Maryland Cops Can’t Seem To Understand Why Marijuana Legalization Means They Can’t Search Cars Just Because They Smell Marijuana

Legal Issues

from the duh-you-smelled-something-legal dept

Everyone likes an easy day at the office. Cops are no exception. They like easy excuses to disregard the Fourth Amendment. Pretextual stops are how cop business has been done for years. Any missing tail light or (subjectively) too dark window tint is enough to initiate a traffic stop and apply pressure on drivers to submit to a so-called “consensual” search of their car.

Traffic enforcement is never consistent. It’s always opportunistic. And one of the favorite ploys of cops is to assert they “smelled” marijuana. Admittedly, it’s the controlled substance with the most recognizable odor. The problem is that there’s almost no way of disproving a cop’s olfactory testimony in court, so challenges to unconstitutional searches tend to fall flat in court when cops are granted deference and alleged weed smokers are given The Shaft.

While cops continue to rely on the alleged odor of marijuana to bypass the Supreme Court’s Rodriguez decision along with what’s left of the Fourth Amendment, more and more states are declaring weed legal, complicating a matter already complicated by law enforcement’s disingenuous assertions and opportunistic violations of constitutional rights.

The problem is that when you go up against cops, you not only go up against their incredibly powerful unions, but years of case law granting qualified immunity to officers who obviously acted in bad faith. And when states alter laws, cops start crying for their dogs, claiming the only option for their favorite partners — “four-legged probable cause” — is a bullet to the head.

While cops may love their dogs (and actively-to-the-point-of-killing them hate your dogs), they love their constitutional violations even more. Marijuana legalization makes excusing warrantless searches much more difficult. So, when push came to legislative shove, the state’s cops simply pretended they couldn’t comprehend the new legalization laws.

That’s the depressing upshot of this report by Jacob Sullum for Reason. The Maryland state legislature legalized recreation marijuana. But despite being told twice, Maryland cops are still pretending they can’t comprehend any law that restricts them from treating the odor of marijuana as anything other than a reason to engage in warrantless search.

As of July 1, thanks to a ballot initiative that Maryland voters overwhelmingly approved last November, state law will allow adults 21 or older to publicly possess up to 1.5 ounces of marijuana. In anticipation of that development, Maryland legislators last month passed H.B. 1071, which will bar police, also effective July 1, from treating the smell of cannabis as sufficient grounds for stopping or searching pedestrians or cars.

The state legislature recognized it needed to go further than simply legalizing marijuana to prevent cops from treating marijuana as illegal. Those of us who have neither badges nor power will immediately understand the law. But that’s why we don’t have badges or power. We’re the chumps (and chumpettes) expected to oblige officers who willingly misunderstand laws when hassling residents. The cops get to decide how the law is interpreted. Even if the cops are wrong, they’re only held to the “village idiot” standard of law interpretation established by the Supreme Court via multiple bad rulings.

At least, the state of Maryland had the foresight to interpret the law for cops who would certainly (and deliberately) get it wrong. And now the state’s cops — represented by their unions — are arguing the law goes too far.

H.B. 1071 clarifies this confusing situation in light of legalization: It says the smell of marijuana is not enough, by itself, to justify a warrantless search or a stop. Although the logic of that reform seems clear, the bill’s opponents argued that such a categorical rule goes too far. Cops wanted to continue stopping and searching people for marijuana even after they are legally allowed to possess it.

The Maryland Chiefs of Police Association and the Maryland Sheriffs’ Association noted that some marijuana-related conduct will remain illegal in Maryland, including possession by people younger than 21, possession of more than 1.5 ounces, driving under the influence, and unlicensed distribution. Since the smell of pot still could be evidence of a crime, they said, “using odor of cannabis alone as grounds to briefly detain a person or to search a vehicle will not violate the Fourth Amendment and would be reasonable.“

Sure, we still want cops to keep a tab on drivers that might be under the influence of legal drugs. But very few drunk driving arrests result in officers engaging in extensive searches of vehicles, much less suggesting any cash the drunk driver might be carrying on them is the proceeds of illegal activity. Cops want to treat another legal intoxicant like a DEA-scheduled drug, despite clear legislative intent stating the opposite. If cops could be trusted to treat alcohol and marijuana impairment equitably, the state wouldn’t have needed to reiterate itself legislatively. But everyone knows cops treat these differently, even if laws now make marijuana as legal as alcohol.

In short, the cops can’t be trusted. Hence the repetition. And, just as importantly, the state’s clear declaration of its intent in passing these laws makes it that much more difficult for courts to claim (in support of abusive cop behavior) no one knew what the legislature actually meant when it crafted these laws.

Rather than wait to see where the Maryland Supreme Court might come down on these questions, state legislators made a policy choice that obviates the need for further litigation and adjudication. And in making that choice, they eliminated one of the many excuses that police use to hassle people who pose no threat to public safety.

The government demands that we, the taxpayers, abide by all laws. Asking cops to do the same thing shouldn’t be considered something worth challenging by cops and their union reps. They’re in the business of law enforcement. The very least they should be expected to do is respect the laws, even if they don’t agree with them.

Filed Under: 4th amendment, marijuana, maryland, police, probable cause, searches

Federal Court Awards Immunity To Sheriff Who Searched An Officer’s Private Dropbox Account Without A Warrant

Legal Issues

from the wrong-but-apparently-a-new-way-of-being-wrong dept

Law enforcement officers are more used to violating rights than having theirs violated, so this case — brought to us by Courthouse News Service — is something of an anomaly.

But it is a good discussion of some issues that don’t receive a lot of attention. Like, how is “reasonable” defined in terms of searches when both the searcher and the searchee are government employees? And how do company IT policies apply to searches of private accounts when the company is actually the government… and the private account is linked to a government email account?

