Category Archives: Fourth Amendment

This article is part of the Policing and Technology Project, a collaboration between Future Tense and the Tech, Law, & Security Program at American University Washington College of Law that examines the relationship between law enforcement, police reform, and technology.

Theres a man pacing back and forth in the grocery store parking lot, evidently agitated, shouting at the sky. Concerned, you ring 911. On the phone, a police dispatcher reassures you that someone is coming over to helpand so is a drone. Soon, you hear the telltale buzz of a drone overhead. Through its camera, someone is watching the agitated man in the parking lot, feeding information back to emergency services. They are also, intentionally or not, watching you, and everyone else who happens to wander into the drone cameras expansive field of view.

In the Southern California town of Chula Vista, drone flights like this fictional example happen dozens of times a day, launched to the scene almost every time someone calls 911. The Chula Vista Police Departments is the first of its kind, enabled by a special, sweeping 2018 regulatory waiver from the Federal Aviation Administration.

Drones were sent out more than once to situations described as fake COVIDtesting.

Most everywhere else in the U.S., drone pilots must secure hard-to-get waivers to fly beyond visual line of sight or over people. But in 2018, the Chula Vista Police Department procured a special waiver connected to the Trump-era UAS, or Unmanned Aerial Systems, Integration Pilot Program run by the FAA, which aimed to evaluate how drones can become more involved in American life. That waiver permitted the department to create its Drone as First Responder program, which allows police to fly over the entire city using small multirotor drones that are launched and piloted largely from central headquarters. By August 2019, the CVPD was permitted to use drones over 33 percent of the citys area, and in March 2021, the FAA approved an expansion of the CVPDs range to cover the entirety of the city. Now, when a call comes in to 911, the dispatcher decides whether to send a drone. The answer is usually yes, in which case the drone launches from the department HQ and flies to the scene of the incident at an altitude of about 300 to 400 feet. All along the way, it records video through a zoom camera lens, streaming footage back to HQ and to responding officers mobile devices. The footage is stored in Chula Vistas evidence.com data repository, where detectives and police can access it, as well as the district attorneys office. (The department has denied public access to the footage, claiming an exception under the California Public Records Act, but an April lawsuit filed by a San Diego newspaper is challenging this claim). According to the police force, as of March, the drones have flown more than 5,400 missions and played a role in more than 650 arrests.

But what, exactly, are those drones looking at during all these flights? In a laudable act of transparency, the Chula Vista Police Department posts detailed records online of where their drones flyand why. The data offers a poignant snapshot of the human experience, captured through the filters of 911 calls and the blinking red lens of a police drones camera. Many of the flights involve clearly dangerous scenarios: weapon threats, assaults, fires. Others are less so: a person sleeping on the sidewalk, a water leak, a report of someone drunk in public. Some are downright weird: Drones were sent out more than once to situations described as fake COVID testing.

Then, there are tragedies. Chula Vistas drones fly regularly when police conduct welfare checks and respond to reports of domestic violence. Drones fly to the scenes of child endangerment incidents and attempted suicides, and overdoses, and to scenarios described as person down or subject lying on the sidewalk, unknown if breathing/conscious. In February, the drone flew to investigate reports of a body near a taco shop. Some calls are ambiguous, leaving open room to speculate about what they might mean: suspicious circumstances, suspicious person, unknown problem, and subjects causing disturbance Finally, theres a constant drumbeat of mental subject flights and related terms: a woman walking down the freeway, a crazed person dancing in traffic, a naked transient.

Do all these very human scenarios really warrant surveillance from the sky? Im skeptical.

Chula Vistas willingness to use drones for anything and everything is a major departure from the way police have been talking about, and using, drones in the past few years. For a while, police have largely justified drones by pointing to efficiency and officer safety. These arguments and the media coverage that accompanies them tend to imply drones will be used mostly for extreme and dangerous scenarios.

In the wake of intense new scrutiny around police violence, policeChula Vista foremost among themare shifting to a new rationale for using drones: deescalation. They argue that sending a drone to the scene of an incident instead of an armed human being is a way for police to get a sense of whats going on from a detached and (if I may) Gods-eye-view perspective, reducing risk to both police and the public. Per a Chula Vista police spokesperson, 25 percent of the time the drone shows up before (human) police do, allowing them to use the drone imagery to assess whether a scenario is truly serious enough to warrant in-person response, giving everyone a moment to breath and take stock of the situation before armed officers appear on the scene. Its a compelling argument. But it fails to fully consider the downsides of a world where someone in crisis may see a drone coming to the scene before they see a person.

According to a Chula Vista spokesperson, the department works with the County of San Diego to send specially trained Psychiatric Emergency Response Team members to the scene when theyre called out to a mental health crisis, a system that can work in conjunction with the drones. The spokesperson also told me that to the best of their knowledge, the police havent encountered scenarios where the drone appeared to agitate or frighten someone. But the PERT team cant respond to every crisis.

You cant build a relationship through a buzzing blinking robot on your doorstep like you could with a person, says Eric Tars, the legal director of the National Homelessness Law Center. Then youve got the subset of the population with mental health crises that involve feelings of distrust for authority and paranoia. If youve got drones constantly buzzing overhead you dont have to be a conspiracy theorist to feel like the government is constantly watching you. Because they are.

While Chula Vistas police department says that it has done extensive community outreach around the drone program, Pedro Rios, a local resident and the director of the American Friends Service Committee U.S./Mexico Border Program, isnt convinced. From my experience, there doesnt seem to be enough public awareness and outreach to ensure that the public knows to what extent the drones are being used and for what purpose, and that they understand the safeguards that are in place so that the drone technology is actually used for proper law enforcement purposes and isnt susceptible to being abused or misused by anyone involved in the program, says Rios.

Rios has also written about how the Chula Vista police have a worrisome track record when it comes to securing the data they collect with other technologies. In early 2021, protesters demanded answers after it came to light that the departments automatic license-plate readers were sharing data with ICE and other federal agencies via the Vigilant Solutions network. While Chula Vistas police chief claimed that the data sharing was an accident, it doesnt inspire confidence in the departments ability to understand whats going on with its data.

In this, Chula Vista police have plenty of company, considering the sheer volume of reports of police across the country mishandling and misinterpretingintentionally or unintentionallythe sensitive data that they collect, often in close collaboration with private vendors. Adding huge quantities of drone data to the mix, collected multiple times a day, raises worrisome questions about U.S. police departments ability to truly understand who can access their data and for what purposes.

