Top Court In Massachusetts Says Cell Tower Dumps Are Constitutional (But Only With A Solid Warrant)

Legal Issues

from the which-is-fine-if-judges-aren't-going-to-rubber-stamp-boilerplate dept

The Third Party doctrine has helped invert/pervert probable cause. Third parties (Google, AT&T, Facebook, etc.) gather tons of data that can be useful to law enforcement. When cops are looking for suspects but have no idea who to suspect, they turn to these third parties. In some cases, they can get plenty of data with nothing more than a subpoena.

In other cases, they use warrants. This seems like it’s more respectful of the Fourth Amendment, but it generally isn’t. Investigators use “reverse warrants” to demand location data from Google, allowing them to work backwards from a long list of potential suspects to find the people they think they’re looking for. Cell tower dumps are similar. Cell service providers turn over info on every phone connected to towers in the area during the time a crime was committed. Again, investigators don’t know who they’re looking for (yet), so everyone in the area is a suspect… at least until the data is examined further.

The inversion of probable cause is this: warrants are generally assumed to be particular to a place or person. These warrants have none of this particularity. All these warrants are “particular” to is the data law enforcement wants access to. The only probable cause is the probability Google et al house the data investigators seek.

The Supreme Court of Massachusetts has been tangling with the constitutionality of these warrants for several months now. The state constitution has tended to be more protective of rights than the US Constitution, so that has added another wrinkle to the slow grind of the wheels of justice. The debate — being waged over cell towers dumps obtained with warrants — has finally come to an end.

Last December, oral arguments showed some of the state justices didn’t necessarily believe the existence of a warrant okayed the general rummaging through cell service provider’s records. In addition to the problem of the demand for records of everyone in the area, justices were concerned massive amounts of location data — especially when the records covered activities that occurred over several weeks — might be considered an “unreasonable” search, even when warrants were used.

Five months after the oral arguments, the state Supreme Court tossed two of the seven warrants issued, stating that these were unsupported by probable cause. The other five remained in play, though, since they were more specific to the alleged crimes (six robberies and one related homicide). The court’s interim ruling on those warrants noted the impact of the Supreme Court’s Carpenter decision while making it clear it was not drawing a bright line that would make all similar cell tower dump warrants unconstitutional.

The ruling has arrived on the remaining warrants. As the EFF (which submitted an amicus brief in this case) reports, the court has found in favor of the other warrants, declaring them sufficiently compliant with both the state and US Constitution.

The court here held the police had sufficiently limited the scope of the search. Police had reason to believe the crimes were connected and committed by the same people, and police explained in their affidavit supporting the warrant that they had requested multiple tower dumps to look for commonalities among the records—phone numbers that appeared in more than one location.

Fortunately, thanks to its earlier ruling and stipulations made in this one [PDF], there are limits to how these warrants can be used. The court’s guidelines require prompt and permanent disposal of unrelated cell site location info. And cops will need to obtain a warrant. Subpoenas are not an acceptable substitute.

Less fortunately, these restrictions won’t do much to prevent Massachusetts law enforcement from deploying warrants to obtain massive amounts of location data, almost all of which will be entirely unrelated to the suspects they’re seeking. There are some guardrails, but they’re mostly meaningless because of how the court has chosen to define some key Fourth Amendment terms, as the EFF’s Jennifer Lynch explains:

Perry could also have troubling implications for other dragnet search technologies like geofence warrants. The court asserted that the thousands of innocent individuals swept up in a tower dump are not subjected to a “search” in the constitutional sense because, although police collected their data, police didn’t take the further step of analyzing it. 

But they had to analyze it. Otherwise, they wouldn’t know what to discard as useless. A lot of this decision depends on judges deciding whether or not the warrant application is deficient. There’s no bright line that says obtaining too much data is unconstitutional. It all depends on what law enforcement does with it after it already has it. So, it’s a blend of judicial and law enforcement discretion and the judiciary being reliant on what law enforcement says it did or didn’t do with the data. That won’t deter abuse. And it leaves it up to criminal defendants to do the Constitutional heavy lifting while the courts stand by and let cops do what they’ve been doing.

Any process that allows law enforcement to collect tons of data using nothing more than the assertion that the targeted tech company houses this data needs to be subjected to more rigorous restrictions than what’s been handed down here. At some point, the state’s courts might actually make that happen. But today isn’t that day.

Filed Under: 4th amendment, geofence, massachusetts, probable cause, reverse warrant, warrant

Seventh Circuit: No Immunity For Chicago Cop Who Lied To A Judge Before Accidentally Raiding The Right Apartment

Legal Issues

from the thank-god-this-is-such-a-rarity,-especially-in-Chicago dept

There’s a good reason we have strict standards for warrant requests — ones that requires plenty of probable cause and factual statements. Because if we didn’t have that, people would literally die when officers raid the wrong house or point guns at the wrong person. Innocent people would end up in jail and people’s rights would be routinely violated when subjected to searches backed by nothing but boilerplate and meaningless assertions about “training and expertise.”

But we do have that standard in this country. And that’s why these things don’t happen.

Um. Anyhoo…

Sometimes they do happen. And that’s when the courts step in and remind law enforcement officers about the proper way to craft warrant affidavits. I mean, obviously not all courts. In this case, handled by the Seventh Circuit Court of Appeals, the district court said there was nothing wrong with an obviously deficient warrant request filled with assertions that couldn’t be confirmed and mainly based on an officer’s guesswork, rather than actual facts or probable cause. The Seventh Circuit, fortunately, disagrees [PDF].

That chain of events resulted in another, more miserable and completely undeserved chain of events for Chicago resident Robert Taylor, who was arrested by Officer Ricky Hughes following a search of the wrong apartment (i.e., not the one listed on the warrant) that fortunately happened to be Robert Taylor’s residence.

There’s all sorts of sloppy police work leading up to the Seventh Circuit’s stripping of qualified immunity from Officer Hughes. The Chicago PD was wrapping up a drug investigation (“codename Uptown Girl,” as the decision notes) when Hughes decided to extend the investigation a little longer. He met with an informant who claimed Robert Taylor, an alleged drug gang member, had a gun in his apartment on the south side of town.

What happened during this meeting and what information was passed on to the police officer is all solely retained in Officer Hughes’ gray matter.

Later that same day, Officer Hughes met with John Doe at the precinct. At the time of the meeting, Hughes says he knew Doe’s real name and reviewed his criminal record. But today, so far as the record reveals, John Doe is a complete unknown: no one knows John Doe’s real name, how to contact him, or, for that matter, why he came forward with information concerning Robert Taylor during the Uptown Girl investigation. Nor is there paperwork to help, as Hughes shredded any notes he took while meeting with Doe.

So, everything is subject to Hughes’ memory, which conveniently means he can recall anything he wants to support everything that happened following this undocumented meeting with an informant with no track record for truthful information, never mind any other evidence of their existence.

Making things worse, the helpful informant remembered seeing a gun while in Robert Taylor’s apartment but when pressed by the officer could not remember exactly where Taylor lived.

Doe told Hughes that he did not know Taylor’s address, but he did know how to get there. So the two drove down to the south side, and Doe directed Hughes to an apartment building. The building Doe identified was 643–645 W. 62nd Street, an L-shaped apartment complex on the south side of the street. The numbers “643–45” appeared under a window on the building’s street-facing side. Doe told Officer Hughes that the unit immediately above those numbers was Taylor’s.

