New Jersey Supreme Court: If Cops Are Going To Digitally Wiretap A Facebook Account, They Need A Wiretap Order

Legal Issues

from the your-analog-analogies-are-only-hurting-your-digital-arguments dept

Gathering evidence has never been easier than it is now. So much is created so easily and so often. And there are so many access points for law enforcement.

Sure, a few outliers (and outright liars [cough] Chris Wray [cough]) may claim everything is “going dark,” but never before in history have there been this many communication options facilitated by this many services. And most of those communications can be accessed without much difficulty, despite the occasional encryption roadblock.

Law enforcement entities are definitely taking advantage of the opportunities created by always-on(line) existences so many of us lead. But they often forget they still have an obligation to respect constitutional protections put in place years before so many of their investigative targets turned their lives into open books.

And that brings us to this case recently decided by the top court in New Jersey. Investigators in that state decided to use a very creative definition of the word “stored” to a constitutional fight. And they’ve lost. (h/t FourthAmendment.com)

In this criminal case, investigators served Facebook with a standard Communications Data Warrant (CDW). In other words, it was a regular search warrant authorizing a search of Facebook’s stored data for information related to suspected criminal activity.

But what the warrant demanded was far from the norm for search warrants. It didn’t ask Facebook to hand over whatever it already had. Instead, it demanded Facebook ride shotgun on the targeted account and turn over any new content created by the user every 15 minutes for the next 30 days.

My friends, that is not a search. That is a wiretap. And a regular warrant cannot possibly justify this sort of ongoing, near-real time intrusion. That’s the ruling [PDF] of the state’s top court, which overturns the appellate court’s inexplicable decision to pretend content retrieved every 15 minutes (which is as fast as Facebook can produce them) have somehow been “stored” long enough to lower constitutional protections against government eavesdropping. It did limit this sort of “search” to a ten-day window, but otherwise decided that future communications were also “stored” communications during this time frame.

The government made the same pitch to the state Supreme Court. It said 15-minute intervals were the same thing as “stored,” that nothing in any statutory text said otherwise, and — on top of all that — claimed being limited to ten-days of eavesdropping using a regular warrant was where the appellate court actually went wrong.

Facebook — and a ton of amici — disagree:

Facebook argues that neither federal nor state statutory law authorizes the use of a search warrant to compel disclosure of the contents of prospective communications. Facebook instead maintains that the challenged searches are governed by the enhanced privacy protections of the wiretap acts.

Facebook also contends that the Appellate Division’s decision contravenes the Federal and State Constitutions, which bar multiple intrusions based on a single warrant. Facebook argues as well that the CDWs are not anticipatory warrants and cannot be justified under the reasonable continuation doctrine.

[…]

Amici all support Facebook’s position. The ACLU emphasizes that “data surveillance” today is “far more invasive” than “wiretaps of old.” As a result, the ACLU urges the Court to apply wiretap-like protections, as does the NJSBA [New Jersey State Bar Association].

Microsoft and Google represent that no other jurisdiction has sought ongoing, prospective surveillance of electronic communications based on a warrant. The companies state that when law enforcement agencies outside of New Jersey have made similar requests, they have presented wiretap orders.

After a detailed discussion of both federal (Stored Communications Act) and state laws, including wiretap provisions built into both sets of electronic surveillance laws, the court puts in plain English the state’s desired outcome: the elimination of wiretap warrants (along with their safeguards and restrictions) entirely so long as the communications being targeted occur online.

Imagine instead an attempt by law enforcement to gain broad access to future electronic communications, including private messages, within 15 minutes, the earliest possible moment they are available, for 30 days — the very situation this case presents. A strict contemporaneity rule adopted before the advent of the Internet would not be a good fit to address that or other situations technology presents today. Nor would such a rule be consistent with the underlying purpose of the wiretap statutes — to protect individual privacy.

In addition, from a practical standpoint, if a strict contemporaneity approach applied, law enforcement today would never need to apply for a wiretap order to obtain future electronic communications from Facebook users’ accounts on an ongoing basis. With either a wiretap order or a CDW, the State today cannot receive information from Facebook any sooner than 15 minutes after a communication has been transmitted. In light of that reality, it would be only natural for law enforcement to apply for a CDW [Communications Data Warrant], which is easier to obtain but has fewer safeguards for individual privacy.

The State’s argument raises yet other, similar concerns. In time, as technology improves, today’s unavoidable 15-minute delay may well get shorter and shorter. The logical extension of the State’s position is that law enforcement could avoid the requirements and protections of the wiretap acts by simply asking Facebook to wait a few minutes, while data is stored, before providing electronic communications on an ongoing, future basis. That cannot be right given the underlying aim of the statutes.

The state’s arguments all fail. The intrusion the state wants the court to bless with a ruling in its favor is even more intrusive than normal wiretaps, in which irrelevant or privileged conversations cannot be legally captured or listened to by investigators. The state Supreme Court isn’t having it.

[N]early contemporaneous access to a wide array of prospective electronic communications, every 15 minutes for a full month into the future, is highly intrusive.

There are no limits to the content the State seeks here. In addition to public posts by Facebook users, the proposed orders encompass private communications of all sorts, including any messages to one’s spouse, cleric, doctor, or lawyer. Yet the CDW orders have no minimization requirements.

In essence, the State seeks the functional equivalent of a wiretap — but without the added safeguards the wiretap acts require.

Nope. Wrong. Not going to happen.

As a result, we find that a warrant based on probable cause is not enough to monitor prospective electronic communications in nearly real time, on an ongoing basis, under the constitution. The principles set forth in Berger and its progeny require the State to make a heightened showing and adhere to the additional safeguards provided in the wiretap acts. Our conclusion is grounded in the privacy protections the State Constitution guarantees.

Down goes the warrant. Up goes the precedent. And none of this should have come as a surprise to law enforcement. If you want to eavesdrop, you need more than a regular warrant. That it’s Facebook, rather than phone companies, being targeted doesn’t change the underlying constitutional equation. The state tried to pull a fast one and Facebook called it out on its bullshit. And everyone in New Jersey is better protected thanks to its refusal to comply with an obviously unlawful order.

Filed Under: 4th amendment, new jersey, police, stored communication, surveillance, warrant, wiretaps
Companies: facebook

State Court Tells Cops Getting A Warrant Two Years After An Illegal Phone Search Doesn’t Suddenly Make The Search Legal

Legal Issues

from the do-it-right-the-first-time dept

The Supreme Court’s Riley decision has been the law of the land since 2014. If cops want to search seized cell phones, they need a warrant. Nearly a decade on, cops are still violating it. The inability to follow the rules has seen evidence in this criminal case (brought to us by FourthAmendment.com) tossed twice.