Perhaps the most big-picture frightening aspect of the Chula Vista drone program is that while its not quite an all-seeing system of persistent surveillance, its certainly getting there, as its always-recording drones crisscross the citys skies dozens of times a day, collecting data that police can then review at a later date. Its easy to imagine how the mere visual presence of the drone could create a major chilling effect on people in the community below, a psychological burden that will likely fall heaviest on more vulnerable people, like the unhoused, people with mental illnesses, and the considerable Southern California population of people who are undocumented or who have undocumented family.

For generations, the Fourth Amendment was not the biggest limit on surveillance, it was economics. Police had to be somewhat conservative with invasive surveillance tools because they were so expensive, says Albert Fox Cahn, founder of the Surveillance Technology Oversight Project (S.T.O.P) But as these tools get cheaper and cheaper, Fourth Amendment jurisprudence fails to keep up, and you end up with a cheap and affordable surveillance state where the tools that are being used are massively disproportionate to the harms theyre combating.

This cheapness has led the police down a very familiar 21st-century path of data overcollection, in which people and organizations reason that using surveillance tech to squirrel away vast quantities of dataeven if they dont need it right nowbeats not collecting it at all. According to police technology expert Andrew Guthrie Ferguson, a law professor at American Universitys law school, its a case where police are of the mindset that more info is better, and that information will outweigh any sort of concerns the community might have. Theyre only looking at it from the frame of police and police need, and not from the larger frame of What are the impacts of having drones fly out for every 911 or 311 call?

In essence, Chula Vista is running a yearslong technological and social experiment, empowered by the federal government, on how drones intersect with policing and with people. From the point of view of the police, the program has been an enormous success, one that theyre eager to export to others across the country and across the world (so eager that the department has been accused of conflict-of-interest issues after former officers jumped ship to private drone companies). Sometimes it feels more than a little like police drone advocates are asking us to make a decidedly forced choice: a sky full of surveillance drones or more police shootings. You pick.

If we want to avoid living in a world of just-in-case police drone surveillance, then well have to make it less cheap and less easy for police to use them.

Some people, like Hamid Khan of the Stop LAPD Spying Coalition, believe that a complete ban on police drones is the best way forward: We dont really believe in regulating or creating policies because that continues to expand their use, he says, pointing out that at the time of their introduction, police helicopters and SWAT teams were also supposed to be rarely used measures reserved exclusively for extreme situationsa distinction that swiftly broke down.

Cahn also prefers an outright ban to half measures, but he suggests one alternate strategy might be mandating that drones can be used only if someone at the very top of the police organization signs off on the matter, along the lines of how wire taps are authorized. If its something where you have to bother the chief of police, then thats something thats more a check. Anything that increases the cost in dollar and cents or time is going to be helpful in limiting these abuses, he says.

Others suggest more reform-based measures, along the lines of the ACLUs Community Control Over Police Surveillance effort, which supports the creation of community-based review boards that give people a say in how police use technology. This might take the form, as Ferguson suggests, of giving members of the community the authority to review the data to decide if a situation merits a police response or not, giving them more control over who holds the information itself.

Drones may have legitimate uses in policing. But we shouldnt accept that the constant presence of surveillance technology, from drones to facial-recognition cameras to license plate readers, is the price that our communities must pay to avoid police violence. If police want to use drones more widely than they already are, then we should demand that they truly understand the risks that fly alongside them first.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

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The California City That Sends a Drone Almost Every Time Police Are Dispatched on a 911 Call - Slate

NORFOLK, Va. (WAVY) A former Windsor police officer has filed a motion to dismiss a lawsuit filed by a U.S. Army lieutenant following a traffic stop incident which resulted in the soldier being pepper-sprayed.

Joe Gutierrez, one of the two Town of Windsor police officers involved in a traffic stop incident involving Army2nd Lt. CaronNazario, was fired back in April following the incident which occurred in December 2020.

According to an initial lawsuit filed by Nazario in federal court, Nazariowas in uniformwhen he was stopped on Dec. 5.

Nazario is asking for at least $1 million in damages and for the court to rule that the two officers violated his rights, including rights under the Fourth Amendment.

He was stopped by officers Gutierrez and Daniel Crocker. Crocker said he initiated the stop because he couldnt see Nazarios SUVs license plate, which was displayed inside a tinted back window at the time of the stop.

Nazario did not comply with the officers orders to get out of the car, saying he was scared. Gutierrez could be heard in body camera footage saying Nazario was fixin to ride the lightning, an expression associated with execution.

The incident escalated to the point Gutierrez used OC spray on Nazario several times while he was still sitting in the vehicle. Nazario eventually got out of his SUV after being sprayed in the face at close range, then Gutierrez used knee strikes to force him to the ground. At that time, the officers handcuffed him.

The situation began to deescalate as officers spoke with Nazario about the traffic stop and allowed EMS to render aid.

Following further investigation into the incident, a release from the town manager of Windsor stated that Officer Joe Gutierrez was terminated in early April.

On Friday, Gutierrezs attorney filed a motion at the U.S. District Court Clerk in Norfolk to dismiss Nazarios complaint.

Read the full motion here.

That same day, the NAACP asked Isle of Wight Commonwealths Attorney Georgette C. Phillips to recuse herself in the case.

Since this incident, our local chapter has called for full accountability and transparency amongstthe Town of Windsor officials and the Windsor police department, the NAACP said in a statement. Instead we have seen the local government unapologetically stand by the actions of these officers, provide the citizens with incoherent answers and have used their powers to stifle the transparency process.

The NAACP is also asking Gov. Ralph Northam to authorize Attorney General Mark Herrings Office to review all evidence from the Virginia State Police investigation into the case, and make any and all legal decisions.

See the original post here:
Fired Windsor officer files motion to dismiss Army officers lawsuit following traffic stop incident - WAVY.com

The Davis Vanguard is an online news forum that provides coverage of criminal justice reform and courts throughout California and the nation. In 2006, the Davis Vanguard began to cover Davis and Yolo County groundbreaking, local news concerning government and policy issues affecting the city, schools, and county. The team has grown to about 40 to 50 interns who monitor and report on live court proceedings in more than six different counties throughout California, from the State Capitol of Sacramento to the Greater San Francisco Bay Area, the Central Valley and Southern California.

