Monthly Archives: May 2021

The Fourth Amendment famously guarantees the right to be free from unreasonable searches and seizures. Yet thanks to a 1996 Supreme Court decision, that right has been effectively erased if the police say that a driver has committed even the most minor of traffic infractions.

The case of Whren v. United States began with a 1993 traffic stop in Washington, D.C., over a failure to signal. That stop resulted in the arrest of the car's driver and passenger for drug possession. The arresting officer, a plainclothes member of the city's vice squad, was patrolling what he called a "high drug area" when he saw a car with two young black men inside sitting at a stop sign for 20 seconds, an admittedly long time to wait at an intersection. According to the officer, the car then drove off at what he called an "unreasonable" speed and allegedly failed to signal a right turn. After the officer pulled the car over, he noticed crack cocaine inside the vehicle and made the arrests.

The question before the Supreme Court was whether the officer used that traffic stop as a pretextual excuse to seize the driver and passenger and snoop around for drugs in violation of their Fourth Amendment rights. Put differently, did the officer rely on the traffic code to mask a case of racial profiling? And if he did, should the evidence be excluded?

Writing for a unanimous Supreme Court, Justice Antonin Scalia gave every cop in the country a blank check to search and seize so long as the officer could first point to some sort of ostensible traffic infraction. "The constitutional reasonableness of the traffic stop," Scalia said, does not depend "on the actual motivations of the individual officers involved." All that mattered, he maintained, was that the officer had probable cause to believe that a traffic violation may have occurred. Once that relatively easy standard was met, the police may stop any car and seize any driver.

Of course, every driver will eventually violate some trivial traffic rule at some point. Thanks to Whren, when those inevitable traffic infractions do occur, the police are effectively unshackled from the restraints of the Fourth Amendment. To make matters worse, because the police simply cannot enforce all traffic laws against all drivers at all times, the cops enjoy wide leeway when it comes to picking and choosing which drivers to stop. Needless to say, the record is replete with examples of the police abusing such discretionary law enforcement powers.

In fact, that sort of abusive policing is sometimes official police policy. As Sarah Seo, a Columbia law professor and author of Policing the Open Road: How Cars Transformed American Freedom, has observed,

Pretextual enforcement of the traffic code has been an official strategy in the war on drugs since at least the 1980s. The U.S. Drug Enforcement Agency trained state highway patrols to use such tactics, as did law-enforcement textbooks. Statistics show that police have disproportionately targeted minorities during what is known as "criminal patrol," a term that reflects the merger of criminal investigations and traffic patrol duties.

In other words, Whren's malignant legacy includes the judicial stamp of approval on some of the most aggressive and destructive police tactics of the modern era.

The Supreme Court has issued plenty of regrettable decisions that warrant reversal. Whren v. United States is one of them.

Here is the original post:
A Supreme Court Decision That Did Lasting Damage to the 4th Amendment - Reason

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more:
Court To Cops: Waiting Sixteen Months To Search A Seized Phone Violates The Fourth Amendment - Techdirt

SOLEDAD The attorney for an Aryan Brotherhood-associate California prisoner who was allegedly caught by a guard exiting his cell while holding a smartphone now wants the data deemed inadmissible on the grounds that a search of the contraband phone violated the Fourth Amendment.

Defense attorney W. Scott Quinlan filed a series of recent motions seeking to suppress not only cellphone data from his client, Kenneth Bash, but subsequent wiretaps of Bashs friends and associates who now stand accused of conspiring to smuggle drugs into Salinas Valley State Prison and sell methamphetamine and heroin on the outside. Quinlans motions accuse Anthony Gonzalez, a special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, of conducting a warrantless search of Bashs contraband phone and describe subsequent wiretaps based on that search as the fruit from the poisonous tree.

(Gonzalez) used the search warrant to search the illegally obtained thumb drive containing the warrantless forensic download. He and his team then used information from that search to justify wiretaps of Stephanie Madsen, Derek Smith, and of Mr. Bashs wife Kristen Bash, who communicated with Mr. Bash, Quinlan wrote. That in turn allowed eavesdropping officers to learn of Mr. Bashs phone numbers, enabling them to apply for wiretaps of his phones.

Bash, 34, is described by authorities as an Aryan Brotherhood-linked shot caller of the B Yard in Salinas Valley, who operated under Todd Fox Morgan, a member of the notorious all-white prison gang who is also incarcerated. He also allegedly had influence over a Fresno-based white gang known as the Fresnecks, whom he allegedly coordinated with in a massive, multistate drug trafficking operation.

Over the past two years, federal prosecutors in Sacramento have filed several cases against alleged Aryan Brotherhood members and associates, accusing some of running multi-million dollar drug rings from their prison cells, and others of ordering murders within the prison system. Much of the evidence is reportedly based on information found on the defendants contraband cellphones.