The first tossing of evidence occurred in 2022, following this chain of events. From the Georgia Appeals Court decision [PDF]:

So viewed, the record shows that on November 10, 2020, police executed a search warrant for Thurston’s residence. The warrant authorized the seizure of a number of items, including “digital devices such as smartphones,” but did not authorize a search of the contents of such devices. During the execution of the warrant, a cell phone was taken from Thurston’s person and was later given to a detective, who was asked to extract digital data from the phone after being told that police had seized it pursuant to a search warrant.

The detective explained during a motion to suppress hearing that he was not limited in any way in searching the cell phone contents because he believed a valid search warrant existed. He further stated that he would not have searched the phone if he had known that the initial warrant did not authorize the search of its contents. According to the detective, there were some discussions with the assistant district attorney and/or the case investigators regarding the evidence downloaded in 2020.

Nigel Thurston was charged with a variety of crimes, with the state asserting (nearly two years later) the phone contained “unidentified evidence of […] armed robbery.”

Thurston moved to suppress the evidence. The trial court granted this motion on May 10, 2022, pointing out the obvious: the search of Thurston’s phone was unconstitutional due to the lack of a search warrant.

Sensing things weren’t going its way, the government very belatedly tried to salvage evidence that was on the verge of disappearing.

[O]n April 26, 2022, while Thurston’s motion to suppress was pending, the State applied for and obtained a warrant authorizing the search of his cell phone, and the same detective again downloaded its contents. The State acknowledges in its appellate brief that the detective used the same protocol, procedures, and forensic extraction software when he extracted data from Thurston’s cell phone in 2020 and 2022. In fact, the detective testified during the suppression hearing that extractions done in 2020 and 2022 were basically the same. Even the prosecutor admitted to the trial court that the information extracted in 2022 “mirror[ed]” that extracted in 2020.

Well, that’s not how things work, the Appeals Court says. You can’t salvage a warrantless search by acquiring a new warrant two years later. That’s what the lower court said, too, resulting in the state’s attempt to have that ruling overturned.

Based on these findings, the court granted Thurston’s second motion to suppress, concluding that “the 2022 warrant was obtained solely as an attempt to overcome the Constitutional violation which occurred in 2020, of which the State became concerned after review[ing] Defendant’s first Motion to Suppress.”

Allowing the state to get away with this would make warrant requirements irrelevant. Without the deterrent of losing illegally obtained evidence, cops could just search first and obtain warrants later. That’s what happened here and the existence of a warrant two years after the fact does nothing to make the first search any less illegal. Nor does it make the second search any more legal.

The independent discovery doctrine argument fails. The court points out the state copy-pasted most of the new warrant affidavit from the old one that did not give it permission to search the contents of Thurston’s phone. The original warrant only permitted seizure of the device. Using the same facts to acquire a new warrant permitting a more intrusive search doesn’t impress this court any more than it impressed the trial court.

And the detective can’t rely on the good faith exception to excuse the first warrantless search because… the good faith exception simply doesn’t exist in Georgia.

We likewise reject the State’s suggestion that the good faith exception should apply because the detective believed he had authority to search the cell phone in 2020. “Georgia law precludes adoption of the . . . ‘good-faith exception’ to the exclusionary rule as part of the jurisprudence of Georgia.” Gary v. State, 262 Ga. 573, 574 (422 SE2d 426) (1992). Despite the State’s suggestion, this Court is not at liberty to overrule Supreme Court of Georgia precedent.

And away goes the evidence for a second time. The Appeals Court says the same thing the lower court did: you can’t undo a constitutional violation by trying to be a bit more constitutional two years after the violation. We’ll see if the government learns from this experience. If nothing else, it might want to put together some remedial constitutional law classes for its investigators and prosecutors.

Filed Under: 4th amendment, evidence, georgia, nigel thurston, riley, search, warrant

Court Tosses Phone Evidence After First Warrant Was Too Vague And Second Warrant Was Too Late

Legal Issues

from the reasonable-AND-timely dept

For searches to be compliant with the Constitution, their underlying warrants need to be just as compliant. Warrants have been required for cell phone searches since 2014, thanks to the Supreme Court’s Riley decision.

Nearly a decade on, and the government is still suffering periodic bouts of unreasonableness when performing phone searches. We recently covered a case where evidence was suppressed because the FBI took more than three years to crack a phone and performed a search anyway, despite agreeing to time limits placed on the original warrant by the magistrate judge.

This case, coming to us via FourthAmendment.com, involves two problematic warrants, both of which combine to hand the government a loss in the evidence department. The decision [PDF], handed down by a New York trial court, says the government failed twice when handling searches related to a domestic dispute between Naquan Smith and his girlfriend — one that allegedly involved Smith brandishing a gun.

Smith’s girlfriend filed domestic violence complaints following two consecutive incidents, occurring November 28 and 29 of 2021. An additional report from a neighbor reporting a man carrying a gun led to the recovery of a gun at a field near the apartment Smith resided in. During the course of his arrest, Smith’s iPhone was seized. A search warrant was obtained four days after Smith’s arrest on November 29.

But this warrant was pretty much a worthless piece of paper and was successfully challenged by Smith’s lawyer following his indictment.

In a decision dated July 20, 2022, the court found the warrant application failed to provide case-specific facts to establish reasonable cause to believe that Smith used the Iphone to communicate about the incident and that relevant evidence would be found on the iPhone. The affidavit contained no allegation that anyone observed Smith using his cell phone before, during or after the time of the incidents. Rather than providing case-specific facts, the supporting affidavit merely offered generalized conclusions that individuals who engage in domestic violence and illegally possess firearms use cell phones to communicate regarding past and future criminal actions. Thus, the search warrant application lacked the necessary support for a Fourth Amendment privacy intrusion.

Somehow that bit of legal fiction was approved by a judge. While there are criminal acts that involve regular phone communications, domestic violence generally isn’t one of them. And the apparent ditching of the gun suggested Smith was trying to distance himself from physical evidence, so it would seem unlikely he would have confided in anyone else about this weapon.

The first search warrant was executed on December 2, 2021. A year later — and six months after the first search warrant was successfully challenged in court — the investigator applied for a second search warrant. And somehow, this one was also granted.

On December 3, 2022, this court was presented with a new search warrant application for the Iphone, supported by an affidavit from the same officer, who by then had achieved the rank of detective. The detective repeated the background information that was supplied in the first application, but supplemented it with additional details, including a description of text message exchanges between the complainant and Smith the day of the incident, and also between the defendant’s brother and Smith as the police were attempting to apprehend them. The People represented that no fruits of the first search warrant application were utilized in the People’s application for the second search warrant.

