Georgia Taxpayers Cough Up $700,000 For Police Mischief

Georgia taxpayers will be shelling out almost three-quarters of a million dollars for the wrongful arrests (malicious prosecution) of some Morrow restaurant workers, reports the Fulton Daily Report. And it's not the first time that this officer has cost the taxpayers to open their wallets:

The city of Morrow has paid $700,000 to settle a malicious prosecution suit stemming from a midnight police raid during which a restaurant manager and her fiancé, an attorney, were handcuffed and jailed for nearly three days after being charged with nearly two dozen code violations.

The citations were all eventually dismissed but the raid, part of an alleged "campaign of harassment" against Cheerleaders Sports Café, was successful: The club never reopened following the arrests.

The settlement, reached late last year, was the last of three involving a now-departed police detective whose flawed arrests cost the city's insurer at least $950,000. One of the other two cases settled for $250,000, and another case—in which the insurer represented the officer, not the city—settled confidentially.

Police generally enjoy something called "qualified immunity" which means they are personally immune from most suits.  When they have to pay, it's not the police officers themselves that pay up; it's the taxpayer.  Thus, police have little personal incentive to behave.  They have "no skin in the game," to put it another way.  Some sort of limited liability for wrongdoing - even if capped at a single year's salary - would probably work to reduce problems like this case and save taxpayers millions of dollars.

At least one federal circuit has stepped in the right direction.

More mischief:

Cops Raid Home; Find Fruit

 

 

 

 

Continue reading
4053 Hits
0 Comments

War on Drugs Claims Another Officer's Life

War on Drugs Claims Another Officer's Life

In Ogden, Utah, the War on Drugs has claimed the life of another officer.  

The tip about the marijuana plants came from an ex-girlfriend of Stewart's named Stacy Wilson. They had dated for about a year and a half but broke up in the summer of 2010. Erna Stewart introduced them. "I still feel guilty about that," she says. "He caught her cheating on him, they broke up, and it ended really badly. She was angry with him. He was heartbroken. She tried to get him fired from his job. She really had it out for him."

. . .

According to police documents, Wilson called the tip line in November 2010, two months before the raid, and spoke with Officer Jason Vanderwarf. Vanderwarf visited Stewart's house three times, but no one answered. After finding what he described as signs of a marijuana grow, however, he filed an affidavit to get the warrant.

That appears to be the extent of the investigation. The police never ran a background check on Wilson to assess her credibility. In fact, after their initial conversation, Vanderwarf said that he was "unable to contact her." He later told investigators that "She kinda fell off the face of the earth."

While there has been outrage over the death of the officer and the wounding of five others, there is also outrage over the use of military-style, life-or-death tactics employed in response to a victimless, non-violent crime such as growing marijuana. 

In the months following the raid, a number of other controversial police actions hit the news. Police in Salt Lake City broke into the home of a 76-year-old woman during a mistaken drug raid. A SWAT team in Ogden went to the wrong address in search of a man who had gone AWOL from the Army and ended up pointing its guns at an innocent family of four. Two narcotics detectives shot and killed a young woman in a suburb of Salt Lake City as she sat in her car.

Together, these incidents have spawned a budding police reform movement in Utah. At the head of it, Stewart's family members have been joined by a political odd couple: Jesse Fruhwirth, a longtime progressive activist rabble-rouser, and Connor Boyack, a wonky libertarian with a background in Republican politics. And independently, in Salt Lake City and Salt Lake County, the police chief and lead prosecutor have already begun to adopt some unconventional, reform-minded approaches to crime and punishment.

In the Ken Burns documentary "Prohibition", Burns interviews the son of a law enforcement officer shot and killed in an alcohol raid during Prohibition, just a few years before alcohol was re-legalized.  I would wager that years from now, the loved ones of this officer will look back and question why officers were expected to risk their lives over something like marijuana prohibition.  Applying a cost-benefit analysis, I question whether it is worth it.