The plaintiff is a government employee who perhaps got a little bit too carried away helping out the people producing a law enforcement-oriented TV show. From the decision [PDF]:

Plaintiff Steven Bowers was a sergeant for the Taylor County sheriff’s department. In 2017, the department started working with a television show called Cold Justice, a true-crime series that investigates unsolved crimes. The department gave the crew members access to one case file, but Bowers began sharing other case files with them, even though he didn’t have permission to do so. After Bowers admitted what he had done, Sheriff Bruce Daniels directed IT director Melissa Lind (formerly Melissa Seavers) to try to access Bowers’ Dropbox account, where Daniels believed that Bowers had stored the files. Lind was able to do so because the Dropbox account was linked to Bowers’s work email. Lind changed Bowers’s account password, accessed the account, and found the case files.

Bowers sued the IT director and the sheriff, alleging violations of his Fourth Amendment rights via the warrantless search of his private Dropbox account.

The court says a lot of things go into its determination that 1) rights were violated, but 2) immunity still applies, starting with this list:

The general rule is that a warrant is required for searches of private property. But there are more lenient standards involving some searches conducted by government employers. The Dropbox account was Bowers’s personal account, and it wasn’t stored on county servers, factors tending to support Bowers’s contention that a warrant was required. But other factors point the other way, including that Bowers linked the account to his work email and he placed work files taken from a work computer into the account. The account was password protected, but Bowers had shared access with several others.

The court notes the Supreme Court hasn’t exactly produced a wealth of case law that applies to cases like these, where both parties work for the government. Complicating things are choices Bowers did (like share documents using the account) that made his account perhaps a bit less private than accounts only accessible by their owners.

The defendants claimed the county’s IT policy gave it the unilateral right to do what they did, given that employees agreed to clauses stating they had no expectation of privacy when using department computer equipment. The court isn’t quite as charitable in its reading of the policy.

The policy states that employees have no expectation of privacy for material “on Taylor County equipment,” but it’s undisputed that Bowers’s Dropbox account was stored on the cloud, not on county servers. Defendants also point to the language that the county may “access any electronic communications at any time.” But Bowers’s Dropbox account wasn’t an electronic communication, so that provision doesn’t apply either.

This leaves the IT policy provision that gives the county the right to “monitor all information technology usage.” Defendants emphasize the word “all,” contending that it extends beyond the county’s own equipment. But that’s not a reasonable interpretation, as it suggests that the county could monitor its employees on any personal electronic device anytime, anywhere, and for any purpose. The more reasonable interpretation is that the policy applies to technology use that is either done while on the job or on a county device.

The fact that Bowers shared files from this Dropbox account also doesn’t weigh against his expectation of privacy… at least not as much as the defendants would like it to.

Linking the account to his work email blurs the boundary between his work and private spaces, but the county’s IT policy says nothing about monitoring private accounts that are linked to work email. In the absence of a clearer notice from the county, Bowers was entitled to assume that a private account was private.

As for sharing the account with the TV crew members and a friend, that doesn’t mean that Bowers was inviting anyone to view his account. By way of comparison, homeowners don’t forfeit a reasonable expectation of privacy against intrusions by the police if they invite friends to stay with them.

That last paragraph takes a pretty big swipe at the Third Party Doctrine, which assumes (nearly) anything shared with private companies to utilize goods and services can be obtained without a warrant. This statement makes it clear this court does not believe people give up any expectation of privacy just because they’ve shared information with others.

The court also discusses the terms of service Dropbox users agree to, which says Dropbox may access files at any time. Again, the court says assumptions made by the defendants about privacy expectations are wrong. And, although the court goes out of the way to point out this part is not a discussion about the Third Party Doctrine, it still seems pretty applicable.

Bowers’s claim is about restricting access to his account, not protecting the particular files at issue or preventing third parties from sharing the files. One can lose a right to keep information private by disclosing it to the public, but that doesn’t mean the government can force entry into someone’s home on the ground that the home contains public documents. As another example, if someone sends an email to a friend, the Fourth Amendment won’t prevent the friend from sharing the contents of the email with the police, but that doesn’t mean the police are entitled to hack an email account because all the emails are being shared with a third party.

This is a very good discussion of issues that are likely to resurface repeatedly as more storage of personal information and files moves to the cloud and away from local drives. But it’s only the beginning of this discussion — one being made without much assistance from precedential decisions. And that means the participants in the Fourth Amendment violations are immunized from this lawsuit.

But whatever the limitations of defendants’ authority, Bowers cannot prevail by showing that defendants have failed to disprove his claim. It is his burden to show that the law was clearly established. And the bottom line is that Bowers hasn’t cited Supreme Court or Seventh Circuit law clearly establishing that he retained a reasonable expectation of privacy against intrusions by the county despite his linking the account to his work email, putting confidential work files from a work computer in the account, and sharing access to the account with others. The precedential authority he relies on provide the general principles that provide the foundation for his claim. But that case law doesn’t show that the contours of the law were so well defined that it would be clear to a reasonable officer in defendants’ position that Bowers had a reasonable expectation in keeping his Dropbox account private from the county. In the absence of such a showing, defendants are entitled to summary judgment on the basis of qualified immunity.

And that means Bowers won’t have any luck suppressing this evidence in his criminal case. He’s charged with misconduct in public office and, presumably, the evidence against him was generated by this search of his Dropbox account. If the defendants can obtain immunity here, the trial court will likely find (if it hasn’t already) that even if the Fourth Amendment was violated, the violation was done in good faith.

That being said, it’s a well-written decision that’s willing to discuss issues that have somehow — despite it being 2022 — haven’t generated much precedent. And, at least in this court, the Third Party Doctrine isn’t nearly as expansive as the government believes it is, which will make it a handy decision to refer to in future litigation dealing with these issues.

Filed Under: 3rd party doctrine, 4th amendment, bruce daniels, qualified immunity, searches, steven bowers, taylor county, taylor county sheriff's department

Does Copyright Give Companies The Right To Search Your Home And Computer?