Compiled by Nina Hall

Monday May 10, 2021

Sacramento Superior Court:

Derrick Pal Dept. 14: A defendants pleas to rape charges with threats of violence led a judge to impose an eight-year prison sentence and a mandatory restitution fine of up to $10,000 in a preliminary hearing here in Sacramento County. Defendant Marcus Menefee is charged with one felony count of oral copulation by means of force or fear and one felony count of rape by means of force or fear. Judge Tami Bogert began the hearing, stating that there may be an agreed-upon disposition in this case between both parties. Private Defender Linda Parisi stated the terms of the agreement, explaining, At this time, Mr. Menefee is prepared to enter pleas of no contest to counts one and two with the understanding that he would receive an aggregate term of eight years

Deputy District Attorney TeriAnn Grimes described the factual basis of the case, stating, On or about March 1, 2019, the defendant engaged in two felony violations. According to DDA Grimes, the defendant had an argument with his girlfriend that turned violent, where he used a boxcutter knife to threaten her and used his hands to strangulate her. Through the argument, he walked over to her and demanded her to orally copulate him, and although she tried to refuse, he threatened her with additional physical violence if she did not comply. DDA Grimes explained that after orally copulating him, the defendant thenraped her by force or fear, and all of this was accomplished without [the victims] consent. Defendant Menefee pled no contest to the charges against him, and Judge Bogert found him guilty on both counts. Judge Bogert concluded that the matter will be referred to the Sacramento County Probation Dept. for a presentence report. A future hearing is scheduled for July 30, at 9 a.m. in Dept. 14.

Michael Wheeler Dept. 17: Michael saw defendant Robert Rojas appear in court today defending himself, putting on hold todays planned preliminary hearing. He filed a complaint stating that he had not been sufficiently accommodated to competently defend himself while in jail, which had not been the case when he was previously incarcerated in Santa Clara County. Ive asked for discovery on several occasions. Ive filed multiple motions for discovery. Ive filed multiple orders with this court regarding pro per privileges that are reasonable, and that are not, you know, asking for a car or a cheeseburger and a milkshake. Ive asked for reasonable pro per privileges and rights that are entitled to any other pro per inmate and Ive not received that.

Prosecutor Jeff Harry was very willing to work with Rojas, but he expressed concern about the expiration of Rojass 30 day time period on June 7, a concern which judge James Arguelles also shared. Im not trying to jam you, but we are limited by what we can do by Covid. You have to be transported. There are limitations to the system that were all trying to work with here. If you want more time to litigate this issue, if you want more time to contact witnesses and do everything you want to do, then ask for more time. Ask for a continuance, and Ill grant it. A compromise was reached when the parties agreed to another hearing on Thursday to rule on the merits of Rojas complaint, with his prelim set for May 19.

Ankita Joshi Dept. 18: Ankita watched a motion to suppress on the basis of the violation of the Fourth Amendment rights of the defendant in Sacramento County Superior Court Dept. 18. Defendant Zion Henley was pulled over for a traffic stop on three minor vehicle code violations after allegedly attending the funeral for a former gang member. Detective Ryan Trefehen testified that he had received a photo of the vehicle driven by Henley and had followed it looking for probable cause. During the traffic stop, Henley and the other two passengers in the car were asked to step out, and Henley was questioned repeatedly about the presence of a firearm without being read his Miranda Rights.

It wasnt until after Henley admitted to having a firearm in the vehicle that he was read his Miranda Rights. Body cam footage showed that Henley and the other passengers in the car complied with everything the officers had asked, and there was no attempt by the officers to write a traffic ticket. Judge Stacy Boulware Eurie ruled to suppress the initial admission of guilt by Henley, as it was a violation of his Fourth Amendment Rights. Henley then proceeded to take a plea deal to reduce his second felony charge to a misdemeanor violation for a sentence of 1 year of informal probation and 90 days of Sheriffs Work Project.

Roselyn Poomai Dept: 23: On Monday, May 10, Roselyn witnessed the preliminary hearing for defendant Karl Thompson in Sacramento Superior Court Dept. 23. Thompson, who faces a felony charge for an assault with the intent to commit a felony, allegedly approached the homeless victim and threatened her to commit a lewd act on him. When the victim refused, the defendant repeatedly punched her head before she was able to escape and run away to a nearby Salvation Army. The victim suffered from bleeding skin abrasions and appeared visibly disheveled when the responding officer spoke to her. Upon the public defenders attempt to establish that his client did not match the victims description and was wrongly detained, the judge concluded that there was sufficient reason to proceed with the case. The matters for defendant Karl Thompson will continue on June 23 for a trial readiness conference.

Christopher Datu Dept. 61: Christopher saw the defendant and his public defender motioned to reduce bail in light of Alta Medical Group finding the defendant to be developmentally disabled. The victim was in the middle of trying to haggle the services of a prostitute in the back of a car when the defendant and codefendant broke in and struck the defendant. The victim was then forced to withdraw money from various ATMs in the Sacramento area until they were caught. Alta Medical Groups declaration made the defendant eligible for outpatient services, but did not resolve other points of contention the court still had regarding bail reduction. The nature of the crime, threat to public safety the defendant potentially posed, and the uncertainty of securing outpatient services made the court skeptical in giving full credence to this new eligibility. Judge Geoffrey Goodman ultimately denied the motion but was interested in hearing a later motion to reduce bail on June 7, once there was a definitive statement on the defendants access to outpatient services.

Ned Meiners Dept 63: Ned saw several pleas in Dept. 63 on Monday. Carlos Horner pleaded to a misdemeanor charge for possession of tear gas, which carried a 28 day sentence, and was released for time served. Momoi Sinipata pleaded to a misdemeanor firearms charge. Dustie Poindexter pled to a misdemeanor for battery and received a stay away order as well as probation. Anthony Hayton pled to a felony assault and received two years probation but was released for time served. Dustin Thomas pled to possession of a firearm and was sentenced to 90 days sheriffs work project. There was one co-defendant case where Treace Palmer pled no contest and received two years of probation and 240 days in jail for a firearm charge and evading an officer. His co-defendant pled not guilty.

