Impressive: 'without a doubt the most illegal search I’ve ever seen in my life'

 Veteran defense lawyers and law enforcement experts have been warning about the potential for overreach since the federal government muscled its way into policing decisions in the nation's capital nearly three weeks ago, reported NPR.

Inside the federal courthouse in Washington, D.C., on Monday, those tensions broke into open court.

A federal judge dismissed a weapons case against a man held in the D.C. jail for a week — concluding he was subject to an unlawful search.

"It is without a doubt the most illegal search I've ever seen in my life," U.S. Magistrate Judge Zia Faruqui said from the bench. "I'm absolutely flabbergasted at what has happened. A high school student would know this was an illegal search."

The judge said Torez Riley appeared to have been singled out because he is a Black man who carried a backpack that looked heavy. Law enforcement officers said in court papers they found two weapons in Riley's crossbody bag — after he had previously been convicted on a weapons charge.

The arrest — and the decision to abandon the federal case — come at a time of heightened scrutiny on police and prosecutors in the District of Columbia.

President Trump has ordered National Guard members and federal law enforcement officers to "clean up" the city and crack down on crime. He signed a new executive order on Monday to ensure more people arrested in D.C. face federal charges and are held in pretrial detention "whenever possible."

Newly confirmed U.S. Attorney for the District of Columbia Jeanine Pirro has directed her prosecutors to seek maximum charges against defendants — and to seek to detain them. And the court system is straining to respond.

Riley, who entered the courtroom wearing a white skullcap and a bright orange jumpsuit, had been scheduled for a detention hearing. Instead, on Monday morning, the U.S. Attorney's Office moved to dismiss the case it lodged against him seven days ago.

"The government has determined that dismissal of this matter is in the interests of justice," prosecutors wrote in court papers.

A spokesman for the Department of Justice said Pirro moved to dismiss the charges once she was shown body camera footage of the arrest on Friday.

Judge Faruqui, who spent about a dozen years as a prosecutor in that same office, expressed outrage about the charges.

"We don't just charge people criminally and then say, 'Oops, my bad,'" he said. "I'm at a loss how the U.S. Attorney's Office thought this was an appropriate charge in any court, let alone the federal court."

But Pirro pushed back against Faruqui's comments.

"This judge has a long history of bending over backwards to release dangerous felons in possession of firearms and on frequent occasions he has downplayed the seriousness of felons who possess illegal firearms and the danger they pose to our community," Pirro said in a statement to NPR. "The comments he made today are no different than those he makes in other cases involving dangerous criminals."

The judge said he had seven cases on his docket Monday that involved people who had been arrested over the weekend — the most ever, he said.

Faruqui also said "on multiple occasions" over the past two weeks, other judges in the federal courthouse had moved to suppress search warrants, a highly unusual move that makes the warrants inadmissible in court.

"Eyes of the world" are on the city

A day after police took Riley into custody, they arrested an Amazon delivery driver who had come under suspicion for having alcohol in his vehicle. The driver, Mark Bigelow, has been charged in the same federal court with resisting or impeding an Immigration and Customs Enforcement officer.

Another man, Edward Dana, was charged last week with making threats against the president. Dana said he was intoxicated and in the course of other rambling — that included singing in the back of a patrol car — he made remarks about Trump, according to the court docket. Dana was unarmed.

U.S. Magistrate Judge Moxila Upadhyaya ordered a mental health assessment and competency screening and ordered Dana released last week.

But prosecutors appealed her ruling. On Monday, Chief Judge James Boasberg held his own hearing — and agreed with the magistrate's decision. He ordered Dana's release, with conditions.

In the Riley case, Assistant U.S. Attorney Benjamin Helfand declined to describe the changed circumstances but instead spoke for a few moments privately with the judge, while the courtroom husher blocked the sound of the exchange.

Later, the judge said Helfand was not the problem and praised him for having "the dignity and the courtesy" to move to drop the case. But he told Helfand to deliver a message to his superiors — that charging people based on little or unlawfully obtained evidence would hurt public safety, not improve it.

"If the policy now is to charge first and ask questions later, that's not going to work," the judge said. "Arrests stay on people's records. That has consequences."

"Lawlessness cannot come from the government," Judge Faruqui added. "The eyes of the world are on this city right now."

The judge also delivered words of warning to Riley about the danger and harsh consequences of carrying weapons. "Yes, sir," the defendant replied.

Riley will remain in D.C. custody for now. Authorities in Maryland have 72 hours to pick him up for allegedly violating the terms of his supervised release there, for possessing a weapon last week near the grocery store in D.C.'s Union Market neighborhood. The DOJ spokesperson said Riley was being held pursuant to a detainer warrant for Prince George's County in Maryland.

Outside the courtroom, Riley's pregnant wife, Crashawna Williams, said she had missed school and had taken on extra responsibilities for their sons, ages 12, 8 and 3, following Riley's arrest.

"It's put everything on me; it's straining me," she said.

Public defender Elizabeth Mullin said the search and arrest by a combination of D.C.'s Metropolitan Police officers and federal agents was patently unlawful.

"This never should have happened," Mullin said. "He was doing nothing wrong. He was just walking into Trader Joe's to get some food."

To read more CLICK HERE

Creators: The Turbulent 1960s Continue to Shape America's Criminal Justice System

Matthew T. Mangino
CREATORS
August 26, 2025

The 1960s were turbulent. The nation was in the midst of two wars. First, the Cold War with the Soviet Union and later the Vietnam War. Former President John F. Kennedy was assassinated in 1963, Martin Luther King was killed in 1968 as well as President Kennedy's brother, and presidential candidate Robert F. Kennedy. There was racial unrest and anti-war protests. The tumult of the 1960s changed America forever.

During the 1960s, the U.S. Supreme Court also experienced a tumultuous evolution. Starting in 1961, the U.S. Supreme Court made a series of decisions regarding the rights of criminal defendants that still reverberate today. Starting with the decision of Mapp v. Ohio, the court issued four decisions that continue to be analyzed, interpreted and adjusted more than 60 years later.

Dollree Mapp refused to let the police enter her house without a warrant. The police returned several hours later with a document purported to be a warrant — it was not. They entered her home, found some illicit material and arrested her. She unsuccessfully challenged the evidence at trial. On appeal, the Supreme Court found in her favor and extended the "exclusionary rule" to state prosecutions.

The exclusionary rule prohibits the police from using evidence illegally obtained. The rule is the primary impetus behind improvements in police training and the general protection of individual constitutional rights.

Ironically, the late Justice Antonin Scalia cited "increasing professionalism of police" as a reason for the exclusionary rule's obsolescence.

Scalia's argument didn't make sense then and doesn't make sense today. Without the exclusionary rule, an individual's constitutional rights would be ignored. Law enforcement training would turn on a dime. Without constitutional guardrails, police would turn a blind eye to individual rights with impunity.

In 1963, the court decided Gideon v. Wainwright. The landmark decision held that state criminal courts must provide counsel to defendants in criminal cases without cost if they cannot afford an attorney. Although most states were already providing free legal counsel to defendants facing a charge that could result in a prison sentence, Florida and a handful of other southern states were not.