Using this vague information, Hughes went to seek a search warrant. At this point, all he had was a claim that a gun was seen in one of the apartments near a window sticker indicating possible apartment numbers in that area. Not only did Hughes lack a definitive address, he also lacked any information Taylor was engaged in drug sales/purchases. For all Hughes knew, the informant had seen a legally-owned gun somewhere in that apartment complex but, according to the officer’s own testimony, had nothing tying Taylor to the weapon.

Undeterred, Hughes banged together a bunch of speculation and approached a judge hoping to trade his worthless wordcraft for an actual, usable search warrant. Somehow he succeeded.

I mean, just look at this bullshit:

Hughes’s accompanying affidavit identified Taylor’s apartment as “645 W. 62nd Street #1S.” When asked how he determined this was Taylor’s address, Hughes testified: “I decided that it was 645 1S.” But how he decided he could not explain. Hughes also testified that he used building number 645 (rather than 643) because the window Doe pointed out was closer to the “45” on the front of the building. And as for the unit number, Hughes testified that the “S” might have stood for “South,” or “Side,” or perhaps just the letter “S” in an alphabetical list—he was unable to say for sure. Nor did Hughes take any step to corroborate Taylor’s address. Hughes testified that he “didn’t have no time” to do so. In the end, then, Hughes took a guess, listing the address as 645 W. 62nd Street #1S in the search warrant application.

Remember the drug thing? Or the lack thereof? Whelp, that bunch of misinfo/disinfo went into the warrant request as well.

The proposed warrant, in turn, sought permission to search “645 W. 62nd Street #1S, a multi-unit building,” and to seize evidence of the offense of Unlawful Use of Weapon under Illinois law, 720 ILCS 5/24-1, specifically:

Unlawful use of weapon and any documents showing residency, any paraphernalia used in the weighing, cutting or mixing of illegal drugs. Any money, any records detailing illegal drug transactions.

Hughes decided the alleged gun Taylor allegedly possessed (as related to him by this mysterious informant) was drug-related because 1) he believed guns and drugs were inseparable, and 2) he forgot to edit his copypasta.

The warrant’s references to illegal drugs were not based on anything Doe told Officer Hughes. Instead, Hughes later acknowledged that the drug reference was stock language he left in place because “[u]sing drugs and guns go hand [in] hand.”

Since Hughes “didn’t have no time” to be more careful, he dragged a Cook County judge out of their comfortable home after hours to join him in an unmarked car to Hancock his deficient warrant request. It’s hardly surprising this did not lead to intense judicial scrutiny of his request. And, in the judge’s defense, they had no way to know the officer was padding his boilerplate with speculation about Robert Taylor’s actual address. And Hughes did nothing to enlighten the judge about the more speculative/Xeroxed parts of his warrant request.

Officer Hughes later testified that he did not give the judge any explanation for the warrant’s reference to drug paraphernalia, did not tell the judge that he did not know if the address listed on the warrant was accurate, and did not explain that Doe had provided directions that the officers could follow to Taylor’s apartment.

All of that culminated in this early morning raid by the Chicago PD:

At around 6:00 a.m. on June 22, 2011, Hughes used a battering ram to break down the door of the apartment Doe identified. The apartment the officers entered was in fact Robert Taylor’s apartment. But it was not the apartment listed on the warrant: it was not #1S at 645 W. 62nd Street, but instead was #1N at 643 W. 62nd Street.

Luck was on Officer Hughes’ side, as it had been throughout the case. He found mail and an employee ID that linked Taylor to the apartment. He found two people — Mario Barnes and Barbara Taylor (Robert’s niece), along with their three kids — in a bedroom. In that bedroom, he also found a gun. Unfortunately for Hughes, Barnes could not say for sure whether it belonged to Taylor. Using this (whatever “this” means in the context of the warrant and the search), Hughes arrested Taylor.

Taylor then spent 128 days in jail before another judge found the search warrant invalid based on the address error, quashed the warrant, tossed out the evidence, and acquitted Taylor of the gun charges. All’s well that ends well? Well, it hadn’t exactly ended.

Despite Taylor’s acquittal, the alert for his arrest remained active within CPD’s system. A month later, on December 23, 2011, a CPD officer pulled over a car in which Taylor was riding. When the officer ran Taylor’s name, the alert appeared, leading to Taylor once again being arrested—on the exact same charge on which he had been acquitted a month prior. The arresting officer contacted Detective Weitzman, who realized the mistake and quickly saw to it that Taylor be released. Even then, though, the alert for Taylor’s arrest remained active for another month. At last, on January 31, 2012 Detective David Betz canceled the alert, bringing this mess of events to a close.

Taylor sued. The lower court said, hey, this is all pretty bad but should we really expect the officers involved in this to be held accountable for their actions? Over the course of three decisions, the answer was “no.” Qualified immunity for every defendant.

Officer Hughes is back in the mix. His immunity has been stripped. Here’s why, says the Seventh Circuit:

We see the record as establishing, at a minimum, reckless misconduct by Officer Hughes. And that misconduct resulted in a serious misstatement—a misrepresentation that the apartment to search was #1S at 645 W. 62nd Street. By Officer Hughes’s own admission, that was false. Officer Hughes guessed at the apartment number and did so because, in his view, confirming Taylor’s actual address—say, by running Taylor’s name through police or city databases, looking for his name on the building’s mailboxes, or contacting the landlord—would take too long.

We are skeptical. Officer Hughes has pointed to no exigency that would have prevented him from undertaking the sort of routine policework contemplated by the Fourth Amendment’s particularity requirement. It is not too much to ask that a police officer seeking judicial authorization to search someone’s home take steps to confirm the right address. […] Guessing at an address to get a search warrant is intolerable, and that is unfortunately what Officer Hughes did here.

The boilerplate about drugs was also reckless misconduct. And because the officer did nothing to inform the judge who signed the warrant about his extensive guesswork, he could not possibly rely on a warrant he basically lied to obtain. The warrant should never have been issued, the Appeals Court concludes. And because of that, Hughes gets no immunity.

Taking our own careful look at the summary judgment record, we are left with an unmistakable reality. Officer Hughes told the Cook County judge that he knew Taylor’s address when in fact he did not. And he told the judge that there was probable cause to believe drugs would be found in the apartment when in fact there was not. These misrepresentations are at the heart of this case. We would not be here without them. And these misrepresentations constitute an open-and-shut violation of Franks.

The record is clear on these points, with no lingering material questions for a jury to decide. We therefore reverse the district court’s grant of summary judgment for Officer Hughes on Count I and direct entry of summary judgment for Taylor.

Since there’s nothing left for the jury to decide (the facts are all in, as they say), the only thing left to determine is how much Officer Hughes owes Robert Taylor for this bogus search and arrest. Yes, it’s true Chicago residents who’ve already paid so much will be asked to give a little more, but, unfortunately, almost any decision denying or stripping immunity from law enforcement officers is still a rarity and worth noting. And each one adds (incrementally) to the body of case law that clearly establishes certain rights violations.

