John Oliver on Civil Forfeiture

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Did the US Supreme Court Ignite a Rash of No-Knock Raids?

Did the US Supreme Court Ignite a Rash of No-Knock Raids?

Prior to 2006, if the police raided your home they had to prove that the raid was executed in the proper manner.  If it wasn't, then the evidence they found might not be admissible in court. 

In 2006, the United States Supreme Court issued Hudson v. Michigan.  In that case, a regular search warrant for Hudson's home was executed as  'no-knock" warrant.  The question for the court was whether the police could still use what they found, even though they did not execute the warrant properly.  The Supreme Court ruled that they could. 

After that opinion, I wondered why any police force anywhere would bother knocking ever again.  There's no benefit to police by knocking, and now the Supreme Court has said that even if the police do not knock, they still get to use what they find to convict the homeowner.

Since Hudson, it seems like we have seen a rash of botched no-knock raids that have resulted in innocent people getting shot and/or disfigured.  I wonder whether the Supreme Court opened the door to this or whether other forces were at play.  Or both. 

Your thoughts?

And no discussion of no-knock raids would be complete without Lindy's somber "No Knock Raid."

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Forsyth County Forfeits an Entire House

Forsyth County Forfeits an Entire House

Drug forfeitures are usually relatively small.  The police might forfeit the cash someone has in their wallet or automobile or the automobile itself, but rarely do you see an entire house forfeited without a fight.  But that's apparently exactly what happened in Forsyth County:

The Forsyth County Sheriff’s Office is now the owner of a single-family home in west Forsyth, whose former residents the agency described as repeat drug offenders.

According to the sheriff’s office, Forsyth County Superior Court awarded it the two-story, 2,500-square-foot home in Sawnee View Farms on Oct. 29.

The house, which has a basement and sits on a half-acre lot, has been valued at about $258,000, according to county tax records.

The sheriff’s office believes this is the first time in recent memory that a house has been given to the county based on criminal activity.

But there is a catch: 

Despite the sheriff’s office taking ownership of the home, the agency still must undergo legal eviction proceedings to expel the people living in what he characterized as a “transient drug house.”

The home will eventually be put on the market, hopefully with an agent, but Piper said the sale will yield little, if any, profit.

The agency must first pay of the liens and mortgages against the property, which total about half the value of the house, he said. They will also pay the costs of the required legal proceedings.

Any remaining money would be handled through the legal guidelines of drug seizure funds.

The home was awarded to the sheriff’s office in a consent judgment, which states Wheeler agreed to forfeit the property.

That's highly unusual, which makes me think there is more to this story than meets the eye.  I can imagine what that might be, but it wouldn't be appropriate for me to speculate.


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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.  

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"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

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Apple's "Warrant Canary"

TechCrunch reports that Apple, Inc. has slipped a "warrant canary" into a recent report:

The very last line of Apple’s report today states “Apple has never received an order under Section 215 of the USA Patriot Act. We would expect to challenge such an order if served on us.”

The cleverness of this becomes evident when you realize that if it had received such an order, it could not disclose it under current rules surrounding national security orders for user data. This tactic of announcing ‘nothing’ with regards to a government subpoena for data is known as a kind of ‘warrant canary’. Basically, Apple says that at this point it has not received any such order. But, if that phrase stops appearing in future transparency reports, this acts as a ‘canary in a coal mine‘ that indicates to users that it may have been forced to comply with such an order and not disclose it in the future.

I think this is clever.  While the Patriot Act would not allow a company to affirmatively report that they have been subpoenaed, there's no prohibition on a company reporting that they have NOT been subpoenaed.   But Apple isn't the first to do this.

Civil Liberties attorney Matt Cagle notes that Lookout Security has also recently stated they’ve never received a national security order for user data.

This tactic was used by offsite backup company Rsync in what is believed to be the first commercial company application. 

Major email providers like Google, Yahoo and now should weekly or monthly send users an email reporting the lack of a subpoena.  Once the emails stop coming, the user would know that his privacy has been compromised.  

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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.

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In Re: Decryption of Seized Data

In Re: Decryption of Seized Data

In the United States District Court for the Eastern District of Wisconsin, case 13-M-449, titled "In the Matter of the Decryption of Seized Data Storage System," the court has held that the owner of several hard drives seized by the FBI cannot be compelled to come to court and decrypt the drives for the FBI, because that would violate the Constitutional protection against self-incrimination. 

From the opinion:

On January 22, 2013, a warrant was issued allowing the FBI to enter and search Feldman’s residence, including electronic storage media, for evidence of child pornography. The warrant was executed two days later. 