Two years later, the court decided Miranda v. Arizona and incorporated Gideon into the decision. The decision requires the police to inform a suspect who is in custody that he has the right to remain silent and the right to an attorney.

Although the Miranda warnings are etched in nearly everyone's consciousness, the decision is still evolving. Little more than a decade ago, a murder suspect in Texas who answered questions for almost an hour was then asked about some incriminating evidence. The suspect stopped talking.

The police made notes of his conduct once he stopped talking. According to the Supreme Court, the suspect "(l)ooked down at the floor, shuffled his feet, bit his bottom lip, cl(e)nched his hands in his lap, (and) began to tighten up."

That conduct was used at his trial as evidence that he was hiding his guilt. The Supreme Court found that silence is not enough to invoke the right to remain silent.

Finally, in 1968, the Supreme Court decided Terry v. Ohio. The court found that it was not an illegal search and seizure if a police officer with "reasonable suspicion" — more than just a hunch — stops a suspect on the street, asks her to identify herself and pats her down for a weapon.

As the U.S. Supreme Court has moved right, these landmark decisions are being tested. Without constitutional guardrails, police could turn a blind eye to individual rights with impunity.

The right to remain silent; the exclusion of illegally obtained evidence; limits on stopping individuals without adequate suspicion; exemplify the integrity of our criminal justice system — even strong evidence of guilt cannot be used if police violated the Constitution to get that evidence.

The 1960s continue to have an impact on the Supreme Court and, more importantly, on the fundamental rights of those accused of a crime.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

To visit Creators CLICK HERE

Gibsonia and Cranberry, PA restaurants raided and damaged by masked ICE agents

A local Mexican restaurant chain in Western Pennsylvania is trying to forge ahead a week after a worksite immigration raid left property damage at two of its storefronts and a workforce afraid to show up to their jobs, according to two employees and a witness who spoke with NBC News.

It all started Aug. 7 when immigration authorities showed up at two Emiliano’s Mexican Restaurant & Bar locations in the Pittsburgh area. As many as 16 workers were detained — nine worked at a location in Gibsonia, a suburb north of Pittsburgh, and seven others worked at another location in the nearby township of Cranberry.

In a social media post that same afternoon, which included a video taken by a worker, the business accused agents of storming into its restaurants and leaving “a trail of fear, confusion, and destruction” that included a burned kitchen, torn ceiling tiles, broken doors, a safe cut open by an agent and trashed food. The incident raises questions over the tactics used by authorities at this particular raid.

This week, gas plumbers fixed a stove that was damaged during the raid, according to two people working at the restaurant chain. Staffing was also thin at the locations targeted by immigration authorities as employees who witnessed the raid, including those who are U.S. citizens, remain “in shock,” they added. “No one wants to go back, everyone is scared.”

Both workers who spoke with NBC News requested to not be named to protect their family’s privacy because of an ongoing federal investigation in connection with last week’s events.

The U.S. Attorney’s Office for the Western District of Pennsylvania declined to clarify what the investigation it is leading is about.

As the immigration arrests were happening last week, someone alerted an emergency response immigration hotline run by Casa San Jose, a local nonprofit that advocates for Latino and immigrant communities.

The organization quickly dispatched about 20 volunteers to both locations to act as legal observers, collect testimonies and provide support to the workers and families affected, according to Jaime Martinez, a community defense organizer at Casa San Jose.

At the Gibsonia location, “the raid actually caused a kitchen fire that agents were unable to extinguish at the beginning, which put people in danger,” Martinez told NBC News on Tuesday.

Employees who spoke to Martinez and his volunteers said the stove was on when agents entered the kitchen because workers were cooking food as they prepared to open the restaurant Thursday morning. The restaurant’s manager warned agents that the open burners were on, but witnesses alleged that agents didn’t do anything until a fire sparked, he said.

The detained employees, who had their arms and ankles shackled, were the ones who directed the agents to find the fire extinguisher and instructed them on how to use it after initially failing to operate it, according to employees who spoke to Martinez and his volunteers.

“By the time the fire department got there, the fire had already been put out with a dry chemical extinguisher, but only after this delay,” Martinez said.

A spokesperson with U.S. Immigration and Customs Enforcement told NBC News in an email Thursday that the “damage to the restaurant, including the small fire, was created by the illegal aliens themselves while they were trying to escape or hide from law enforcement officers.”

According to ICE, the agents showed up at the locations in Gibsonia and Cranberry to execute federal search warrants based on information it got alleging that the restaurants were employing undocumented workers, WPXI, NBC’s affiliate in Pittsburgh, reported. The agency added that the 16 people detained lack legal status and are now in ICE custody, undergoing immigration proceedings.

“But in the process of coming in with that warrant, they also terrorized the community, pointed guns at people and destroyed a local business,” Martinez said.

In response to this, the ICE spokesperson told NBC News, “All agents and officers followed established legal procedures while executing the warrants.”

At the Cranberry location, Casa San Jose volunteers interviewed a worker who described seeing officers come into the restaurant, shouting “police” and pointing their long guns at the employees. One female employee who was in the kitchen said an agent “pointed the gun at her head” while telling her to stop cooking, according to Martinez.

While she was not detained after showing proper documentation, “this lady is now going to have to live with the trauma of having law enforcement point a gun at her head while she was at work,” Martinez said.

Martinez and one of the workers who spoke with NBC News said agents lined up all of the cuffed employees and made them kneel while pointing their weapons at them.

“Agents and officers operated within established law enforcement standards in order to ensure the safety of law enforcement officers, the public and the illegal aliens themselves,” the ICE spokesperson said in response to this allegation.

Last week was not the first time immigration authorities attempted to detain employees from Emiliano’s Mexican Restaurant & Bar. The ICE spokesperson confirmed to NBC News that a June incident was part of “an investigation that ultimately led to the execution of the warrants” this month.

Martinez said that on a night in June, he got a call on the hotline, reporting unmarked vehicles surrounding a nearby apartment complex. When the volunteer who was dispatched arrived at the area, she noticed the vehicles were parked with their engines still running, in front and behind the restaurant.

According to Martinez, it looked like federal agents inside the vehicles were waiting for workers to come out of the restaurant as it was closing. The vehicles left once TV crews arrived on the scene, he said.

“There were nine people in that restaurant on lockdown,” Martinez said, adding his group doesn’t know the immigration status of those workers since it doesn’t ask people about that as part of its policy. “But you don’t have to be undocumented to be afraid of getting detained.”

Since launching the hotline in March, Casa San Jose has received more than 650 calls reporting more than 100 immigration detentions in the area and has dispatched volunteers in at least 70 instances, according to Martinez.

In the wake of the raids at Emiliano’s Mexican Restaurant and Bar locations, the community came together and collectively donated more than $133,000. The workers who spoke with NBC News said the business plans to use the funds to cover bond expenses, one month worth of salary for each employee detained and repair damage done to the restaurant.