Tuesday May 11, 2021

Sacramento Superior Court:

Leah Timmerman and Linhchi Nguyen Dept. 61: Leah Timmerman and Linhchi Nguyen sat in on Sacramento Dept. 61 on Tuesday, May 11 in the afternoon. One defendant, Jonathan Dale, had his defense asking to not set trial dates on a four-year-old case because the expert witness would not be ready to testify in person due to COVID-19. The deputy district attorney was asking to set trial dates and stated that the defendant was creating an issue of an unavailable witness for himself by not having the witness testify remotely. The judge stated that they cant keep this going indefinitely so the trial was set to start on July 12 with a trial readiness conference on July 8.

Another defendant, Joseph Reed, pled no contest to violating a restraining order and will serve 60 days in county jail with one-year probation where he can have peaceful conduct with the individual but must stay 100 yards from the house. One case that stood out involved two defendants, Jana Lee and Joshua Kennedy, who was alleged to have committed child abuse onto their 16-month-old daughter and six-weeks-old son. Sadly, their infant son passed away due to numerous rib fractures, and the hospital noted several other injuries including scarring, chronic ulcers, and a hemorrhage. The daughter also suffered from fractures on her leg. Both pled no contest to the charges, Kennedy received nine years and Lee received five years and four months in state prison.

Wednesday May 12, 2021

Sacramento Superior Court:

Ankita Joshi Dept: 31: Ankita watched a preliminary hearing for Defendant John Armstrong who was present for an alleged violation of Government Penal Code 4502, which prohibits a person from possessing or manufacturing weapons in a penal institution. The correctional officer who found the weapon testified that the cellsense tower metal detector used alerted him and his partner to a possible weapon hidden in the knee brace of the defendant. However, the initial search of the knee brace resulted in no weapon, and it wasnt until the knee brace was examined for a second time by another correctional officer that a small 4.5 sharpened piece of metal was found. The defense argued that Armstrong had no knowledge of the weapon, as there was no way to know where the knee brace was prior to being assigned to Armstrong, and that Armstrong would have known not to have a weapon on him since searches were a routine standard. Judge Gerrit W. Wood found Armstrong guilty for a violation of Penal Code 4502, and a trial date was set for October.

Thursday May 13th, 2021

Sacramento Superior Court:

Christopher Datu and Jose Medina Dept. 17: Jose and Christopher watched a number of preliminary hearings and motions in the Sacramento Superior Court on Thursday. In Dept. 17, Judge James Arguelles traversed a motion to quash that involved two defendants facing the death penalty. The prosecution had entered the motion to quash in response to the defense requesting unimpeded access to the defendants gang files. Within the files are the defendants decades-long prison history, including their ties to the Aryan brotherhood and referencing existing informants. While the prosecution enjoyed governmental privileges allowing access to all the files, the defense had no access whatsoever. The main charges by the prosecution rested on the request being overly broad and overly vague for the sheer length of the report and amount of possibly irrelevant evidence inside.

A question of relevance and informant protection was furthered by the fact that the records went back to 1980 and could put the lives of numerous informants in danger. The defense argued that there is relevant information in the files and should still be made accessible under a protective order by the court, restricting the defenses freedom to share the evidence. Judge Arguelles ultimately assumed a large task, committing to an in-camera review of the lengthy gang files covering thousands of pages. He further requested the defense to notify him what types of evidence he should be wary of when deciding what sensitive information to redact and what to relinquish to counsel.

Natasha Feuestein Dept. 38: On Thursday, Natasha saw defendant Justin Robert Hicks face a plethora of felony charges across three different cases. The court conducted a hearing Thursday morning regarding all matters involved in the three cases. The charges in the first case include one count of a felony violation for evading a police officer driving against the flow of traffic and a second count of evading a police officer while driving in a reckless manner. The second case involves a felony violation for 2nd degree burglary with the intent to commit larceny.

The final case involved the most charges: two counts of a felony violation for assault with a deadly weapon, a third count for evading a peace officer while driving against the flow of traffic and a fourth count for the felony violation of the possession and sale of a controlled substance. DDA Andrea Morris planned to bring in four witnesses in regards to the third, most serious case Hicks is implicated in. Morris called a detective and a responding officer who both gave lengthy testimonies in regards to the alleged theft and assault as well as the initial officer pursuit of Hicks. The livestream of the hearing cut out about 2 hours into the proceedings.

Savannah Dewberry and Leah Timmerman Dept. 61: Savannah Dewberry and Leah Timmerman sat in on Sacramentos Dept. 61 this Thursday, May 13. One defendant, Sergio Barragan, falsely impersonated his brother in an attempt to get out of a fare evasion ticket. He was given two years of probation and if he completed a six-month program with the Salvation Army his 180 days in custody would be suspended. Defendant Benjamin Raines had a felony no-bail warrant issued on him by probation, a memo stated he was in non-compliance while out.

Judge Geoffrey Goodman recalled the bench warrant as there was agreement from both sides that Raines did not violate probation. Defendant James Cooley also had his bench warrant recalled, Cooley came late to court last week as he thought his case was set for 1:30. Co-defendants, Andrew Brulez and Michael Jaquith had their motion to consolidate granted and a preliminary trial was set for May 28 in Dept. 9. Defendant Colton Miles had his preliminary hearing set for June 15 and will be pleading not guilty to both charges against him. There were discovery issues with the video of the offense but the Deputy District Attorney Kitty Tetrault preferred to have the preliminary hearing set and then in the interim file the discovery motions.

Friday May 14th, 2021

Sacramento Superior Court:

Alexander Ramirez Dept. 63: Alexander saw some interesting cases this week in Dept. 63 on Friday. He saw a case from 1988 in which a murder had occurred after the victim had entered the defendants restaurant. The facts concerning the case were very unclear. Witnesses alleged that the defendant had beaten the victim for nearly 10 minutes, however; neither the court nor the attorneys had any information regarding the beating. The case went on to be rescheduled at a later date.

Nina Hall is a sophmore from Colorado at Santa Clara University studying English and sociology.

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The Vanguard Week in Review: Court Watch (May 10 to May 14, 2021) - The Peoples Vanguard of Davis

ISLE OF WIGHT, Va. (WAVY) The NAACP is asking Isle of Wight Commonwealths Attorney Georgette C. Phillips to recuse herself in the case of a Black Army officer who was pepper sprayed by police during a traffic stop in Windsor.