That last assertion seems suspect, to say the least. The text messages the investigator claimed weren’t derived from the first unconstitutional search were used to shore up the rest of the shaky assertions that were seemingly copy-pasted from the original (deficient) warrant.

The court says the second warrant was valid and provided probable cause for a search. But that’s not the end of the discussion. There’s the matter of timeliness. And that’s where the second warrant falls apart. The court quotes Second Circuit precedent, derived from a case involving a seized tablet.

The Second Circuit employs a four factor test to discern whether the application is timely: (1) the length of time before seeking a search warrant; (2) the importance of the seized property to the defendant; (3) whether the defendant had a reduced property interest in the seized item; and (4) the strength of the prosecution’s justification for the delay. United States v. Smith, 967 F3d 198 (2d Cir. 2020). Federal courts have invalidated search warrant applications where the prosecution delayed for merely a period of days.

Almost every factor is in play here, but the court emphasizes the second prong: a phone is even more crucial to day-to-day existence than a tablet computer.

At issue here is a cell phone, arguably even more valuable to the owner because of its greater inter functionality. This court concludes that although probable cause for the Iphone searches was made out in the December, 2022 application, the search then was not in accord with the Fourth Amendment. Under the four factor test the Second Circuit articulated, the People’s unreasonable delay in seeking this application outweighs other considerations.

But also important is the justification of any delayed searches by the state. Nothing was offered here.

The People’s search warrant application ran afoul of the legislative intent that the defense have access to all discoverable material as soon as possible. The People served and filed their certificate of readiness in this case on April 23, 2022. On July 20, 2022, the court issued its decision granting the defendant’s motion to controvert the first search warrant. On September 29, 2022, with no change in the parties’ respective positions, the court directed them to be ready for hearings and trial on November 10, 2022. The People offer no cognizable explanation for why they waited until after the original hearing and trial date was set to resurrect their search for the target items, or why there was any need to do so ex parte.

It runs counter to the legislative intent to permit the People to declare their readiness, yet continue to obtain investigative material for their use at trial from the defendants without his knowledge. The court must assume that the People filed their certificate of readiness in good faith, and that no information derived from these searches would be necessary to try the defendant.

Notice also the “ex parte.” The government sought a search warrant without notifying the defense of its intention to do so by using the judicial backdoor. Only after it had performed this search did it bother to inform the defense. That’s trial by ambush. And, fortunately for the defendant, the court has tossed the evidence derived from this second, secret, and long-delayed warrant.

It’s not like there isn’t any legal guidance or precedent in cases like these. The New York trial court quoted plenty in its brief, but pointed, rejection of the second warrant. But apparently the side with all the law on it just doesn’t much care for laws and legal precedent that might dissuade it from doing what it wants.

Filed Under: 2nd circuit, 4th amendment, naquan smith, probable cause, riley, timeliness, warrant

Cops Raid Swedish VPN Provider Only To Find Out There’s No ‘There’ There

Privacy

from the oh-no-the-things-aren't-even-there dept

There are few things I enjoy writing about more than cops who feel waving around a piece of paper will ensure they can get what they want. I’ve handled a few of these stories before, most of them centered on Signal, the little messaging service that could — one that does not collect user data and would rather exit the marketplace than subject itself to encryption-breaking government mandates.

So, it always gives me pleasure to learn that cops armed with court orders approached a privacy oriented tech company only to find out the stuff they wanted didn’t actually exist at the place they searched. Due diligence is a thing, investigators. Your boilerplate is obviously false if you’ve claimed (based on “training and expertise“) that the place you want to search contains the information you wish to obtain.

That’s the case here. A Swedish VPN provider was raided by local law enforcement, but was unable to produce any of the information officers were searching for… something officers might have realized prior to the search if they’d bothered to read the terms of service. Here’s Michael Kan with the details for PC World:

The company today reported that Swedish police had issued a search warrant two days earlier to investigate Mullvad VPN’s office in Gothenburg, Sweden. “They intended to seize computers with customer data,” Mullvad said.

However, Swedish police left empty-handed. It looks like Mullvad’s own lawyers stepped in and pointed out that the company maintains a strict no-logging policy on customer data. This means the VPN service will abstain from collecting a subscriber’s IP address, web traffic, and connection timestamps, in an effort to protect user privacy. (It’s also why Mullvad VPN is among our most highly ranked VPN services.)

If the cops had run a search of Mullvad’s website before running a physical search of its offices, it might have discovered the stuff they swore would be found there actually wouldn’t be found on Mullvad’s premises. It’s not like it’s that difficult to find:

There is a law to collect user data in India and other countries. Does this affect Mullvad?

Mullvad does not collect user data. Mullvad is based in Sweden and none of the Swedish regulations (https://mullvad.net/help/swedish-legislation/) can force VPN providers to secretly collect traffic-related data. We also have no servers, infrastructure or staff in India.

In other words, bring all the law you want, but in the end:

Raid if you want. But you can’t have what providers like Mullvad are unwilling to collect. In the end, you’ve done nothing more than make some noise and embarrass yourself. It’s all there in the Mullvad FAQ, including the fact that Mullvad performs no logging of user activity. If your investigation leads you to providers like Mullvad, it’s a dead end. Look elsewhere.

This policy isn’t in place because Mullvad wants to protect criminals. It’s in place because people all over the world deserve protection from government overreach. That criminals may benefit from policies like these doesn’t make these policies bad, it just makes it more difficult for abusive governments to engage in third-party-enabled surveillance.

And the long history here shows Mullvad isn’t a home for criminals. It’s just an extremely well-run VPN provider:

“Mullvad has been operating our VPN service for over 14 years. This is the first time our offices have been visited with a search warrant,” the company added.

You know who is in the best position to stop local law enforcement officers from embarrassing themselves? LOCAL LAW ENFORCEMENT. Maybe read the ToS and FAQ at the site you’re planning to raid before you approach a court with a bunch of assumptions and half-truths to secure a fruitless warrant demanding companies turn over information they don’t retain. Doing otherwise means looking bad at your job (at best) and authoritarian (at worst). If cops want to regain the respect and trust they swear they’ve always enjoyed in the past, the first thing they can do is actually do the investigative parts of investigations. That way they won’t look ridiculous when they go marching out of a tech company’s offices with fuck all in their hands.

Filed Under: logs, privace, sweden, vpn, warrant
Companies: mullvad

Vermont’s Supreme Court: Obtaining Real Time Cell Site Location Data Requires A Warrant

Privacy

from the start-breaking-out-the-boilerplate,-boys dept

In 2018, the Supreme Court of the United States overrode the Third Party Doctrine to declare cell site location info (CSLI) off-limits without a warrant. Recognizing the fact that ubiquitous cell phone use was generating reams of data daily that would allow law enforcement to engage in long-term tracking of people’s movements, the Supreme Court said the Third Party Doctrine didn’t cover this third-party data, at least not as presented in this case.