To read more CLICK HERE

 

CREATORS: Your Car is Spying on You

Matthew T. Mangino
CREATORS
May 20, 2025

Most late-model vehicles have the ability to log speed, when and where a vehicle's lights are turned on, which doors are opened and closed at specific locations as well as gear shifts, odometer readings, ignition cycles — and that is only the tip of the iceberg.

Preinstalled safety and performance features that car dealers push on consumers can increase a driver's exposure to government surveillance and the likelihood of being the subject of a police investigation.

As the U.S. Supreme Court has extended protections to the privacy of your smartphone, your car has unexpectedly become a safe haven for law enforcement to access your personal information without a warrant.

In 2018, the Supreme Court ruled that the Fourth Amendment, which prohibits unreasonable searches and seizures, protects cell phone location information. In an opinion by Chief Justice John Roberts, the court recognized that location information collected by cell providers creates a "detailed chronicle of a person's physical presence compiled every day, every moment over years."

Subsequent court rulings have clearly established that individuals can maintain an expectation of privacy in information that they provide to third parties. As a result, the police must now get a warrant before obtaining cell phone data.

According to documents reviewed by WIRED Magazine, law enforcement agencies regularly train on how to take advantage of "connected cars."

For instance, the California Highway Patrol trains officers on how to acquire data using a variety of hypothetical scenarios, each describing how vehicle data can be acquired based on the year, make, and model of a vehicle.

When police are focused on a suspect, they will often use a technique known as a "ping" to geographically locate a specific device known to belong to that suspect. A cellphone ping can put a specific person in the area of a cellphone tower at or near a specific time.

However, according to WIRED, when police have a crime scene and no suspect, investigators will rely on a procedure known as a "tower dump," requesting that an Internet Service Provider cast a wider net and identify virtually any devices that have connected to a specific cell tower during a certain period of time. Investigators can examine the data and analyze it contemporaneously with access to storefront surveillance footage, traffic cameras and even doorbell cameras to identify a person or vehicle.

In some instances, a vehicle owner who had not purchased a safety or performance subscription may still be producing data that is being maintained by the manufacturer and ultimately available for review by law enforcement.

Access to personal information goes beyond what police might find when trying to recreate an individual's whereabouts — more alarming is what an individual may voluntarily make available to police.

Plugging into your vehicle is the same as throwing your personal information in the garbage and putting it out on the curb. In 1988, the U.S. Supreme Court ruled in a California case that the Fourth Amendment does not require police obtain a warrant before searching trash containers placed on the curb.

No person has a reasonable expectation of privacy in items left in a public place. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection," said the justices. That goes for personal information dumped into a vehicle's data system.

An individual who rents a vehicle and plugs their phone in for directions, or music, or to make a hands-free call may have unwittingly left their personal information in the vehicle. It's like throwing your diary in the trash can. As a result, law enforcement can access that personal, sometimes embarrassing, and maybe even incriminating, information without a warrant.

Jay Stanley, a senior policy analyst at the American Civil Liberties Union, told WIRED, "It's an ongoing scandal that this kind of surveillance is taking place without people being aware of it, let alone permitting it."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

To read more CLICK HERE

SCOTUS rejects case testing the limits of qualified immunity

The U.S. Supreme Court recently rejected a petition from a family whose home was wrongly raided by a SWAT team, despite that law enforcement were found to have violated the victims' Fourth Amendment rights, reported Reason Magazine.

Justices Sonia Sotomayor and Ketanji Brown Jackson would have granted the petition, falling two votes short of the Court's threshold.

In March 2019, Lt. Mike Lewis led police to Karen Jimerson and James Parks' home in Lancaster*, Texas, ultimately ordering SWAT to "break and rake" the house, shattering all the front windows, the shards from which reportedly rained down on their sleeping children. They also set off a flash grenade and broke down the door, guns drawn. But the target structure, a suspected methamphetamine stash house, was located two doors down. Police would not realize until after holding the Jimerson-Parks family—including a half-naked Karen, who had just gotten out of the bath—at gunpoint.

The two houses were differentiable. Most notably, they had different house numbers. But the Jimerson-Parks family home departed from the target in other significant ways: It had a wheelchair ramp and a porch, for example, while the alleged stash house had a fence and no porch, information Lewis was provided prior to the execution of the warrant.

The U.S. District Court for the Northern District of Texas declined to give Lewis qualified immunity, which shields state and local government actors from civil suits if the alleged misconduct was not "clearly established" as unconstitutional in a prior court precedent. "The record in this case contains ample evidence," wrote Judge Sam A. Lindsay, "for a reasonable jury to conclude that [Lewis] acted objectively unreasonable prior to the execution of the search warrant."

But the U.S. Court of Appeals for the 5th Circuit reversed that ruling by a vote of 2–1, concluding that because Lewis had done more than "nothing" to prepare for the raid, he did not violate clearly established law. Under qualified immunity analysis, proving a constitutional violation isn't enough—Jimerson and Parks also had to prove that the relevant case law on the subject sufficiently put Lewis on notice that his conduct was illegal.

In dissent, Judge James L. Dennis said that it did. "Lewis did not even check the number of the house before instructing the SWAT team to execute the warrant on the Jimersons' home," he wrote, adding that "it is undisputed that Lewis violated the Jimersons' Fourth Amendment rights in executing a SWAT-style entry into their home without a warrant."

The Supreme Court previously ruled in Maryland v. Garrison (1987) that the Fourth Amendment requires officers to make "a reasonable effort to ascertain and identify the place intended to be searched." The U.S. Courts of Appeals for the 8th, 9th, and 11th Circuits have held that the ruling clearly established that law enforcement violate the law when they search a house without properly verifying that its conspicuous features match those of the target. The 5th Circuit, however, said that decision was too generalized to put police on notice. The Institute for Justice, the public interest law firm representing Jimerson and Parks, had urged the Supreme Court to take up the case to clarify that split. 

The high court is poised to hear a different case concerning a wrong-house raid, although the issue the justices consider will be different. In October 2017, the FBI detonated a flash grenade inside and ripped the door from the hinges of the house where Curtrina Martin lived with her then-fiancé, Toi Cliatt, and her young son, Gabe. Agents stormed into Martin and Cliatt's bedroom, holding him at gunpoint until they realized their error. The leader of that raid, Lawrence Guerra, was also granted immunity, which the Court will not reevaluate. Instead, the justices will decide if the U.S. Court of Appeals for the 11th Circuit erred when it declined to let Martin sue under the Federal Tort Claims Act—the law that was revised in the 1970s to include a law enforcement proviso for situations almost identical to Martin's.

Still up for debate, however, is whether or not a reasonable law enforcement officer knows he must check the features and address of his target house before raiding it, should he want to stay within the bounds of the Constitution.

To read more CLICK HERE

CREATORS: The Why Behind the Fourth Amendment Makes One Appreciate the Need

Matthew T. Mangino
CREATORS
February 25, 2025

The United Kingdom's greed in the late 17th Century contributed to what we in America have come to know as the Bill of Rights. At the time, the British Empire ruled the world. Britain controlled governments in Africa, Asia and the Americas.