This is one of a six-part series on the Utah movement to reform aggressive police tactics in drug cases.  

Continue reading
4278 Hits
0 Comments

NC Court of Appeals Allows Arrest by HOA

I have previously noted the quasi-law-enforcement entities that are private homeowner association (HOA) security forces.  Now it seems the NC Appeals Court has weighed in on the issue, but on the side of the HOA: 

Rental cops hired by homeowners associations (HOA) can conduct traffic stops that would be unconstitutional if performed by an actual police officer, according to a ruling handed down last week by the North Carolina Court of Appeals. A three-judge panel took up the case of Frederick Lloyd Weaver Jr, who was stopped on April 20, 2012 by an armed security guard employed by Metro Special Police and Security Services. The HOA for the Carleton Place townhomes near the University of North Carolina at Wilmington contracted with Metro for security services.

North Carolina allows armed guards to wear police-like uniforms with badges, carry guns and drive cars with flashing red and white light bars. Qualifying for the security guard position requires four hours of classroom instruction and a day on the range.

Four hours in the classroom and a day at the range certainly doesn't compare to what a real police officer has to go through.

I stand by my earlier post that blurring the lines between who is and isn't endowed with state authority is a bad idea that will cause all sorts of problems.  Citizens need to know who is and isn't an officer, who does and doesn't have arrest powers, and who can and can't pull them over.  To blur those lines causes confusion and will encourage abuse. 

Hopefully, the NC Supreme Court will overrule this decision.

 

Continue reading
4109 Hits
0 Comments

"War on Drugs" Employs Forced Colonoscopy and Enema

"War on Drugs" Employs Forced Colonoscopy and Enema

These New Mexico officers really dig for the truth.  

David Eckert, 54, spent more than 12 hours in custody last January at a police station and local hospital after being pulled over for a traffic violation. Yet he was never charged, nor did authorities find illicit substances on him.

. . . 

After Eckert was pulled over, a Deming police officer said that he saw Eckert "was avoiding eye contact with me," his "left hand began to shake," and he stood "erect (with) his legs together," the affidavit stated.

Eckert was told he could go home after a third officer issued him a traffic citation. But before he did, Eckert voluntarily consented to a search of him and his vehicle, the affidavit states. A K-9 dog subsequently hit on a spot in the Dodge's driver's seat, though no drugs were found.


. . . 

Eckert was then put in "investigative detention" and transported around 2 p.m. to the Deming Police Department.

Sometime after that, a judge signed off a search warrant "to include but not limited to his anal cavity."

The next stop was Gila Regional Medical Center, where the lawsuit states "no drugs were found" in "an x-ray and two digital searches of his rectum by two different doctors." One doctor at this time found nothing unusual in his stool.

Three enemas were conducted on Eckert after 10:20 p.m. A chest X-ray followed, succeeded by a colonoscopy around 1:25 a.m.

After all this, "no drugs were found in or on Plaintiff's person."

I wonder how much taxpayer dollars were spent here to go after an amount of drugs no larger than will fit in the human colon.  That's going to be at most a misdemeanor amount of marijuana or a few grams of cocaine, methamphetamine or heroin.  Was it worth it?

Additionally, never, ever, ever consent to a search.  It can't help and it can only hurt.  Never do it.

Here's another take.  

Read More:

 $teakley's Golden Rules

Cops Raid Home; Find Fruit

Gwinnett Marijuana Grow House Searched, Bananas Found

TN Lawmakers Investigating "Policing for Profit"

How a Single Oxycontin Pill Nearly Ruined One Man's Life

Top Ten Ways to Damage Your Criminal Case

Continue reading
4376 Hits
0 Comments

Maryland v. King and DNA Sampling at Arrest

Maryland v. King and DNA Sampling at Arrest

In a 5-4 decision, the US Supreme Court has ruled in Maryland v. King that the police can collect DNA samples from people arrested for "serious crimes."  The New York Times reports:

The federal government and 28 states authorize the practice, and law enforcement officials say it is a valuable tool for investigating unsolved crimes. But the court said the testing was justified by a different reason: to identify the suspect in custody.

