Appeals Court: An IP Address And Some Alternative Facts Are A 'Reasonable' Basis For A Search

from the speculative-policing dept

The Eighth Circuit Appeals Court has handed down a judicial shrug [PDF] in a case where police decided an IP address was pretty much all they needed to search eleven occupants and their devices for child porn. Qualified immunity is upheld, despite the fact the officers searched rooms they possibly had no Fourth Amendment permission to search and despite the fact that no child porn was discovered anywhere on the multiple devices they seized.

The detectives had a warrant to search a single-family dwelling. This residence had been split into unofficial apartments. Despite there being some clear delineation between the multiple private spaces, the police decided the original warrant covered every separate "residence" inside the residence.

[Detective Jessie] Smith--accompanied by Minot Police Sergeant Dave Goodman and Detective Krista Thompson, plus six other law enforcement officials--arrived at the residence on the morning of May 6, 2014, to execute the search warrant. Once inside, law enforcement officials interviewed the persons present and learned that the residence had as many as eleven occupants, some of whom sublet basement bedrooms, and all of whom could access the internet service wirelessly. No child pornography was found during the search of the entire residence, including a basement bedroom that Doe and another person rented.

The court says there's nothing wrong with the law enforcement effort, even though it would seem more proper for additional warrants to be sought, rather than simply relying on a warrant whose sworn facts were no longer factual. It's not as though the police didn't have that option. Any concerns about evidence vanishing could have been mitigated using the same steps depicted here:

Doe was not present, but police were told that he was at work, and that he had a laptop computer which he carried in a blue bag. Smith, Goodman, and Thompson, who had been given a description of Doe’s vehicle, proceeded to Doe’s place of employment. The officers spotted Doe’s car in the parking lot, and saw a blue laptop bag on the front seat. Inside the premises, the officers met privately with Doe in a conference room, telling him about their investigation and asking for permission to search his vehicle. When Doe denied permission, the officers advised him that they would seek a warrant to search his vehicle and the laptop, and that he could not remove his vehicle while the warrant was being obtained. Doe was not told that he could not leave the premises. Smith then prepared another search warrant application, supplementing his original affidavit with the results of the initial search of the residence, information learned from interviews of the occupants, and his observation of the laptop bag in Doe’s vehicle; and a second search warrant was issued for Doe’s vehicle and for any computers and electronic devices located in it.

The decision to approach Doe at work had consequences. But only for Doe.

Goodman, Thompson, and Smith then executed the warrant and previewed the laptop computer on site. Once again, they found no child pornography. During this time, a period of about two and one-half hours, Doe was denied access to his vehicle. He was not arrested or charged with any crime. He nevertheless lost his job, and was forced to move out of his rented room.

Doe's life took a hit, thanks to officers working with little more than an IP address -- one shared by at least eleven residents -- and a warrant that should have been invalid the moment it was served. But the court insists moving ahead with a warrant that describes a living situation completely different than the one actually observed during warrant service is still a "reasonable" search that doesn't clearly violate established rights.

As the dissent points out, federal precedent says otherwise. When officers are faced with facts that contradict their sworn assertions, they're supposed to limit their searches to the confines of the warrant they obtained. Failure to do so is to perform searches not backed by probable cause.

Federal courts have consistently held that if officers obtain a warrant to search a building containing a single residential unit, and discover or reasonably should discover during the execution of the warrant that the building actually contains multiple residential units, they are required to limit their search to the unit or units for which they have specific probable cause… Here, once the officers arrived at the building named in the warrant, they realized it had been subdivided into separate units, with as many as eleven tenants and subtenants. All eleven could access the building’s wireless internet, and the officers had no information leading them to any particular unit, tenant, or device. Therefore, the chance of finding child pornography in any single residential unit—including Doe’s rented room—was substantially less than the “fair probability” required for probable cause, and the execution of the warrant was objectively unreasonable.

Likewise, the warrant obtained to search Doe's car and laptop was not supported by probable cause.

The only evidence suggesting that Doe might be the person who downloaded the child pornography was that he was one of at least eleven people who could access his building’s wireless internet, and that he had a laptop computer in his vehicle. This evidence falls far short of establishing probable cause, and “no reasonably competent officer would have concluded that a warrant should issue.”