In fact, the British Empire controlled 26 colonies in the Americas. That's right, Britain's domination in the Americas went beyond the 13 colonies in North America that would later become the United States. Britain also controlled settlements in, among other places, Bermuda, Honduras, Antigua, Barbados and Jamaica.

In Britain, the prevailing economic philosophy of the 17th and 18th centuries was to look to colonies to enrich the "mother country." To that end, Britain did not want their colonies trading with other countries. To prevent such trades, the British imposed high "tariffs" on imported goods.

In return, American colonists began smuggling goods from other countries into the colonies. In response, Britain began cracking down on them. The British started utilizing writs of assistance. The writs gave enormous power and discretion to customs officials.

The writs were general search warrants that never expired or required a basis for suspicion. They let officials enter the homes of colonists, at any time for any reason.

The writs, as well as subsequent criminal trials in admiralty court, without juries, led to rebellion, which in no small part turned into the revolution that catalyzed independence for the United States of America.

When it came time to draft a constitution for the new country, the founding fathers had not shaken off the sting of writs of assistance. In fact, the Fourth Amendment to the United States Constitution was written precisely to prevent the new government from running roughshod over its citizens.

In the words of colonial lawyer and activist James Otis, "a man's house is his castle," and the Framers sought to protect those homes and their occupants from unlawful searches and arrests.

The Fourth Amendment reads:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

This amendment is among the most sacred safeguards of individual liberty embedded in the Constitution.

First, the Framers wanted to make clear that people in this new nation would have a "right" to be secure in their homes and that their personal papers, either on them or in their homes, would remain private.

Secondly, the Framers created a plan for maintaining the security of persons and places. They resolved that a home could not be entered without securing a warrant. The warrant required by the Fourth Amendment would be much more than the writs of assistance. Each warrant first required that it be based on a level of suspicion — not a hunch, but rather probable cause, a term used in every arrest warrant and search warrant to this day.

The official seeking the warrant had to attest to its authenticity and have a neutral magistrate — a judge — sign off.

This is how a burgeoning nation prevented tyranny. The colonists tasted despotism and did not like it. The Fourth Amendment, in just 54 words, packed a lot of power. Interpreting the breadth and scope of those words continues in courtrooms around the country every day - as it should.

The work of protecting the rights and privileges of the U.S. Constitution never ends. America must be vigilant in protecting the fundament rights that we sometimes take for granted. Imagine an America where the police, military or government agency could come into your home any time, day or night, to see what you are doing or who and what you support.

What if the government could scan your phone or examine your computer in the name of efficiency, or any other reason or ... no reason at all?

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

To visit Creators CLICK HERE

Handing your phone to police could expose you to unintended problems

No matter what, teaching people they can add their IDs to their phones means some people will inevitably leave the house without physical ID, and that means creating the opportunity for cops to demand phones — which you should never, ever do, reported The Verge. Technical details of your digital ID aside, handing your phone to a police officer grants law enforcement a lot of power over some of your most intimate personal data.

In Riley v. California, the Supreme Court unanimously held that police need a warrant to search through cell phones, even during otherwise lawful arrests. But if you hand over your unlocked phone to a police officer and offer to show them something, “it becomes this complicated factual question about what consent you’ve granted for a search and what the limits of that are,” Brett Max Kaufman, a senior staff attorney in the ACLU’s Center for Democracy, told The Verge. “There have been cases where people give consent to do one thing, the cops then take the whole phone, copy the whole phone, find other evidence on the phone, and the legal question that comes up in court is: did that violate the scope of consent?”

If police do have a warrant to search your phone, numerous courts have said they can require you to provide biometric login access via your face or finger. (It’s still an unsettled legal question since other courts have ruled they can’t.) The Fifth Amendment typically protects giving up passcodes as a form of self-incrimination, but logging in with biometrics often isn’t considered protected “testimonial” evidence. In the words of one federal appeals court decision, it requires “no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking.”

The court said its ruling shouldn’t necessarily extend to “all instances where a biometric is used to unlock an electronic device” because Fifth Amendment questions “are highly fact dependent and the line between what is testimonial and what is not is particularly fine.” And as Recode pointed out in 2020, a defense attorney could argue that any evidence found this way is illegal and should be suppressed — but that’s a risky bet. “It’s fair to say that invoking one’s rights not to turn over evidence is stronger than trying to have the evidence suppressed after the fact,” Andrew Crocker, a senior staff attorney for the Electronic Frontier Foundation, told Recode for that piece.

You might be thinking at this point: you’ve got nothing incriminating on your phone! And an officer may well come to that conclusion. But they could also find something you didn’t even realize was there. “There are a lot of laws on the books, and if a prosecutor or police officer decides to go after you, are you sure you didn’t do anything?” Jay Stanley, a senior policy analyst with the ACLU’s Speech, Privacy, and Technology Project, told The Verge. “You’re only opening yourself to abuse, to errors, to mistakes. There could be a coincidence that placed you at the scene of a crime that you weren’t even aware of.” Even if you assume most officers are acting in good faith, there are plenty of documented instances of officers abusing their power and facing no legal repercussions. There’s no reason to preemptively hand over something that could be used against you.

There are some minor protections built into Apple and Google’s current systems — you can display an encrypted ID without fully unlocking your phone, and various authorities can scan your ID wirelessly if they have special readers. But you don’t want to be in a situation where you’re searching the web for the technical and policy details of your digital ID system when a cop demands your phone — you’re much better off handing over your physical ID card.

To read more CLICK HERE

Creators: When a Hunch Leads to a Constitutional Violation

Matthew T. Mangino
Creators Syndicate
September 16, 2024

Bestselling author Malcolm Gladwell wrote about a concept he called "thin-slicing." This idea suggests that spontaneous decisions are often as good as — or even better than — carefully deliberated decisions.

His book "Blink" begins with the story of the Getty kouros, a statue purchased in 1985 by the J. Paul Getty Museum in California. Many experts thought the kouros was authentic, but others who just looked at the statue were skeptical. George Despinis, head of the Acropolis Museum in Athens, said after viewing the kouros, "Anyone who has ever seen a sculpture coming out of the ground could tell that that thing has never been in the ground."

Thin-slicing suggests that intuitive judgment is developed by experience, training and knowledge.

Intuitive judgment, in layman's terms, is a hunch. In the criminal justice system, a hunch is the lowest level of what is referred to as a standard of proof. To make a traffic stop, obtain a search warrant or make an arrest, the police must have probable cause. Probable cause means that a reasonable person would believe a crime was in the process of being committed, had been committed or was going to be committed.

In the context of the Fourth Amendment, a mere hunch refers to a situation in which the police have an intuitive feeling that a suspect is engaging in criminal activity, but they do not have any specific evidence to support that feeling.

The Fourth Amendment protects individuals from unreasonable searches and seizures. Thin-slicing in the criminal justice system, and acting on it, would violate the U.S. Constitution. A hunch is suspicion without articulable facts.