“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,” Justice Anthony M. Kennedy wrote for the majority, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Justice Antonin Scalia summarized his dissent from the bench, a rare move signaling deep disagreement. He accused the majority of an unsuccessful sleight of hand, one that “taxes the credulity of the credulous.” The point of DNA testing as it is actually practiced, he said, is to solve cold cases, not to identify the suspect in custody.

But the Fourth Amendment forbids searches without reasonable suspicion to gather evidence about an unrelated crime, he said, a point the majority did not dispute. “Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Justice Scalia said from the bench.

I think Justice Scalia is correct.  The first thing law enforcement will do is lower the definition of "serious crime" as low as possible so that they can DNA sample as many people as possible.  The DNA will remain on file in some database even if the case is dismissed, just like records of arrests often linger for the rest of a person's life.  

Article here.

Continue reading
3919 Hits
0 Comments

Open Carry of a Firearm Isn't PC to Detain, Says 4th Circuit

Open Carry of a Firearm Isn't PC to Detain, Says 4th Circuit

In a good federal case for open carry of firearms, the 4th Circuit holds that the open carry of a firearm, alone, does not constitute probable cause to detain someone absent some other evidence that the person is engaged in criminal activity. 

Gun rights are civil rights, from right there in the Bill of Rights beside freedoms of Speech, Press, Expression, Religion, etc.   Anyone who considers themselves defenders of the Bill of Rights (like the ACLU claims) and individual freedoms should applaud this ruling.  But don't hold your breath for the normal civil rights crowd to cheer.  When guns are the issue, some people want to pretend the Second Amendment doesn't exist.

Note, however, that Georgia is NOT an open carry state, so this may not help Georgia residents directly.  Don't carry openly in Georgia without a weapons permit. 

Continue reading
22422 Hits
0 Comments

Fourth Circuit Denies Immunity For SWAT Officers

Fourth Circuit Denies Immunity For SWAT Officers

This is interesting.  The 4th Circuit Court of Appeals has upheld a lower court's ruling that the police involved in a S.W.A.T. raid are not immune, meaning they can be sued personally.   Typically, when you try to sue an officer, you sue them as an officer of the police force, not as an individual person.  Individually, police officers are generally considered immune because of a doctrine called "qualified immunity."  If by slim chance you win your suit, it isn't the officer who pays you.  It's the city or county that has the police force.

Not so in this case: 

On May 31, 2007, Sam Bellotte printed some photographs from a memory card at a self-service station in a Winchester, Virginia Wal-Mart. When he went to pay for the prints, a clerk insisted on inspecting the photos. Mr. Bellotte admitted that some contained nudity and surrendered them, then made other purchases and left the store.

This isn't the first time I've pointed out that Wal-Mart will look at your photos and call the police on you.  I think it's pretty safe to say that people shouldn't take their photos to Wal-Mart.  

The Wal-Mart employees charged with discarding the photos noticed one depicting male genitalia seemingly next to a child's face. Concerned that the photograph was child pornography, the employees notified the Frederick County police.

Who empowered Wal-Mart to decide what is and isn't child pornography?

An investigation of the surveillance camera footage and credit card receipts showed that Mr. Bellotte, a resident of Jefferson County, West Virginia, had printed the photo in question. A Frederick County police officer placed the photo in a file container and notified the Jefferson County Sheriff's Department, which then took responsibility for the investigation. After reviewing the file, verifying Mr. Bellotte's address, and learning that both Mr. and Mrs. Bellotte held concealed carry permits, Detective Tracy Edwards sought a search warrant for the Bellotte residence. Around 9:00 that evening, the magistrate reviewed the application and signed the warrant.

I'm not sure how turning in "seeming child pornography" to Wal-Mart has anything to do with this guy's house. What is the evidence that the "seeming child pornograpny" was produced in the house or that there is any other such material in the house?

