back to article No, the cops can't get a search warrant to just seize all devices in sight – US appeals court

It's a ruling sending shockwaves through the worlds of privacy, device security, and law enforcement in America. The US Circuit Court of Appeals in the District of Columbia on Friday overturned the conviction of a gang member because investigators obtained a search warrant for his devices without probable cause. In other …

Anonymous Coward

Luckily in Britain

There is no problem with using evidence obtained illegally and you don't have to worry about warrants having to be issued for a specific purpose of a specific address - "in connection with an investigation" is enough.

Pah bill of rights, constitution, foreign rubbish - who needs it

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Re: Luckily in Britain

Not just Britain. The Irish Supreme Court threw the exclusionary rule out the window and has said that illegally obtained evidence is admissible as long as the breach of constitutional rights is 'inadvertent' (which is a pretty low bar tbh).

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Re: Luckily in Britain

In all likelihood it will be "Mr President, Mr President the US appeals court is behving like nasty, left-wing liberals - can you override them please?"

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Re: Luckily in Britain

No such thing as British law. Under English law, improperly gained evidence is generally admitted, however under Scottish law, although improperly gained evidence can be 'excused', in practice it very rarely is.

Due to conflicting and inconsistent case history in regard to application of the 'fairness' test to the accused, and frequent exclusion of 'excused' evidence on appeal, Scottish courts tend to avoid improperly gained evidence - for example, evidence of other crimes found during a warrented search of a property for another crime will almost always be excluded.

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Anonymous Coward

Re: Luckily in Britain

Another US decision almost the same here. Cop can discover something by misapplying the law, and as long as it was done in good faith *cough* the evidence can be used. This seems to conflict,

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Anonymous Coward

Re: Luckily in Britain

Same in Denmark - http://finans.dk/erhverv/ECE9802622/skat-vil-bruge-oplysninger-som-politiet-burde-have-destrueret/?ctxref=forside (google translate).

Police should have destroyed the information 9 years ago, but, it is still good "to get the proper result".

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Mess

Orin Kerr, a law professor at Georgetown University, via Twitter observed, "On a first read, at least, Judge Srinivasan's alternative holding in Griffith is going to create a mess."

funny how respecting everybody's rights is always such a bother.

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Re: Mess

In fairness, it did not say that he disagreed with the judge's ruling.

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Re: Mess

Yes, it is a bother. On the other hand, you can't repeatedly state that you have the best legal system in the world (citation needed) and then take shortcuts when it suits you.

I do believe this guy is a criminal. I do believe that it sucks that positive evidence is being thrown out. I also believe that it sucks more that police are just pawing through everyone's lives without respecting that little niggle called "due process".

That being said, phones these days are obvious targets for data. I don't understand how the police didn't get their warrant properly because obviously kids these days do everything with their bloomin' phones and if I found an illegal firearm in a suspects' house I would obviously think of checking their phones.

Apparently something was a bit too obvious to the police officers and they blew it.

Dura lex, sed lex. It's the only thing that protects innocent people from wrongful judiciary action, and God knows there's enough of that already.

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Re: Mess

A better solution to

I do believe that it sucks that positive evidence is being thrown out.

I also believe that it sucks more that police are just pawing through

everyone's lives without respecting that little niggle called "due process".

Get rid of that pernicious "sovreign immunity" doctrine,and go ahead and convict the guy, but let him sue all those involved for the illegal warrant. That way, the real offenders on both sides of "the law" get punished.

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Re: Mess

@Carlie J. Coats, Jr."Get rid of that pernicious "sovreign immunity" doctrine,and go ahead and convict the guy, but let him sue all those involved for the illegal warrant. That way, the real offenders on both sides of "the law" get punished."

I agree with your proposal wholeheartedly, but it would never happen for a whole range of reasons.

Anybody who follows the Innocence Project will be familiar with stories of people receiving zero compensation for spending decades in prison.

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Anonymous Coward

Re: Mess

Not to speak for Professor Kerr, but he's probably speaking in the sense that it will create quite a bit of confusion in legal cases until it goes through the Supreme Court. I don't know for certain, but judging by the stuff by him that I've read and that he teaches at George Mason and writes on the Volokh Conspiracy blog (which isn't as nutty as the title would suggest - everyone on that site is a world-class lawyer or law professor), I suspect he leans libertarian .

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Re: Mess

Kerr, unlike many who offer their comments to articles such as this one, is a qualified lawyer, as well as fairly well known in the particular subarea of fourth amendment and surveillance jurisprudence. In addition, he is not widely thought of as an advocate of unrestricted government search powers.

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Re: Mess

The police, often or nearly always in collaboration with the prosecutors they work with regularly, use the formulas that have worked for them in the past. When a defense attorney raises questions in a slightly novel way and get a judge to agree and rule in his (or her) favor, it changes the meaning of "what worked in the past." Life goes on, and going forward the police (and prosecutors) change their approach. See Riley v. California, for example.

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Re: Mess

The punishment for a faulty warrant (or lack of one where it is required), if it can be called that, is that the wrongly acquired evidence is suppressed. Conviction on other available evidence may or may not be possible.