"On October 31, 1963 while walking the beat through downtown Cleveland," an ACLU of Ohio article reads, "Cleveland Police detective Martin McFadden with 39 years of police experience noticed three men acting suspiciously and pacing in front of a jewelry store on Euclid Avenue."

McFadden was thin-slicing; based on his years of experience, he was concerned the men were "casing a job, a stickup," and carrying weapons. "McFadden identified himself as a police officer ... asked them their names" and searched the three men for weapons.

Unfortunately for McFadden at the time, a hunch was not enough to overcome a constitutional violation. The searches resulted in John W. Terry's arrest for possessing a firearm without a license. He was convicted, and he appealed all the way to the U.S. Supreme Court. Although the court, in Terry v. Ohio, acknowledged that a hunch was not enough, the court carved out a new standard of proof — reasonable suspicion.

Reasonable suspicion was defined by the U.S. Supreme Court as "the sort of common-sense conclusion about human behavior upon which practical people ... are entitled to rely." According to an article on the Maricopa County, Arizona, website, "Further, it has defined reasonable suspicion as requiring only something more than an 'unarticulated hunch.' It requires facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion."

Terry v. Ohio did not provide blanket authority to intrude on an individual's rights. However, it did radically expand police authority to investigate crimes where there is a reasonable articulable basis for suspicion.

To paraphrase a well-known sardonic commentary, no good decision goes unpunished. The Terry decision led to the controversial policy allowing police officers to stop, interrogate and search New Yorkers to find illegal guns, on the sole basis of reasonable suspicion. According to The New York Times, the New York Police Department made 4.4 million stops under the citywide stop-and-frisk policy between January 2004 and June 2012. "More than 80 percent of those stopped were Black and Latino people," according to the Leadership Conference on Civil and Human Rights.

In 2013, New York Judge Shira A. Scheindlin ruled that NYPD's stop-and-frisk tactics violated the U.S Constitution's Fourth Amendment prohibition of unreasonable searches and seizures. She didn't say that Terry v. Ohio was unconstitutional but that the NYPD's tactics were unconstitutional. Many New Yorkers of color were arrested, convicted and jailed as a result of NYPD's unconstitutional conduct.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino.

To visit Creators CLICK HERE

Fourth Amendment victory at the border

A federal court has held that the government must obtain a warrant based on probable cause before searching travelers’ electronic devices at the border, according to the Knight First Amendment Institute at Columbia University. The ruling came in a case in which a criminal defendant, Kurbonali Sultanov, moved to suppress evidence obtained from a search of his cellphone when he entered the U.S. at John F. Kennedy Airport in New York. In October 2023, the Knight First Amendment Institute at Columbia University and the Reporters Committee for Freedom of the Press filed an amicus brief in the case, arguing that warrantless searches of travelers' phones violate the First Amendment’s protection of the freedoms of the press, speech, and association, as well as the Fourth Amendment’s protection against unreasonable searches and seizures. The judge relied heavily on the amicus brief in issuing her ruling.

“As the court recognizes, warrantless searches of electronic devices at the border are an unjustified intrusion into travelers’ private expressions, personal associations, and journalistic endeavors—activities the First and Fourth Amendments were designed to protect,” said Scott Wilkens, senior counsel at the Knight First Amendment Institute. “The ruling makes clear that border agents need a warrant before they can access what the Supreme Court has called ‘a window onto a person’s life.”

Sultanov was stopped for questioning at John F. Kennedy Airport in March 2022. He initially refused to provide the password to his cellphone but complied when officers told him he had no choice. The officers searched the cellphone manually at JFK, and subsequently searched the phone forensically after obtaining a warrant. In a subsequent criminal case in the Eastern District of New York, Sultanov filed a motion to suppress the evidence obtained from his phone, arguing that the warrantless search of the device at JFK, and the later forensic search, violated his Fourth Amendment rights. 

The court held that the warrantless search of Sultanov’s cell phone at JFK violated the Fourth Amendment, but ultimately denied his motion to suppress because the court concluded that the government acted in good faith.

The court also held that border searches of electronic devices burden core First Amendment rights, including freedom of speech, freedom of religion, freedom of association, and freedom of the press. In reaching this conclusion, the court relied on records obtained by the Knight Institute through a Freedom of Information Act (FOIA) lawsuit, which describe travelers’ experiences with electronic device searches at the border. Read more about that lawsuit here.

The court also explained that these searches chill communications between reporters and their sources, again pointing to the amicus brief filed by the Knight Institute and Reporters Committee for Freedom of the Press, which detailed the experiences of numerous journalists who when entering the U.S. were flagged for secondary inspection and were required to surrender their electronic devices for warrantless searches.

“As the court recognized, letting border agents freely rifle through journalists' work product and communications whenever they cross the border would pose an intolerable risk to press freedom,” said Grayson Clary, staff attorney at the Reporters Committee for Freedom of the Press. “This thorough opinion provides powerful guidance for other courts grappling with this issue, and makes clear that the Constitution would require a warrant before searching a reporter's electronic devices.”

Read the ruling here.

Data Brokers sell people’s private data to the government

Fourth Amendment protects people only against unreasonable searches by government

The Federal Trade Commission is poised to ban a data broker from selling sensitive location data as the Biden administration just issued an executive order to limit sensitive data sales to certain countries of concern, reported Lawfare. Yet a major customer of these data brokers is the U.S. government itself. For years, news outlets have reported on how federal and state agencies buy Americans’ data from private companies called data brokers—in mass. 

These brokers purchase and aggregate users’ location data from virtually all applications. Brokers, in turn, repackage and sell geolocation data to willing buyers, including the federal and state governments. This has led to the government purchasing data on 98 million users from a prayer app, as well as tens of millions of users’ data from dating apps, mobile games, the Weather app, Google, rideshare apps, and social media apps. This data can reveal some of the most intimate information about people, from their faith, political associations and beliefs, immigration status, pregnancy status or interest in seeking an abortion, and more. A recently declassified report from the Office of the Director of National Intelligence confirms what has been known for years: Brokers sell people’s private data to the government. 

Matthew Tokson describes this practice and some of the attendant Fourth Amendment issues in a previous Lawfare piece. Government attorneys claim agencies can purchase data without a warrant because the data is commercially available, meaning there can be no reasonable expectation of privacy with respect to this data, and because users signed a terms of service waiver, meaning they forfeited their privacy rights in the data. Tokson ably responds to both arguments, and suggests that a reasonable expectation of privacy persists in the data.

But commentators miss a foundational problem that puts this practice outside the scope of Fourth Amendment protection: a government purchase of data is not “state action” for constitutional purposes. As I argued in the Yale Law & Policy Review, even if users maintain a reasonable expectation of privacy over the data transacted by data brokers, the violation of their privacy is not cognizable under the Fourth Amendment. 