Filed Under: 4th amendment, 7th circuit, ricky hughes, robert taylor, warrant

New Illinois Law Says Cops Need A Warrant To Grab Data From (Some) Third Parties

Privacy

from the on-the-other-hand,-you-still-have-to-deal-with-the-Chicago-PD dept

The state of Illinois continues to provide more protection than the US Constitution. Its privacy laws exceed what has been determined to be “reasonable” violations of privacy by decades of court precedent. This has allowed it to go after companies for violating state laws, even when the collections being prosecuted would likely be legal under the Supreme Court-created “Third Party Doctrine.”

State law allowed Facebook to be successfully sued over its facial recognition program — one that detects faces and attempts to match them to Facebook profiles to “tag” photos with names of account holder’s “friends.” This resulted in a $550 million settlement from Facebook — a relative bargain considering the original asking price was $35 billion.

It also has allowed the state to move forward with its lawsuit against odious facial recognition tech provider, Clearview. Clearview sells access to its database and AI to government agencies for the alleged purpose of identifying criminal suspects. The AI — finally independently tested years after its debut — appears to be fairly solid. But its 10 billion image (and counting) database is composed of images and personal info scraped from thousands of websites and social media platforms. According to the state of Illinois, this collection violates state privacy laws because Illinois residents are not informed of this collection, nor are they given any opportunity to opt in or out.

Third parties aren’t the only ones availing themselves of data harvested from the web. Government agencies are taking advantage of massive collections assembled by data brokers. The assumption by law enforcement is that no warrant is needed to obtain location info and identifying information from third parties because there’s no expectation of privacy in information shared with apps, websites, and service providers.

It should be clear that’s likely not acceptable in Illinois where state law regulates these collections to ensure end users are protected (at least somewhat) by mandates requiring notification and consent. Nonetheless, law enforcement persists in accessing this data, assuming their actions aren’t illegal even if the collections they’re accessing have been illegally obtained.

That’s going to change. A new law that went into effect at the beginning of this year says Illinois law enforcement can no longer access this information without a warrant.

A first-of-its-kind law in Illinois limiting law enforcement access to data from household digital devices sits at the forefront of an emerging legal debate over protecting the privacy of such records.

The state’s law, which takes effect Jan. 1, comes as law enforcement seeks to tap into consumers’ growing collection of internet-connected devices, from smart speakers to security cameras. These devices can capture conversations, movements, and other information that could be used for investigating crimes.

Known as the Protecting Household Privacy Act, the law restricts the sharing of device data by requiring a search warrant or permission from the device’s owner, with some exceptions in emergency scenarios.

As noted above, the law [PDF] contains warrant exceptions that can be used if law enforcement believes there’s an imminent threat to someone’s life or safety, as well as if the officer believes a warrant could have been obtained but is somehow prevented from obtaining one immediately. That last exception is a nod to the “good faith exception,” but the law at least demands officers still apply for and obtain a warrant for data collected under the exigent circumstances exception. And it’s limited to certain devices, which means information from some data brokers will still be obtainable without a warrant.

The law is pretty solid. Exigent circumstances can be used to avoid seeking a warrant first, but a warrant must be obtained within 72 hours to legitimize the warrantless collection.

The bigger problem is the Stored Communications Act. This federal law is far less stringent and would allow Illinois law enforcement agencies to bypass the law by partnering with federal agencies. In those cases, federal law would apply. And even if local agencies don’t seek this information directly, they will obviously have indirect access to whatever has been obtained by federal agencies.

The law seeks to head this off with this language:

In the event of any conflict between this Act and any applicable federal or State law, the requirement that establishes the higher standard for law enforcement to obtain information shall govern.

But, as stated above, this restriction only applies to Illinois agencies. Federal agencies can still obtain the data and presumably share it with local agencies to help them route around these newly imposed restrictions.

Despite its shortcomings, the law provides far more protection for Illinois residents than federal law — or federal court decisions — provide. It’s a win for locals that generates some friction for federal partnerships. How the applicable restrictions will be applied remains to be seen, but it’s a good move by the state to protect residents from the government overreach enabled by the Third Party Doctrine.

Filed Under: 4th amendment, illinois, privacy, warrant

Documents Shows Just How Much The FBI Can Obtain From Encrypted Communication Services

Privacy

from the plenty-of-data-but-content-not-so-much dept

There is no “going dark.” Consecutive FBI heads may insist there is, but a document created by their own agency contradicts their dire claims that end-to-end encryption lets the criminals and terrorists win.

Andy Kroll has the document and the details for Rolling Stone:

[I]n a previously unreported FBI document obtained by Rolling Stone, the bureau claims that it’s particularly easy to harvest data from Facebook’s WhatsApp and Apple’s iMessage services, as long as the FBI has a warrant or subpoena. Judging by this document, “the most popular encrypted messaging apps iMessage and WhatsApp are also the most permissive,” according to Mallory Knodel, the chief technology officer at the Center for Democracy and Technology.

The document [PDF] shows what can be obtained from which messaging service, with the FBI noting WhatsApp has plenty of information investigators can obtain, including almost real time collection of communications metadata.

WhatsApp will produce certain user metadata, though not actual message content, every 15 minutes in response to a pen register, the FBI says. The FBI guide explains that most messaging services do not or cannot do this and instead provide data with a lag and not in anything close to real time: “Return data provided by the companies listed below, with the exception of WhatsApp, are actually logs of latent data that are provided to law enforcement in a non-real-time manner and may impact investigations due to delivery delays.”

The FBI can obtain this info with a pen register order — the legal request used for years to obtain ongoing call data on targeted numbers, including numbers called and length of conversations. With a warrant, the FBI can get even more information. A surprising amount, actually. According to the document, WhatsApp turns over address book contacts for targeted users as well as other WhatsApp users who happen to have the targeted person in their address books.

Combine this form of contact chaining with a few pen register orders, and the FBI can basically eavesdrop on hundreds of conversations in near-real time. The caveat, of course, is that the FBI has no access to the content of the conversations. That remains locked up by WhatsApp’s encryption. Communications remain “warrant-proof,” to use a phrase bandied about by FBI directors. But is it really?

If investigators are able to access the contents of a phone (by seizing the phone or receiving permission from someone to view their end of conversations), encryption is no longer a problem. That’s one way to get past the going darkness. Then there’s stuff stored in the cloud, which can give law enforcement access to communications despite the presence of end-to-end encryption. Backups of messages might not be encrypted and — as the document points out — a warrant will put those in the hands of law enforcement.

If target is using an iPhone and iCloud backups enabled, iCloud returns may contain WhatsApp data, to include message content.

This is a feature of cloud backups — a way to retrieve messages if something goes wrong with someone’s phone or their WhatsApp account. It’s also a bug that makes encryption irrelevant. The same goes for Apple’s iMessage service. Encryption or no, backups are not encrypted by service providers. In the case of Apple’s iMessage, warrants for iCloud backups will give law enforcement the encryption key needed to decrypt the stashed messages.

On the other side, there are truly secure options that the FBI considers dead ends, starting with Signal. Signal retains no user info, which means there’s nothing to be had no matter what paperwork the feds produce. But, for the most part, even encrypted messaging and email services generate metadata that can be obtained without a warrant. If investigators want more, warrants can actually result in investigators obtaining a great deal of information about users, their interactions, and their communications. And, as is noted directly above, it can also grant access to communications users mistakenly believed were beyond the reach of law enforcement.