In the current case, decided by a subset of the DC Circuit, the government might request a review by the full court, or appeal; there may yet be more on this. An interesting comment from the majority opinion was to the effect that if the police had not had a search warrant, they would not have had a problem in this case. So part of the result might be a shrinkage in the number of warrants sought, something that might be an unintended, and deleterious, side effect of the ruling.

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Re: Mess

Dura lex, sed lex.

I'd never heard this expression before and now in the past 24 hours I've heard it twice....

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Re: Mess

"you can't repeatedly state that you have the best legal system in the world (citation needed)"

http://eprints.kingston.ac.uk/33454/3/Darbyshire-P-33454.pdf

https://www.sweetandmaxwell.co.uk/about-us/press-releases/061108.pdf

etc. etc. etc.

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Stop

Re: Mess

@carlie J. Coats

And if the convicted person cannot adequately continue or pursue his lawsuit against the offending officers because he is in prison, doesn't have a lot of money and his testimony in court is going to be discounted by a jury because he is a convicted felon?

You throwing me in jail for 10 years and me suing you for $50K because you cut corners that got me removed from society for 10 years are not remotely equal punishments, nor do they put me in a position where I can thoroughly seek redress.

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Re: Mess

Sorry but this criminal had a gun and was stupid enough to store evidence of crimes on one or more devices. The fact they are allowed to get away on such technicalities is and should be enraging to any with a moral compass.

People shouldn't be allowed to get away with crimes based upon not following a process. Just like progress is made by finding nuance between "Yes I murdered that man, I've always wanted to kill a home-invader, and it was my house." and "The giant spider told me he was the next Hitler.", we have to strive for a nuanced approach to enforcement. I'm not suggesting they should have carte blanche, but the same opportunity for progress should be afforded to keep the nation and its residents safe.

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Re: Mess

>Sorry

No you aren't.

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lazy cops make for free card out of jail.

cops only had to ask for a warrant on grounds of a reasonable suspicion, and limit it to the devices owned by the individual.

then they would have gotten away with it.

so the judge was right. " do your job" , is basically what is he is saying to the cops, "or

I will have to do mine"

and that's what he had to do.

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Re: Mess

@TheVogon:"http://eprints.kingston.ac.uk/33454/3/Darbyshire-P-33454.pdf"

In the early 1960s, people commonly asserted that ‘British justice is the finest in the world’, warning about other systems ‘In France, you’re guilty till proved innocent’.

Finest in the world, my arse.

Didn't that old racist bastard Lord Denning say that the Guildford Four and the Birmingham Six should have been hanged? Probably the two biggest miscarriages of justice in English law, and the man at the pinnacle of English law for so many years had that to say?

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Can't remember the distance but if you're near an airport just get the border police to seize them. No need for warrent or cause then.

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It's a 100 miles I think. There might be one spot somewhere in the US that is that far away from all airports.

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In Salina Kansas you're safe.

It's the geographical center of the lower 48. One or two steps off the spot though and you're fair game.

In all seriousness, here's a map:

https://www.aclu.org/sites/default/files/styles/scale_1200w/public/wysiwyg/constitutionfreezonemap.jpg?itok=umNWZ7vX

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THere is a little thing that says border ICE as jurisdiction with in 500 miles of navigational water ways.

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Re: In Salina Kansas you're safe.

"In all seriousness, here's a map:"

There's a house not far from there and the occupants are getting regularly harrassed by people following geolinks for various stolen crap. It seems that if a device can only be localised to the USA, that's the default location provided.

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Black Helicopters

Beat This For a Conveniently Broad Warrant:

http://www.dailyherald.com/article/20161022/business/161029726/

"Investigators in Lancaster, Calif., were granted a search warrant last May with a scope that allowed them to force anyone inside the premises at the time of search to open up their phones via fingerprint recognition, Forbes reported Sunday.

The government argued that this did not violate the citizens' Fifth Amendment protection against self incrimination because no actual passcode was handed over to authorities. Forbes was able to confirm with the residents of the building that the warrant was served, but the residents did not give any more details about whether their phones were successfully accessed by the investigators...

...The court filing for the case says that the federal agents obtained "authorization to depress the fingerprints and thumbprints of every person who is located at the SUBJECT PREMISES during the execution of the search and who is reasonably believed by law enforcement to be the user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant.""

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Re: Beat This For a Conveniently Broad Warrant:

This is exactly the kind of ridiculous overreach iOS 11's "cop mode" (press the power button quickly five times to disable fingerprint recognition and make it require your password) is targeted for. Though I'm sure some authoritarian types will crap on Apple and claim they are supporting terrorists and criminals.

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Re: Beat This For a Conveniently Broad Warrant:

"....fingerprint recognition...The government argued...no actual passcode was handed over to authorities."

I would expect a good lawyer should be able to argue that the fingerprint scanner is generating a pass code and there is therefore de facto a pass code based on the nature and process of what is going on internally as the fingerprint is scanned, ie it creates a sequence of numbers based on the image scanned.

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Re: Beat This For a Conveniently Broad Warrant:

Fairly sure that the fingerprint scanner thing has been all the way through appeal courts in both England and at least some US circuits. It's legal.