Copyright

from the it-shouldn't dept

One reason why copyright has become so important in the digital age is that it applies to the software that many of us use routinely on our smartphones, tablets and computers. In order to run those programs, you must have a license of some kind (unless the software is in the public domain, which rarely applies to modern code). The need for a license is why we must agree to terms and conditions when we install new software. On Twitter, Alvar C.H. Freude noticed something interesting in the software licence agreement for Capture One: “world-class tools for editing, organizing and working with photos” according to the Danish company that makes it (found via Wolfie Christl). The license begins by warning:

if you do not agree to the terms of this license, you may not install or use the software but should promptly return the software to the place where you obtained it for a refund.

That’s normal enough, and merely reflects the power of copyright holders to impose “take it or leave it” conditions on users. Less common is the following:

Capture One or a third-party designated by Capture One in its sole discretion has the right to verify your compliance with this License at any time upon request including without limitation to request information regarding your installation and/or use of the Software and/or to perform on-site investigations of your installation and use of the Software.

If you use Capture One, you must provide “without limitation access to your premises, IT systems on which the Software is installed”, and “Capture One or an Auditor may decide in their sole discretion to apply software search tools in accordance with audits.”

That is, thanks to copyright, a company is perfectly able to demand the right to access a user’s premises, the computer systems they use, and to run search tools on that system as part of an audit. Although this applies to business premises, there’s no reason a software license could not demand the same right to access somebody’s home. In fact, there are really no limits on what may be required. You’re not obliged to agree to such terms, but most people do, often without even checking the details.

The fact that such requirements are possible shows how far copyright has strayed from the claimed purpose of protecting creators and promoting creativity. Copyright has mutated into a monster because it was never designed to regulate activities, as it does with software, just static objects like books and drawings.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Originally published on the Walled Culture blog.

Filed Under: contract, copyright, license, searches
Companies: capture one

Seventh Circuit Says Riley Doesn't Apply To Searches Of Parolees' Phones

Privacy

from the nestled-in-one-of-many-warrant-exceptions dept

In 2014, the Supreme Court extended Fourth Amendment coverage to the contents of cell phones. Prior to that ruling, cops had successfully argued that searching the contents of someone’s cell phone was no different than searching the contents of their pockets when arresting them. Claims — bad ones — were made about “officer safety” and, for the most part, courts tended to agree. If the pants pocket argument didn’t work, cell phones — with their wealth of personal information and private communications — were analogized as the digital equivalent of car trunks or address books.

This protection only extends so far, as one parolee has discovered. The key is in the wording of the Supreme Court’s Riley decision, which apparently doesn’t cover someone being arrested for parole violations. But the Seventh Circuit Court of Appeals decision [PDF] seems to undercut some of the findings of the Riley decision, which recognized the personal nature of these computers capable of being carried in someone’s pocket. In doing so, it appears to say this enhanced expectation of privacy simply doesn’t apply to anyone on parole or probation.

The opening paragraph appears to show something that oversteps the bounds of the search incident to arrest, at least in relation to the parole violation.

Henry Wood was arrested for violating his parole. Midway through the arrest, parole agents found methamphetamine hidden underneath the back cover of his cellphone. An investigator later extracted the data from his cellphone, revealing child pornography.

While the discovery of drugs may have been inevitable, given its location, it’s unclear why this investigator decided a forensic search of the phone’s digital contents was necessary. While Wood had served time on meth charges, the discovery of meth doesn’t alone appear to justify a full search of his phone. The violation he was picked up for was failing to report to his parole officer. His phone was seized as “evidence” during his arrest and the phone search was performed — without a warrant — a week later.

Parolees do have a lowered expectation of privacy in just about everything, but it doesn’t seem this agreement signed by Wood covers the contents of his phone.

I understand that I am legally in the custody of the Department of Correction and that my person and residence or property under my control may be subject to reasonable search by my supervising officer or authorized official of the Department of Correction if the officer or official has reasonable cause to believe that the parolee is violating or is in imminent danger of violating a condition to remaining on parole.

The crime was failing to report. The search of the outside of the phone led to the discovery of meth. The phone search was in service of… ??? It seems the search of the device occurred mainly because investigators believed Wood’s parole agreement allowed them to perform one without seeking a warrant.

The Appeals Court says there’s nothing wrong with this. Riley only covers certain situations.

Wood asks us to apply Riley v. California to parolees. The primary problem with this request is that Riley dealt with searches incident to a lawful arrest. The Supreme Court carefully tailored its analysis to that context and expressly recognized that “other case?specific exceptions may still justify a warrantless search of a particular phone.”

Wood pointed out he was arrested and the phone search could plausibly be called “incident to arrest.” The Seventh Circuit doesn’t care for this argument. Instead, it says it could be plausibly argued Wood was never out of law enforcement’s custody at any point, so the arrest wasn’t a new event but rather just an unfortunate continuation of his incarceration.

Wood maintains his arrest rendered Samson inapplicable and instead triggered Riley. On its face, this seems plausible—Wood was arrested, making him an arrestee, and Riley is about arrestees. But a parolee is on the “‘continuum’ of state?imposed punishments,” one step removed from incarceration. See Samson, 547 U.S. at 850. A custodial arrest would not increase a parolee’s privacy expectations by placing him outside Samson’s reach. Upon arrest, Wood’s status was not transformed from parolee to arrestee, but from parolee to parolee?arrestee, so Samson continued to apply.

In the court’s eyes, the needs of the state (keeping an eye on parolees, reducing recidivism) justify the lowered expectation of privacy for parolees, making them (and their property) subject to warrantless searches. The court says the Supreme Court expressly referred to this carveout when establishing its warrant requirement for cell phone searches.

Reducing recidivism is an independent goal of the parole system, exclusive from those discussed in Riley, and it would be frustrated by imposing a warrant requirement because it would incentivize concealment of criminal activity.

And that’s the end of the discussion for now. Riley doesn’t apply to devices owned by parolees. They may have been granted a small percentage of their rights in exchange for their continued good behavior, but apparently a warrant requirement for phone searches isn’t one of them. There’s nothing more personal for some people than their phones, but if you’re still working off your debt to society, the state can access your personal data and private conversations on a whim.