But not everyone using encrypted services is a criminal, no matter what FBI directors say in public. Communications metadata being only a subpoena or pen register order away is concerning, especially for those who use encrypted services not only to maintain their own privacy, but to protect those they communicate with.

“WhatsApp offering all of this information is devastating to a reporter communicating with a confidential source,” says Daniel Kahn Gillmor, a senior staff technologist at the ACLU.

Those who truly understand the protocols and platforms they use for communications will understand the tradeoffs. For everyone else, there’s this handy tip sheet, compiled by none other than the FBI, which explains exactly what each service retains and what each service will hand over in response to government paperwork.

It also shows that encryption isn’t keeping law enforcement from pursuing investigations. In rare cases, investigators may have zero access to communications. But every communications platform or service creates a digital paper trail investigators can follow until they find something that breaks the case open. “Going dark” — the idea that law enforcement is helpless in the face of increased use of encryption — is a lie. And the FBI knows it.

Filed Under: 4th amendment, encryption, fbi, going dark, lawful access, subpoena, warrant
Companies: apple, facebook, meta, whatsapp

No Immunity For Cops Who Used A Field Drug Test To Turn Stress Ball Sand Into Cocaine

Legal Issues

from the magic-8-ball-but-for-taking-away-people's-liberty dept

Getting probable cause is easy, especially when you have accomplices. Law enforcement loves drug dogs, which give them the permission they need to engage in warrantless searches. All a dog has to do is “alert”… or almost “alert”… or be presented in sworn testimony as feeling ways about an odor. Permission obtained. Searches permitted.

Another favorite method for securing permission for seizures, arrests, and searches without a warrant is the field drug test. The tests are cheap, which makes them a popular law enforcement tool. They’re also notoriously inaccurate. That also makes them popular with law enforcement. Cops aren’t interested in successful prosecutions. They’re interested in arrests and warrantless searches. And these cheap tests — which are often wrong about the presence of drugs — are nearly as popular as drug dogs.

Here’s just a short (and very incomplete) list of the conclusions reached by cheap, unreliable field drug tests deployed by cops:

• Donut crumbs are meth.
• Over-the-counter pain medication is crack cocaine.
• Cotton candy is meth.
• A deceased child’s ashes are both/either meth/ecstasy.
• Raw honey is meth.
• An undermined substance is heroin/fentanyl.
• Bird poop on a CAR HOOD is cocaine.
• Baking soda is cocaine.
• Tea leaves are marijuana.

Being wrong a lot doesn’t stop cops from using these tests. Nor does it stop prosecutors from moving ahead with prosecutions backed by nothing more than a “test” that should be considered as fanciful as anything sold in the back pages of comic books.

It’s time to add to field drug test’s lousy track record of misidentifying substances. Fortunately, the Eleventh Circuit Court of Appeals has sided [PDF] with the person arrested for carrying a legal substance while (allegedly) jaywalking. (via Reason)

Everyone agrees that, on the evening of October 10, 2015, Goldring was walking in Midtown, Atlanta; Officers Henry and Restrepo initially arrested her for jaywalking; they took her to the police station; at the police station, Officer Henry field tested the powdery contents of a stress ball found in Goldring’s purse; and the officers got a warrant for Goldring’s arrest for jaywalking and trafficking in cocaine.

Other facts remain disputed. The plaintiff, Julius Goldring, swears she never jaywalked. Instead, she was waiting on the corner with some friends when the officers approached her.

Here’s the undisputed outcome of that interaction:

After the officers stopped Goldring, Officer Restrepo frisked her, searched her purse—to which Goldring consented—and found a stress ball. It was “a regular stress ball” with a metal clip. Goldring told Officer Restrepo that it was just a stress ball and said he could open it. Officer Restrepo cut the ball open, revealing a white “powdery, sandy kind of substance.” The officers suspected that this powder was cocaine but they weren’t sure—in Officer Restrepo’s words, there are “a jillion powders that could be white.” The powder inside Goldring’s stress ball was just sand.

The officers grabbed a NARK II test and attempted to determine whether the stress ball sand was actually something else. This did not go well, according to Goldring.

Goldring witnessed Officer Henry perform the field test. He “looked frustrated,” “huffed and puffed” throughout the test, and shook the pouches containing the powder “with aggression like he was mad.” Although Officer Henry used multiple test kits, Goldring saw that the liquid inside never changed color. She testified that a third officer saw what Officer Henry was doing and “kept telling him that it was nothing” and was “not a drug,” referring to the powder in the test pouches, and told Officer Henry to “[g]ive it up buddy.”

Officer Henry, of course, disagrees with this assessment of his drug test and drug-testing skills.

As to the field test, Officer Henry testified that he performed the test twice—both times crushing the three ampoules simultaneously. The liquid then turned a “bluish-purple.” Officer Henry thought this was a “faint positive,” incorrectly believing that “if it’s darker than pink, then it’s positive,” while “if it just showed pink” it was negative. Officer Restrepo testified that he didn’t watch the test and Officer Henry later told him the result was positive. But in an internal affairs report, Officer Restrepo stated that Officer Henry showed him the test result—a “faint positive.”

Not all that persuasive. At least not to Goldring or the Appeals Court. But it was persuasive enough to Officer Henry that he arrested Goldring and searched her belongings. He got her charged with trafficking cocaine, which led to a $25,500 bail assessment. Goldring couldn’t make bail so she sat in jail… for five months. A lab test showed the substance wasn’t cocaine November 17, 2015, a little more than a month after the October 10th arrest. But prosecutors didn’t dismiss the charges until March 2018, unjustifiably extending her detention in jail for a crime a crime lab said she didn’t commit.

Both officers tried to escape the false arrest and malicious prosecution allegations. The court says they can’t.

Officer Restrepo also argues that his interaction with Goldring was limited to her warrantless arrest and he didn’t sign the warrant application. Thus, he maintains that Goldring’s malicious prosecution claim against him fails because he did not initiate a criminal prosecution against her. We disagree. Although Officer Restrepo didn’t remember whether he helped write the warrant application, Officer Henry testified that Officer Restrepo wrote the narrative for the warrant application and spoke to the magistrate judge about it. This is summary judgment evidence from which a reasonable jury could find that Officer Restrepo had assisted in drafting the warrant application and getting it signed by the magistrate judge. Officer Restrepo was involved in initiating the prosecution against Goldring.

As for Officer Henry, he has not advanced any arguments that he did not initiate a criminal prosecution against Goldring. Nor could he because the record is clear that he signed the affidavit supporting the arrest warrant presented to the magistrate judge.

The court says there’s not enough evidence at this stage to determine who’s telling the truth about the alleged jaywalking. Conflicting narratives should be sorted out later, perhaps even by a jury. The same goes for the drug trafficking charge. Officer Henry says the field drugs tests were positive. The plaintiff says the cops lied about the drug test results on their warrant application and arrest paperwork. No qualified immunity on either court. This goes back down to the lower court for more examination.