By upholding the officers' qualified immunity, the court is basically stating it's fine to handle child porn investigations with the same sort of detailed rigor deployed by copyright trolls. Search warrants are apparently being handed out to law enforcement that contain little more than a subscriber's name and a Google Maps photo of the building at the address provided by the ISP. It's speculative policing, requiring almost nothing in the way of actual detective work. But this is very serious stuff. Child porn investigations should be handled much more carefully, considering the severity of the crime, the vulnerability of the victims, and the incredible collateral damage done to innocent people wrongly accused of this crime. Instead, it appears officers are rushing forward with way more enthusiasm than supporting facts.

The evidence here -- rather, the complete lack of it -- shows how dangerous it can be when assumptions are made about IP addresses and those who have access to them. Sure, it's not dangerous for the cops -- they have qualified immunity and tons of judicial slack on their side. But for those on the receiving end, it can cost them their livelihood, even when they're innocent.

Filed Under: 4th amendment, 8th circuit, ip address, privacy, search


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  • icon
    Anonymous Anonymous Coward (profile), 31 May 2017 @ 1:44pm

    Willful Blindness

    Federal courts have consistently held that if officers obtain a warrant to search a building containing a single residential unit, and discover or reasonably should discover during the execution of the warrant that the building actually contains multiple residential units, they are required to limit their search to the unit or units for which they have specific probable cause…

    That from the minority descent. What the hell happened to the majority?

    reply to this | link to this | view in chronology ]

  • identicon
    YetAnotherOneGuy, 31 May 2017 @ 2:27pm

    Idiocracy...

    A single IP address can cover an entire community, multiple blocks of houses NAT'd behind that single IP.

    What's next Multi-block raids?

    Idiots! Effing-Idiots!! Mother-Effing-Idiots!!!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 May 2017 @ 4:05pm

      Re: Idiocracy...

      Not to mention hundreds od IPs map to the middle of Kansas.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2017 @ 3:40am

      Re: Idiocracy...

      Idiots! Effing-Idiots!! Mother-Effing-Idiots!!!

      Of course they are! And that's why the courts say that cops have special immunity for their actions!

      Oh, and by the way, that's why we should also make them even more overpaid (than they already are) and give them special "hate crime" protections. Because idiots obviously need that. Especially idiots with guns.

      reply to this | link to this | view in chronology ]

  • identicon
    Anon, 31 May 2017 @ 3:05pm

    More Interestingly...

    So...

    If Doe had had child porn (or any of the other 10 occupants) this could lead to the evidence being tossed out in court. That's a productive use of LEO resources and court time.

    Or is this the new McCarthyism - the crime is so heinous it overrides any need for civil rights or due process? (Actually, I thought that only applied to terrorism) Whatever we find, however we find it, the courts will uphold the search...

    I guess Doe is lucky they detained him, not arrested him. Otherwise, despite not finding anything, he would have had to answer any job application -something he'll apparently be doing, now - with "Have you ever been arrested?" with "Yes, for child porn, but I was not charged or convicted... honest!".

    reply to this | link to this | view in chronology ]

    • icon
      btr1701 (profile), 31 May 2017 @ 3:41pm

      Re: More Interestingly...

      > If Doe had had child porn (or any of the other 10
      > occupants) this could lead to the evidence being tossed
      > out in court.

      Apparently not. The 8th Circuit says this kind of search is just fine, so the evidence would not be suppressed.

      However, if the CP was found on a 'community computer', i.e., a computer in a common area accessible to anyone, the prosecution would have a hell of a time proving beyond a reasonable doubt whose CP it was out of the eleven people in the home.

      The government has gotten around this annoying problem in drug cases by just presuming that everyone in a residence or vehicle where drugs are found are in possession of them. This shifts the burden of proof to each defendant who has to rebut the presumption with 'clear and convincing' evidence or the presumption stands and the drugs are legally his whether they actually were or not.

      Surprised they're not doing this with CP yet: "Well, you all live in a house where CP was found on a computer so everyone here is presumed to be in possession of it unless you can prove otherwise."

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 31 May 2017 @ 4:57pm

        'Guilty until proven innocent, and even then...'

        The government has gotten around this annoying problem in drug cases by just presuming that everyone in a residence or vehicle where drugs are found are in possession of them.

        "We can't and/or don't care to pin possession on any one of you, so we're just going to say that you're all guilty and leave it up to you to prove your innocence."

        Because I wasn't disgusted with the legal system enough already...

        reply to this | link to this | view in chronology ]

    • icon
      madasahatter (profile), 31 May 2017 @ 3:44pm

      Re: More Interestingly...