Filed Under: 4th amendment, 7th circuit, device searches, parolees, phones, privacy, riley, searches

Ten Seconds Of Doing Nothing Is Reasonably Suspicious, Says The Fifth Circuit Appeals Court

Legal Issues

from the can't-make-crime-fighting-omelettes-without-breaking-a-few-Constitutional-eg dept

How much does it take to establish reasonable suspicion needed to subject a person to an at least temporary removal of most of their rights? Not much, says the Fifth Circuit Appeals Court, which appears willing to keep poking the SCOTUS bear with its mind-boggling interpretations of Constitutional rights and the power of law enforcement to bypass them.

This recent decision, highlighted by defense lawyer/”Constitutional cultist” Andrew Fleischman, says all cops need are a few seconds of observation and some vague assertions about criminal activity in the general area.

Here’s the setup, as presented by the Fifth Circuit [PDF]:

Otha Ray Flowers, convicted of a federal gun violation, appeals the denial of his motion to suppress evidence as a violation of his Fourth Amendment rights. The questions on appeal are whether Flowers and Jeremy Mayo were “seized” when five or six patrol cars parked behind and around Mayo’s Cadillac with their patrol lights flashing, and if they were seized, whether Officer Stanton had reasonable suspicion to conduct a “Terry stop.”

Some cops were doing some cop stuff in the area. According to the facts on record, the officers were “looking for suspicious behavior,” a supposedly “proactive” effort in an allegedly high-crime area that is meant to deter criminal acts by, apparently, rolling up en masse on anyone viewed as suspicious by these Direct Action Response Team (yes, that spells DART) officers.

Flowers and Mayo were sitting in the parking lot of a convenience store. The officers were in the area because their supervisor had directed them to patrol near there because of “recent violent crimes and burglaries.” This sounds suspiciously like “predictive policing,” which sends cops to where crimes have been committed under the assumption that lightning strikes twice/people are less white. The Jackson, Mississippi panopticon works, I guess. But only on the assumption that people living, working, or temporarily idling a vehicle in a high-crime area have fewer rights than those fortunate enough to be elsewhere.

So, what were these two “suspects” doing that raised enough suspicion a stop involving five police cars and six officers was warranted? Failing to do anything other than sit in a car for less time than it takes to read the previous two paragraphs:

As Officer Stanton was turning from Capitol Street onto Road of Remembrance, he saw a silver Cadillac parked in the south end of a small parking lot connected to an open convenience store. It was dark outside, but Officer Stanton observed that the vehicle was occupied by two men, one in the driver’s seat and one in the passenger’s seat. Officer Stanton observed the vehicle “for approximately 10 to 15 seconds” and noticed the occupants “didn’t appear to be exiting the vehicle, [and] didn’t appear to be patronizing the establishment.” Therefore, he decided to conduct what he characterized as a “field interview.”

Apparently, even non-movements can be furtive. The response to this momentarily-observed lack of activity was a literal swarm of police officers.

Officer Stanton testified that at this point, he and five to six other officers, all in separate patrol cars, converged upon the silver vehicle with their blue lights activated. The parking lot in front of the store was narrow, with very little space or room to maneuver. Officer Stanton later acknowledged that it would have been impossible for the silver vehicle to leave the parking lot because of the way the officers parked their cars around it.

Behold the majestic absurdity of the following assertion:

Officer Stanton got out of his patrol car and approached the silver vehicle, as did other officers. He testified that the men in the vehicle were still free to leave at this point in the encounter, but he did not communicate that to them.

Who amongst us with five or six police cars surrounding our car would feel “free to leave,” whether or not that option was communicated to us by one of the six surrounding the car? No one. Not a goddamn person would feel this encounter was still voluntary.

At least the Fifth Circuit Appeals Court said it was a seizure under the Fourth Amendment. Pretending it was still consensual was a step too far for even this notoriously law enforcement-friendly circuit. But the very least a court should do when presented with this kind of assertion is to apprise officers that literally no one — not even the officer making this sworn statement — actually believes this kind of “interaction” is consensual.

The end result was the discovery of some marijuana, a gun, and an outstanding warrant. This led to felony charges. And the Fifth Circuit is fine with this outcome because, hey, don’t sit in a car in a high crime area, I guess.

It bears repeating that apart from the presence of a number of police cars, the tenor of Officer Stanton’s encounter with Flowers was entirely benign until Stanton smelled marijuana. He conducted no physical frisk of Flowers’s person but simply approached the Cadillac to ask some questions. If this course of conduct is constitutionally impermissible, then it is difficult to see how any active policing can take place in communities endangered and impoverished by high crime rates.

That’s the takeaway from this decision. Cops can wander over Constitutional lines as long as a court is willing to grant their “high crime area” assertions credibility. There’s no legal definition of “high crime,” so it can be whatever cops want it to be. And when they assert this in front of judges prone to grant every benefit of a doubt to fellow government employees, it will work nearly every time.

Flow our proxy tears, the court advocating on behalf of the policeman said:

Officers in such areas may well require safety in numbers, while the law-abiding citizens desperately need protection that will be denied if law enforcement officials believe that incriminating evidence will be suppressed or they will be sued for alleged violations of rights.

If the cops can’t roll over rights to fight crime, how can they possibly fight crime? That’s the question the Fifth Circuit is asking. And it should have an answer that says cops can’t disregard rights just because they’re patrolling areas where criminal activity is claimed to be “higher” than theoretical areas where it’s apparently lower. But instead, the Appeals Court gives us this:

Under the circumstances of this case and viewing the facts in the light most favorable to the Government, assuming arguendo that these individuals were seized, there was reasonable suspicion to do so. We AFFIRM.