Five months is a long time to spend in jail for pre-trial detention. It’s absolute insanity for someone to spend four months in jail after a lab test has determined the substance you were arrested for possessing was actually the legal substance you claimed it was. Hopefully, this rejection will lead to a sizable settlement or one of those judicial unicorns: a jury trial. The cops screwed up, made inaccurate claims about what they’d observed, and a prosecutor ran with it. They all need to be held accountable, even if it means the public will ultimately be paying for their actions.

Filed Under: 11th circuit, 4th amendment, cocaine, drug test, field drug test, probable cause, qualified immunity, sand, warrant

Connecticut Supreme Court Says Cops Need Warrants To Run Drug Dogs Around Motel Room Doors

Legal Issues

from the probable-cause-needed-to-deploy-probable-cause-on-four-legs dept

Drug dogs are man’s best friend, if that man happens to be The Man. “Probable cause on four legs” is the unofficial nickname of these clever non-pets, which give signals only their handlers can detect which give cops permission to perform searches that otherwise would require a warrant.

They’re normally seen at traffic stops and border checkpoints, but they’re also used to sniff other places cops want to search but don’t want to get a warrant to do so. This has led to a few legal issues for law enforcement, with courts occasionally reminding them that a dog sniff is a search and, if the wrong place is sniffed, it’s a constitutional violation.

The top court in Connecticut has curtailed the use of drug dogs in certain areas, finding that sniffs are still searches and these searches are unreasonable under the state constitution if performed in certain areas — namely outside the doors of motel rooms. (via FourthAmendment.com)

In this case, police officers allowed their dog to sniff at doors of motel rooms until it alerted on a door. Using this quasi-permission, officers entered the room and found contraband. The government argued that even if it was a search, it was performed in a place (a hotel or motel) where citizens would have a lowered expectation of privacy, considering the fact the rooms are only rented, utilized for only a short time, and accessible by hotel staff.

In a really well-written opinion [PDF], the court reminds the government that a lowered expectation of privacy is not the same as a nonexistent expectation of privacy. And, more importantly, it reminds them that, while motel rooms may not have the sanctity of people’s permanent homes, it is a home away from home and afforded more protection than, say, a car parked on the curb of a public road.

The court addresses all of the government’s arguments and finds none of them persuasive.

First, the state asserts that, in contrast to an apartment, a motel room most often serves merely as transitory quarters rather than a private, permanent residence. Although we agree generally with this observation, it is well settled that motel guests, like home dwellers, have a reasonable expectation of privacy in their rooms. The fact that a motel is not a home when, as is ordinarily the case, a stay there is temporary, does not, ipso facto, establish the scope of the privacy that transient motel guests reasonably may expect.

Holding otherwise would allow cops to engage in all sorts of searches simply by claiming one thing is not as private as another thing.

Indeed, this court previously has recognized that those aspects of a hotel or motel that reduce a guest’s expectations of privacy but do not increase the vulnerability of guests to the particular type of intrusion at issue are irrelevant in assessing the legality of that intrusion. If it were otherwise, the only guidance that courts would have in determining whether certain conduct by the police constituted an unlawful search of a motel room would be the vague and conclusory statement that motel guests have a diminished expectation of privacy as compared to residents of private homes.

That reference to the “particular type of intrusion” is also fatal to the government’s third argument, which said that because conversations can be overheard due to close proximity to other rooms and that hotel staff can enter rooms and find contraband, the shared hallways are places cops can let drug dogs legally roam. But a drug dog’s sniff is not either of the state’s examples, so the analogy is not only bogus, but an unlawful presumption.

We do not agree, however, that a room occupied by a motel guest is more vulnerable to a warrantless canine sniff than an apartment, condominium or house simply because other guests occupy nearby rooms or because the rooms may be entered by motel staff to perform certain functions unless guests place a ‘‘Do Not Disturb’’ sign on the door.

And, while motel rooms necessarily won’t contain the long list of personal effects and papers people store in their homes, they’re far from devoid of personal effects.

Again, such guests ordinarily do not keep all of their personal effects in their rooms because a motel room frequently is a temporary accommodation or lodging and not the guest’s permanent residence. That fact, however, does not mandate the conclusion that the personal effects that guests often do keep there—no matter how private or personal they may be—should be subject to appreciably less protection under the law. On the contrary, we see no reason why a motel guest reasonably cannot expect a degree of privacy in his or her room sufficient to preclude random or arbitrary intrusions by the police.

The court affirms the sniff was a search and it was not permissible just because officers could access the hallways and walkways outside of the motel rooms without a warrant.

We see no reason why the fact that the police in the present case were lawfully present in an open-air walkway abutting the defendant’s motel room makes any appreciable difference with respect to this analysis. The relevant question is not how easy it may be to gain lawful access to the door of a particular dwelling or lodging, but what conduct those occupying that space reasonably may expect from persons who actually have such access.

Finally, the court points out that even the government doesn’t believe its own arguments. If it did, it would not have implied that it would find this sort of behavior by law enforcement objectionable on some level.

We note, in addition, that, if the state were correct that a canine sniff of the exterior door of a motel room is an event altogether lacking in constitutional significance, the police would be entitled to roam through the corridors of a motel conducting canine sniffs of some or all of the doors to those rooms despite having no particularized cause to believe that any of them contained drugs. In tacit acknowledgment that our citizenry would find this conduct unacceptable, the state asserts that there is no reason to believe that the police in Connecticut would engage in such a trawling exercise, even though they could do so lawfully.

If the state finds its own arguments conducive to objectionable behavior by law enforcement officers, the court can’t be expected to sign off on it.

Even if we shared the state’s confidence in that regard, however, the fact that it would be legally permissible for the police to go from door to door conducting suspicionless canine sniffs throughout the motel is itself reason to doubt the soundness of the state’s constitutional argument.

The end result for Connecticut cops? Warrants are needed for drug dog sniffs in situations like these. Reasonable suspicion is not enough.

[W]e are not persuaded that an exemption from the warrant requirement should be extended to a canine sniff of the exterior door to a motel room, as the state advocates. We believe, rather, that, in the present context, the ‘‘balance between law enforcement interests and [an individual’s] privacy interests . . . tips in favor’’ of the latter, given that ‘‘our state constitutional preference for warrants [occupies the] dominant place in that balance . . . .’’ Accordingly, we reject the state’s claim that a canine sniff of the exterior door to a motel room is lawful if supported by a reasonable and articulable suspicion and conclude, instead, that such a search satisfies state constitutional requirements only if it follows the issuance of a warrant founded on probable cause.

That’s the standard in the state now. Law enforcement officers need to seek a warrant to run a drug dog around near hotel/motel room doors. The expectation of privacy isn’t as elevated as when a person is in their own home, but there’s still enough of an expectation that officers can no longer assume rooms used temporarily and accessible by employees are also accessible to them without any additional paperwork or probable cause.

Filed Under: 4th amendment, connecticut, drug dogs, drugs, law enforcement, motels, police, warrant

Court Tells Child Sexual Abuse Investigators That The Private Search Warrant Exception Only Works When There's A Private Search

Legal Issues

from the thus-answering-the-question-'when-is-a-search-not-a-search' dept

Private searches that uncover contraband can be handed off to law enforcement without the Fourth Amendment getting too involved. Restrictions apply, of course. For instance, a tech repairing a computer may come across illicit images and give that information to law enforcement, which can use what was observed in the search as the basis for a search warrant.