In order to execute the warrant, Detective Edwards sought and received approval from the ranking Jefferson County law enforcement officer for the assistance of the Jefferson County Special Operations Team ("SORT Team"). The SORT Team leaders decided that their involvement was justified due to the possibility of a violent reaction from Mr. Bellotte and the concealed carry permits held by both Mr. and Mrs. Bellotte. After the three SORT squads were assembled and briefed, they arrived at the Bellotte residence around 10:15 p.m.

Also, how does having a CC permit indicate that the person has a gun and that the gun is in the house and that the person with the gun in the house will use it against officers? It doesn't. This is just anti-gun-owner bias. Owning a gun and having a firearm in your home doesn't mean the 4th Amendment no longer applies to you.  Apparently in this jurisdiction, not only does exercising your 2nd Amendment rights sacrifice your 4th Amendment rights, but that determination is made by a "SORT Team leader."  

Did anyone consider just walking up to this door, knocking, and saying "Hi. We have a search warrant.  Step aside."  That's all they needed to do.

The three squads took positions around the house, wearing tactical vests and helmets and armed with flashlight-equipped .45 caliber Sig Sauer pistols and "hooligan" pry bars for a possible forced entry. Then, the Bellottes claim, the SORT squads opened the unlocked front and rear doors without knocking or announcing their presence. They immediately executed a dynamic entry—a technique that the SORT Team had recently been trained in—by which all squads simultaneously rushed into the home from multiple entry points. After the SORT squads were inside the house, they repeatedly identified themselves as law enforcement officers executing a search warrant.

It's not a violent raid, it's a "dynamic entry."  And cops don't throw people down.  They "assist them to the pavement."

The first member of the family to encounter the SORT Team was E.B., the Bellottes' teenage son. When the officers found him upstairs walking out of his bedroom and talking on a cell phone, they subdued and handcuffed him. E.B. asserts that the officers also poked a gun at the back of his head. In another bedroom, the team found C.B., the Bellottes' young daughter, and led her downstairs unhandcuffed.
 
When the SORT Team came to the parents' bedroom, Tametta Bellotte raced out of bed and ran screaming toward the closet. When she reached for a gun bag, the officers forced her to the ground and handcuffed her. Later, when the house was secured, the SORT Team allowed Mrs. Bellotte to get fully dressed under the supervision of a female officer. The search of the Bellotte residence concluded shortly before midnight.

And the child pornography?  None. 

Mr. Bellotte, it turns out, had spent that night in his hunting cabin in Hampshire County, West Virginia. The next morning, when his wife told him what happened, he went to see Detective Edwards at the Jefferson County Sheriff's Office. He gave a recorded statement and later produced a passport and birth certificate showing that the female in the photo was not a child, but in fact a 35-year-old woman who lived in the Philippines. Thus Mr. Bellotte did not in fact possess any child pornography, and no charges were ever filed against him.

Why did he have a photo of a 35-year-old woman from the Philippines?  It's irrelevant, because it isn't a crime and it certainly didn't justify a botched, no-knock raid of his home.  The danger that evidence will be suppressed doesn't discourage sloppy police work.  The danger of getting shot by a homeowner doesn't discourage sloppy police work.  But the danger that sloppy police work will lead to an officer getting sued personally may encourage officers to think twice before raiding someone's home with no reason.

Full story here.

 

 

Don't miss a single post! To be alerted when a new blog post appears (about every other day or so), click on "Subscribe to Blog" near the top of this page.