During the search, Banner spoke briefly to Feldman before he invoked his right to counsel.  Specifically, Feldman stated that he had lived at his current residence for the past 15 years, and that he was the sole occupant of the residence.  Other evidence showed that Feldman is the only person paying taxes and receiving mail at his residence.  Feldman has a computer science degree from the University of Wisconsin–Madison.  He is a longtime employee of Rockwell Automation, currently holding the title of Senior Software Development Engineer.  In 2010, Feldman filed as a co-inventor for a U.S. patent for a “system and method for interfacing with an enterprise resource planning system.” 

Agents seized 16 storage devices during the search.  Five devices showed no traces of electronic data, and two devices were not encrypted.  The remaining nine devices contained data inaccessible due to encryption.  The encryption programs on the storage devices appeared to be the sort that would lock or damage data if too many incorrect password guesses were made. FBI analysts have spent over four months attempting to access the encrypted files without success. 

On one of the unencrypted devices, a Dell computer, FBI examiners found a peer-to-peer software program called “eMule.”  Within eMule, log files indicated that 1,009 files were received, distributed, or stored using eMule, with most of the files having titles mainly indicative of child pornography.  Examiners also found evidence that some of these files had been downloaded to various devices connected to the Dell computer—particularly, the “F,” “G,” and “I” drives.  The “I” drive corresponded to one of two encrypted devices.  The “F” and “G” drives might correspond to any of the other connected devices.  The Dell computer’s login screen showed only one username, “Jeff.”

So it seems pretty clear that this guy has been downloading some child porn and most likely storing it on encrypted external hard drives.  The FBI apparently gave up trying to break through the encryption themselves and went to the court to force Feldman to do it for them.  But doesn't that violate his right to remain silent?

Yes it does, said the court: 

[T]he government has shown that the encrypted devices contain data. In addition, during the search of the unencrypted Dell computer, the government found a peer-to-peer software program whose log files indicated that 1,009 files were received, distributed, or stored using the program, with most of the files having titles mainly indicative of child pornography. Examiners also found evidence that some of these files had been downloaded to various devices connected to the Dell computer, including one of two encrypted devices. In short, the government already knows the names of the files (which indicate child pornography) and their probable existence on the encrypted hard drives. Under these facts, “[t]he existence and location of the [files] are a foregone conclusion.”

Still, however, there is an issue of possession and authenticity. Feldman has a computer science degree, is a longtime employee of Rockwell Automation (currently, he holds the title of Senior Software Development Engineer), and filed as a co-inventor for a U.S. patent for a “system and method for interfacing with an enterprise resource planning system.” Accordingly, unlike in Subpoena Dated March 25, 2011, here, the government has shown that Feldman may very well be capable of accessing the encrypted portions of the hard drives.

But the following question remains: Is it reasonably clear, in the absence of compelled decryption,7 that Feldman actually has access to and control over the encrypted storage devices and, therefore, the files contained therein? To be sure, the storage devices were all found in Feldman’s residence, where he has admittedly lived alone for the past 15 years. In addition, the unencrypted Dell computer, which showed connections to the encrypted storage devices, has a login screen with only one username, “Jeff.” Nevertheless, unlike in Boucher and Fricosu [cases], here, Feldman has not admitted access and control.

This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity”—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.

So it seems that what really violates his Fifth Amendment protection is admitting that he can decrypt the drives, not necessarily the act of decrypting them.  If the officer had asked early on, "Can you decrypt these for us if you wanted to?" and Feldman had said yes, the case may have turned out differently.

From JSOnline:

FBI Special Agent Brett Banner suggested in an affidavit that the increasingly common use of encryption could become a real hardship for law enforcement if courts don't order suspects to decrypt possible evidence.

Well, yes, it could become a real hardship for law enforcement if citizens had a way to keep things private from the authorities.  That's the point, Agent Banner.  The point of the Constitution and the Bill of Rights is to protect citizens from government.  That means citizens don't always have to do what the government wants, no matter how much the government wants it.

Encryption is amazing stuff when used correctly.  I prefer TrueCrypt myself.  Use a strong 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:

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Statewide Roundup in Child Porn Sting

Statewide Roundup in Child Porn Sting

The Marietta Daily Journal is reporting that Georgia law enforcement executed a statewide roundup of online child pornography suspects: 

Cobb County Police were among almost 50 state agencies that came together Wednesday to show up at front doors with search warrants for 98 suspects accused of distributing child pornography over the Internet.

