:

Too many toys

Once again, a podunk police department has a swat team, and they are dying to use it. Evansville, Indiana, popluation 120,000, is bigger than that county in Georgia that sent their swat team to kill a homeowner for reporting a burglary, but not by much. I don’t believe for one second that a community of that size has any justification for a swat team.

Quiet Lurcker says:

Judge FAIL now presiding....

Where, as here, the judge allowed the prosecutors to get away with a deliberate LIE in their application for a warrant or writ, the judge is as guilty, if not more so (he or she should know better, unless trying to duck the issue by intentionally giving the plaintiff grounds to appeal) than the cops who broke in, the prosecutor who signed the application…..

Anonymous Coward says:

it’s because of the ‘matter of fact’ attitude of those who are supposed to have the common sense, the legal sense and the knowledge to look after people, that the people have such little faith in them and in the legal/justice system itself. this woman’s rights were obviously violated, but regardless of what positive conclusions he came to, he completely ignored the very things that should have been at the top of the list. i dont know if she can or will appeal, but the case needs to be heard by someone who is not so skewed towards backing the police!!

Anonymous Coward says:

What if it WASN'T an open wifi?

It’s well-known that there is a vulnerability in the WPS protocol, which can be exploited to reveal the password for a closed wifi, no matter how strong it is. Google for “reaver-wps” for details.

Would they believe the router owner wasn’t the culprit in that case? Everyone knows that “open wifi” means “anyone can use it”, but not everyone knows that “non-open wifi with WPS enabled and firmware older than a certain date” also means “anyone can use it”.

Anonymous Coward says:

Re: What if it WASN'T an open wifi?

it is kind of nit-picky, but you’re correct. there are enough vulnerabilities in home routers that the vendors won’t even bother patching after x amount of time (usually x = (release date – 2 months)). one of the most prevalent home routers, the WRT54g has had this bug since the introduction of Wifi-Protected Setup (WPS). i don’t believe Linksys ever released a firmware that fixed this, but even if they did most home router owners don’t even know that they have the capability (if not the responsibility) to patch their routers. this doesn’t even improve in the ISP provided modem/router combos that are supposedly professionally managed.

David says:

Not that bad of a decision

Given the open wifi, it wasn’t totally unreasonable for them to execute a search warrant on the Milan house. It should have been an officer showing up, and saying “Can we talk?”. The judge did come to the correct conclusion that the SWAT team was completely absurd and that part of the cast (which I feel is whole crux of the issue) can move forward.

John Fenderson (profile) says:

Re: Not that bad of a decision

This, although the use of the SWAT team means it was a terrible decision in my view.

I intentionally run an open WiFi and do so knowing that it may mean that I get hit with a search warrant (although I’ve been doing this for a couple decades now without incident). If a warrant were served in the manner you describe, I would have no problem with it. I understand.

If, however, a SWAT team busts down my door then lawsuits will certainly ensue.

Anonymous Coward says:

Re: Re: Re:2 Not that bad of a decision

It won’t possibly be a good outcome in any way. You’ll be dead. Perhaps some distant relatives will get a payday, but chances are the police force will push for a quick settlement, reveal nothing, and of course pin the bill on innocent taxpayers. Then go back to business as usual, having learned nothing.

Anonymous Coward says:

So if a the local news station’s TV camera crew hadn’t been there recording the raid. The cops most likely would have gotten away with throwing flashbangs at 68 and 18 year old women. Way to screw yourselves EPD! Bravo. That PR stunt backfired spectacularly.

Obviously the defense (EPD) were trying to claim they threw the flash grenades in a “snap judgement” moment. Luckily there were cameras there to discredit their false statements. Proof once again that cops lie on the stand, regularly.

Anonymous Coward says:

I must’ve misread the article. Just to be absolutely sure I’m not missing something here…

The police told a judge that they found Milan’s wifi network by secretly connecting to it from outside her house, and then asked for a warrant based on the fact that the only way to connect to her network was from inside her house?

PaulT (profile) says:

“The Court is troubled by Detective Brown’s statement”

They’re “troubled” by a detective withholding vital evidence from a warrant request that not only lied about the technology involved but left out details of the prime suspect? I would certainly hope so.

“it remained likely that the source of the transmissions was inside that residence.”

…and at least equally likely that is was not. Having ascertained the nature of the router via “wardriving”, it should have been blindingly obvious that *anyone* else doing the same thing would be able to access the router, be it a neighbour or someone sitting outside in a car for the length of the conversation in question, and having long since departed.

It’s just fortunate that this wasn’t another case where a raid is met with tragedy, but Brown endangered lives here at the very least.

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