 

Continue reading
5141 Hits
0 Comments

US Supreme Court Bites Back at Dog Searches

US Supreme Court Bites Back at Dog Searches

While the media's attention is squarely focused on the issue of gay marriage, the United States Supreme Court has released its "easy" decision in Florida v. Jardines regarding whether the police can bring a drug dog to your front door for a sniff without a search warrant.  As SCOTUSblog explains:

In an opinion written by Justice Scalia, the Court affirmed the Florida Supreme Court. The Court held a dog sniff at the front door of a house where the police suspected drugs were being grown constitutes a search for purposes of the Fourth Amendment. Justice Kagan filed a concurrence joined by Justices Ginsburg and Sotomayor. Justice Alito filed a dissent joined by the Chief Justice, and Justices Kennedy and Breyer.

Note that the opinion was written by Justice Scalia and joined by Justice Thomas and Justice Ginsburg.  We saw these same three join in the majority in the Kyllo case from 2001 which held that police pointing a thermal imaging device at a home was also a search for 4th Amendment purposes.  Property rights cases are interesting at the Supreme Court level because you will often find Justices labeled as "liberal" or "conservative" joining forces.  It's not odd to see "liberals" siding with the government nor to see "conservatives" siding with homeowners.

The first question the court has to answer is whether bringing a dog to a homeowner's door is a search.  If it is, then case closed, because these particular officers were not authorized to conduct a search.  If it is not a search, more questions would follow.

From the opinion:

[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”    This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.

We therefore regard the area “immediately surrounding and associated with the home”—what our cases call the curtilage—as “part of the home itself for Fourth Amendment purposes.”  That principle has ancient and durable roots. Just as the distinction between the home and the open fields is “as old as the common law,” so too is the identity of home and what Blackstone called the “curtilage or homestall,” for the “house protects and privileges all its branches and appurtenants.”  This area around the home is “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.”  

While the boundaries of the curtilage are generally “clearly marked,” the “conception defining the curtilage” is at any rate familiar enough that it is “easily understood from our daily experience.”  Here there is no doubt that the officers entered it: The front porch is the classic exemplar of an area adjacent to the home and “to which the activity of home life extends.”

Because the Court holds that bringing a drug dog to the front door of a home is a search, they avoid having to answer other questions about whether a dog's behavior at the front door gives officers grounds for an immediate exigent circumstances search, a search warrant based on the dog's behavior, or nothing at all.  Those questions will have to wait for a later day, for as Justice Scalia writes, "One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy."

Continue reading
4270 Hits
0 Comments

Gwinnett Marijuana Grow House Searched, Bananas Found

Gwinnett Marijuana Grow House Searched, Bananas Found

A Gwinnett County amateur botanist got a hard lesson in the War on Drugs recently.  Police appeared at his door with "information" that he had a marijuana grow house and a search warrant to boot.  They were determined and rude, harassing the innocent homeowner for a confession to a crime he wasn't committing:  

"They said, 'Just say you had plants and you moved them someplace else.' And I just kept telling them the truth. There was never a marijuana garden here," said Scott Smithwick.

Smithwick has set up high intensity lamps, fans and a watering system in two basement rooms in the Lawrenceville home that he shares with his father. He said he does not grow, sell or smoke marijuana and uses the equipment to cultivate mostly tropical plants and flowers.

"I'm a plant freak. Inside I grow banana plants, orchids, and other tropical plants," Smithwick told Channel 2's Tom Regan.

Smithwick has banana trees growing in his basement in January.  Those aren't plants you can grow outside in Georgia in winter.

Several weeks ago, police went to his home twice, the second time with a search warrant. They said they had information that he was producing marijuana.

Information from whom?  Let's name the person who claims this guy was growing marijuana. Additionally, the police should have corroborated the information before getting the search warrant. It sounds like they skipped that part.

Smithwick said he asked if he could videotape officers while they search his home and was told no.

"The sergeant became extremely hostile. His response was, 'Are you serious? I'll handcuff you and detain you in that chair,'" Smithwick said. "They were convinced I had a marijuana garden in here and had just gotten rid of it."

So a guy who is not under arrest and standing inside his own home can't videotape the police while they search for evidence to use against him?  I think otherwise.  In fact, I think Mr. Smithwick would be a poster child for the claim that he has a Constitutional Due Process right to videotape this search as a way of preserving evidence that may be useful in his defense. 

