Last week, I wrote a post looking at how the criminal justice system operates in an alternate reality, one in which truth isn’t dictated by facts or data, but by precedent and case law. Today, I want to look at a case pending before the Supreme Court that is a great example of the problem.
At issue in Edstrom v. Minnesota is whether a drug dog’s sniff outside an apartment door constitutes a lawful search under the Fourth Amendment. If it does not, the police would be required to obtain a warrant before using a narcotics-detecting dog in that manner. If it does, then the police could take their dogs up and down apartment complexes the way they sometimes do with school lockers. Over at the legal analysis site Verdict, Cornell University professor Sherry Colb runs through what’s at stake, and offers some informed speculation on what the court may do.
For the purpose of this post, though, I want to focus on what’s missing from Colb’s analysis and, should the Supreme Court decide to hear the case, will almost certainly also be missing from oral arguments, the court’s ruling and most discussion of the case: that narcotics-detecting dogs and their handlers aren’t very good at discerning the presence of illegal drugs. Multiple analyses of drug-dog alerts have consistently shown alarmingly high error rates — with some close to and exceeding 50 percent. In effect, some of these K-9 units are worse than a coin flip.
According to a new ruling issued last week by a federal magistrate in Oakland, California, the government can’t get a warrant granting permission to turn up at a local house allegedly connected to a criminal suspect, seize all digital devices, and force anyone found at the house to use biometrics to try to unlock those devices.
The nine-page order, which was issued on January 10 and first reported by Forbes on Monday, involves a criminal case that is otherwise sealed. There is a lot that remains unknown about the particulars, including the names of the suspects, why federal authorities believe that the two suspects committed extortion via Facebook Messenger, and what Oakland house is involved.
US Magistrate Judge Kandis Westmore found that the government request here “runs afoul of the Fourth and Fifth Amendments,” which protect against unreasonable searches and self-incrimination, respectively.
She continued, noting that the government request was “overbroad.”
“The Government cannot be permitted to search and seize a mobile phone or other device that is on a non-suspect’s person simply because they are present during an otherwise lawful search,” the judge wrote.
Blake Reid, a law professor at the University of Colorado, told Ars that it was a positive step that another judge was understanding the possible ramifications of allowing the government to rifle through someone’s phone.
“Accessing people’s phones is, in my opinion, much more like accessing the contents of their brains than it is the contents of their file cabinets,” he emailed.
Multiple times, Judge Westmore cited a 2018 Supreme Court decision known as Carpenter, which found that law enforcement needs a warrant to obtain more than 120 days of cell-site location information.
“Citizens do not contemplate waiving their civil rights when using new technology, and the Supreme Court has concluded that, to find otherwise, would leave individuals ‘at the mercy of advancing technology,'” she wrote, citing the Carpenter opinion.
Judge Westmore’s order is reminiscent of a 2017 order
in a seemingly similar federal case in Illinois: there, a federal magistrate also denied government efforts to conduct a nearly identical biometric dragnet.
In the earlier case, US Magistrate Judge M. David Weisman quoted from the government’s own warrant application, which specifically said that such biometric search language was now “standard.”
Judge Westmore cited his opinion in her own, as she reached her conclusion.
“While the Court sympathizes with the Government’s interest in accessing the contents of any electronic devices it might lawfully seize, there are other ways that the Government might access the content that do not trample on the Fifth Amendment,” she wrote.
“In the instant matter, the Government may obtain any Facebook Messenger communications from Facebook under the Stored Communications Act or warrant based on probable cause. While it may be more expedient to circumvent Facebook and attempt to gain access by infringing on the Fifth Amendment’s privilege against self-incrimination, it is an abuse of power and is unconstitutional.”
Syracuse police, a city court judge and St. Joseph’s Hospital Health Center worked together last year to conduct a highly unusual drug search.
They collaborated to sedate a suspect and thread an 8-inch flexible tube into his rectum in a search for illegal drugs. The suspect, who police said had taunted them that he’d hidden drugs there, refused consent for the procedure.
At least two doctors resisted the police request. An X-ray already had indicated no drugs. They saw no medical need to perform an invasive procedure on someone against his will.
The notes from police and doctors suggest some tension, a standoff. At one point, eight police officers were at the hospital. A doctor remembers telling officers: “We would not be doing that.”
The hospital’s top lawyer got pulled in. He talked by with the judge who signed the search warrant, which was written by police and signed at the judge’s home.
When they were done, the hospital lawyer overruled the doctors. The lawyer told his doctors that a search warrant required the doctors to use “any means” to retrieve the drugs, records show.
According to the article, the police were searching for a misdemeanor or low-level felony amount of drugs. They didn’t even find that. They found no contraband at all. The hospital then sent the man a bill for just over $4,500.
The paper also reports that no one involved is talking about the case. That includes the judge who signed off on the warrant, Syracuse City Court Judge Rory McMahon, who said he could’t talk because the case is “sealed.” Seems a bit late to start worrying about privacy.