Since this incident, our local chapter has called for full accountability and transparency amongstthe Town of Windsor officials and the Windsor police department, the NAACP said in a statement. Instead we have seen the local government unapologetically stand by the actions of these officers, provide the citizens with incoherent answers and have used their powers to stifle the transparency process.

The NAACP is also asking Gov. Ralph Northam to authorize Attorney General Mark Herrings Office to review all evidence from the Virginia State Police investigation into the case, and make any and all legal decisions.

Our state and federal officials have shown that they take this matter seriously and the concerns ofthe citizens of Windsor have not fallen on death ears. Governor Northam through his executivepowers authorized the Virginia State Police to investigate the incident, Attorney GeneralHerrings Office of Civil Rights has opened a patterns and practice case into the Windsor PoliceDepartment and Congressman Scott has asked the Department of Justice to investigate this caseas well.

Two Town of Windsor police officers pulled over Army 2nd Lt. Caron Nazario back in December, believing he was missing a license plate on his new SUV.

During the stop, body camera video shows officers pointing guns at Nazario, pepper spraying him and pushing him to the ground.

The officer who pepper sprayed Nazario was later fired. Nazario is also asking for at least $1 million in damages and for the court to rule that the two officers violated his rights, including rights under the Fourth Amendment.

The NAACP held a news conference and march for police accountability at noon Friday in Richmond.

Read more from the original source:
NAACP asks for Isle of Wight commonwealths attorney to recuse herself in traffic stop case, AG to make decisions - WAVY.com

Rev. Al Sharpton and attorney Ben Crump spoke at a funeral for Andrew Brown Jr., a North Carolina man fatally shot by sheriff's deputies. USA TODAY

In the moments after a recent shooting in Times Square, New York City police officerAlyssa Vogelheard an officer yell,"There's a baby." Body camera footageshows her takeoff running,findinga 4-year-old girl bleeding from a stray bullet. Vogel quickly applieda tourniquet and helpedher to an ambulance.

Vogel's exemplary actions werehighlightedon the @NYPDnews Twitter accountlast week.Meanwhile, an appeals court recently ruled that the NYPD mustturn over a less-redacted version of body camera footage fromthe 2018 fatal shooting of Susan Muller, who was mentally ill, in her home. The police department has been fighting against releasing the video for years.

Days-old video released in one case; years of delays in another. That difference, civil liberties advocates say, is a problem.

In the years since Michael Brown's 2014 death spurred protests and unrest in Ferguson, Missouri, politicians, advocacy groups and even cops have pushed for all officers in the 18,000 or so law enforcement agenciesin the U.S.to wearsmall cameras to record their interactions with the public.

Those cameras are supposed to enablethe public to see what really happenedwhen someone is killed by police. But the reality has not lived up to thepromise. Police departments often get to decide what the public sees and when, exploiting exceptions in the law, selectively releasingclips, and even arguing against release based on a dead person's right to privacy. In some cases, videos have been released as public-relations tools.

"Technology is inherently neutral;it's how you use it that decides whether it's a net positive or negative," saidScott Greenwood, a prominent constitutional rights attorney. For those who "thought body-worn cameras were to catch bad officers and prove bad conduct, I think they have been largely disappointed."

Activists are pictured protesting near Mayor Lori Lightfoot's home in Chicago, a day after the release of body camera footage that showed a Chicago police officer fatally shooting Adam Toledo, 13, in late March.(Photo: Tyler LaRiviere, AP Images)

Within two years of Brown's death, more than 7,200 law enforcement agencies had acquired body-worn cameras, according to a 2018 Bureau of Justice Statistics analysis. Thenumber is probably much higher today, experts said.

But nearly 38%of those agencies had no formal policy governing their use. And roughly 60% allowed anofficer involved in an incident to accessthe recording withouthaving to file a formal request which could raise questions about whether an officerused the video to get his story straightor tampered with the recording.

More than 80% of police departments andsheriff's offices that employed 500 or more full-time officers allowed them to informally access their recordings.

In this Saturday, May 30, 2020, photo taken from police body camera video released by the Atlanta Police Department, an officer points his handgun at Messiah Young while the college student is seated in his vehicle, in Atlanta.(Photo: AP)

A 2020 study of 30 body-worn camera analyses concluded there is "substantial uncertainty" about whether they reduce officers' useof force, but they can be effective in some situations and can reduce citizen complaints.

Body-worn cameras have captured a Los Angeles police officer fondling a dead woman's breasts, aBaltimore police officer fabricating evidence in a drug case, and other terrible orcriminal actions. For officers who are wrongfully accused,the cameras have helped dispelallegations based onminutes of footage, rather than months ofinvestigations.

Thecameras have transformed police training,said Chuck Wexler, executive directorof the Police Executive Research Forum in Washington, D.C. His organization used bodycam videosto develop de-escalation tactics to deal with "suicide by cop" scenarios involving peopleexperiencing a mental health crises.About 600 departments have viewed them, he said.

Body-worn cameras have shown a side of policing the American people were not aware of. ... The reality is, the cameras are just capturing what has been going on for a long time.

While bodycam videois not always helpful in police misconduct cases, theyhave contributed to a groundswell of activism over issues like qualified immunity, saidChad Marlow, senior policy counsel for the American Civil Liberties Union. That's because body cameras enable everyday Americans tosee exactly what the lawempowers police to do and what the legal system considersacceptable.

"Body-worn cameras have shown a side of policing the American people were not aware of," Wexler said. "The reality is, the cameras are just capturing what has been going on for a long time."

In the years since body cameras were adopted, there has been an interesting reversal of viewpoints, said JimBueermann,retired chief of the Redlands, California, police department andformer president ofthe National Police Foundation.

At first, "community advocates were vocally in support of cameras and police unions were opposed to them," Bueermann said. "And over time as camera footage has exonerated so many officers, now it is just the opposite."

A police officer's body camera caught the dramatic moments immediately after the Christmas Day explosion in Nashville, Tennessee. (Dec. 29) AP Domestic

Today, Bueermann said, community activistsare less vocal because the cameras"have not produced this stunning kind of police reform that they had hoped for."

Technology has changed, but laws governingwhethera police officer'suse of force is excessivehavenot. The Fourth Amendment and a 1989 U.S. Supreme Court case gives police officers the benefit of the doubt.

An officer who tells jurors he fearedfor his life or was forced to make a split-seconddecision in a fatal shooting is almost always acquitted by a jury if charges are even brought.