Smithwick said when police found no marijuana they threatened to arrest him for having equipment and materials that could be used to grow pot.

'The sergeant told me based on (the) fertilizers and the lights in the room, I could be charged with manufacturing marijuana and held without bond and sent to prison," Smithwick said.

Uh, no.  Fertilizer isn't a crime.  Grow lights aren't a crime.  Fertilizer and grow lights together aren't a crime.  Even if he was planning on growing marijuana next week, Georgia courts are clear that "preparing to commit a crime isn't a crime."  Purchasing gasoline isn't arson, even if that's why you're purchasing the gasoline.

Smithwick said the threats and intimidation by investigators amounted to harassment.

When the don't have, you know, actual evidence of a crime, threats and intimidation are all they have left and that's what they fall back on.

"As a member of this community, a taxpayer and a voter, I think I deserve some answers," Smithwick said.

We all do, Mr. Smithwick, but don't expect to get them.  Enjoy your bananas.

Continue reading
6971 Hits
0 Comments

Half of Americans Now Have Smartphones

Half of Americans Now Have Smartphones

Apparently we are at the 50% mark of citizens that have smartphones (mostly iOS, Android, and Windows).  I imagine almost all of those telephones have the ability to record audio and video in better quality than digital cameras could just a few years ago. 

With the rise of cameras in everyone's pocket, I anticipate we will see more and more conflict between citizens who want to film the police and the police who do not wish to be filmed.  As a general rule, anyone can film anything in public, so long as they aren't causing a problem by doing so.  Your rights to film in public do not includ the right to film from the middle of the street at rush hour, for example. 

For my work and thoughts on the issue, look here and here.   As always, if you find yourself in a bind because you recorded an officer, give us a call.

Some Cops Never Learn

The Sad Case of Lester Eugene Siler

CopBlock.org Founder Adam Mueller Appeals Convictions

Continue reading
4760 Hits
0 Comments

Supreme Court Skeptical About DNA Collection

Supreme Court Skeptical About DNA Collection

There is no big DNA database containing the DNA sequence of every American.  What little DNA database their is was mostly collected from convicts and parolees.  So while police may collect an unknown DNA sample from a crime scene, they often can't link it to any specific person, unless that specific person has already committed a crime and is already in the database. 

Continue reading
4398 Hits
0 Comments

S.W.A.T.ting

S.W.A.T.ting

"SWATting" is the act of convincing a heavily-armed band of local law enforcement that they need to raid a house.  Sometimes this is done as a prank.  Sometimes it is done maliciously.  Everytime it happens, innocent lives are placed in danger.

 Imagine you're sitting at home, comfortable on the couch, watching the Food Network, when all of a sudden a heavily armed SWAT team breaks down your door and storms into your living room.

That's what happened to 18-year-old Stephanie Milan, who was watching TV in her family's Evansville, Ind., home last Thursday (June 22), when a team of police officers broke down her storm door — the front door was already open — and tossed a flash-bang stun grenade into the room.

"The front door was open," Ira Milan, Stephanie's grandfather and the property owner, told the Evansvile Courier & Press. "To bring a whole SWAT team seems a little excessive."

Turns out, however, that the SWAT team had the address wrong.

Continue reading
4388 Hits
0 Comments

SWAT For All

SWAT For All

Over at the National Review Online, Deroy Murdock suggests that the real "gun control" we need is control of government guns:

Overarmed federal officials increasingly employ military tactics as a first resort in routine law enforcement. From food-safety cases to mundane financial matters, battle-ready public employees are turning America into the United States of SWAT.

Read the whole thing for some examples of SWAT Gone Wild. 