The Fourth Amendment in the Information Age

The Fourth Amendment prohibits “unreasonable searches” of people’s “persons, houses, papers, and effects.” It is the cornerstone legal protection against warrantless surveillance and a constitutional bulwark for privacy. The Fourth Amendment ordinarily requires law enforcement and intelligence agencies to obtain a warrant to conduct surveillance—for example, tracking people’s locations and wiretapping phones. As the Supreme Court has long made clear, a “search” occurs when the government violates your “reasonable expectation of privacy.” Thus, when the police, FBI, or CIA invade this reasonable expectation of privacy, they (generally) must obtain a warrant. 

In the 2018 Supreme Court decision Carpenter v. United States, law enforcement agencies forced two internet service providers to hand over detailed cell-service location information data on a robbery suspect. The Court held that the suspect had a reasonable expectation of privacy in these invasive geolocation records. Thus, to obtain these records, the government needed a warrant. It stands to reason that when the federal government and state agencies purchase equally sensitive geolocation data from brokers, users have an equally reasonable expectation of privacy in the data sold by brokers as that addressed in Carpenter. (And under Kyllo, even commercially available data can be subject to a reasonable expectation of privacy, as both Tokson and I address elsewhere. That users signed terms-of-service waivers does not undermine users’ expectation of privacy, either.) 

So if users have a reasonable expectation of privacy in the data sold by brokers to the government, then why did the government need to obtain a warrant in Carpenter but need not obtain a warrant to purchase the data?

This is because of the “state action problem.” Axiomatically, the Fourth Amendment protects people only against unreasonable searches by the government, not against those conducted by purely private parties. When the Supreme Court first articulated the “reasonable expectation of privacy” test, it made clear that the Fourth Amendment “protects individual privacy against certain kinds of governmental intrusion” (emphasis added). Thus, when a private citizen or company invades your reasonable expectation of privacy, those “invasions ... d[o] not violate the Fourth Amendment because of their private character.” Private searches, then, are not governed by the Fourth Amendment. (Instead, they are governed by common law tort and state statutes.) 

For the Fourth Amendment to require a warrant to purchase your data, then, the act of buying data itself must constitute a “search”–otherwise, there is no state action, and all that has occurred is a private search. 

To read more CLICK HERE

Suspect can refuse to disclose cellphone passcode under Fifth Amendment

A suspect had a Fifth Amendment right to refuse to give police his cellphone passcode, the Utah Supreme Court has ruled, reported the ABA Journal.

In a Dec. 14 opinion citing that right, the state supreme court reversed the conviction of Alfonso Valdez for kidnapping and assaulting his ex-girlfriend. Prosecutors had elicited testimony at trial about Valdez’s refusal to provide his passcode and told jurors in closing arguments that the refusal undermined one of his defenses.

The Utah Supreme Court said prosecutors violated Valdez’s Fifth Amendment right against self-incrimination when they referred to his refusal, and the error was not harmless.

Ars Technica and the Salt Lake Tribune have coverage, while the Legal Profession Blog has highlights from the opinion.

Valdez’s ex-girlfriend told police that she agreed to meet Valdez outside her workplace after he said in a text he had some of her mail and wanted to give it to her. When the ex-girlfriend walked up to Valdez’s SUV, he pointed a gun at her and told her to get in his vehicle, she said. After she complied, Valdez allegedly assaulted her.

The defense claimed that the interaction was consensual.

Police weren’t able to locate the ex-girlfriend’s cellphone after the incident, but they seized Valdez’s cellphone to verify that he had sent the text. Police obtained a warrant to acquire the cellphone contents.

The Fifth Amendment’s privilege against self-incrimination applies when a communication “is compelled, testimonial and incriminating,” the Utah Supreme Court said. On appeal, the state conceded that the password was compelled and incriminating but claimed that it was not testimonial in nature.

Providing a passcode, the state argued, is not a testimonial communication because it is like handing over a physical key, a nontestimonial act. The Utah Supreme Court disagreed.

Providing a cellphone passcode is testimonial and would explicitly communicate information from the suspect’s mind, making the revelation testimonial in nature, the state supreme court said.

The state also argued that, even if the password is testimonial, the Fifth Amendment does not apply under the “foregone conclusion” exception. It was a foregone conclusion that Valdez owned the phone and knew the password, the state argued, so turning over the passcode would disclose what police already knew.

But the foregone conclusion exception applies only in cases considering whether an “act of production,” such as turning over documents, has testimonial value, the Utah Supreme Court said. At issue is whether the act of production is testimonial in nature, as when producing the documents amounts to a concession that the documents exist and are controlled by the suspect.

“But here,” the Utah Supreme Court said, “we have a verbal communication that would have explicitly communicated information from Valdez’s mind, so we find the exception inapplicable.”

The state supreme court acknowledged that the “analytical framework” would be different if Valdez had been asked to hand over an unlocked cellphone, which would be a compelled act of producing evidence.

The Utah attorney general’s office told the Salt Lake Tribune in a statement that it is disappointed in the ruling and “is evaluating options for further review.”

In a post at the Volokh Conspiracy, Orin S. Kerr, a professor at the University of California at Berkeley School of Law, said the decision “might be a good candidate for U.S. Supreme Court review” to clear up the “total mess” of lower court decisions on the issue. The state supreme court had cited Kerr’s law review articles in its opinion.

Weighing against cert, however, is that Valdez’s case concerns compelled disclosure of a password, rather than compelled unlocking of a cellphone. If the Supreme Court was to accept the case, “it might have to only answer the compelled disclosure issue, and then save the compelled unlocking issue for another day,” Kerr said.

The case is State of Utah v. Valdez.

To read more CLICK HERE

Do police have a reasonable expectation of privacy during a raid?

Do you have a reasonable expectation of privacy when you break into a famous rapper's house with an AR-15 and take his money? A group of Ohio sheriff's deputies thinks so, according to Reason.

Seven Adams County Sheriff's deputies have filed a lawsuit against Afroman for using footage of them raiding his house in several music videos, FOX19 reports. The deputies argue Afroman used their personas for commercial purposes without permission, causing them to suffer "embarrassment, ridicule, emotional distress, humiliation, and loss of reputation."

The Adams County deputies executed a search warrant on Afroman's house last August. According to a search warrant, Afroman was suspected of drug possession, drug trafficking, and kidnapping. The bust came up empty, and Afroman was never charged with a crime. Deputies did, however, seize more than $5,000 in cash, which they were ultimately forced to return. (The returned amount was $400 short, which an investigation later determined was due to a counting error by deputies.)

Afroman then used surveillance footage of the raid and cellphone video taken by his wife in two music videos, "Lemon Pound Cake" and "Will You Help Me Repair My Door." He also sold merchandise with images of the deputies and used the footage to promote his products and tours.

The complaint claims Afroman used their likenesses in dozens of social media posts, "subjecting them to undue ridicule."

"In some instances, it has made it more difficult and even more dangerous for Plaintiffs to carry out their official duties because of comments made and attitude expressed toward them by members of the public," the lawsuit says.

Of course, if they had spent their time solving real crimes instead of trundling around Afroman's house playing drug warrior, they would have remained happily anonymous.

The lawsuit seeks an injunction to take down the posts and videos, as well as more than $25,000 in damages.