These days,Bueermannsaid, "I think it's clear to many police officers that when they hit the streets, it's in their best interest to have a body camera attached to them."

That's partly because law enforcement often write the rules on how these videos will be used.

As police unions and their advocacy groups began to realize body cameras were unavoidable, they put"their significant political muscle behind trying to restrict public access to the footage," Marlow said.

Police departments tend to release a videowhen it showsan officer acted properlyand delay releasewhen it doesn't, he said. "It turns policebody cameras from atransparency and accountability toolinto a propaganda tool," he said.

The policies are describedinthis bold, audacious language.Then you find out that there are all sorts of exceptions and exemptions.

Marinda van Dalen, a senior staff attorney for New York Lawyers for the Public Interest, thefirm that sued to get access tovideo in the Muller case,saidher firm still has not received a more completeversion of the video.The department claimed it was protecting Muller's right to privacy, she said.

"The policies are describedinthis bold, audacious language.Then you find out that there are all sorts of exceptions and exemptions," van Dalen said.

She saidthe New York Police Department will quickly produce videosthat validate officers' actions and "shamelessly redact" others to the point of "misrepresenting the circumstances." She said she's seen endless delays in releasing video when"it's pretty clear it's been done to protect the department and officers from oversight."

New York police Sgt. Jessica McRorie, a department spokeswoman, told USA TODAYin an email that the department follows its policies on when to release videos.Asked if the department will release a more complete video of the Muller shooting, she responded,"Thereare no plans at this time to publiclyrelease the unredacted footage."

McRoriesaidthecase, which occurred early in the department's body-worn camera program,shows that "striking the balance in every case is a complicated matter and a process we are working through."

Body-camera footage shows a Pasco Sheriff's deputy shooting at a moving vehicle driven by a man who had allegedly tried to ram deputies. The sheriff's office withheld the deputies' names and removed all audio from the video, citing Marsy's Law. USA TODAY

When the Police Executive Research Forumcrafted recommended guidelines for body-worn cameras in 2014, it saidagencies should make videos available to the public.

Wexler said he still believes that if police aren't prepared to release video to the public quickly,"you probably shouldn't have this program" because unreasonable delays erode public confidence.

Police departments'focus on how bodycams benefit officers is illustratedin Bureau of Justice Statisticsdata. Its 2018 analysis found the top four reasons police acquire cameras are to "improve officer safety, increase evidence quality, reduce civilian complaints, and reduce agency liability." Then came "improve officer/agency accountability."

Some states, like New Hampshire and Ohio, have established strong public access to bodycam video. But others like North Carolina and South Carolina seemto be "putting up as many impediments as they possibly can to access" so much sothat they seem to miss the point of the technology, Marlow said.

The public should have "absolute access in police uses of forcebecausethats whywerolled out body cameras," Marlow said. "Not so we could show police in their best moments andnot so we could show a member of thepublic in their worst."

North and South Carolinatreat body camera footage as an evidence-gathering tool and itis not considered a public record,he said.

But those states allow someone who is recorded or a representative of a deceased person to request relevant portions of the video.

That's what the family of Andrew Brown did. He was fatally shot, including once in the back of his head, last month in North Carolina. A judge allowed the family to see less than 20 minutes of video;morethan two hours of videobefore and after Brown's death were notprovided.

A child holds a Black Lives Matter flag during an eighth night of protest in Elizabeth City, N.C., after a judge ruled Wednesday not to release bodycam footage of sheriff's deputies fatally shooting Andrew Brown Jr.(Photo: Dean-Paul Stevens, USA TODAY Network)

His family said theywant to see more.Theirlawyers said the footage shows that sheriff's deputies were "unequivocally unjustified" in fatally shooting the unarmed Black man as he tried to flee in his car. The district attorney has said Brown's vehicle made contact withdeputies.

Marlow said the laws limiting how much video is released and who gets to see itmeans the camerasaren't being used to change officers' behavior.

"The goal wasnt just to hold police officers responsible for misconduct," he said. "The idea is if weunderstand what went wrong today, maybe we canprevent itfrom happening tomorrow.Soevery member of the public has an interest in preventingthemselves from being the next victim."

A bystander's cell phone video brought George Floyd's death last May to public attention, but the incident was also recorded by the bodycams of the four cops involved. Those videoswere used as evidencethroughout the trial of Derek Chauvin, the officer who kneeled on Floyd's neck. Theybelied the initial police department statement describing the incident.

Chauvin wasconvicted of murder and manslaughterand is scheduled to be sentenced in June.

Police body camera shows bystanders watching Minneapolis police officer Derek Chauvin subdue George Floyd in Minneapolis, including Alyssa Funari, left, filming; Charles McMillian, center left in light colored shorts; Christopher Martin, center in gray; Donald Williams, center in black; Genevieve Hansen, fourth from right, filming; and Darnella Frazier, third from right, filming.(Photo: AP)

After Floyd's death, Minnesota legislators banned chokeholds, demonstrating how video can spur reform. Andsix states Colorado, Connecticut, Maryland, New Jersey, Illinois and New Mexico joined South Carolina in mandating statewideadoption of body-worn cameras by law enforcement officers who interact with the public, according to the National Conference of State Legislatures.

There may not have been any body camera footage of Floyd's deathif not for the fatal Minneapolis police shooting of Justine Ruszczyk in 2017. Neither of the two officers present turned their camerason.

The police chief resignedand the city updated its body camera policies,specifying when they must be activated and adding penalties if officers don't do it.

But policing experts say it's important to note that cameras don't show everything.Toan untrained eye, or without the technology to slow down a recording, it may be hard to realize exactly what an officeris up against.

A police officer shot and killed 16-year-old MaKhia Bryant after arriving on the scene to respond to reports of attempted stabbing in Columbus, Ohio. USA TODAY

After the fatal shootingof 16-year-old Ma'Khia Bryantby Columbus, Ohio, police last month, it took closer examination of the video to determine that she appearedto be holding a knife and was aiming to stab another person, Bueermann said.

"It's not a perfect technology. It's not the fantasy we all hoped for," Bueermann said. "Police still kill about 1,000 people a year, but cameras have absolutely improved policing."

National correspondent Tami Abdollah covers inequities in the criminal justice system. Direct message her with story tips on Twitter @latams.