But the findings were limited. SCOTUS had nothing to say about real-time tracking with CSLI. It offered no opinion about wardriving with Stingray devices to find suspects. And it didn’t address shoulder-surfing law enforcement liaisons at cell service providers to use cell tower pings to locate and track suspects.

But the baseline the US Supreme Court established has had a butterfly effect. CSLI is no longer considered nothing more than a third-party record — something voluntarily shared with cell providers that has no expectation of privacy.

State courts have referenced the Carpenter decision while coming to their own, more restrictive conclusions. The US Constitution — like the Carpenter ruling — is only a baseline. States (and state courts) are free to establish higher privacy protections for their residents via their own constitutions and court decisions.

In early 2019, the top court in Massachusetts instituted a warrant requirement for real-time CSLI data. Three years later, the top court in Kentucky did the same thing.

Now it’s Vermont’s turn. A recent ruling [PDF] from the state’s Supreme Court says cops need warrants if they want access to real-time CSLI. (h/t FourthAmendment.com)

In December 2018, Vermont investigators approached AT&T in hopes of locating a shooting suspect. The first attempt to track them down using CSLI failed.

The lead detective contacted AT&T’s law enforcement compliance center and served a subpoena request. In support of the exigent request, the officer indicated that there had been a bar fight, an active shooter, a victim who was unfamiliar with the suspect, and that the shooter might be unreasonable or “in some sort of mental state” and in possession of a firearm. AT&T complied with the request but initially informed police that defendant’s phone was turned off and, as a result, it had no information about the phone’s location.

After this failure, the investigators sought a warrant for the phone’s historical CSLI. This was obtained shortly before 5 p.m. on December 29, 2018. But before it could be served to AT&T, this happened:

Approximately ninety minutes after the warrant issued but before it was served on AT&T, AT&T notified police that defendant’s phone had been turned back on and that a subsequent ping had located defendant’s phone in West Springfield, Massachusetts. Vermont police obtained a warrant for defendant’s arrest. They alerted Springfield police that a homicide suspect’s cellphone had been pinged as being located within several feet from a motel at a particular address. A second ping placed the suspect near a particular restaurant on a specific street. A police officer spotted a person fitting the suspect’s description and then received information that a third ping placed the suspect in the area where he was observed. Defendant was arrested shortly thereafter near a motel where he was staying and charged with first-degree murder.

The lower court said this was not a constitutional violation. And even if it was, exigent circumstances (the search for a suspected murderer) justified any rights violations.

The state Supreme Court says otherwise. Analyzing the case, it notes the US Supreme Court’s Carpenter decision does not specifically address real-time CSLI. Given that fact, the Vermont court says the suppression motion must be analyzed under the state’s constitution. And under that set of rights, real-time CSLI cannot be obtained without a warrant.

Quoting a handful of state court decisions (including the Massachusetts and Kentucky rulings noted earlier in this post) that have reached this same conclusion, the Vermont Supreme Court recognizes an expectation of privacy in real-time cell site location info. The key here is the word “reasonable.”

We agree that individuals do not reasonably expect that by using their phone, they will be sharing their real-time location information with police. They do not expect their cellphone to act as “a hidden tracking device that can be activated by law enforcement at any moment, subject only to the constraints of whether law enforcement knows the phone number and whether the cellphone is turned on.” The fact that police can now, through real-time CSLI, obtain “near perfect surveillance of its user” and “access to a category of information otherwise unknowable,” Almonor, 120 N.E.3d at 1194-95 (quotations omitted), does not mean they should be allowed to do so without judicial oversight. We must guard against allowing technological advances to result in fewer privacy rights.

The court says allowing the government to obtain real-time location data without a warrant would give law enforcement permission to “invade individuals’ most private and closely-held constitutionally protected activities.”

Put more simply:

A ping is a search that requires a warrant…

That’s the new baseline in Vermont. In this case, it doesn’t do much for the defendant. The state’s top court says exigent circumstances existed and justified the bypassing of constitutional protections to find a suspected shooter, still in possession of a weapon and possibly suffering some sort of mental health breakdown.

But none of that changes the baseline. Warrant exceptions will always exist. And a warrant requirement forces the government to justify its decision to bypass the requirement, rather than simply show up and claim no precedent put officers on notice a warrant might be needed. Vermont’s a bit more insulated from law enforcement overreach following this ruling and, even if it doesn’t help the defendant, it’s a win for the rest of the state’s residents.

Filed Under: 4th amendment, cell site location data, csli, real time tracking, stingray, vermont, warrant

FBI Latest To Admit To Bypassing Warrant Requirements By Purchasing Location Info From Data Brokers

Privacy

from the do-whatever-the-fuck dept

Well… fuck the Supreme Court, I guess.

That’s how law enforcement is working these days, bypassing the restraints of the Carpenter decision to do what they want, when they want, with whatever location data they can purchase from private third-party brokers.

It’s the “third party” that counts. It’s also the narrower aspects of the Supreme Court’s Carpenter decision, which limited the warrant requirement to obtaining “long term” (not specifically defined in the decision) location data from cell service providers.

The implications of the decision suggested finding alternate routes for long-term tracking of US citizens via cell phone location data was off limits without a warrant. But specificity matters and this decision just didn’t have it. Thanks to the limitations of this ruling, federal agencies are violating the spirit of the decision en masse because the justices failed to consider the existence of third-party data brokers which hoover up location data from popular apps and sell access to this data to whoever wants it: advertisers, marketers, CBP, ICE, the US Secret Service, the IRS, state prisons, etc.

The latest to admit to bypassing the implications of Supreme Court precedent is (to the surprise of nobody) the FBI. And that revelation comes from an expected source: Senator Ron Wyden, who has always made a point of staying on top of rights violations and government surveillance overreach. This is from Dell Cameron’s latest article for Wired, which covers the FBI’s admission it has joined its fed counterparts in paying private companies to access to massive amounts of location data.

The disclosure came today during a US Senate hearing on global threats attended by five of the nation’s intelligence chiefs. Senator Ron Wyden, an Oregon Democrat, put the question of the bureau’s use of commercial data to its director, Christopher Wray: “Does the FBI purchase US phone-geolocation information?” Wray said his agency was not currently doing so, but he acknowledged that it had in the past. He also limited his response to data companies gathered specifically for advertising purposes. 

FBI Director Wray offered more details, albeit not actual details contained in actual FBI paperwork. BUT DETAILS NONETHELESS!

“To my knowledge, we do not currently purchase commercial database information that includes location data derived from internet advertising,” Wray said. “I understand that we previously—as in the past—purchased some such information for a specific national security pilot project. But that’s not been active for some time.” He added that the bureau now relies on a “court-authorized process” to obtain location data from companies. 