In an Instagram post following the filing of the suit, Afroman shared a statement from his attorney Anna Castellini: "We are waiting for public records requests from Adam's county we still have not received. We are planning to counter sue for the unlawful raid, money being stolen, and for the undeniable damage this had on my clients family, career and property."

To read more CLICK HERE

The three criminal statutes listed in the Trump search warrant

The warrant that authorized the F.B.I. to search former President Donald J. Trump’s Florida residence listed three criminal laws as the basis of its investigation, offering a glimpse of an inquiry into his possession of government documents, reported The New York Times.

The search warrant, which was unsealed and made public on Friday in response to a motion by the Justice Department, showed that the magistrate judge who issued it found that there was probable cause to believe the F.B.I. would uncover evidence of all three crimes.

Mr. Trump, who had declined to make the documents public himself but did not object to their release, said that the materials listed in an inventory of items seized from his home had all been declassified. The inventory included multiple caches of documents that the F.B.I. described as top secret along with other government files.

Even if it is true that Mr. Trump deemed the files declassified before the end of his presidency, however, none of the three crimes depends on whether the documents are classified.

A federal judge on Friday unsealed the search warrant for former President Donald J. Trump’s Mar-a-Lago residence in Palm Beach, Fla., as well as a list of items removed from the property when federal agents executed the warrant this week.

The first law, Section 793 of Title 18 of the U.S. Code, is better known as the Espionage Act. It criminalizes the unauthorized retention or disclosure of information related to national defense that could be used to harm the United States or aid a foreign adversary. Each offense can carry a penalty of up to 10 years in prison.

Despite its name, the Espionage Act is not limited to instances of spying for a foreign power and is written in a way that broadly covers mishandling of security-related secrets. The government has frequently used it to prosecute officials who have leaked information to the news media for the purpose of whistle-blowing or otherwise informing the public, for example.

Importantly, Congress enacted the Espionage Act in 1917, during World War I — decades before President Harry S. Truman issued an executive order that created the modern classification system, under which documents can be deemed confidential, secret or top secret. The president is the ultimate arbiter of whether any of those classifications applies — or should be lifted.

As a result, while these classifications — especially top secret ones — can be good indicators that a document probably meets the standard of being “national defense information” covered by the Espionage Act, charges under that law can be brought against someone who hoarded national security secrets even if they were not deemed classified.

The list of items that the warrant authorized the F.B.I. to seize captured this nuance. It said agents could take “documents with classification markings,” along with anything else in the boxes or containers where they found such files, but also any information “regarding the retrieval, storage or transmission of national defense information or classified material.”

The government has not said what specific documents investigators thought Mr. Trump had kept at Mar-a-Lago, nor what they found there. The inventory of items was vague, including multiple mentions of “miscellaneous top-secret documents,” for example.

But the invocation of “the retrieval, storage or transmission” of secret information in the warrant offered a potential clue to at least one category of the files the F.B.I. may have been looking for. One possible interpretation of that phrase is that it hinted at encrypted communications, hacking or surveillance abilities.

The other two laws invoked in the warrant do not have to do with national security.

The second, Section 1519, is an obstruction law that is part of the Sarbanes-Oxley Act, a broad set of reforms enacted by Congress in 2002 after financial scandals at firms like Enron, Arthur Andersen and WorldCom.

Section 1519 sets a penalty of up to 20 years in prison per offense for the act of destroying or concealing documents or records “with the intent to impede, obstruct or influence the investigation or proper administration of any matter” within the jurisdiction of federal departments or agencies.

The warrant does not specify whether that obstruction effort is a reference to the government’s attempts to retrieve all the publicly owned documents that should be given to the National Archives and Records Administration, or something separate.

The third law that investigators cite in the warrant, Section 2071, criminalizes the theft or destruction of government documents. It makes it a crime, punishable in part by up to three years in prison per offense, for anyone with custody of any record or document from federal court or public office to willfully and unlawfully conceal, remove, mutilate, falsify or destroy it.

While the list of items that the search warrant approved F.B.I. agents to seize singled out “documents with classification markings,” it contained a separate catchall phrase that appeared to be intended to scoop up any government-owned documents that Mr. Trump had unlawfully taken and kept.

The agents were authorized to seize “any government and/or presidential records created between Jan. 20, 2017, and Jan. 20, 2021” — the dates of Mr. Trump’s presidency — as well as “any evidence of the knowing alteration, destruction or concealment of any government and/or presidential records, or of any documents with classification markings.”

Notably, another penalty in Section 2071 for any conviction is that the defendant is barred from holding federal office. Against the backdrop of widespread expectations that Mr. Trump intends to run for president again in the 2024 election, that provision has attracted particular attention.

However, many legal specialists believe that any conviction under Section 2071 would be unlikely to block Mr. Trump from running again. Supreme Court rulings suggest that because the Constitution sets out criteria for who is eligible for the presidency, Congress cannot, by criminal law, alter that standard.

To read more CLICK HERE

Search Warrant of the century unsealed . . . Espionage Act revealed

Federal agents removed top secret documents when they searched former President Donald J. Trump’s Florida residence as part of an investigation into possible violations of the Espionage Act and other laws, according to a search warrant made public, reported The New York Times.

F.B.I. agents seized 11 sets of documents in all, including some marked as “classified/TS/SCI” — shorthand for “top secret/sensitive compartmented information,” according to an inventory of the materials seized in the search. Information categorized in that fashion is meant to be viewed only in a secure government facility.

It was the latest stunning revelation from the series of investigations swirling around his efforts to retain power after his election loss, his business practices and, in this case, his handling of government material that he took with him when he left the White House.

The results of the search showed that material designated as closely guarded national secrets was being held at an unsecured resort club, Mar-a-Lago, owned and occupied by a former president who has long shown a disdain for careful handling of classified information.

The documents released on Friday also made clear for the first time the gravity of the possible crimes under investigation in an inquiry that has generated denunciations of the Justice Department and the F.B.I. from prominent Republicans and fueled the anger of Mr. Trump, a likely 2024 presidential candidate.

A federal judge on Friday unsealed the search warrant for former President Donald J. Trump’s Mar-a-Lago residence in Palm Beach, Fla., as well as a list of items removed from the property when federal agents executed the warrant this week.

In total, agents collected four sets of top secret documents, three sets of secret documents and three sets of confidential documents, the inventory showed. Also taken by the F.B.I. agents were files pertaining to the pardon of Roger J. Stone Jr., a longtime associate of Mr. Trump, and material about President Emmanuel Macron of France — along with more than a dozen boxes labeled only by number.

The disclosure of the search warrant and the inventory made clear the stakes of the collision between a Justice Department saying it is intent on enforcing federal law at the highest levels and a former president whose norm-shattering behavior includes exhibiting a proprietary view of material that legally belongs to the government.

It is not clear why Mr. Trump apparently chose to hang onto materials that would ignite another legal firestorm around him. But last year, he told close associates that he regarded some presidential documents as his own personal property. When speaking about his friendly correspondence with the North Korean leader Kim Jong-un, Mr. Trump said, “They’re mine,” according to a person familiar with the exchange.