In their response to Quinlans motion, prosecutors wrote that the Fourth Amendments ban on unreasonable searches doesnt apply to prisoners.

(Bash) had no reasonable expectation of privacy regarding the contraband cell phone and contents of the cell phone, assistant U.S. Attorney Phillip Talbert wrote in his response. Even so, agents had probable cause to believe that defendant was committing drug trafficking offenses from within the prison, using contraband phones, and a warrant was obtained to search the contents of the recovered phone.

Law enforcement reports filed as an attachment to one of Quinlans motions offer details into the types of conversations authorities reportedly found. They include Bash allegedly instructing Madsen, a woman described by authorities as his secretary on the outside, to soak letters with liquidized drugs and mail them to Morgan, and conversations with Kristen Bash about committing EDD fraud. Kenneth Bash and Derek Pup Smith reportedly talked about doing business with a man who owned a car lot in the Central Valley and was involved in illicit sidebusinesses.

The discovery of Bashs contraband phone hardly required a sophisticated police investigation; a prison guard at Salinas Valley simply spotted Bash exiting his cell with the phone in his hand, according to one of the reports.

Authorities in Montana have already linked Bash and Madsen to a large-scale meth ring there, alleging that Bash directed Madsen and others to ship or transport packages of meth weighing as much as 22 pounds. The Montana ring was also connected to the infamous Sinaloa Cartel, and resulted in two guilty pleas by middleman drug distributors in the state, according to federal prosecutors.

The B Yard at Salinas Valley, which authorities accuse Bash of helping run for the Aryan Brotherhood, is also where alleged Aryan Brotherhood member Brant Two Scoops Daniel murdered fellow inmate Zachary Scott in 2017, allegedly stabbing Scott so hard the knife went through his torso. Daniel, now incarcerated at California State Prison, Sacramento as he awaits racketeering charges, has accused prison officials there of plotting to kill him and assisting in other inmate murders. Prison officials, meanwhile, have placed him in solitary confinement and accused him of plotting to murder a guard, which Daniel denies.

Continued here:
Attorney for alleged Aryan Brotherhood prison shot caller claims feds violated the Constitution when they searched contraband cellphones - The Mercury...

The U.S. Attorney for the Southern District of Texas issued a news release on April 13 announcing an FBI operation to copy and remove malicious web shells from hundreds of vulnerable computersrunning on-premises versions of Microsoft Exchange Server software" The announcement coincided with the partial unsealing of a search warrant.

The legal authority the FBI used for this operation was Rule 41 of the Federal Rules of Criminal Procedure, a rule detailing the requirements and process for issuing search warrants.

Yet its clear from the unsealed search warrant that the primary purpose of the FBIs operation here was to remove malicious code surreptitiously; an admirable goal, but a slippery slope when it comes to the legal basis upon which executed.

The Fourth Amendment guarantees a persons right to be secure in theirhouses, papers, and effects, against unreasonable searches and seizures, and requires that in order for a search to occur in these private spaces, the government must secure a search warrant, issued based upon probable causeparticularly describing the place to be searched, and the persons or things to be seized. Rule 41 basically provides the road map for adhering to these Fourth Amendment requirements, through issuance of that probable cause warrant.

Putting aside the question as to how the government establishes probable cause when the search warrant doesnt provide identifying information about the victims whose servers are to be accessed nor the places to be searched, the point is that Rule 41s purpose is to further investigative evidence gathering, not to disrupt crime nor delete code (which ironically, is evidence in itself).

Its true that Rule 41 was amended in 2016 to allow remote searches and seizures (Section (b)(2)(6)), but the premise of this amendment was to aid investigations that span across more than five federal districtsnot to clean and secure victim computers.

This time the government removed rogue nation-state code; something most agree is dangerous. But what if the next time its Saudi Arabia objecting to their portrayal in a movie? Lets call this Sony Pictures Part 2, after North Koreas infamous 2014 attack on Sony Pictures, because its movie The Interview portrayed Kim Jong Un in a negative light?

What if this time, the FBI decides that Saudi Arabias concerns warrant hacking into private networks to delete all copies of the offending movie, under the premise of stopping a national security threat, a move arguably violative of the 1st Amendment?

Having been a member of both the law enforcement and intelligence communities, Ive seen first hand the motivation that drives people to serve, and the dedication they bring. And while the FBIs heart was in the right place, heart alone doesnt suffice.

In this case, the FBI is knowingly causing the transmission of a program, information, code, or command to intentionally damagedamage having been defined to include deleting information protected computers (in this case, the victims servers), without the authorization of the victims whose systems are being accessed.