Well, then I assume the FBI will be presenting the paper trail for this “court-authorized process” immediately. And it will presumably be presenting Senator Wyden (and the general public by extension) with contractual information about its past purchases and its termination of said contracts in the near future.

Look, I know I sound patently ridiculous. But the FBI director swore before God and country the g-men were on the up and up. What better way to demonstrate that then by… you know… actually demonstrating that.

Without supporting documentation, all we have are Chris Wray’s (untrustworthy) words that the FBI may have misbehaved in the past but is all good and constitutional at this particular point in its timeline. And if there’s anything the FBI has demonstrated over the years, it’s that when it says everything is above-board, everything absolutely isn’t.

The FBI is known for backdoor searches of NSA collections, encouraging civil rights leaders to kill themselves, engaging in massive amounts of domestic surveillance abuse, and refusing — for years now — to address cell phone encryption with anything approaching good faith or honesty. For it to claim its abuses are behind it when it comes to patronizing data brokers, the FBI should absolutely not be trusted until it can publicly demonstrate — with supporting documents — that it can be. Until we hear otherwise, assume the FBI is still doing the thing it just told Senator Ron Wyden it isn’t doing.

Filed Under: 3rd party data, 4th amendment, christopher wray, data, fbi, ron wyden, warrant

Court: Riley’s ‘Get A Warrant’ Cell Phone Search Requirement Means Get A *Good* Warrant

Legal Issues

from the do-better dept

In 2015, the Supreme Court finally addressed reality: people were carrying around computers in their pockets capable of accessing, storing, and maintaining far more information than could be expected to be found in their physical houses.

The government sought to compare cell phones to pocket contents or whatever might be found in the trunk of a car during a roadside search. The Supreme Court shut this argument down, pointing to the ubiquity of cell phone use en route to erecting a warrant requirement for cell phone searches.

While there are exceptions, the rule holds true: if cops want to search a cell phone, they need a warrant. But, as the Supreme Court of Georgia points out, not just any warrant will do. The warrant requirement also says specifics are needed. The Fourth Amendment forbids “general warrants,” the sort of thing oft abused by our former landlords, the British government.

And that’s reiterated here, in a decision [PDF] brought to us by FourthAmendment.com. Seeking a warrant? Good. Ignoring the relevant facts and copy-pasting a bunch of boilerplate to obtain this warrant? Well, that’s bad.

Defendant Roceam Wilson was arrested following the killing of Bradly Jordan, a pest control worker. After a brief investigation, officers determined a “black male” driving a teal green “Ford Aerostar van” was the best suspect. After consulting some ALPR (automated license plate reader) data, the cops decided Wilson and his van fit the description. A traffic stop was conducted, Wilson was arrested, and his van was impounded. A warrant was obtained to search the van, which resulted in the seizure of two cell phones.

That’s where the problems begin. An investigator applied for a warrant to perform forensic searches of the recovered phones. The warrant application contained a mix of relevant facts and boilerplate. It also included the assertion that investigators sought to access pretty much everything on the phones under the theory that any and everything recovered would be “evidence” of the alleged crime.

The trial court, after a challenge by Wilson, examined the warrant applications and found that they did not have enough particularity to be valid and ruled the evidence obtained from the phones should be suppressed. The state appealed.

Too bad, says the Georgia Supreme Court. These warrants were “general” in the worst and historical sense of the word. Nothing limited the search and investigators’ speculation that searching everything would result in finding evidence linking Wilson to the crime is exactly the sort of the thing the Fourth Amendment prohibits. Of all things, the state decided the boilerplate copypasta would relocate the warrant to its new home in Constitutional Land. The court disagrees.

As the State acknowledges, the search warrant broadly authorizes the seizure of “any and all stored electronic information” on the phones, “including but not limited to” various kinds of electronic information. The State points to the preprinted form language following this sweeping authorization as “limiting” in nature. However, that language clearly states that “[t]he foregoing described property”—that is, “any and all stored electronic information” on the phones—“constitutes evidence connected with the crimes.” This language cannot plausibly be read, as the State suggests, to limit the otherwise limitless authorization to search for and seize any and all data that can be found on Wilson’s cell phones.

The court also denies the state’s “good faith” request. Good faith means relying on a facially-valid search warrant. This ain’t it. The suppression order is granted.

One of the concurrences (there are three of them, all dealing with separate legal issues) references the US Supreme Court’s Riley decision to reiterate that the warrant requirement means obtaining a valid warrant supported by particularity, rather than just any warrant authorizing whatever.

Riley’s “get a warrant” holding was more or less a mic drop, and the Court has yet to return for an encore. But in the meantime, people haven’t stopped using cell phones or committing crimes (would that it were so!). And cell-phone technology keeps advancing, adding both to the value of cell phones for law enforcement seeking to combat crime, and to the privacy consequences the Court worried about. The Court may say more someday about just how the Fourth Amendment applies to and limits warrants for cell-phone data, but until then, our courts must grapple with these questions, in light of Riley, ourselves.

Today’s decision is a start. The Court holds that a warrant to search and seize “any and all” data stored on a cell phone, not even limited to evidence of the crime at issue, with no specificity about how any of the data could be used, violates the Fourth Amendment’s particularity requirement.

There was no particularity here. The boilerplate (despite the checklist) basically allowed investigators to acquire “any and all” information found on the phone. The concurrence compares this to searches of physical places and explains why cell phone search warrants without limits or guardrails are an obvious Fourth Amendment violation.

Our rejection of that basis for demonstrating particularity is rooted in the unique nature of modern cell phones, including their “immense” capacity to store information of all kinds—analogous to cramming the entirety of one’s life into a small slab of plastic, metal, glass, and silicon. When we view cell phones through that lens, the closest analogy I can come up with is a warrant to search a house and seize “any and all atoms of matter stored within, including but not limited to matter in solid, liquid, and gaseous states.” I suppose an officer would know what to search for and seize based on that description, too. But both that hypothetical warrant and its digital equivalent here authorize a forbidden general search, and our decision today rightly concludes as much.

Then there’s the problem with assuming the cell phones would contain evidence of this particular crime. The concurrence says this is a step too far as well.

[i]t is not so easy to square that permissive view of probable cause for cell-phone search warrants with Riley. First return to the cell-phones-as-houses analogy: An officer might also reasonably say that in her experience, criminals often store evidence of their crimes—cash, weapons, drug paraphernalia, and more—where they live. Yet “[p]robable cause to believe that a man has committed a crime on the street does not necessarily give rise to probable cause to search his home.”