And that is that. The court has basically written a permission slip for stops based on nothing more than a few seconds of observation backed by officers’ assertions that criminal activity has occurred nearby at some point in the past. Looking past the legalese, the Appeals Court is telling people their rights mean less if they happen to be in the wrong place at the wrong time, with the “wrong time” being a few seconds of non-movement while observed by officers trained to view literally anything as suspicious.

If there’s any saving grace to this published decision, it’s the dissent, which casts a whole lot of shade on the majority’s conclusions while taking a shot at the overreacting cops.

As for the “dawdling” of approximately ten to fifteen seconds, the men could have been finishing a conversation, responding to text messages, watching with curiosity as a six-car police caravan passed, or engaging in other reasonable behavior that explains the delay. The facts in this case simply do not support an officer’s reasonable suspicion.

That should have been the majority’s conclusion. Instead, it chose once again to elevate police officers over the policed, and ensured the poorest of the police can be treated the worst without officers feeling they might be held accountable in a court of law for the rights violations they’ve committed.

Filed Under: 4th amendment, 5th circuit, high crime areas, jeremy mayo, otha ray flowers, police, predictive policing, searches, suspicion

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

News

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fifth Circuit Tosses Child Porn Conviction Predicated On Unconstitutional Searches Of Three Cellphones

Legal Issues

from the looking-for-evidence-of-a-crime-not-being-charged-is-pretty-fatal-to-probable-ca dept

There’s a warrant requirement for cellphone searches, thanks to the Supreme Court’s Riley decision. But not every search is, um, warranted, even when officers have a search warrant in hand.

A case [PDF] recently handled by the Fifth Circuit Court of Appeals makes this point clearly and effectively. It’s the “effective” part that matters the most. A search that went outside the boundaries of the affidavit’s stated purpose has resulted in a vacated child porn conviction.

It all started with a traffic stop — one that first led officers to believe they’d made a drug bust.

Brian Matthew Morton was stopped for speeding near Palo Pinto, Texas. After the officers smelled marijuana, he gave consent to search his van. Officers found sixteen ecstasy pills, one small bag of marijuana, and a glass pipe.

Then things got a little weird.

When, however, they discovered children’s school supplies, a lollipop, 14 sex toys, and 100 pairs of women’s underwear in the vehicle, they became more concerned that Morton might be a pedophile.

But the arrest was for drug possession, since the rest of the items, while concerning, were not illegal to possess. Texas Dept. of Public Safety Trooper Burt Blue applied for a warrant to search three cellphones found in the van. But if the trooper had suspicions about possible child porn production/possession, he didn’t bother to add that to the search warrant affidavit.

Trooper Blue’s affidavits for the search warrants mentioned no concerns about child exploitation; instead, the warrants purported to seek more evidence of Morton’s criminal drug activity based on Trooper Blue’s training and experience—fourteen years in law enforcement and eight years as a “DRE-Drug Recognition Expert”—as well as the drugs found in Morton’s possession and his admission that the drugs were in fact marijuana and ecstasy.

Here’s what the affidavits claimed — that Trooper Burt would be searching for evidence of drug possession.

It is the belief of affiant that suspected party was in possession of and is concealing in [the cellphones] . . . [e]vidence of the offense of Possession of [ecstasy], possession of marijuana and other criminal activity; to wit telephone numbers, address books; call logs, contacts, recently called numbers, recently received calls; recently missed calls; text messages (both SMS messages and MMS messages); photographs, digital images, or multimedia files in furtherance of narcotics trafficking or possession.

That’s a weird thing to search phones for, especially when the suspect was arrested because of the drugs he had in his possession. The affidavits claimed the phones would be searched for evidence of “other criminal activity,” and asked for blanket permission to search almost everything on the phones for more evidence. But the final part of this statement narrowed the scope back to a pinpoint, indicating exactly what Trooper Blue would be searching the phones for: evidence of “narcotics trafficking or possession.”

Once investigators got into the phones, they completely forgot they were supposed to be looking for evidence of drug possession and trafficking.

While searching the phones’ photographs, Trooper Blue and another officer came across sexually explicit images of children. The officers then sought and received another set of warrants to further search the phones for child pornography, ultimately finding 19,270 images of sexually exploited minors. The government then indicted Morton for a violation of 18 U.S.C. § 2252(a)(2) for the child pornography found on his three cellphones. The subject of drugs had vaporized.

Brian Morton attempted to suppress the original warrants — the ones seeking evidence of drug possession — claiming they were not supported by probable cause. The trial court ruled in favor of the government and Morton was sentenced to nine years in prison on child porn possession charges.

On appeal, the government admitted it needed separate probable cause to search each category of information targeted by warrants. A warrant to search a phone is not a blanket permission slip. Since phones carry more personal information than most people’s houses at this point, the Fourth Amendment bar is raised.

The government still believes it should be able to use the good faith exception to excuse any lack of specific probable cause to search the phones for evidence of drug crimes. The court isn’t willing to give the government a pass on this. While probable cause may have supported a search of text messages, IMs, and phone contacts (because to buy drugs, a person generally has to communicate with a dealer), it did not support the search of the photos that led to Morton’s conviction on child porn charges.

[T]he affidavits also asserted probable cause to believe that the photographs on Morton’s phones contained evidence of other drug crimes, and on this claim, they fail the test of probable cause as related to the crime of possession. That is, they fall short of raising a “substantial chance” that the photographs on Morton’s phones would contain evidence pertinent to his crime of simple drug possession.

Trooper Blue may have “fourteen years of experience” as a drug warrior, but his assertion photos on the phones would contain further evidence of drug possession is highly flawed. It presupposes something not inherent in the amount of drugs found in Morton’s van.

The syllogism that Trooper Blue offers to gain access to Morton’s photographs does not provide adequate grounds for the extensive search. In short, the syllogism is (1) Morton was found with personal-use quantities of drugs; and (2) drug dealers often take photos of drugs, cash, and co-conspirators; it therefore follows that (3) the photographs on Morton’s phones will provide evidence of Morton’s relationship to drug trafficking. The fallacy of this syllogism is that it relies on a premise that cannot be established, namely that Morton was dealing drugs. And here, Trooper Blue disregarded key facts that show that the evidence did not support probable cause that Morton was a drug dealer.