Even though the F.B.I.’s inventory of materials seized from Mar-a-Lago indicated that numerous files had markings like “top secret,” Mr. Trump said on Friday that he had declassified all the material. Presidents wield sweeping power to declassify documents, although normally when that happens such markings are removed.

To read more CLICK HERE

Panel calls for ending data dumps without a search warrant

A new law is needed to stop state, local and federal law enforcement and intelligence agencies from surveilling wide swathes of the U.S. population without a warrant, said panelists during a recent federal hearing, according to Government Technology.

The Fourth Amendment’s privacy protections require law enforcement to obtain a warrant before searching individuals’ personal records — and this definition should include their digital footprints, said Brett Tolman, executive director of Right on Crime, a group that advocates for “conservative criminal justice solutions.” Such requirements ought to prevent law enforcement from gathering extensive data collections on broad populations without first establishing probable cause, he said.

But agencies repeatedly skip getting permission to collect data themselves and instead purchase it from data brokers — essentially, a loophole, said panelist Bob Goodlatte, senior policy adviser for the nonpartisan advocacy group Project for Privacy and Surveillance Accountability.

“Agencies ranging from the Defense Intelligence Agency to the IRS to, likely, the FBI and CIA as well, are buying the personal data of millions of Americans they would otherwise have to get a warrant to obtain,” said Goodlatte.

Brokers sell vast data compilations that may include details like job histories, home addresses, voting records and more, and data broker LexisNexis alone contracts with more than 1,300 state and local law enforcement agencies, said Sarah Lamdan, law professor at The City University of New York School of Law.

Such practices can open the door to privacy invasions and wrongful arrests.

Rep. Jamie Raskin (D-MD) summarized calls to ban law enforcement from making such purchases:

“This is essentially the meta technological equivalent of saying that, if the government can't enter your home without a search warrant, they can't pay somebody who breaks into your home or otherwise gains access through some kind of duplicity [like] saying that they're a carpenter.”

'IT INVITES ABUSE'

Panelists and House representatives from both parties said that government purchasing collections and analyses of resident data without first establishing probable cause is unjustifiably invasive and enables governments to subject particular demographic groups and political parties for oversurveillance and arrest.

“It invites abuse, in particular, the targeting of people or groups based on race, religion or political activity,” said Elizabeth Goitein, senior director of the Brennan Center for Justice’s Liberty and National Security Program.

The discussion took place against the backdrop of the Dobbs decision, which has sparked fears that states criminalizing abortion might seek out anyone considering the procedure by collecting data from residents’ web searches, period apps and cellphone geolocation information. And warrantless data tracking and collection can affect people across all ideological and political divides, Goodlatte said, noting government could just as readily monitor people visiting gun stores.

Police data purchases raise concerns in the courtroom, too, according to Rebecca Wexler, an assistant professor of law and co-director of the Berkeley Center for Law and Technology. Current practices can tip the scales against criminal justice defendants. That’s in part because law enforcement and defense often get less insight into any potentially game-changing flaws and biases in third-party gathered data, causing them to miss context that could invalidate evidence.

A LEGISLATIVE FIX?

Many panelists recommended passing a federal privacy law restricting how and when private firms collect all this personal data in the first place. But that’s a larger task, and legislators should also push a quicker, targeted fix: passing the Fourth Amendment Is Not For Sale Act, panelists said. That measure would compel government to follow the spirit of existing rules, closing loopholes and updating policies to better reflect modern realities.

The act would bar law enforcement and intelligence agencies from buying customer and subscriber records or information collected illegally. And if agencies nonetheless violate this rule, they’d be forbidden to use that information as evidence in court or other proceedings.

The act also limits government’s ability to force companies to hand over such data. It says that if governments would - under current law - need a court order to get certain records from an electronic communications or remote computing services provider, then they’d also need a court order to get such records from a third party. That means officers who fail to get a judge’s approval to compel a telecom to share records could not just turn around and force that information out of a data broker the telecom sold the records to — unless officers first get a judge’s go-ahead.

“The government cannot obtain records from companies like Facebook and Google without a court order. Why should data brokers be treated any differently?” Goodlatte said.

EXISTING RULES

Goodlatte said there’s nothing necessarily wrong with agencies gathering personal data on suspects, so long as they follow the rules and show probable cause first. The process of seeking a warrant forces agencies to justify why they want the data, which helps catch situations in which unconscious or conscious prejudices — not genuine need — drive the quest for data on a particular group, Goitein said.

Speakers like Rep. Andy Biggs (R-AZ) also worried about the kind of data government can get through warrants. He cited a 2019 incident in which Gainesville, Fla., police used a warrant to make Google share data about all devices near the site of a break-in. This led them to wrongfully suspect a resident, because Google had tracked his phone passing by the house on his regular biking route.

SKEWED JUSTICE?

Criminal defense attorneys have the right to see evidence the other side has collected that could exculpate the defendant. For example, defendants ought to know if quality control errors make the data unreliable and if the software used to collect the data is skewed by bias or other issues, Wexler said. Government also generally cannot present illegally obtained evidence, and Wexler said defendants should learn if data was gathered “in violation of a privacy statue, or through breach of contract or through unlawful hacking,” she said.

But police buying information from data brokers are unlikely to know its limits or how it was gathered.

“When law enforcement purchases data from intermediaries, or uses private biometric databases, or licenses surveillance software from private companies, the officers can stay ignorant of flaws in the data,” Wexler said.

Defendants cannot discover such context through cross-examining police, if officers simply don’t know anything about their data brokers’ practices. Another hurdle: Firms are unlikely to voluntarily share information about their product, and defendants have limited abilities to compel them to through subpoenas, Wexler said. Some surveillance technology vendors also only sell to law enforcement, which blocks criminal defense from purchasing copies of the tools to test them for accuracy.

Evening out the playing field between prosecution and defense could require policies strengthening criminal defense’s subpoena powers, Wexler said.

WHAT IS 'VOLUNTARY'?

Laws crafted in the technological climate of the 1970s state that residents cannot expect to keep information private if they share it “voluntarily” — such as personal details shared with a bank when opening an account. But panelists say the interpretation of “voluntary” needs updating to match today’s realities.

Many personal data collected on people isn’t something they’re really giving up voluntarily, in an age when fully participating in society requires driving on roads with license plate readers and using cellphones that tightly track users, Lamdan said.

Plus, users of app and other digital services may not be able to give truly informed consent about data sharing. Company policies can be misleading, and customers who knowingly share information with a particular company have no control over whether and to whom that company then resells the data, Goitein said.

Users are also often told their data is “anonymous,” but this veil of privacy can easily be broken when data brokers purchase the records and combine them with other details, said Lamdan. And even customers who try to opt out cannot escape companies creating profiles on them through information gleaned from friends, families and associates’ online activities.

The Supreme Court appeared to give a nod to some of these concerns in a 2018 ruling that said police need warrants to seize certain cellphone records that reveal their locations. The court felt phone owners ought to trust that their personal movements are private and that they weren’t actively choosing to share this data.

To read more CLICK HERE