In Cobb alone, six warrants were issued and numerous computers were taken and submitted for forensic analysis, according to Officer Mike Bowman with Cobb Police.

“No physical arrests have been made at this time,” he said. “Charges may be forthcoming pending the completion of the computer analyses.”

As of 6:30 p.m. Wednesday, there have been 73 search warrants executed statewide and 41 arrests were made in connection with this continuing operation, according to John Bankhead with GBI.

I like these cases not because of the subject matter, but because of the technology. I would be just as interested in these cases if people were rounded up for downloading copyrighted song or movies, but those cases rarely get the attention of law enforcement. 

I used a computer hard drive graphic because that's what these cases will come down to.  The computers will be imaged and examined by bigger computers to see if there's anything on there that is illegal to possess.  After that, charges will be filed, people will be arrested, and the war will begin:

Considering the Peter Mallory just got sentenced to 1,000 years in south Georgia for child pornography, any person who had his computer seized in this raid should already be in a lawyer's office planning their defense.  These charges aren't to be taken lightly.

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Cops Raid Home; Find Fruit

Not much different than the Gwinnett County man who had his home raided for his own indoor garden, a Kansas couple has gotten a tough lesson in the War on Drugs and how none of us are safe

Two former CIA employees whose Kansas home was fruitlessly searched for marijuana during a two-state drug sweep claim they were illegally targeted, possibly because they had bought indoor growing supplies to raise vegetables.

. . .

April 20 long has been used by marijuana enthusiasts to celebrate the illegal drug and more recently by law enforcement for raids and crackdowns. But the Hartes' attorney, Cheryl Pilate, said she suspects the couple's 1,825-square-foot split level was targeted because they had bought hydroponic equipment to grow a small number of tomatoes and squash plants in their basement.

"With little or no other evidence of any illegal activity, law enforcement officers make the assumption that shoppers at the store are potential marijuana growers, even though the stores are most commonly frequented by backyard gardeners who grow organically or start seedlings indoors," the couple's lawsuit says.

How are these officers getting search warrants with no evidence of illegal activity?  The article should name the judge that issued the warrant and print the affidavit upon which it was issued.  But it gets worse:

"If this can happen to us and we are educated and have reasonable resources, how does somebody who maybe hasn't led a perfect life supposed to be free in this country?" Adlynn Harte said in an interview Friday.

Excellent question, Ms. Harte.

The suit filed in Johnson County District Court said the couple and their two children — a 7-year-old daughter and 13-year-old son — were "shocked and frightened" when deputies armed with assault rifles and wearing bulletproof vests pounded on the door of their home around 7:30 a.m. last April 20.

I'll bet they were.  Is this the same sort of "home invasion" the police are supposed to protect people from?

"It was just like on the cops TV shows," Robert Harte told The Associated Press. "It was like 'Zero Dark Thirty' ready to storm the compound."

Much like the local Gwinnett County case, police found nothing but edible fruits and became hostile and accusatory when it became obvious they wouldn't find anything:

When law enforcement arrived, the family had just six plants — three tomato plants, one melon plant and two butternut squash plants — growing in the basement, Harte said.

What do these police have against tasty indoor fruits?

The suit also said deputies "made rude comments" and implied their son was using marijuana. A drug-sniffing dog was brought in to help, but deputies ultimately left after providing a receipt stating, "No items taken."

Pilate said no one in the Harte family uses illegal drugs and no charges were filed. The lawsuit noted Adlynn Harte, who works for a financial planning firm, and Robert Harte, who cares for the couple's children, each were required to pass rigorous background checks for their previous jobs working for the CIA in Washington, D.C. Pilate said she couldn't provide any other details about their CIA employment.

Preventing these things would be alot easier if more courts would allow aggrieved citizens to sue the officers individually.

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Mistrial for Cop Accused of Recording Judge in Maryland

This is outrageous.  Not only should it not be a crime for this officer to record his warrant applications, it should be REQUIRED that warrant applications be recorded for later review by higher courts.  I hope they never convict this officer of anything.

For Georgia cases, see Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

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US DEA Can't Crack Apple iMessages (Yet)

US DEA Can't Crack Apple iMessages (Yet)

The United States Drug Enforcement Agency is mad they can't crack Apple iMessages, even with a search warrant.  Why?  Because Apple iMessages sent from Apple-to-Apple devices are not traditional text messages, and they are encrypted. 

iMessages are encrypted messages that can be sent between Apple devices, including iPhones, iPads and even Macs running the OS X platform. The service launched with iOS 5 in 2011and Apple publicly revealed that all sent and received iMessages would be securely encrypted.