The trooper only found a single, small bag of marijuana and a few ecstasy pills. He did not find anything that would have suggested Morton was a dealer, like scales, packaging, or weapons. Also, as the court points out, Morton was originally charged with “possession,” not “trafficking.” This further indicates the trooper did not actually believe Morton was a dealer.

And that nullifies the searches of Morton’s photos — the ones that took the investigation in an entirely new direction.

Since it seems that no evidence supported probable cause to believe that Morton was dealing in drugs, the affidavit leaves us with only the allegations that (1) Morton was found with drugs so (2) it therefore follows that the photographs on Morton’s phones will provide evidence of Morton’s crime of drug possession. With only this bare factual support that Morton possessed drugs, the affidavits contain nothing to link Morton’s marijuana and ecstasy with the photographs on his phones. The affidavits thus do not create a “fair probability” or a “substantial chance” that evidence of the crime of drug possession will be found in the photographs on Morton’s cellphones. Therefore, under these facts and based on the specific language in these affidavits, we hold that probable cause was lacking to search Morton’s photographs for proof of his illegal drug possession.

The government gets no “good faith” award for relying on faulty warrants. Just because a judge signed off on the requests does not mean the requests were justified, even if they ultimately resulted in issued warrants.

Here, even giving the magistrate’s determination the deference due, we hold that the magistrate did not have a substantial basis for determining that probable cause existed to extend the search to the photographs on the cellphones. Even if the warrants provided probable cause to search some of the phones’ “drawers” or “file cabinets,” the photographs “file cabinet” could not be searched because the information in the officer’s affidavits supporting a search of the cellphones only related to drug trafficking, not simple possession of drugs. There was thus no substantial basis for the magistrate’s conclusion that probable cause existed to search Morton’s photographs, and the search is not saved by the magistrate’s authority. The search was unconstitutional, not subject to any exceptions, and the evidence must be suppressed as inadmissible.

And, since the initial searches weren’t based on probable cause, the subsequent searches following the discovery of child porn are irrevocably tainted. The evidence is thrown out and, without the thousands of child porn photos, the government has nothing left but some sex toys, women’s panties, and a lollipop. That might be a little creepy in this context, but there’s no law forbidding people from driving around with unusual items in their vehicles.

Filed Under: 4th amendment, 5th circuit, csam, mobile phones, riley, searches

Greyhound Finally Bans CBP, Border Patrol From Suspicionless Searches Of Its Buses And Passengers

Legal Issues

from the bus-operator-boards-the-ban-bus dept

Greyhound has finally, definitively decided to stop serving up its customers to US border agencies.

A week ago, a CBP memo obtained by the Associated Press made something clear to CBP agents that should have been clear all along: they could not perform sweeps of buses without the permission of the bus driver or the bus company itself. Unfortunately, this means a bus driver can consent to a search on behalf of passengers, but it still was better than Greyhound’s stance. The company had stated that it believed it could not legally refuse to allow CBP officers to board buses.

This was a problem. CBP officers were wandering far inland to perform searches, often targeting buses that never crossed a border. Anything within 100 miles of a border was considered fair game and reports of bus sweeps by CBP agents were trickling down from depots near the nation’s northern borders — far away from the supposedly deeply-troubled southern border where the current president believes more walls are needed to stop drugs, terrorism, and the possibility of being unable to secure an existence for whites and their progeny.

Greyhound was wrong and the CBP memo confirmed it. But Greyhound still refused to issue a blanket refusal on behalf of its drivers, many of who would probably feel (individually) it was perhaps unwise — if not illegal — to tell CBP agents to perform their fishing expeditions elsewhere.

The company has finally taken a stand, making it much easier for drivers to refuse access to their buses.

In an emailed statement, the company said it would notify the Department of Homeland Security that it does not consent to unwarranted searches on its buses or in areas of terminals that are not open to the public — such as company offices or any areas a person needs a ticket to access.

Greyhound said it would provide its drivers and bus station employees updated training regarding the new policy, and that it would place stickers on all its buses clearly stating that it does not consent to the searches.

This is the right step to take, although it would have been better to do it as soon as it became obvious the company had the right to refuse warrantless, suspicionless searches of its buses and passengers. With this in place, the company’s statements that it cares about the safety and security of its drivers and customers are a whole lot less empty.

The sad fact is this never should have come to this point. It’s highly presumptuous of these agencies (CBP, Border Patrol) to believe they can just board buses and search passengers when the targeted buses aren’t at checkpoints or crossing borders. This is the sort of thing we should be above — something only heard about from other countries without enshrined rights and protections. Emulating Cold War Russia and its eastern bloc subsidiaries is a piss poor look for US government agencies operating dozens of miles away from any border in need of securing.

Filed Under: 4th amendment, buses, cbp, ice, searches
Companies: greyhound

Georgia Supreme Court Says Cops Need Warrants To Search Vehicle Crash Data Recorders

Privacy

from the enhanced-privacy-expectations dept

A couple of years ago, the Georgia state appeals court interpreted the Supreme Court’s Riley decision to cover data pulled from vehicles after accidents. If warrants were required to search cellphones — thanks to their ability to store all sorts of personal information — it stood to reason warrants should be needed to access other data not visible to the naked eye.

Extracting and interpreting the information from a car’s black box is not like putting a car on a lift and examining the brakes or tires. Because the recorded data is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment, which required law enforcement in the absence of exigent circumstances to obtain a warrant before extracting the information from an impounded vehicle.

The court told law enforcement that warrants should be considered must-haves in nearly every situation involving data belonging to someone else. The contents of a vehicle’s black box are tied to the vehicle, not any third party. In addition, the data recording is mandated by the government, making this an involuntary process. The Third Party Doctrine only covers information voluntarily given to third parties. The data collection that occurs when a vehicle’s air bag deploys isn’t voluntary.