What law enforcement can’t do is ask private individuals to perform searches for it and then use the results of those searches to perform warrantless searches of their own. A Ninth Circuit Appeals Court case [PDF] points out another thing law enforcement can’t do: assume (or pretend) a private search has already taken place in order to excuse its own Fourth Amendment violation. (h/t Rianna Pfefferkorn)

Automated scanning of email attachments led to a series of events that culminated in an unlawful search. Here’s the court’s description of this case’s origination:

The events giving rise to Luke Wilson’s conviction and this appeal were triggered when Google, as required by federal law, reported to the National Center for Missing and Exploited Children (NCMEC) that Wilson had uploaded four images of apparent child pornography to his email account as email attachments. No one at Google had opened or viewed Wilson’s email attachments; its report was based on an automated assessment that the images Wilson uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent Wilson’s email attachments to the San Diego Internet Crimes Against Children Task Force (ICAC), where an officer ultimately viewed the email attachments without a warrant. The officer then applied for warrants to search both Wilson’s email account and Wilson’s home, describing the attachments in detail in the application.

You can see where things went wrong: the warrantless search engaged in by the officer to view images neither of the other parties had actually opened or inspected. Apparently, Fourth Amendment violations are standard practice at the San Diego ICAC.

NCMEC then forwarded the CyberTip to the San Diego Internet Crimes Against Children Task Force (“ICAC”). Agent Thompson, a member of the San Diego ICAC, received the report. He followed San Diego ICAC procedure, which at the time called for inspecting the images without a warrant whether or not a Google employee had reviewed them.

A footnote attached to this paragraph states the new “standard procedure” is to obtain a warrant before opening a CyberTip “when the provider has not viewed the images.” The court notes it is “not clear from the record” that this is standard practice at other ICAC offices, or whether they’ve also been instructed to obtain warrants first from now on. So, more challenges are likely on the way.

The lower court refused to suppress the evidence obtained from Wilson’s email account and home, deciding the private search that had never actually occurred was a private search, salvaging the warrantless search that immediately followed the forwarding of the tip by NMCEC.

The Appeals Court disagrees.

First, the government search exceeded the scope of the antecedent private search because it allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute Wilson. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed Wilson’s email attachments even though no Google employee—or other person—had done so, thereby exceeding any earlier privacy intrusion. Moreover, on the limited evidentiary record, the government has not established that what a Google employee previously viewed were exact duplicates of Wilson’s images. And, even if they were duplicates, such viewing of others’ digital communications would not have violated Wilson’s expectation of privacy in his images, as Fourth Amendment rights are personal.

Matching hashes is not enough. And that’s all Google and NMCEC had when they forwarded the tip down the line to law enforcement. Just because both entities retain hashes (NMCEC retains images as well) that matched the hashes of the attachment doesn’t mean there’s no subjective expectation of privacy in one’s own email account. A strong probability that the files were child porn is the perfect basis for a warrant request. Unfortunately, the officer decided to engage in a search without one.

Wilson did not have an expectation of privacy in other individuals’ files, even if their files were identical to his files. The corollary of this principle must also be true: Wilson did have an expectation of privacy in his files, even if others had identical files. If, for example, police officers search someone else’s house and find documents evidencing wrongdoing along with notes indicating that I have identical documents in my house, they cannot, without a warrant or some distinct exception to the warrant requirement, seize my copies. I would retain a personal expectation of privacy in them, and in my connection to them, even if law enforcement had a strong basis for anticipating what my copies would contain. A violation of a third party’s privacy has no bearing on my reasonable expectation of privacy in my own documents. The government does not argue otherwise.

All of the evidence is suppressed, since it all relies on the initial lawless search. The ICAC in San Diego has, belatedly, put a warrant requirement in place. It won’t salvage this conviction, which has been reversed. And it may result in similar suppressions and reversals if the same search-first procedure was used in other child porn cases. But it’s always easier to bypass the warrant and get to the searching. After all, not every court will see the facts the same way, as is evidenced by the lower court’s refusal to suppress the evidence. But it’s now crystal clear in the Ninth Circuit: get a warrant.

Filed Under: 4th amendment, child sexual abuse materials, scanning, warrant

Massachusetts' Top Court Says Police Need Warrants To Search Body Camera Recordings

Legal Issues

from the no-rummaging-through-the-servers dept

Body-worn cameras were supposed to usher in a new era of police accountability. That hasn’t happened. At best, they’ve generated a ton of additional footage of interactions and arrests that may prove valuable to criminal defendants and people filing civil rights lawsuits. “May” is the operative word. Cops still control the footage, which limits public access and increases the odds that unflattering/unhelpful (to police) footage rarely ends up in the hands of the public. The end result is that prosecutors have been the biggest beneficiary of this so-called accountability tech.

A case in Massachusetts has raised some interesting constitutional questions about body cameras and recordings. Officers responding to a domestic violence call recorded the interior of a home with their body cameras. Weeks after that call, they accessed the footage to find corroborating evidence that was used to apply for a search warrant. One of these is a constitutional violation, Massachusetts’ Supreme Judicial Court has ruled. (via Courthouse News)

Here’s what happened during that domestic disturbance call, as recounted in the opinion [PDF]:

After the first responding officers had entered the apartment, another officer arrived who was equipped with a bodyworn camera, which recorded the areas of the home through which he moved, as well as his interactions with the defendant, his sister, and others in the apartment, including a number of police officers. The video footage obtained shows that when the officer arrived at the home, the door was ajar; he entered the living room, where at least two other officers were present…

The officer wearing the camera walked past the defendant’s sister and ascended the stairs. Standing at the top of the staircase, he spoke with the defendant, who was standing at the threshold of a bedroom. Through the open bedroom door, the camera captured a woman in the background. The woman was zipping her coat. Floral-printed curtains adorned the bedroom window just behind the area where the woman was dressing.

The sister shouted from downstairs, and the defendant yelled “shut up.” He explained to the officer with the camera that the girlfriend could not be rushed, as she was getting dressed, but that they would leave shortly. Once dressed, the girlfriend and the defendant moved toward the stairs; they were stopped by the officer.

The “floral-printed curtains” would later prove instrumental in building a case against the defendant. The officer who uploaded the photo informed detectives about its existence, since the defendant was one of several suspects being investigated by the Boston PD’s gang task force. He was already under surveillance by the BPD, with a couple of officers managing to successfully “friend” the defendant on Facebook, giving them access to his posts.

Here’s where the distinctive curtains resurfaced:

Two weeks after the domestic disturbance call, the detective noticed that the defendant had posted what the officer believed to be a recently created video recording of the defendant holding a firearm in a bedroom, with floral-printed curtains visible in the background. After he saw the posted recording, the detective retrieved the DVD containing the body-worn camera footage from his colleague and reviewed it.

Peering into the defendant’s home caught on the body-worn camera footage, the detective saw the defendant’s girlfriend zipping her coat in the defendant’s bedroom, while standing next to what the detective believed were the same distinctive curtains visible in the posted video recording. This was significant to the detective because it established the location of the posted video recording that had showed the defendant apparently holding a firearm.