DEA officials first discovered that iMessages could be a hinderance to their efforts when a real-time electronic surveillance under the Federal Wiretap Act failed to yield all of a target's text messages. The agency then discovered that the person was using iMessage, which bypassed the text messaging services of carrier Verizon.

 Apple revealed in January that it sees 2 billion iMessages sent each day from a half-billion iOS devices, plus Mac computers, which gained iMessage support last year. iMessage accounts allow users to send and receive their secure messages across all their Apple devices.

Apple's apparent stymying of the DEA was revealed in a government intelligence note . . .  which calls it "impossible" to intercept iMessages, even with a warrant. The note is entitled "Apple's iMessages: A Challenge for DEA Intercept." 

This is another example of the government publicly admitting that civilian encryption is very powerful stuff.  Don't confuse "encryption" for "passwords" because they are very different.  Passwords are apparently easy to defeat.  Encryption isn't. 

Article here.

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:


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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.



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You Are Probably A Child Pornographer, Part II

You Are Probably A Child Pornographer, Part II

To follow up my previous post "You Are Probably A Child Pornographer", we have a young Arizona couple who made the increasingly-unwise mistake of taking their family photos to a Wal-Mart: 

In 2008, Lisa and Anthony "A.J." Demaree took their three young daughters on a trip to San Diego. They returned home to Arizona and brought photos of their then 5, 4 and 1 1/2 year old daughters to a local Walmart in Peoria to be developed.
. . . Walmart employees reported the Demarees to the Peoria Police Department on the suspicion that they had taken pornographic images of their children. The police, in turn, called in the Arizona Child Protective Services Agency, and the couple lost custody of their daughters for over a month.

Apparently the Demaree's had photographed their children during and immediately after their baths because they thought their children were being cute.

A Maricopa County Superior Court judge ruled that the photographs were not, in fact, pornographic, and a medical exam revealed no signs of sexual abuse. The girls were returned to their parents.

Good for you, Judge.  But was it really necessary for a medical exam to probe these little girls' nether regions? 

The couple's named went on a central registry of sex offenders, and "We've missed a year of our children's lives as far as memories go," Demaree told ABC News.

So, having done nothing wrong; having been convicted of no crime; these parents were nevertheless branded as "sex offenders" and separated from their children while strangers probed their daughters' vaginas.

In 2009, the couple sued the city of Peoria and the State Attorney General's office for defamation. They also sued Walmart for failing to tell them that they had an "unsuitable print policy" and could turn over photos to law enforcement without the customer's knowledge.
A federal judge in Phoenix sided with Walmart, ruling that employees in Arizona cannot be held liable for reporting suspected child pornography. The Demarees appealed to the 9th Circuit Court of Appeals, and on March 6 the court held a hearing before three judges. It's unknown when the appeals court will rule on the case against the city and Walmart.

So expect Wal-Mart to look at your family photos. 

Walmart did not respond to an interview request from ABC News. But, according to Courthouse News the company's lawyer, Lawrence Kasten, argued that under Arizona statute employees who report child abuse without malice are immune from prosecution. He added that there was no indication of malice in this case.

The problem isn't Wal-Mart. They are in a no-win situation because of "mandatory reporting" laws.  Most states have laws that not only encourage the reporting of suspicions of crimes against children but punish the failure to report it.  (Apparently, our governments do not believe that we citizens are moral enough to report such things voluntarily and thus must be threatened with punishment for failing to do so.)  Wal-Mart is trying to error on the side of caution by reporting anything that might remotely be criminal, lest their employees face criminal charges for not reporting it. In other words, the law has left no room for common sense.

The story is here.

So if you are a parent of anyone under 18, remember that Big Brother is watching.  Big Brother has also conscripted Wal-Mart, teachers, doctors, and anyone else they can to help keep an eye on you through "mandatory reporting" laws.  Do not photograph or video your children doing anything without appropriate clothing.  If you do have such videos or photographs, do not email or text them, or post them on the internet.  Keep them on an encrypted hard drive with a strong key.  And if anyone from the government asks for permission to search, the correct answer is "no." 

Protecting yourself from government stupidity begins with protecting yourself from the government.

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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."

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"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.

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You Are Probably A Child Pornographer

Much like the Jeff Foxworthy "You Might Be A Redneck If . . ." series, I wish someone would start a "You Might Be A Child Pornographer" series to demonstrate just how far and wide government powers go, to the point that it's difficult to avoid stepping over the line.

Do you have children? When they were young did they ever run around the house naked? Did you ever take a picture or video of it to show your spouse? If so, then you might be a child pornographer.