And of course, no discussion of SWAT and drug raids would be complete without Lindy's "No-Knock Raid" (NSFW or kids):

More:

City of Paragould Proposes Suspicionless Stops By Armed SWAT Agents

S.W.A.T.ting

 

Continue reading
4171 Hits
0 Comments

Top Five Reasons To Say NO To A Police Search

Top Five Reasons To Say NO To A Police Search

There are many more reasons than just these five, but they make a good start

1. It's your constitutional right.

The 4th Amendment to the U.S. Constitution protects us against unreasonable searches and seizures. Unless police have strong evidence (probable cause) to believe you're involved in criminal activity, they need your permission to perform a search of you or your property.

You have the right to refuse random police searches anywhere and anytime, so long as you aren't crossing a border checkpoint or entering a secure facility like an airport. Don't be shy about standing up for your own privacy rights, especially when police are looking for evidence that could put you behind bars.

Continue reading
5250 Hits
0 Comments

"You have the right to remain silent about your encryption key . . ."

"You have the right to remain silent about your encryption key . . ."

A U.S. Court of Appeals has upheld your right to remain silent about the key to your encrypted hard drive: 

The 11th Circuit Appeals Court has issued an important ruling on the question of whether or not a defendant can be forced to decrypt a hard drive when its contents could provide additional incriminating evidence. The case in question refers to the actions of a John Doe who was compelled to testify before a grand jury in exchange for immunity from prosecution. Doe was ordered to decrypt the contents of his laptop as part of that testimony, but was told that his immunity would not extend to the derivative use of such material as evidence against him. Doe refused to decrypt the TrueCrypt-locked drives, claiming that to do so would violate his Fifth Amendment right against self-incrimination.

The 11th Circuit’s ruling reverses the lower court's decision to hold Doe in contempt and affirms that forcing him to decrypt the drives would be unlawful. It also states that the district court erred in limiting the immunity it granted Doe to only apply to grand jury testimony and not the derivative use of the evidence in question. The ruling on misapplied immunity means that the 11th Circuit could’ve punted on the Fifth Amendment issue, but the court opted not to do so.

The applicability of the Fifth Amendment rests on the question of what the government knew and how it knew it. Federal prosecutors admitted at trial that while the amount of storage encrypted exceeded 5TB, there was no way to determine what data was on the hard drive — indeed, if there was any data whatsoever. Plaintiffs were reduced to holding up numerical printouts of encryption code that they said “represented” the data they wanted, but were forced to admit that there was no way to differentiate what might be illegal material vs. legal.

The question at hand is whether or not decrypting the contents of a laptop drive is testimony or simply the transfer of existent information. The court acknowledges that the drive’s files are not testimony of themselves, but writes “What is at issue is whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact.” (emphasis original)

Previous court cases have established that merely compelling a physical act, such as requiring a defendant to provide the key to a safe, is not testimonial. Actions are also non-testimonial if the government can invoke the “foregone conclusion” doctrine by showing with “reasonable particularity” that it already knew that certain materials or content existed.

By decrypting the drives, Doe is admitting “his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.” The court dismisses the argument that the contents of Doe’s hard drives are a foregone conclusion, noting that “Nothing… reveals that the Government knew whether any files exist or the location of those files on the hard drives; what’s more, nothing in the record illustrates that the Government knew with reasonable particularity that Doe was even capable of accessing the encrypted portions of the drives.”

“The Government has not shown, however, that the drives actually contain any files, nor has it shown which of the estimated twenty million files the drives are capable of holding may prove useful… we are not persuaded by the suggestion that simply because the devices were encrypted necessarily means that Doe was trying to hide something. Just as a vault is capable of storing mountains of incriminating documents, that alone does not mean that it contains incriminating documents, or anything at all.”

The strength of this decision is the balance it strikes between the rights of the government and the individual. Rather than focusing on the nature of the pass phrase defendants are ordered to provide, it emphasizes the issue of what the prosecution knows and how it learned it. If the prosecutors had had sufficient data to indicate that illegal materials were stored on Doe’s hard drives, forcing him to testify would’ve been valid under the foregone conclusion principle.