      The issue is too many lawyers and judges are willfully ignorant about technology. Thus, they are willing to make assumptions based on their incompetent understanding.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2017 @ 3:44pm

    It's ridiculous that the police cause you to lose your JOB, your housing, Your computer, and your car for 2+ years. Didn't find a single thing, and now you have to fight to get your stuff back. Doesn't help that you lost your job. You should be able to sue the crap out of the police because of this.

    All based on a worthless IP address. Because anyone with half a brain would use a VPN and TOR network, and anything else to try and protect them self doing sick stuff like child porn.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 31 May 2017 @ 4:21pm

    But CP is REALLY bad, so we can do all sorts of backflips to cover our cogs asses.

    So what if the evidence was crap, So what if they searched everyone with no probable cause, So what if we got you fired - you asserted your alleged rights... how you like them cookies?

    reply to this | link to this | view in chronology ]

  • identicon
    Joel Coehoorn, 31 May 2017 @ 6:03pm

    Probably Cause

    An IP definitely does not identify a person, or even device. But in many cases it can and does identify a residential building or apartment.

    With that in mind, I support the idea of this being probable cause for a search -- and only a search, unless additional evidence is found -- in a case of a criminal issue. In the case of open wifi, it might also be probably cause for apartments in range of the signal, depending on circumstances.

    This support comes with the important caveat that it should not imply the ability to seize anything and everything electronic in that range, though it might imply the ability to forensically clone a hard drive. Just don't deprive the owners of a device, as that can cause significant hardship even before a trial.

    Additionally, it should not imply identity in the case of a civil matter. An IP plus some other corroborating evidence might, though, be enough to file a suit and compel discovery.

    This is becoming common enough, and important enough, I'd love to see those principles codified somewhere. Not that my opinion matters for anything :)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2017 @ 7:44am

      Re: Probably Cause

      " In the case of open wifi, it might also be probably cause for apartments in range of the signal, depending on circumstances."
      Really the police should be allowed to search any house within the range of an open wifi for no other reason than it is an open wifi? Yeah no room for abuse there.

      reply to this | link to this | view in chronology ]

    • identicon
      DogBreath, 1 Jun 2017 @ 10:49am

      Re: Probably Cause

      " In the case of open wifi, it might also be probably cause for apartments in range of the signal, depending on circumstances."


      Expanding on that, if you happened to have walked or drove by that particular area with your cellphone, laptop or other wireless device that tracks your every movement? Yea, you are now a 'person of interest', and now also subject to said warrant, as is every other electronic device in your family's possession.

      Evidence of suspicion or probable cause would be easy to procure, as it would include anybody that had any wireless internet capable device (cellphone, laptop, tablet, etc) that was in the general vicinity, based on third-party records of GPS locations of your devices at the approximate time the CP was downloaded (third-party 'business records', so no warrant required to obtain said info).

      Oh, you also have internet enabled refrigerator, washer & dryer, other similar home appliances and even car at your house? Could be used to obtain and contain CP. Confiscation under original warrant(from some place you happen to drive or walk by on your way to-from work, to a friends house or just having a neighborhood stroll), is necessary and mandatory.

      Also, since we don't have any real evidence but it is possible that one or more of these devices was connected through a private wireless mesh network, meaning almost anyone in the world could have downloaded the CP (by 'almost anyone' we mean "not the dead", we do have standards) which would include every other device that was connected during the time of CP download from anywhere, will be also seized (Bye-bye AWS and Cloudflare server farms, and any other cloud computing services).

      So, essentially if any of your devices were on the internet during the time of the CP download, this warrant covers it. Yep, basically this warrant for one single IP address is the same as a warrant for all IP addresses.


      Place to be searched: World. AKA Earth.

      Check and Mate.


      It shall be now and forever known as, "The One Warrant to Search Them All"

      AKA

      "The Eye of Sauron is Now Upon You"

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    My_Name_Here, 31 May 2017 @ 6:42pm

    Copyright law has become nearly impossible to enforce, thanks to pirate sites like this one getting off easy after challenging the unshakable evidence that are IP addresses. It is a relief to see some sanity being restored here by the courts.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 3:33am

    “no reasonably competent officer"

    Umm, so? Isn't incompetence a legally accepted excuse for cops nowadays?

    reply to this | link to this | view in chronology ]

  • icon
    D.C. Pathogen (profile), 1 Jun 2017 @ 9:34am

    High Profile

    CP arrests (not convictions) must give cops come sort of status in the department for them to go after this so aggressively.

    reply to this | link to this | view in chronology ]


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