Judge Throws Out Case Against "Child Pornographer"

A judge sided with Todd Hoffner, head coach at Minnesota State-Mankato, by throwing out the child porn charges against him last Friday.

The judge said the cellphone video was nothing more than children playfully dancing naked after a bath.

"I'm just so thankful to be waking up from this nightmare," Hoffner said after the ruling, which came more than three months after the coach was escorted off a practice field and later arrested.

Now, Hoffner said, he wants to get back on the sideline. But it's unclear when that may happen.

The university said he would remain on leave until its own investigation was complete, and school spokesman Don Benson said he had no timetable as to when that might happen.

Hoffner was charged after a school employee found the video on his university-issued cellphone and notified authorities. Hoffner had taken his problematic phone to work to be checked out.

Hoffner testified earlier that his three young children asked him to videotape a skit they had concocted after taking a bubble bath.

A search of his home computer found no evidence of child porn, and social workers found no evidence that the couple's children had been abused.

Good job, judge. Now the citizens of that town need to make sure their DA doesn't get re-elected.
While this sounds like a happy ending, read between the lines.  This guy:
  1. was arrested
  2. was booked into jail for child pornography
  3. had his home searched
  4. had his computer searched
  5. had his friends interviewed
  6. was put on leave from his job
  7. had his children interviewed by social workers
  8. had to post bail
  9. probably couldn't be alone with his kids
  10. had to hire a lawyer

    Sounds like a "nightmare" indeed.

In Georgia, pretty much ANY picture of ANY naked child for ANY reason (other than medical) counts as child porn, and it does not matter that the person in the picture is the one doing the sending.  A teen who sends a single topless picture of herself to a boyfriend via internet or cell phone is committing a felony and can go to prison. People caught up in cases like this get branded "child pornographer" for life even if the charges are dismissed. Georgia's new "Restriction of Records" law (2013) may not help.

If you get caught up in a nightmare like this guy, call us. We can help.

- John


For an excellent and quick read about the overcriminalization of, well, just about everything, check out Professor Glenn Reynold's "Ham Sandwich Nation: Due Process When Everything Is A Crime."

UPDATE AGAIN:  Welcome Instapundit readers!  Grab some coffee and stay a while...

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.

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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.

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Man Sentenced to 1,000 Years

Man Sentenced to 1,000 Years

A Troup County judge has sentenced Peter Mallory to serve 1,000 years in the Georgia Department of Corrections for having a bunch of dirty pictures on his work computer. 

Mallory was charged with 60 counts of sexual exploitation of children, invasion of privacy and tampering with evidence. Troup County Superior Court Judge Dennis Blackmon sentenced Mallory to 20 years on 50 of the counts and ordered him to serve a concurrent sentence of five years for each of the remaining 10 counts.

He is eligible for parole in . . . seven years.

O.C.G.A. § 42-9-45(b)

An . . .  inmate serving a felony sentence or felony sentences shall only be eligible for consideration for parole after the expiration of nine months of his or her sentence or one-third of the time of the sentences, whichever is greater. . .  inmates serving sentences aggregating 21 years or more shall become eligible for consideration for parole upon completion of the service of seven years.

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Drug Dog's Nose is Good Enough

Drug Dog's Nose is Good Enough

One of the biggest abuses of power I regularly see is in the use of "drug dogs."  Police use a drug dog's "alert" to allow them to search places they normally can't legally search.  That's all well and good if the dog is reliable, but in this story we read about a drug dog that is right only 26% of the time!  That means that roughly three out of every four times the dog alerts, an innocent person is subjected to an illegal search.

But that's not legal is it?  Surely the courts wouldn't allow a dog that's wrong 75% of the time to be an excuse to ignore the Constitution?  Think again:

The nose of a drug-sniffing police dog is not so sharp, but it's good enough to support cocaine charges against Herbert Green.

. . .

Green's lawyer had argued that Bono's track record — drugs were found just 22 times out of 85 "alerts" by the dog — was so poor that police lacked probable cause to search Green's SUV.

. . . 

Bono "may not be a model of canine accuracy," Conrad wrote in an opinion filed Thursday in U.S. District Court in Roanoke.

. . .

At a hearing earlier this month, Assistant U.S. Attorney Ashley Neese defended the performance of the German shepherd.

In some cases where nothing was found after an alert by Bono, police later determined that drugs had been in the vehicle earlier, likely leaving an odor the dog was trained to detect, Neese said.

Taking those cases into account, Conrad found that Bono's accuracy rate was at least 50 percent.

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