Read or Share this story: https://www.usatoday.com/story/news/nation/2021/05/16/police-body-cameras-have-mixed-legacy-criminal-justice-reform/5064170001/

More:
Bodycams haven't lived up to promises of exposing police misconduct. One reason: The police decide what to release. - USA TODAY

from the but-the-court-has-made-it-clear-it's-disappointed dept

Reform efforts following the Snowden leaks led to some minor improvements at the FISA Court. The USA Freedom Act gave the court permission to allow someone to present the side of the surveilled from time to time and introduced some reporting requirements that allowed Americans to see just a bit more about how their surveillance tax dollars were spent.

But if anything is going to change the way America's surveillance agencies perform their duties, it's going to be up to the FISA Court, which can reject requests and shut down surveillance programs until they're fixed. The Section 215 collection of phone records may have reached an early end-of-life after the untargeted bulk collection of phone records was banned, but other surveillance authorities continue unaltered. The one that leads to most surveillance abuses is one the court can't seem to bring under control: Section 702.

This is supposed to be surveillance of foreign national security targets, but agencies with access to 702 collection far too routinely use this as a backdoor to American's communications. And nothing about that has changed, eight years down the road from the Snowden leaks. A newly declassified decision [PDF] from the FISA Court shows the court is still willing to overlook egregious abuses of this authority to spy on Americans.

Here's the EFF's summary of last November's decision -- one made public late last month by the FISA Court.

[T]he FISC again found that a series of overly complex but still ultimately swiss cheese agency protocols -- that are admittedly not even being followed -- resolve the Fourth Amendment problems caused by the massive governmental seizures and searches of our communications currently occurring under FISA Section 702. The annual review by the FISC is required by law -- its supposed to ensure that both the policies and the practices of the mass surveillance under 702 are sufficient. It failed on both counts.

The key part of this summary is this: "admittedly not being followed." Even when the government admits it's violating rights, the FISA Court says that's ok as long as the government admits it. Candor is appreciated, but it would be better if the government stopped violating its own protocols and the rights of Americans. That's where the FISA Court should draw the line. But it doesn't. And it hasn't in years.

While the Court has expressed concerns about certain communications being swept up in 702 collections and disseminated to agencies who won't use this information solely for national security purposes, it's ok with that happening, so long as the NSA and other agencies check all the internal guideline boxes before violating the Fourth Amendment or, as is specifically discussed in this case, accessing privileged attorney-client communications.

The FISA Court says it has no problem with the NSA accessing privileged communications since it won't be directly involved in any criminal cases. But it can see how other agencies without the same foreign-facing directives might end up in the possession of privileged conversations.

That being said, the government is admonished to guard against the possibility that NSA, in compliance with its procedures, might disseminate to FBI a report based on a privileged communication described in Section 5(c) of the NSA procedures (pertaining to a criminal charge in the United States) that, had the FBI obtained it through its own collection efforts, the FBI would be required to sequester with the Court under FBI Minimization Procedures

Swell, but the Court goes on to say this isn't something it's going to worry about.

The Court again concludes that NSAs procedures, as a whole and applied to it, an agency with no law-enforcement mission or authority, are reasonably designed to protect the substantial privacy interests in attorney-client communications, consistent with the need to exploit those communications for legitimate foreign-intelligence purposes.

This kind of ignores the fact that prosecutions of foreign terrorists generally involve US courts. So even if the NSA isn't exactly in the law enforcement business, its collections aid and abet domestic law enforcement agencies that do directly work with prosecutors and build criminal cases.

Marcy Wheeler's summary of the FISA opinion is even more caustic. Here's the bullet point breakdown of the Court's acquiescence to the government's claims that it's really, really hard to keep the FBI from looking at stuff it's not supposed to be looking at when it accesses 702 collections.

It took time for them to make the changes in their systems

It took time to train everyone

Once everyone got trained they all got sent home for COVID

Given mandatory training, personnel should be aware of the requirements, even if actual practice demonstrates theyre not

FBI doesnt do that many field reviews

Evidence of violations is not sufficient evidence to find that the program inadequately protects privacy

The opt-out system for FISA material which is very similar to one governing the phone and Internet dragnet at NSA until 2011 that also failed to do its job failed to do its job

The FBI has always provided national security justifications for a series of violations involving their tracking system where an Agent didnt originally claim one

Bulk queries have operated like that since November 2019

In short, the FBI keeps screwing up. And it keeps telling the FISA Court it will do better. Then the FBI doesn't actually improve and the Court gives it a pass because it's trying to try. The bulwark put in place to deter the government from abusing its powers and violating rights isn't doing its job. It's deciding that national security work is too important to subject to serious judicial scrutiny.

Thank you for reading this Techdirt post. With so many things competing for everyones attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise and every little bit helps. Thank you.

The Techdirt Team

Filed Under: abuse, doj, fbi, fisa, fisa court, fisc, mass surveillance, nsa, section 702, surveillance, usa freedom act

More here:
FISA Court Says FBI May Be Abusing Surveillance Powers; Will Continue To Allow It To Abuse Surveillance Powers - Techdirt