Using this information gleaned from the BWC recording made two weeks earlier, detectives obtained a search warrant for home, specifically noting the curtains seen in both the social media post and the officer’s camera footage. The house was searched, resulting in the discovery of weapons and some marijuana.

The defendant argued the initial recording violated his Fourth Amendment rights. The court disagrees, noting that the recording of areas in plain view of the officer merely duplicated what the officer could see with his own eyes.

We conclude that, where, as here, the officer was lawfully present in the home and the body-worn camera captured only the areas and items in the plain view of the officer as he or she traversed the home, in a manner consistent with the reasons for the officer’s lawful presence, the recording is not a search in the constitutional sense and does not violate the Fourth Amendment or art. 14. This conclusion follows from our jurisprudence regarding the photographic preservation of a crime scene.

Even though a recording is more “permanent” than an officer’s memory, there’s still no violation. Precedent says officers can document crime scenes and domestic disturbances fall on the long list of criminal acts officers are sent to respond to. The recording was not a violation, even though it could be accessed at any point past its creation by investigators.

However, the court says viewing the footage a few weeks later was unconstitutional.

[W]e conclude that while the plain view observation doctrine extended to the officer’s recording of his interactions in the defendant’s home in response to the domestic disturbance call, that doctrine cannot be stretched to sanction the subsequent review of the footage for reasons unrelated to the call.

The 21st century is no time to bring back some of the worst aspects of British rule, says the court.

The ability of police officers, at any later point, to trawl through video footage to look for evidence of crimes unrelated to the officers’ lawful presence in the home when they were responding to a call for assistance is the virtual equivalent of a general warrant.

The BPD can’t do that without a warrant, given the lack of connection between the domestic disturbance and any suspected gun/drug criminal activity.

Moreover, the subsequent review of the footage in connection with the unrelated investigation of the defendant falls outside the rationale justifying the recording in the first instance. Such a review is divorced from protecting police officers from false accusations of misconduct, ensuring police accountability, or preserving a record of police-civilian interaction. Instead, the use of body-worn camera footage in this manner, after the fact, for investigatory purposes unrelated to the domestic disturbance call, had the effect of allowing the gang unit detective to peer into the defendant’s home for evidence to support an unrelated criminal investigation.

The government tried to salvage its warrantless search by claiming it was only a very small unconstitutional search. This argument is rejected as well.

[T]he Commonwealth contends that the BPD review of the body-camera footage was not extensive, and that the review was targeted at one specific detail, the floral-printed curtains in the defendant’s bedroom. But the constitutional protection against unreasonable, warrantless searches is no less applicable to a targeted search than it is to a more extensive one.

With that detail removed from the warrant, the warrant most likely does not contain enough probable cause to justify the search of the house. The motion to suppress is granted and the case is kicked back down to the lower court, which will give the Boston PD one more chance to salvage its unconstitutionally gotten gains. But the line is clear. Recordings: good. Digging into saved recordings to aid in unrelated investigations: no good… not without a warrant.

Filed Under: 4th amendment, body cameras, massachusetts, recordings, warrant

Federal Judge Says FBI Obtained Twitter Employee's Emails Illegally

Legal Issues

from the sliding-under-the-low-bar-of-probable-cause dept

In late 2019, the federal government indicted a Twitter employee, accusing him of acting as an agent of Saudi government. The allegations were pretty ugly.

Defendants Ahmad Abouammo, Ali Alzabarah, and Ahmed Almutairi were charged by Indictment on November 19, 2019 for acting as agents of the government of Saudi Arabia without notification to the Attorney General as required by law. Abouammo and Alzabarah, while employees at Twitter, accessed without authorization and provided to officials of the government of Saudi Arabia nonpublic information about Twitter users that were of interest to the government of Saudi Arabia, including dissidents and critics of the government.

No one needs to be helping the Saudi government hunt down dissidents. This is a government that has actually killed a journalist critical of the Saudi prince — a killing followed by a dismemberment that occurred in the Saudi government’s Istanbul consulate.

The accusations were that Abouammo used his position as media partner manager for Twitter’s Middle East presence to access information about accounts the Saudi government wanted to spy on. The government has been pursuing a conviction for a couple of years now and has just been hit with a little bad news. It appears the FBI colored outside the constitutional lines while compiling evidence against Abouammo. Here’s Nicholas Iovino with more details for Courthouse News Service:

In August 2016, the FBI seized Abouammo’s Google account records, which revealed that a Saudi foreign official had emailed the defendant around the same time Abouammo started suddenly and frequently accessing a prominent Saudi critic’s user account, according to federal prosecutors.

Prosecutors say the email exchange also coincided with Abouammo meeting the Saudi foreign official in London, receiving a $20,000 watch from that same official and having numerous phone conversations with the Saudi representative.

Abouammo asked U.S. District Judge Edward Chen to throw out that evidence, arguing the FBI failed to establish probable cause in a search warrant application before confiscating his personal data.

On Tuesday, Chen partly granted Abouammo’s request.

The ruling [PDF] says the FBI used a bit of guesswork in a warrant affidavit, allowing presuppositions to replace facts. That sort of thing doesn’t comply with the Fourth Amendment.

Even assuming a deferential scope of review of the magistrate judge’s determination, see United States v. Wright, 215 F.3d 1020, 1025 (9th Cir. 2000), it is clear there was no probable cause to support the 2016 search. While there was probable cause to believe Defendant Ali Alzabarah accessed Twitter user information without authorization and that it was done at the behest of Foreign Official-1, there was no such probable cause with respect to Defendant Abouammo.

The indictment says one thing, but the affidavit the FBI used to obtain information says another.

There is no allegation that Defendant Abouammo, a U.S. citizen born in Egypt with no personal ties to Saudi Arabia, obtained unauthorized access to Twitter users, much less at the behest of the Saudi government. The circumstantial evidence of communications reveal little more than sporadic unremarkable communications with these subjects which does not fit any pattern with the illicit conduct of Defendant Alzabarah or Official-1.

And there may not even be any conspiracy… or at least none alleged sufficiently in the warrant affidavit seeking information from Google.

Other than being reciprocal Twitter followers, there is no evidence of any communication between Defendant Abouammo and Defendant Alzabarah. Similarly, there is little communication between Defendant Abouammo and Defendant Almutairi cited in the affidavit – i.e., two text messages in December 2014 prior to the alleged unlawful conduct of Defendant Alzabarah which started in January 2015.

From what the judge can see, there’s hardly any connective tissue between the allegations made by the government and the justifications it put in its affidavit when seeking a search warrant.

Defendant Abouammo’s emails to other senior Twitter directors who were located in other countries (outside the U.S. and Saudi Arabia) in December 2015 and January and February 2016 also prove nothing. There is no allegation that these directors were involved in any unauthorized access to use accounts or were connected with Official-1 or the Saudi government. Furthermore, the emails were sent to these directors’ Twitter email accounts, hardly a way to solicit participation in an illicit scheme as the government now suggests. That certain Saudi officials (other than Official-1) were brought into conversations in email exchanges with one of the Twitter directors again proves nothing. The sporadic patternless communications described in the affidavit – which include no direct communications with Defendant Alzabarah and two early (2014) text messages with Defendant Almutairi – are insufficient to establish probable cause to believe Defendant Abouammo had accessed without authorization Twitter user accounts at the behest of the Saudi government.