In any other context, this would be criminal under Section 1030(a)(5)(A) of the Computer Fraud and Abuse Act (CFAA), which ironically, is one of the very statutes the FBI alleges was violated by the Chinese nation-state group known as Hafnium, at the heart of the threat to Microsoft Exchange Servers. But two wrongs dont make a right. Not even in 2021.

From a practical perspective, if the motivation was to search computers for evidence, in virtually any other case there would be a point where the additional evidence to be gained would be duplicative, and the marginal return too low, to warrant searching additional computers. And that point would be long before searching over 100 victims servers.

Notably, Section 1030(f) of the CFAA states that this section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency... But not prohibiting an action is different from lawfully authoriz[ing] one. And with no court having interpreted application of 1030(f), we return to the FBIs need for a route to secure court-authorization, which brings us back to Rule 41.

Interestingly, the FBI used Rule 41 in 2017 when it neutered a virulent botnet called Kelihos. But in that case, the operation involved rerouting victim computers, as opposed to gaining access and clean[ing] them. This newest operation is therefore the next step down the slippery slope that law professors, activists, and defense attorneys love to argue when challenging governmental action.

Yet with the damage done in just the past few months by Solar Winds and the Hafnium hacks alone, we clearly need a fresh approach. And the FBIs solution here is just that. But its a solution without a clear legal basis.

So, whether it means amending the CFAA or passing a new law, one thing is clear: Contorting a long-standing federal procedural rule in a way for which 22 Senators raised concerns back in 2016, concerns precisely about using Rule 41 to clean computerssurely cannot be the right answer.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Write for Us: Author Guidelines

Joel Schwarz is director at MBL Technologies and serves as the firms privacy and data protection lead. He is an adjunct professor at Albany Law School and previously served as the civil liberties and privacy officer for the National Counterterrorism Center, and was a cybercrime prosecutor for the Justice Department and the New York Attorney Generals Office.

See the rest here:
The FBI's New Malware Eradication Service Is on Thin Legal Ice - Bloomberg Law

The three federal police officers who brutally assaulted Vietnam veteran Jos Oliva at a Veterans Administration hospital in El Paso five years ago later claimed he tried to enter the building without clearing security. But video of the incident shows that Oliva did nothing to justify the officers violence, which caused shoulder injuries requiring two surgeries and left him with persistent ear and throat issues.

In a case the Supreme Court is expected to consider for review next week, Oliva argues that he should be able to sue V.A. Officers Mario Nivar, Hector Barahona and Mario Garcia for violating his Fourth Amendment rights. At stake is the question of whether the Court should tolerate what 5th Circuit Judge Don Willett calls a Constitution-free zone where citizens can be brutalized even killed by rogue federal officers with impunity.

Oliva, then 70 years old, was on his way to a dental appointment in February 2016 when Nivar, who was manning the security station at the entrance to the V.A. hospital, asked him for ID. Oliva said he had put his ID in a plastic X-ray bin along with his other personal effects, a response that Nivar apparently viewed as insufficiently respectful.

I got a problem with this man, Nivar told his fellow officers, according to Oliva. Hes got an attitude.

Nivar walked around the conveyor belt, took out his handcuffs, and directed Oliva toward the metal detector. As Oliva walked through, Baharona, who had gestured for him to proceed, grabbed and yanked his arm, tearing his rotator cuff; Nivar choked Oliva from behind and slammed him to the floor; and Garcia joined the attack.

The cops handcuffed and detained Oliva, eventually charging him with disorderly conduct, a charge that was ultimately dismissed. A federal judge later concluded there was no evidence that Oliva had committed a crime or resisted arrest, which implies that Nivar and his colleagues violated the Fourth Amendments ban on unreasonable seizures.

In the 1971 case Bivens v. Six Unknown Named Federal Narcotics Agents, the Supreme Court said victims of such abuse have a right to sue the perpetrators for damages. Agents of the now-defunct Federal Bureau of Narcotics had entered Webster Bivens home without a warrant, manacled petitioner in front of his wife and children, threatened to arrest the entire family, searched the apartment from stem to stern, and taken him to a federal courthouse, where he was interrogated, booked, and subjected to a visual strip search.

Nearly half a century later, in the 2017 case Ziglar v. Abbasi, the Court cautioned against extending the remedy established by Bivens to any new context, which it called a disfavored judicial activity. At the same time, the Court said its decision is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose.

Consistent with that caveat, seven federal appeals courts have held that people can still sue federal law enforcement officers for search-and-seizure violations. But the U.S. Court of Appeals for the 5th Circuit, which last year overturned a ruling that allowed Olivas lawsuit to proceed, concluded that his complaint qualified as a new context because the facts are not exactly the same as those cited by Bivens.