The suspect in this case has a long rap sheet, and police say he taunted them about hiding drugs in his rectum, a charge the suspect denies. But similarly invasive searches have been done on far more sympathetic suspects. Back in 2014, I wrote here about four such cases in Hidalgo County, N.M., and another involving U.S. Customs and Border Protection, also in New Mexico. In researching that post, I found stories about cavity searches in Texas, Illinois, Florida, Georgia, Kansas and Wisconsin. In some cases, the searches were vaginal searches of women. Later the same year, I wrote about two cases in Tennessee. In 2016, I wrote about a case in which Aiken, S.C., police conducted a roadside cavity search of a man based barely any evidence at all. They found no drugs. Not long after, I wrote about another South Carolina man who was beaten, then taken to a hospital, after which doctors took X-rays and a CT scan, and forcibly drew blood, all without his consent and all in search of drugs. They found none.
Newly released emails from the Bush Whitehouse reveal that Brett Kavanaugh and John Yoo, architect of the warrantless surveillance program, exchanges several messages about warrantless surveillance programs in the fall of 2001. The release follows EPIC’s FOIA lawsuit for Justice Kavanaugh’s records from when his nomination was before the United States Senate. The new records show that there were multiple emails about the warrantless surveillance program that was eventually overturned by the US Congress. The emails also reference a signing statement—likely for the 2001 authorization of military force — and a discussion thread “FISA [Foreign Intelligence Surveillance Act] letter.” The agency previously identified several hundred e-mails about surveillance programs that Kavanaugh authored. But the text of many emails was withheld in full, leaving open questions about Kavanaugh’s role in the post-9/11 surveillance programs.
Earlier this year, a federal judge in Fresno, California, denied prosecutors’ efforts to compel Facebook to help it wiretap Messenger voice calls. But the precise legal arguments that the government made, and that the judge ultimately rejected, are still sealed. On Wednesday, the American Civil Liberties Union formally asked the judge to unseal court dockets and related rulings associated with this ongoing case involving alleged MS-13 gang members. ACLU lawyers argue that such a little-charted area of the law must be made public so that tech companies and the public can fully know what’s going on.
The Fourth Amendment’s prohibition against unreasonable searches and seizures could prevent law enforcement from applying increasingly sophisticated surveillance and predictive policing technology, including “superhuman” methods employing artificial intelligence, according to a professor at the University of California-Davis School of Law. In an essay published in the Ohio State Journal of Criminal Law, Elizabeth E. Joh argues that the recent U.S. Supreme Court decision in Carpenter v United States established a precedent for using the Fourth Amendment to limit the use of emerging technology, ranging from drones that help patrol borders to predictive-analytic software that can determine when and where the next crime will occur. In that landmark case, decided this summer, the Court ruled law enforcement cannot access citizens’ cellphone location records without a search warrant. Although the decision focused on whether…
The US Supreme Court recently annulled a major search and seizure case around a rental car filled with heroin with a ruling that could impact the legal rights of Americans who may get stopped by police while driving a vehicle rented by another person. That case is U.S. v. Terence Byrd (#16-1371).
On May 14, Supreme Court Justices released their decision in Byrd’s case, announcing when the Fourth Amendment was applied to the evidence in the case that Terence Byrd had “reasonable expectation of privacy while driving a car rented by another party.” Read more…
The Eleventh Circuit has handed down an important new ruling on cell phone searches at the border, United States v. Touset. In an opinion by Judge William Pryor, the court disagrees with the Fourth Circuit and Ninth Circuit caselaw requiring suspicion to conduct a forensic search at the border.
The basic issue in these cases is this: When the government seizes a computer or cell phone at the border, and they want to search it using forensic equipment, do they need some sort of suspicion that evidence or contraband is on the device? Or does the traditional border search exception (which ordinarily permits searches of prioperty crossing the border without suspicion) apply?
The following is an excerpt of Habeas Data, which shows how the explosive growth of surveillance technology has outpaced our understanding of the ethics, mores, and laws of privacy.
Award-winning tech reporter Cyrus Farivar makes the case by taking ten historic court decisions that defined our privacy rights and matching them against the capabilities of modern technology. This particular section explores the run up to the landmark 2013 Supreme Court case, Riley v. California. In that case, the Supreme Court ruled, unanimously, that in most circumstances, police cannot search a cellphone during an arrest without a warrant. (credit: Melville House) August 22, 2009 San Diego, California The intersection of Euclid and Imperial avenues is fairly unremarkable. It’s comprised of wide Southern California streets, with at least two lanes of traffic (more if you include the left-turn lanes) in each quadrant. On one corner is an Arco gas station, just in front of St. Rita’s Catholic Church. On the northeast corner is Greene Cat Liquors, a strip mall liquor store, adjacent to Jaquin Mexican Food, which advertises $1 tacos (“w/ onion and cilantro only”). Along the southwest corner is El Real Mexican Food, a single-story green-and-white building with a small balcony. Its sandwich board advertises “5 rolled tacos—$4.25.”
There are a growing number of reports that the Transportation Security Administration (TSA) is searching the electronic devices of passengers on domestic flights in the U.S., says the American Civil Liberties Union (ACLU), which has sued the federal agency for records, The Guardian reports. The ACLU Foundation of Northern California filed suit on Monday demanding that the government disclose its policies for searching the computers and cellphones of domestic travelers, arguing that anecdotal accounts have raised concerns about potential privacy invasions. “We’ve received reports of passengers on purely domestic flights having their phones and laptops searched, and the takeaway is that TSA has been taking these items from people without providing any reason why,” says the ACLU’s Vasudha Talla. “The search of an electronic device has the potential to be highly invasive and cover the most personal details about a person.”