The results of this search will be suppressed. The government simply doesn’t have enough to justify this search. And the warrant is so deficient the court doesn’t see how the government could say it relied on it in good faith. Everything derived from this search is suppressed.

But that doesn’t mean Aboumammo is in the clear. Subsequent searches appear to have turned up other usable evidence and those still stand for the time being. The FBI’s 2018 search warrant (and the results of that search) is still in play, even when everything derived from the 2016 search is stripped from the affidavit.

Given what’s said in this short suppression order, it appears the FBI turned a hunch into a fishing expedition at Google HQ. If the government wants to prosecute federal crimes, it needs to remember all the rights it said were inalienable. Searches based on speculation aren’t acceptable. And hey, FBI: maybe don’t be evil.

Filed Under: 4th amendment, ahmad abouammo, ahmed almutairi, ali alzabarah, email, espionage, fbi, probable cause, saudi arabia, warrant
Companies: twitter

Iowa's Top Court Says Cops Can't Search People's Garbage Without A Warrant

Legal Issues

from the [starts-selling-COME-BACK-WITH-WARRANT-trash-bags] dept

Pretty much everywhere in the United States it’s accepted that if the public has access, law enforcement has access. This is the legal theory behind things like automatic license plate readers (anyone can see a license plate), utility pole-mounted cameras (anyone can see someone’s front yard), and (to our benefit) recordings of public officials (if they’re performing their public duties).

This theory (along with the theory of abandonment) tends to govern people’s trash. Once it is outside the house and made accessible to sanitation services, it can be accessed by anyone, including law enforcement officers. Sifting through trash that has been “abandoned” is one of several ways officers compile the probable cause for search warrants.

Trash can’t tell you everything but it can give you some idea what’s going on inside a house. Conclusions are drawn from what’s been observed in trash cans and officers move in. Sometimes they’re horribly, horribly wrong. Sometimes they draw the correct inferences and make a successful bust. In either case, warrantless access to people’s trash has been considered lawful for years.

Until now.

The Iowa Supreme Court [PDF] says garbage being abandoned for pickup by sanitation workers still has an expectation of privacy. (via We Are Iowa)

The state’s top court breaks away from years of accepted jurisprudence to extend constitutional protections to residents’ trash. But only the state’s Constitution. The Fourth Amendment still doesn’t cover trash pulls.

In this case, officers performed a couple of warrantless trash pulls, finding evidence of alleged drug production or use (poppy seeds, empty poppy seed packets, fabric pieces that tested positive for morphine). Using this as a basis for a search warrant, officers searched the house and found something else.

The police executed the warrant at Wright’s residence on November 21. They discovered a baggie containing two grams of marijuana and several capsules of Vyvanse, a prescription drug for which Wright had no prescription.

So, not the drugs the officers thought they would find, but drugs nonetheless. Nicholas Wright challenged the warrantless search of his trash, claiming this violated his rights.

Wright made two arguments in support of his motion. First, he argued Heinz physically trespassed on his property. Second, he argued he had a reasonable expectation of privacy in the contents contained in his trash bags. Wright argued the search warrant ultimately issued was without probable cause if the evidence obtained from the warrantless seizures and searches of his trash bags were suppressed.

The district court disagreed with Wright’s assertions. So did the state appeals court. The state’s top court, however, sees things differently. It takes its time getting to the point, but does perform the invaluable service of running down both state and federal interpretations of the Fourth Amendment and the state’s own Article I Section 8, its Fourth Amendment equivalent. The court reaches this conclusion:

Current Fourth Amendment jurisprudence is a mess.

Instead of saying things are too screwed up to weigh in on a case like this — one already rejected by two other courts — the Iowa Supreme Court decides to set some precedent. It says taking trash is both a search and a seizure under the state Constitution.

Heinz meaningfully interfered with and “seized” the garbage bags and papers and effects contained therein when he removed the garbage bags from Wright’s trash bins, took possession of them, and transported them to the police station for further inspection.

[…]

It is equally apparent Heinz engaged in a search when he opened the garbage bags and rummaged through them.

A search is a search, even when the intrusion is minimal. The court cites the US Supreme Court’s Jones decision, which said the warrantless placement of a tracking device on a vehicle was a trespass.

Here, Heinz testified he opened the garbage to “obtain information about what Mr. Wright may have been doing inside [his] house” and obtain evidence “related to drug activity.” A constitutional search occurs whenever the government commits a physical trespass against property, even where de minimis, conjoined with “an attempt to find something or to obtain information.”

That what was searched was “only” trash doesn’t matter. A search was performed without a warrant specifically to find evidence of criminal activity.

We have little trouble concluding the property at issue is protected within the meaning of article I, section 8. Opaque garbage bags are containers, and containers are an “effect” as originally understood. See United States v. Ross, 456 U.S. 798, 822, 102 S. Ct. 2157, 2171 (1982). The fact that the containers happen to be garbage bags rather than, say, expensive luggage, is not of constitutional consequence. There is no “constitutional distinction between ‘worthy’ and ‘unworthy’ containers.” . […] In addition, Heinz opened the garbage bags and searched through the contents. The contents included other personal property, including two pieces of mail addressed to Wright. Letters are certainly papers. Further, “[l]etters . . . are in the general class of effects,” and “warrantless searches of such effects are presumptively unreasonable.” Jacobsen, 466 U.S. at 114, 104 S. Ct. at 1657.

The court also says there was no “abandonment” of the trash, contrary to the state’s arguments. State law says only licensed trash collectors can haul away trash. The leaving of trash outside the house is done with the assumption that only an “authorized collector” — entities governed by their own set of state and city laws — will move or otherwise access trash bags and their contents. Even when it’s left outside to be collected, residents still maintain control of these possessions until an authorized collector takes possession. Cops aren’t authorized collectors.

In moving his trash to the alley for collection, Wright agreed only to convey his property to a licensed collector. Wright would have the right to retrieve the property prior to collection and the right to exclude all others from rummaging through his garbage bins prior to collection.

The court also says there’s a limited expectation of privacy in the contents of garbage bags. While this privacy evaporates once the bags are collected and processed by sanitation companies, it existed at the point the officer took the bags and searched the contents.

This is the precedent set in Iowa by this decision:

We hold Officer Heinz conducted an unreasonable search and seizure in violation of article I, section 8 of the Iowa Constitution when he acted without a search warrant and removed opaque trash bags from waste bins set out for collection behind a residence, took possession of the trash bags, transported them to a different location, opened the bags, and searched through the contents.

The case goes back to the lower court. The evidence will be suppressed but Wright’s conviction still stands for now. It will be up to the state to prove its case without the evidence found in the trash bags, which then formed the basis for the search that resulted in Wright’s arrest. That’s not going to be easy.

This essentially makes trash pulls illegal. At the very least, it forbids cops from opening bags to take a look at their contents. Residents using clear trash bags won’t necessarily be covered by this decision, since anything observable by other citizens can also be seen by officers.

This may result in law enforcement working more closely with sanitation companies to find some way to mark garbage officers would like to search and create a chain of custody that allows this evidence to be used to obtain search warrants or present in court. Once the bag hits the dump or processing center, it’s open season.

Filed Under: 4th amendment, garbage, iowa, search, warrant