[…]

Sure, cell phones are not in fact houses, so the analysis might differ in some particulars. But after Riley, it is not clear why cell phones would not be treated in similar fashion. If not—if this generic “criminals use cell phones, too” logic is enough for probable cause to get a warrant to search a suspect’s cell phone—it is hard to imagine a case in which police cannot get that warrant.

That’s part of the problem, too. Cops assume these vast repositories of data and communications always host evidence of criminal activity, seemingly just because criminals are also known to use cell phones. That’s deliberately stunted thinking designed to allow cops to perform expansive searches of any electronics owned by or found on criminal suspects. This rejection of that line of thinking recalls one of the most intellectually honest appraisals of cop thinking delivered by a court, one written by Chief Justice Brian Quinn of Texas Court of Appeals:

A logical reasoning sequence based upon some “training and experience” — because drug traffickers have been seen breathing, then breathing is an indicia of drug trafficking. Because they normally have two hands, then having two hands is an indicia of drug smuggling. Silly — maybe, but one can wonder if that is the direction we are heading. Whether it be driving a clean vehicle, or looking at a peace officer, or looking away from a peace officer, or a young person driving a newer vehicle, or someone driving in a car with meal wrappers, or someone driving carefully, or driving on an interstate, most anything can be considered as indicia of drug trafficking to law enforcement personnel.

Maybe this is because drug smugglers just happen to be human beings and being such, they tend to engage in the same innocuous acts in which law abiding citizens engage. See Gonzalez-Galindo v. State, 306 S.W.3d at 896 (observing that “[c]riminals come in all makes and colors. Some have hair, some do not. Some are men, some are not. Some drive cars, some do not. Some wear suits, some do not. Some have baseball caps, some do not. Some want attention, some do not. Some have nice cars, some do not. Some eat spaghetti, some do not. And, sometimes, some even engage in innocent activity.”).

That’s the reality cops want. Fortunately, the Georgia Supreme Court isn’t interested in allowing baseless speculation and overly-broad warrants to determine the contours of phone searches. The Riley decision said “get a warrant.” The unspoken message — vocalized here by the court and four concurrences — is loud and clear in Georgia: get a good warrant.

Filed Under: 4th amendment, georgia, privacy, riley, roceam wilson, warrant

So Much For The 4th: Ring Allows Cops To Acquire Recordings Of Non-Suspect’s Home And Business

Privacy

from the welcome-to-the-cloud! dept

Amazon’s doorbell surveillance acquisition, Ring, has spent most of its time, money, and energy courting cops. If law enforcement agencies are willing to forgo a little dignity and autonomy, the company will given them cameras free of charge, allowing cops to expand their surveillance capabilities by outfitting homes with recording devices.

The free cameras come with an implicit request: when the cops come knocking, surely you, Joe Consumer Goods, won’t reject their requests for footage from your FREE CAMERA. And, sure, Ring made it a bit more difficult for cops to acquire footage without warrants after receiving a considerable amount of backlash, but the fact remains anything stored in the cloud (the default option presented to Ring users) can be obtained without the explicit permission or knowledge of the people who supposedly own these cameras.

This fact remains true even if the person’s cameras weren’t the end result of law enforcement largesse. As Alfred Ng reports for Politico, a Ring customer found out the hard way that rejecting overbroad requests for camera footage just means cops will ask Ring to hand over what you, the camera owner, refuse to give them access to.

While investigating some drug activity, Hamilton, Ohio law enforcement officers asked resident Michael Larkin if they could have access to some of his doorbell footage. Larkin obliged.

The police said they were conducting a drug-related investigation on a neighbor, and they wanted videos of “suspicious activity” between 5 and 7 p.m. one night in October. Larkin cooperated, and sent clips of a car that drove by his Ring camera more than 12 times in that time frame.

Larkin, a local business owner, figured that would be the end of it. But the police were just getting warmed up. They asked for footage covering an entire day.

“He sent one asking for all the footage from October 25,” Larkin said. That was a far bigger ask, he said. Larkin told POLITICO that he has five cameras surrounding his house, which record in 5 to 15 second bursts whenever they’re activated. He also has three cameras inside his house, as well as 13 cameras inside the store that he owns, which is nowhere near his home. All of these cameras are connected to his Ring account.

Larkin rejected this request, mainly for logistical reasons. Every recorded clip (even if only seconds long) could take as much as a minute to download and send to the PD. And, obviously, “all footage” would include footage recording inside his house, as well as at his business — neither of which had any connection to the crime being investigated.

Rather than recognize Larkin’s rejection of this overbroad request as legitimate, the Hamilton police department decided to cut him out of the equation. Investigators secured a warrant to, in essence, search Larkin’s home and business. But it didn’t serve the warrant to him. It served the warrant to Ring.

The warrant included all five of his outdoor cameras, and also added a sixth camera that was inside his house, as well as any videos from cameras associated with his account, which would include the cameras in his store. It would include footage recorded from cameras he had in his living room and bedroom, as well as the 13 cameras he had installed at his store associated with his account.

All the cops had to show the court was that it was likely Ring had this footage on its premises. And Ring did have them, because recordings were automatically backed up to its cloud servers. It’s not clear whether or not Ring received an affidavit in support of the (pretty fucking bare bones) warrant [PDF] given the green light by a county judge Daniel Haughey.

Whatever the cops said to convince the judge that footage from inside a non-suspect’s home and business was relevant to a drug investigation involving other suspects entirely apparently was good enough for Ring. It turned everything over without a fight.

Ring’s spokesperson, Brendan Daley, says the company “reviews” all warrants served to it by law enforcement to ensure the requests are not overbroad. That being said, he also said this:

In Larkin’s case, Daley confirmed to POLITICO that Ring reviewed Larkin’s warrant, and provided a full response to the legal request: It sent all the footage police asked for.

The PD has refused to comment on the warrant or this case, citing the ever-popular “active investigation” as the reason for its refusal to discuss its overly broad request for footage it shouldn’t have ever requested. Its spokesperson, Brian Ungerbuehler, did say this, however:

He added that the department did not obtain any video footage from inside the house.

Lest anyone read this as evidence of the department’s restraint and better judgment, the only reason the department did not obtain this footage was because this footage did not exist.

Larkin said it was fortunate his indoor camera listed in the request was unplugged for the timeframe the warrant specified, while his living room and bedroom cameras are only activated when his home alarm system is active.

The department asked for it. It never thought that it shouldn’t. And the only reason it didn’t get to peek into Larkin’s home life is because the footage was never created. This absolves the PD of nothing. And it definitely doesn’t let Ring off the hook for deciding a one-page warrant that said nothing more than the PD was aware Ring runs a cloud storage service was all it needed to turn over all footage from multiple cameras.