Georgia’s highest court has now come to the same conclusion, but in a different case. (via FourthAmendment.com) It doesn’t cite the Riley decision, but it does point to the more recent Carpenter decision, which established a warrant requirement for historical cell site location info. Not all black boxes record GPS location, but that’s not really the point. The point is the information belongs to the car’s owner. In order for the government to retrieve and interpret it, it has to enter a person’s vehicle, attach a device to the car, and download the info. All of these steps implicate the Fourth Amendment, even though this particular issue hasn’t been litigated at the federal level.

The key here is the expectation of privacy. Also important in this case is the testimony of officers who undercut their own claims of inevitable discovery by asserting they almost never sought warrants to obtain black box data. A warrant was obtained one day after the data had already been downloaded and examined. The state Supreme Court doesn’t consider applying for a warrant after the fact to be the same thing as applying for a warrant before performing a search.

The decision [PDF] follows the steps of the investigation, noting the events that undercut the lower court’s application of the inevitable discovery warrant exception. This is what happened at the crash scene:

Investigator Jason Hatcher entered the passenger compartments of both vehicles, attached a crash data retrieval (CDR) device to data ports in the cars, and used the CDR to download data from the ACMs. The data retrieved from the Charger indicated that, moments before the collision, Mobley was driving nearly 100 miles per hour.

The warrant wasn’t actually obtained until the next day when a different investigator joined the investigation.

The next day, Investigator Bryan Thornton joined the team of officers investigating the collision. He discussed the case with the officers who had responded to the crash, visited and personally inspected the scene of the collision, and then applied for a warrant to search the Charger and Corvette and to physically remove and seize the ACMs from both vehicles. When Investigator Thornton made his application for a warrant, he was aware that Investigator Hatcher already had retrieved the data from the ACMs and that the data indicated that the Charger had been traveling at an excessive rate of speed.

The court notes that the warrant application did not rely on data already obtained by investigators to establish probable cause for the search. But it also notes Inspector Thornton added something to his warrant application that could only have been discovered via the search that had already occurred: the Charger’s high rate of speed.

[A]lthough he did not testify explicitly about his knowledge of the substance of that data at the time he applied for a warrant, he said that the data was the basis for the conclusion that Mobley committed vehicular homicide in the first degree (as opposed to some lesser offense or no offense at all). In the warrant application, Investigator Thornton represented that the ACMs likely contained evidence of vehicular homicide in the first degree. His testimony at the hearing implies, therefore, that he had a meaningful awareness of the substance of the data when he made the warrant application.

The officers argued recovery of crash data was routine in these investigations. This is likely true. But it’s also true investigators almost never obtained warrants for this data, making it far less likely the data would have been obtained Constitutionally. A certain amount of intrusion into a person’s property — in this case, a car — is needed to retrieve the data, which should have put officers on notice warrants were necessary.

Although Mobley disputes the idea that he had no reasonable expectation of privacy in the data retrieved from the ACM on the Charger, we find it unnecessary to resolve that question. To retrieve the data, Investigator Hatcher entered the passenger compartment of the Charger and connected a CDR device with the ACM by way of an onboard data port. A personal motor vehicle is plainly among the “effects” with which the Fourth Amendment—as it historically was understood—is concerned, see United States v. Chadwick, 433 U.S. 1, 12 (4) (97 SCt 2476, 53 LE2d 538) (1977), and a physical intrusion into a personal motor vehicle for the purpose of obtaining information for a law enforcement investigation generally is a search for purposes of the Fourth Amendment under the traditional common law trespass standard.

There is no warrant exception that excuses the warrantless search. The automobile exception doesn’t apply because the vehicle was immobilized by the accident and under the control of law enforcement for the duration of the investigation. There were no exigent circumstances for the same reason. The likelihood of evidence being destroyed or going missing was almost nil.

And the reason inevitable discovery does not apply is because there’s no reason to believe investigators would have inevitably discovered the damning evidence legally.

In its order denying the motion to suppress, the trial court concluded that an application for a warrant was inevitable, a conclusion based entirely on its finding that Investigator Thornton “always seeks such a warrant in accidents involving fatalities.” Investigator Thornton, however, was off duty on the day of the collision, and there is no evidence that his involvement in the case was even contemplated until the next day. That a particular officer always seeks a search warrant in similar circumstances cannot logically show that a warrant was inevitable at a point in time prior to that officer becoming involved in the case. Equally important, Investigator Thornton did not actually testify that he always obtains warrants in fatality crash investigations. To the contrary, he said that he always retrieves ACM data in such investigations, most commonly without a warrant at the scene of the crash. Investigator Thornton testified that, if ACM data could not be retrieved at the scene, he would seek a warrant, but that hardly suggests that warrants always or usually are sought, considering that the routine practice is to retrieve data at the scene without a warrant.

Warrants are far from “inevitable” in crash investigations, according to officers’ own testimonies. Applying this exception — as the lower court did — is clearly erroneous. It gives the officers credit for work they almost never do.

With the lower court’s decision reversed, the warrant is suppressed. In Georgia, cops need warrant to search vehicle black boxes. This shouldn’t be that tough to comply with. Crashes severe enough to warrant criminal charges will usually result in immobilized vehicles and a large police presence. Time is on law enforcement’s side. And if it has the time, it can certainly get a warrant.

Filed Under: 4th amendment, georgia, searches, vehicle crash data recorders, warrants

Third Circuit Says TSA Officers Can Be Sued Directly For Abuses And Rights Violations

Legal Issues

from the trimming-the-edges-of-sovereign-immunity dept

Good news has arrived for the long, long, oh so very long list of travelers who’ve had their rights abused by TSA agents. Reversing its own decision, the full panel of Third Circuit Appeals Court judges has removed TSA agents from “can’t be sued” list.