Oliva, who is represented by Institute for Justice attorney Patrick Jaicomo, is asking the Supreme Court to resolve this circuit split by reaffirming that people can sue federal cops who violate their Fourth Amendment rights. Otherwise, Jaicomo warns, more than 18,000 federal law enforcement officers who work in the three states covered by the 5th Circuit (Texas, Louisiana, and Mississippi) will be able to disregard the Fourth Amendment without being held accountable.

Willett recently lamented that innately unjust situation, noting that federal law generally bars state tort claims by plaintiffs like Oliva. If Bivens claims also are off the table, he wondered, do victims of unconstitutional conduct by federal cops have any judicial forum whatsoever?

Jacob Sullum is a senior editor at Reason magazine.

Send letters to letters@suntimes.com.

Here is the original post:
Does this veteran have any recourse against the federal cops who assaulted him? | Sullum - Chicago Sun-Times

A federal appeals court on Tuesday reinstated qualified immunity for two university police officers who had directed a coach to detain a group of high school football players attending a camp at a Missouri college amid an investigation into whether one or more players had peeped on the dorm room of a female cheerleading coach.

A panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, voted 2-1 to reverse a federal district courts decision that had denied immunity to the officers and allowed two of the football players to pursue their claim that the detention violated the Fourth Amendments bar against unreasonable searches and seizures.

The case stems from a 2016 summer high school football camp at Northwest Missouri State University in Maryville, Mo. At the same time, the university hosted a summer camp for high school cheerleaders, and the participants resided in nearby dormitories.

A female cheerleading coach reported that she had seen people observing her through a window of her dorm room, and possibly taking photos, while she undressed, court papers say. Officers Clarence Green and Anthony Williams of the university police department investigated and found that a dorm room assigned to seven football camp participants had a view into the cheerleading coachs room.

Court papers say the officers instructed the football camp coach to gather the students in a room for investigation. The coach, acting on his perceived orders from the law enforcement officers, questioned the students, asked to see the pictures on their cellphones, and kept them detained for hours, court papers say. Apparently no snooping photos were found. When none of the seven players confessed to any snooping, they were expelled from the football camp.

Two of the football players, identified as T.R.H. and H.R.J., sued the officers, alleging that their coach confined them at the officers direction and that the seizure violated the Fourth Amendment.

A federal district court denied the officers request to dismiss the suit based on qualified immunity, which protects police officers and other government officials from personal liability as long as their conduct does not violate clearly established rights of which a reasonable person would have known.

The officers appealed, and in its May 11 decision in T.R.H. v. Green, the 8th Circuit court panel reinstated qualified immunity to the officers.

The appeals court majority assumed for the opinion that the football players coach was acting at the behest of the officers and that the players detention was a seizure under the Fourth Amendment. The question then became whether it was reasonable.

The court said it has not been established in the 8th Circuit whether the U.S. Supreme Courts 1985 decision in New Jersey v. T.L.O., which applied a standard of reasonable suspicion (rather than the higher standard of probable cause) to a school officials search of a students purse for contraband, also applies to seizures by school officials or school police officers.

Given the state of the law, a reasonable officer could have proceeded on the understanding that a student seizure is permissible if it is reasonable under the standard of T.L.O., U.S. Circuit Judge Steven M. Colloton wrote for the majority. Although the alleged seizure in this case did not occur at the high school and was initiated by law enforcement, reasonable officers could have believed that probable cause was not required.

The majority treated the university police officers essentially the same as school resource officers and noted that the 8th Circuit has ruled recently that in at least one context an SRO does not need probable cause to summon a student to the school office for an interrogation.

The Northwest Missouri State campus officers were justified in ordering the seizure based on a belief that either a violation of Missouris invasion of privacy law had occurred or there was a possible violation of Title IX, the federal law barring sex discrimination in education, the court said.

In sum, it was reasonable for Officers Green and Williams to believe that a seizure of high school students by a high school coach acting at the behest of the officers was permissible if reasonable, Colloton said. It was also reasonable for the officers to believe that the seizure was justified under that standard. The officers thus did not violate the students clearly established rights under the Fourth Amendment, so they are entitled to qualified immunity on this claim.

U.S. Circuit Judge Jane Kelly, writing in dissent, said the seizure of the students was not justified at its inception, as required under the Supreme Courts T.L.O. decision. The cheerleading coach did not make her complaint until she was checking out of the dorm, Kelly said.

From this, it is reasonable to infer that the cheer camp had ended, that there was no risk of students engaging in future similar conduct, and thus, that there was no special need to restore order or safety, Kelly added.

Further, she said, it was not reasonable for the officers to believe that hours of detention of the students was reasonable considering the absence of a security threat and the lack of any apparent disruption to the camps or to the students learning environment.

Read more:
Court Restores Officers' Immunity Over Seizure of High School Athletes in Peeping Probe - Education Week