Larkin said no when law enforcement asked for too much. The cops knew they couldn’t talk a judge into entering Larkin’s home to seize cameras and footage. But they did know Ring might help them out. So they bypassed the person whose recordings were actually being seized, making a complete mockery of the Fourth Amendment and any other privacy laws meant to protect consumers. And they did it all with the assistance of a company that has spent millions cozying up to cops and now wants to portray itself as a protector of its customers by claiming (without citing details) it performs a thorough review of law enforcement demands for recordings.

Bullshit. It’s all bullshit. No one involved in this debacle cares about Ring customers or their rights. Not the cops. Not the camera company. And, apparently, not even Judge Daniel Haughey, who was expected to be the adult in the room.

Filed Under: 4th amendment, hamilton, hamilton pd, home security, ohio, police, ring, ring cameras, surveillance, warrant
Companies: amazon, ring

Afroman Turns Security Footage Of Bullshit Raid Of His Home Into Viral Rap Video Hit

Culture

from the every-so-often,-the-police-fuck-themselves dept

Rap artist Afroman’s biggest hit is “Because I Got High,” a track that details how his best intentions were undone by his weed intake. So, one might reasonably suspect marijuana might be found at his residence. But there’s very little that’s reasonable about what happened to Afroman four months ago.

Earlier this year, he became yet another statistic: a black person whose house was raided by heavily armed officers, all over the supposed existence of drugs and paraphernalia. But it’s not just about the raid. It’s about the damage done, which goes beyond the door officers destroyed en route to finding almost nothing but some loose cash they decided to keep.

After the Adams County Sheriff’s Office conducted a raid on his Ohio property in 2022 with a warrant for drug trafficking and kidnapping, Afroman, real name Joseph Foreman, told VICE he lost out on gigs and felt angry and powerless. He channeled that energy into a pair of songs, “Lemon Pound Cake” and “Will You Help Me Repair My Door,” with music videos that feature actual footage of deputies smashing their way onto his property, rifling through his belongings, and checking out the baked goods sitting on his counter before they cut power to his personal security cameras altogether. Clips from Afroman’s music videos have since gone viral on TikTok. He was never charged with a crime, and maintains that the sheriff’s department stole $400 of his money that they seized during the raid.

Fortunately for Afroman, his cameras were rolling. From that unjustified invasion of privacy, he managed to salvage a viral video, which racked up more than a million views in nine days.

There are few things more satisfying then watching a bunch of dudes dressed for war blunder around a house with increasing frustration as they fail to discover any evidence of the alleged criminal acts they swore were happening in order to secure the search warrant.

Speaking of the search warrant, it’s wild. It not only accuses Afroman of drug trafficking, it claims he’s suspected of kidnapping.

I don’t think the Adams County Sheriff’s Office actually believes Afroman kidnapped anyone. This looks like someone got careless cutting and pasting boilerplate and forgot to delete the part that’s unrelated to the drug allegations the swearing officer pretended he had probable cause to pursue.

This raid is like countless others that occur daily across the nation. And it contains the same casual abuses officers engage in just as regularly. Like the decision to pocket the cash found in the pocket of one of Afroman’s coats… just because. Worse, the Sheriff’s Office pretended $400 of this money never existed, despite being caught on camera taking it. Here’s what Afroman had to say about that in his interview with Vice:

So, that precinct could not investigate itself, so they had a neighboring precinct do it. Now the neighboring precinct is saying it’s just a miscount, but it’s funny how somebody stole or they “miscounted” exactly $400. 

Then there’s another common action taken by law enforcement officers during raids of private property: the controlling of the narrative by eliminating any recordings of their actions they can’t directly control. The officers eventually located Afroman’s home security cameras and disconnected them, leaving part of this search unrecorded. Here’s Afroman again, pointing out the obvious: unplugging cameras just makes cops look guilty as fuck.

According to America, police officers are the good guys. I figured a good guy would want to leave the camera going so he can verify the fact that he is a good guy. I know burglars and crooks and criminals and murderers, they spray paint the cameras. They want to take them down because they don’t want you to see who they are and what they’re doing. So I’m wondering, why is the good guy disconnecting the camera, taking away the verification that he is good?

The footage shows officers rifling through books of CDs, peering into the back of closets, struggling to maintain control of the entrance gate, drawing down on a cake already safely contained in a glass container, and otherwise doing a bunch of cop stuff. What it doesn’t show is the contraband found by officers looking for evidence of drug trafficking and kidnapping: a couple of joints, some (legal) hemp, and a vape pen. Not exactly the haul they thought they’d find. And not enough to sustain criminal charges since medical marijuana is legal in the state and recreational use decriminalized in Cincinnati, where Afroman resides.

Fortunately, there’s a permanent records of these cops and their actions. And it’s set to music, which makes it that much more enjoyable. What’s captured here isn’t an aberration: it’s standard operating procedure for cops all over the nation. It’s the casual abuse of power that’s rarely, if ever, punished by the agencies employing these sad excuses for public servants.

Filed Under: 4th amendment, adams county, adams county sheriff's department, afroman, drugs, ohio, search warrant, warrant, will you help me repair my gate

Appeals Court Says St. Louis County’s Warrantless Arrests Are Likely Unconstitutional… But Somehow Still Pretty Much OK

Legal Issues

from the if-arresting-you-is-wrong,-I-don't-want-to-be-right dept

Law enforcement needs probable cause to effect arrests and engage in searches. In most cases, a warrant is also required. It’s a bit of paperwork that allows the government to bypass Fourth Amendment protections to serve the greater good, i.e., the invasion of privacy (a search) or the removal of personal freedom (an arrest).

For far too many cops, obtaining a warrant is a hassle they’d rather not deal with, even if it’s rarely an actual hassle. So, they find ways to route around this rights-related roadblock. Drug dogs are called to scenes so an animal can tell cops it’s ok to engage in a search. Pretextual stops use real or perceived traffic infractions as fishing licenses for bigger criminal charges. Exigent circumstances or officer safety concerns are other Constitution-evading outlets for cops who simply can’t fathom having to pass some boilerplate past a judge to stay on the right side of the Constitution.

Probable cause is the baseline standard. Warrants are a requirement. The Eight Circuit Appeals Court, recognizing the baseline standard, has released a confusing and confounding decision [PDF] that says warrantless arrests are both constitutional and unconstitutional. It all depends on things the court can’t clearly define, but affirms it definitely knows a Fourth Amendment violation when it sees one. (h/t Short Circuit)

The issue at the center of the case is the St. Louis County PD’s “wanteds” system. Via this system, officers can issue electronic notices notifying other officers of criminal suspects to be arrested. These notices are called “wanteds.”

This is, importantly, not the same thing as securing a warrant for arrest by presenting probable cause to a magistrate. Instead, officers are utilizing their own discretion to issue arrest notices while claiming it’s the same thing as probable cause. The process is simple, subjected to zero oversight, and contains massive potential for abuse.