Video above: Vaccine-seeking patients asked for ID before booking COVID-19 appointmentThe card that millions of people use to prove their identity to everyone from police officers to liquor store owners may soon be a thing of the past as a growing number of states develop digital driver's licenses.With the advent of digital wallets and boarding passes, people are relying more on their phones to prove their identity. At least five states have implemented a mobile driver's license program. Three others Utah, Iowa and Florida intend to launch programs by next year, with more expected to follow suit.Mobile licenses will give people more privacy by allowing them to decide what personal information they share, state officials say. The licenses offer privacy control options that allow people to verify their age when purchasing alcohol or renting a car, while hiding other personal information like their address.Having a mobile driver's license will allow people to update their license information remotely without having to go to a state's Department of Motor Vehicles or waiting for a new card in the mail, said Lee Howell, state relations manager at the American Automobile Association.While most states with these programs recommend that users still carry their physical driver's license as a backup, some industry experts estimate that the coronavirus pandemic has sped up the widespread adoption of contactless identification methods by at least a decade."Most people want some kind of a hard token for their identity, but I don't know how long that will last," said Pam Dixon, executive director of the World Privacy Forum. "I would imagine that at some point, maybe in a generation, maybe less, that people will accept a fully digital system."In most states, people's data will be stored on their phone and with the DMV. People will only be able to access a mobile ID app with a passcode or using a smartphone's fingerprint or facial recognition scan.Industry leaders say safeguards will prevent anyone's information from being stolen, but some critics argue that having so much personal data on a phone is too risky. "When you have a physical thing in your hand, no one can hack that unless you lose it," said Shelia Dunn Joneleit, a spokesperson for the National Motorists Association.Joneleit noted that the new systems aren't accessible to all Americans because not everyone can afford a smartphone. She said that could eventually produce equity issues because some states require residents to show their driver's license to vote.She also said she doesn't believe drivers should be handing their phones over to police, potentially violating people's Fourth Amendment rights against unreasonable searches and seizures.State officials and industry leaders say that moving away from physical IDs that could potentially be fraudulent to cryptographic verification will make it easier to confirm someone's identity."The majority of the way that people verify your identity in person today is by visual inspection of the identity document," said Matt Thompson, senior vice president of IDEMIA, a technology company working on several states' mobile ID apps. "As we move to cryptographic verification, it's a lot easier to verify the authenticity of a document through digital means."IDEMIA has launched mobile ID apps in three states this year and expects to launch an additional seven before 2021 ends, said Angie Hamblen, the company's senior marketing manager.Oklahoma's mobile ID app got underway in 2019 but relaunched with IDEMIA in January with new functions, including the ability to pre-enroll for the federally mandated REAL ID security standards. Both Delaware and Arizona launched their own mobile ID apps in March.In Utah, over 100 people have a pilot version of the state's mobile ID, and that number is expected to grow to 10,000 by year's end. Widespread production is expected to begin at the start of 2022, said Chris Caras, director of Utah's Driver License Division. The app is being produced by another company, GET Group North America.Caras said the state is following industry standards for digital IDs that were released late last year because Utah wanted to ensure people could use their mobile credentials anywhere in the U.S."Our goal is that anywhere that you're currently using your hard card, you could use your mobile credential," Caras said.Colorado and Louisiana were two of the first states that developed digital identification apps, but they don't follow the newly released standards and aren't accepted in other states. Louisiana's digital ID launched in 2018.Colorado, along with Idaho, Maryland, Wyoming and Washington, D.C., received a grant to test mobile driver's licenses in 2016. Colorado Gov. Jared Polis issued an executive order in 2019 authorizing businesses and state agencies to begin accepting the digital ID. Colorado State Patrol started accepting them last November.___Eppolito is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.

Video above: Vaccine-seeking patients asked for ID before booking COVID-19 appointment

The card that millions of people use to prove their identity to everyone from police officers to liquor store owners may soon be a thing of the past as a growing number of states develop digital driver's licenses.

With the advent of digital wallets and boarding passes, people are relying more on their phones to prove their identity. At least five states have implemented a mobile driver's license program. Three others Utah, Iowa and Florida intend to launch programs by next year, with more expected to follow suit.

Mobile licenses will give people more privacy by allowing them to decide what personal information they share, state officials say. The licenses offer privacy control options that allow people to verify their age when purchasing alcohol or renting a car, while hiding other personal information like their address.

Having a mobile driver's license will allow people to update their license information remotely without having to go to a state's Department of Motor Vehicles or waiting for a new card in the mail, said Lee Howell, state relations manager at the American Automobile Association.

While most states with these programs recommend that users still carry their physical driver's license as a backup, some industry experts estimate that the coronavirus pandemic has sped up the widespread adoption of contactless identification methods by at least a decade.

"Most people want some kind of a hard token for their identity, but I don't know how long that will last," said Pam Dixon, executive director of the World Privacy Forum. "I would imagine that at some point, maybe in a generation, maybe less, that people will accept a fully digital system."

In most states, people's data will be stored on their phone and with the DMV. People will only be able to access a mobile ID app with a passcode or using a smartphone's fingerprint or facial recognition scan.

Industry leaders say safeguards will prevent anyone's information from being stolen, but some critics argue that having so much personal data on a phone is too risky.

"When you have a physical thing in your hand, no one can hack that unless you lose it," said Shelia Dunn Joneleit, a spokesperson for the National Motorists Association.

Joneleit noted that the new systems aren't accessible to all Americans because not everyone can afford a smartphone. She said that could eventually produce equity issues because some states require residents to show their driver's license to vote.

She also said she doesn't believe drivers should be handing their phones over to police, potentially violating people's Fourth Amendment rights against unreasonable searches and seizures.

State officials and industry leaders say that moving away from physical IDs that could potentially be fraudulent to cryptographic verification will make it easier to confirm someone's identity.

"The majority of the way that people verify your identity in person today is by visual inspection of the identity document," said Matt Thompson, senior vice president of IDEMIA, a technology company working on several states' mobile ID apps. "As we move to cryptographic verification, it's a lot easier to verify the authenticity of a document through digital means."

IDEMIA has launched mobile ID apps in three states this year and expects to launch an additional seven before 2021 ends, said Angie Hamblen, the company's senior marketing manager.

Oklahoma's mobile ID app got underway in 2019 but relaunched with IDEMIA in January with new functions, including the ability to pre-enroll for the federally mandated REAL ID security standards. Both Delaware and Arizona launched their own mobile ID apps in March.

In Utah, over 100 people have a pilot version of the state's mobile ID, and that number is expected to grow to 10,000 by year's end. Widespread production is expected to begin at the start of 2022, said Chris Caras, director of Utah's Driver License Division. The app is being produced by another company, GET Group North America.

Caras said the state is following industry standards for digital IDs that were released late last year because Utah wanted to ensure people could use their mobile credentials anywhere in the U.S.

"Our goal is that anywhere that you're currently using your hard card, you could use your mobile credential," Caras said.

Colorado and Louisiana were two of the first states that developed digital identification apps, but they don't follow the newly released standards and aren't accepted in other states. Louisiana's digital ID launched in 2018.

Colorado, along with Idaho, Maryland, Wyoming and Washington, D.C., received a grant to test mobile driver's licenses in 2016. Colorado Gov. Jared Polis issued an executive order in 2019 authorizing businesses and state agencies to begin accepting the digital ID. Colorado State Patrol started accepting them last November.

___

Eppolito is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.

See the original post:
More states are adopting digital IDs, but some critics worry it's too risky - WXII The Triad

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.

Thank you for reading this Techdirt post. With so many things competing for everyones attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise and every little bit helps. Thank you.

The Techdirt Team

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.

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