The decision is noteworthy for the nature of Doe’s alleged infraction. Doe was called before the grand jury to testify because an IP address corresponding to multiple hotel rooms where he stayed was found to have accessed child pornography via YouTube. Child pornography is a despicable crime, but deriving legal precedents from a desire to punish someone makes for lousy jurisprudence. The 11th Circuit decision heaps no small amount of scorn on the district court’s attempt to immunize Doe’s testimony without immunizing the defendant, deriding it as akin to asking for “manna from heaven,” in which squeaky-clean testimony mysteriously appears on the courthouse steps without any troublesome questions into how it was obtained.

This decision doesn’t make it impossible for the government to use the contents of an encrypted drive, but it requires that the prosecution demonstrate a knowledge of the contents and data contained therein before being allowed to issue a blanket demand. It’s a fair call, and given the increasing number of similar cases, an important one.

This is very important as more and more poeple encryt their computers using free encryption software like TrueCrypt.  Not only can the government not break in to an encrypted computer with a good encryption key, they also can't force individuals to turn over the key.

UPDATE:  TrueCrypt has fallen into disfavor since this blog post was published, although it still works for many functions.  Here are some alternatives to TrueCrypt:  https://www.comparitech.com/blog/information-security/truecrypt-is-discoutinued-try-these-free-alternatives/

Continue reading
3523 Hits
0 Comments

Don't Talk To The Police - EVER!

This is the one thing most clients get wrong.  When I first becamse a prosecutor, I was amazed at how many cases are built around a confession.  Clients think they can talk their way out of trouble or that remaining silent will look worse than talking.  Cop have tactics to encourage people to talk, such as "minimization" and accusatory questions.  Most people are shocked to learn that cops are allowed to lie to suspects to convince the suspects to talk.

Then there are cops that just torture people until they get what they want, but we can discuss that in another post sometime. 

Regent U. law professor James Duane does an outstanding job explaining why even the most innocent of suspects should never talk to the police absent a lawyer.  Unfortunately, most citizens do not learn this lesson until it is too late.  For that reason, it is often important to address a client's statement to the police early in the case to determine whether it is admissible in court against him or her. It's a long video, but it's worth it.

If you are detained (meaning you aren't free to walk away) by an officer, you should wait until you've consulted with an attorney before dealing with the police.  Give them your correct name and date of birth (or SSN) and then ask if you are free to leave.  If you are, leave.  If you aren't, ask for a lawyer.

 

Continue reading
5737 Hits
0 Comments

5 Reasons You Should Never Agree to a Police Search

Scott Morgan at Huffington Post lists the 5 Reasons to Never Consent to a Police Search.   Morgan writes:

It wouldn't even be such a big deal, I suppose, if our laws all made sense and our public servants always treated us as citizens first and suspects second. But thanks to the War on Drugs, nothing is ever that easy. When something as stupid as stopping people from possessing marijuana came to be considered a critical law enforcement function, innocence ceased to protect people against police harassment. From the streets of the Bronx to the suburbs of the Nation's Capital, you never have to look hard to find victims of the bias, incompetence, and corruption that the drug war delivers on a daily basis.

Whether or not you ever break the law, you should be prepared to protect yourself and your property just in case police become suspicious of you. Let's take a look at one of the most commonly misunderstood legal situations a citizen can encounter: a police officer asking to search your belongings. Most people automatically give consent when police ask to perform a search. However, I recommend saying "no" to police searches, and here are some reasons why:

Continue reading
4086 Hits
0 Comments

St. Paul Cops Shoot Dog in Wrong-Door Raid, Force Handcuffed Kids to Sit Near the Corpse

<a href="http://reason.com/blog/2012/08/10/st-paul-cops-shoot-dog-in-wrong-door-rai">St. Paul Cops Shoot Dog in Wrong-Door Raid, Force Handcuffed Kids to Sit Near the Corpse</a>

Continue reading
3843 Hits
0 Comments