To issue a Wanted, an SLCPD officer, without any judicial oversight, concludes that probable cause exists to believe that the subject “has committed a crime.” Armed with this independent conclusion, the officer notifies a computer clerk (known as a “CARE operator”), who enters the Wanted in the Regional Justice Information System (“REJIS”) database. To have the Wanted entered into the system, the SLCPD officer need only identify the target’s name, physical descriptors, personal data, address, charges being investigated, and the issuing officer’s name and contact information. If all is in order, the Wanted is entered into the REJIS database. The CARE operator is wholly without information to assess the existence of probable cause to issue the Wanted.

Officers can, of course, arrest people without securing a warrant. But that usually only happens when an officer is witnessing a crime being committed, like when a search turns up contraband or someone makes the crucial mistake of engaging in criminal acts while being observed by a cop.

The “wanteds” system used by St. Louis PD officers isn’t even close to the same thing, as the Eighth Circuit notes. The defendants argued it was pretty much the same thing. According to the cops, the determinations expressed by officers when feeding names into the database are the equivalent of probable cause and any resulting warrantless arrest is subject to the “collective knowledge” doctrine, which allows cops who didn’t witness criminal acts to arrest someone for criminal activity witnessed by others.

The court says it’s a false equivalent. One officer’s subjective claims do not add up to probable cause for an arrest.

The evidence here belies any claim that the Officers were acting as part of a team involved in an investigation. Rather, the Wanteds rested on a single officer’s probable cause determination and authorized any officer to arrest the suspect. The evidence establishes that seizures pursuant to Wanteds occur following routine traffic stops conducted by officers who, by chance, search the Wanteds database (as demonstrated by Furlow) and when an officer happens to check for Wanteds in the area (as seems to be the case in Torres’ seizure). Because the Wanteds System routinely imputes a single officer’s finding of probable cause to officers potentially anywhere in the country—without any showing of a joint investigation—this Wanteds System cannot be saved under the collective knowledge doctrine.

The court also refuses to humor the SLCPD’s other attempts to salvage the entirety of the “Wanteds” program. Getting a warrant is simply not that difficult and this attempt to bypass the judicial system is what’s unwarranted.

The SLCPD’s expression of doubt that a neutral magistrate will issue an arrest warrant unless officers speak with the suspect prior to making the warrant application defies logic. The only requirements for issuance of an arrest warrant are: (1) probable cause to believe a crime has been or is being committed, and (2) probable cause to believe the person to be arrested is the person who committed the crime. It necessarily follows that if a neutral magistrate declines to issue a warrant, then the officer’s determination of probable cause is unsupported.

How do we know the SLCPD’s claims are terrible? Because thousands of law enforcement agencies do the thing the SLCPD claims is impossible to do in order to justify its officer-generated Fourth Amendment bypass.

The Officers also suggest that seeking a warrant in every case in which a Wanted is issued would be inconvenient and unduly burdensome. The Officers offer no explanation as to why the vast majority of police agencies in the country function without resort to a “wanteds system” like the SLCPD’s system. The claim that seeking a warrant is unduly burdensome is overstated.

Even if the SLCPD was correct that the judicial system’s involvement was “burdensome,” it still wouldn’t matter. If the SLCPD wants the ability to deprive people of their freedom, it has to do the paperwork legwork, no matter how much of an alleged hassle it is.

The Supreme Court has not enumerated an exception to the Fourth Amendment’s warrant requirement based on the inconvenience of obtaining a warrant before proceeding with an arrest.

This would all lead someone to assume the Eighth Circuit has declared the SLCPD’s “Wanteds” system unconstitutional. But that assumption would be wrong. Despite all of its constitutionally-based criticism, the Appeals Court still finds a way to partially bless a system so apparently essential to public safety, nearly no other law enforcement agency uses it. Exceptions apply, says the Eighth Circuit, and so the plaintiffs lose their challenge.

The Wanteds System is broad enough to encompasses situations that do not violate the Constitution, including those involving an arrest immediately after an officer has entered a wanted, circumstances involving evanescent evidence, sand incidents involving a fleeing felon. Because of the existence of these constitutional applications, the plaintiffs’ facial challenge to the Wanteds System fails.

So, nearly completely unconstitutional but not universally constitutional. Exceptions apply. And if those exceptions apply, it makes more sense for the SLCPD to ditch a system that encourages Fourth Amendment violations and utilize systems used elsewhere — ones that only allow officers to issue APBs, etc. when the call-out for an arrest is supported by these warrant exceptions.

Maybe that makes sense, but the conclusion seems at odds with the reasoning used to arrive at it. What’s completely inexplicable is the concurring opinion by Judge Stras, which suggests cops should be free to use something that has its roots in the vigilante justice of the Old West, which tended to view all rights as expendable when it came to (often violently) apprehending alleged criminals.

Think of the iconic wanted posters of the old west. They contained just a few basic pieces of information: the name of the outlaw, his image, a reward for his capture, and the crime he committed. See, e.g., Barbara Fifer & Martin Kidston, Wanted!: Wanted Posters of the Old West (2003); Leanna S. Schooley & Tom Kellam, Wanted in America (2019). The posters for Jesse James and John Wilkes Booth followed this formula. See Photographs of John Wilkes Booth and Jesse James Wanted Posters, in Sophie Tanno, $5,000 for Jesse James ‘Dead or Alive’ and $100,000 for Lincoln’s three killers: The fascinating wanted posters for America’s biggest 19th century criminals, DailyMail (July 24, 2019, 9:25 AM), https://bit.ly/3SVNPng. And sometimes, like during the manhunt for Jesse James, the poster would contain three words no outlaw would want to see: “DEAD OR ALIVE.”

The question is whether these “wanteds,” as St. Louis County calls them, violate the Fourth Amendment. Based on the long common-law tradition of warrantless felony arrests supported by probable cause, I would conclude that the answer is no.

Um… maybe we shouldn’t encourage cops to act like bounty hunters and apprehend people based on nothing more than a couple of sentences typed into a database. Just because something used to work pretty well doesn’t mean it should be allowed to continue. Lots of posters were put up to identify and apprehend escaped slaves, but no one’s suggesting that tradition should be carried on just because it can be done electronically. I mean, I would hope not.

In the end, the “Wanteds” system survives. The Appeals Court has made it clear that only certain uses are acceptable. And while that helps, it’s unlikely to change anything about the SLCPD’s day-to-day use of the system. This challenge failed. And it will take another challenge — one that’s more successful — to actually start deterring abuse of a system that makes a mockery of the Fourth Amendment.

Filed Under: 4th amendment, 8th circuit, probable cause, st. louis, warrant