Originally, the court had held that Transportation Security Officers (TSOs) were immune from civil lawsuits under the Federal Tort Claims Act. For the most part, federal government employees can’t be sued directly. Previously, this covered TSA employees, whom the Third Circuit claimed were not “investigative or law enforcement officers” — one of the few exemptions from this blanket immunity.

That ended Nadine Pellegrino’s lawsuit against the TSA agents who behaved abusively during her “extended screening.” Here’s a description of those events from the Third Circuit’s reversal:

As Pellegrino passed through the security checkpoint, she was randomly selected for additional screening. A TSO began examining her bags, but she stopped him and requested a more discreet screening. In a private room, several TSOs combed through Pellegrino’s luggage, papers, and other effects. One allegedly counted her coins and currency, examined her cell phone data, read the front and back of her membership and credit cards, and opened and smelled her cosmetics, mints, and hand sanitizer. Per Pellegrino, the TSO also spilled the contents of several containers and was so rough with her belongings that her jewelry and eyeglasses were damaged. Frustrated, she told the TSOs that she would report their conduct to a supervisor.

The screening ended, but the TSOs’ alleged torment did not. Pellegrino was left to clean up the mess created by the search, a task that took several trips to and from the screening room. As she was repacking her first bag, one of the TSOs claimed that Pellegrino struck her with it. On a trip to retrieve another bag, another TSO allegedly blocked Pellegrino’s access to it, forcing her to crawl under a table to reach it. When she did so, the table tipped over, and the TSO claimed Pellegrino struck her in the leg while she was collecting the bag. Pellegrino denies striking either TSO and alleges she heard both say to one another, “[Y]ou saw her hit me, didn’t you?”

It got worse from there. The TSOs decided to respond with a complaint of their own. They took a bunch of bullshit allegations to local prosecutors, which resulted in Pellegrino being charged with ten (!) criminal acts, including assault, making terroristic threats (!!), and “possession of an instrument of crime” (her luggage) (!!!).

All of those charges eventually vanished when the TSA failed to produce a recording of the extending screening and a TSO gave contradictory testimony in court.

This decision [PDF] revives Pellegrino’s lawsuit. The court says TSOs are authorized to search people and their belongings. This moves them into “investigative/law enforcement” territory and out from underneath the immunity blanket.

The court finds that TSOs meet every requirement needed to become the sort of federal employee that can be sued directly. No more sovereign immunity for these agents, who are officers “empowered by law to execute searches.”

To repeat, the complete proviso definition for an “investigative or law enforcement officer” is “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” 28 U.S.C. § 2680(h). By its plain terms, the phrase “empowered by law” narrows the scope of “officer[s]” covered from the set of all “officer[s] of the United States” to the subset of those with the authority to, among other things, “execute searches.”

Turning, then, to the statutory authority of TSOs, they are empowered by law to conduct “the screening of all passengers and property.” 49 U.S.C. § 44901(a). Screening, in turn, is defined in part as a “physical examination,” including a “physical search.” Id. § 44901(g)(4) (regarding screening of luggage). Hence TSOs are “empowered by law” within the meaning of the proviso.

As to the “searches” part of the provision:

TSO screenings are “searches” (i) as a matter of ordinary meaning, (ii) under the Fourth Amendment, and (iii) under the definition provided in Terry v. Ohio, 392 U.S. 1 (1968). Attempts to distinguish (iv) between administrative and criminal “searches” are divorced from the plain text, and any distinction, if one must be made, should account for (v) the fact that TSA searches extend to the general public and involve examinations of an individual’s physical person and her property.

The government tried to argue that passengers cannot sue over alleged Fourth Amendment violations because they trade their rights for the privilege of boarding airplanes. The court says this isn’t correct and it certainly isn’t a voluntary exchange.

The Government does not dispute that holding. Instead, it contends that consent by passengers cancels the Fourth Amendment’s effect. But the presence or absence of consent does not determine whether a search has occurred for purposes of the Fourth Amendment. […] In any event, TSO screenings are not consensual. As noted, per TSA regulations any individual who does not consent to a “search or inspection” may not board a flight.

The government also tried to save TSOs from lawsuits by claiming these highly-intrusive airport searches were merely “administrative,” the groin-grabbing equivalent of grabbing regulatory files from a local business. The court not only disagrees, but dunks on the government’s terrible argument.

To begin, TSO screenings often involve invasive examinations of the physical person. As even the panel majority in this case acknowledged, TSA searches are “rigorous and intimate for individuals.” Pellegrino, 896 F.3d at 230. This sets them apart from other administrative searches that involve only inspections of property or the environment.

[…]

Next, the risk of abuse is greater for TSO screenings than for most other administrative searches. Because TSA searches affect the public directly, the potential for widespread harm is elevated. This potential for abuse in borne out by Pellegrino’s own experience. There is a reason that FDA meat inspectors do not generate headlines about sexual assault and other intimate violations.

The final word on TSOs and their immunity? They no longer have any.

Words matter. This core tenet of statutory interpretation channels our conclusion today: TSOs are “investigative or law enforcement officers” as defined in the Tort Claims Act at 28 U.S.C. § 2680(h). They are “officer[s] of the United States” by dint of their title, badge, and authority. They are “empowered by law to execute searches” because, by statutory command and implementing regulation, they may physically examine passengers and the property they bring with them to airports. And the TSOs’ searches are “for violations of Federal law” given that their inspections are for items that federal law bans on aircraft (often with criminal consequences).

If security officers violate rights (they do) and damage people’s property (they do), then they should be held accountable for their actions. The TSA certainly doesn’t seem interested in doing this, so it’s left up to the courts to handle it. In this circuit, TSOs can be sued, but this doesn’t change anything for those residing outside of this jurisdiction. If the government decides to challenge this decision, it may open itself up to a Supreme Court declaration that gives the entire nation the ability to directly sue TSA security officers. It will be interesting to see what it chooses to do, given the potential downside for its employees.

Filed Under: 3rd circuit, abuse, federal tort claims act, nadine pellegrino, screening, searches, security theater, standing, tsa, tso