In the OP's case, surely the correct attack is via lack of suspicion and the 4th amendment. No such protection in England (one of Mr Tugendhat's legacies... who still hasn't retired, despite being only a few months younger than Eady who was forced out on age grounds to please Mr Murdoch 7 years ago).

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Re: Beat This For a Conveniently Broad Warrant:

@John Brown (no body):"I would expect a good lawyer should be able to argue... "

The argument's been done to death by now, in the US and elsewhere. A fingerprint is the same as a safe key, and you can be compelled to provide a fingerprint to unlock a phone. The moral of the story? Don't use your fingerprint to unlock your phone.

Although it appears that the Met Police will steal the phone out of your hand while you're on a call if they really want it, so you could be fucked in any case:

"They [the police] considered whether they could legally force a suspect's finger or thumb on to the device's fingerprint reader to unlock it, but found they had no such power.

However, they concluded they could stage their own lawful "street robbery" - using a similar snatch technique to a thief - and in June a team set out to do precisely that."

The FBI did something similar with Ross Ulbricht's laptop.

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Facial recognition 'trials'

Yes, this is the same as the UK police keep running 'trials' of facial recognition systems, keep DNA well beyond the legal limit and the government refuses to do anything about it.

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Unhappy

Funny how people b**ch about "probable cause" until 1 sec after they're on the wrong end of it

And then they b**ch it's not tough enough.

This should be what happens when all cops go on fishing trips.

Let's be honest. The problem here is the cops aren't smart enough to catch one gang banger. Is that because a)He is a master criminal. b) They are too dumb to catch him in a way that stands up in court?

Hmmm.

I don't know if he did it, but I do know they didn't do their jobs for the money they get paid.

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This ruling isn't very meaningful

It was a three judge panel, not the entire appeals court, and the decision was 2-1. It could quite possibly go the other way if appealed to the full appeals court, or after that to the Supreme Court.

There's a ways to go before this ruling becomes the law of the land outside the area covered by this court.

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Wrong Solution

Suppressing the evidence obtained by an illegal search - the "fruit of the poisonous tree" doctrine - allows criminals to go free, but does NOTHING to discourage rogue cops from doing the same things again. I'd allow the evidence of the crime to be used in court against the criminal.

But I'd ALSO like to have the court bring charges against the cop and the prosecutor, and the judge who issued the flawed warrant. Cops are supposed to be BETTER people, and we're allowing criminal cops to go free because they deserve a second chance. Baloney! We give cops expanded powers because we expect them to be better than the average citizen. If they're going to be just criminals with a badge, then they should lose the badges and should go to prison themselves.

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Re: Wrong Solution

"I'd allow the evidence of the crime to be used in court against the criminal."

No way. Why? The balance of power is already tipped vastly in favour of the the police and the State.

It's not asking too much that they get their shit together and follow the correct procedures when applying for (and executing) a search warrant.

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Re: Wrong Solution

Wrong answer.

These changes nearly always take place at the boundary between what, in the past, has been considered clearly constitutional and clearly unconstitutional. They move the boundary a bit in one direction or the other and going forward, as decisions percolate through the system, warrant issue requirements change slightly. The claim that it does nothing to discourage police from repeating their error is one for which there is not a lot of evidence. Given the size and population of the US, it is likely to take some time, and sometimes quite a lot of time, for such a decision to applied across the entire country, especially if different circuits answer a question differently and a Supreme Court decision is required to establish a nationwide standard.

As in many human activities, there is room for gaming here, and provable collaboration among police, prosecutors, and judges to issue bad warrants should be, and perhaps sometimes is, punished. However, that is not normally true. The notion that the evidence in the instant case should be used, but that the standard nonetheless should be changed does injustice to the accused, and should not even be considered. The evidence must be suppressed and the warrant issue standard modified going forward.

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Re: Wrong Solution

Well, here's the problem. When federal prosecutors know their cases are built on a flimsy foundation that could be overturned, they'll sometimes drop a case rather than allow the court to review it and set a precedent. You see this with e.g. Stingray in cases where the defense got the judge to rule they had to provide more information about how it worked and how it is used, they simply drop the case to avoid providing that information. This has happened a number of times with Stingray alone, and you probably can't count the number of times it was done with other evidence of questionable legality (I imagine that would make an interesting research topic for some law prof)

They know the typical defendant relying on a court appointed attorney will generally be unable to muster such an effective defense, so they'll still get a lot of plea bargain deals based on evidence that would not be allowed if they were willing/able to go all the way. Just another way the legal system discriminates based on socioeconomic status.

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Re: Wrong Solution

Pshaw. Next thing you'll be saying they shouldn't be killing citizens in the streets.

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Interesting bit on search warrants in the US

Written by a former federal prosecutor and now (in)famous First Amendment defense attorney, with a glorious gift for snark.

Teaser: "Even the best-trained and most responsible federal agents — and I mean this with the utmost respect — tend to act like coked-up raccoons when you turn them loose with a search warrant."

https://www.popehat.com/2017/08/09/we-interrupt-this-grand-jury-lawsplainer-for-a-search-warrant-lawsplainer/

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The blame lies with the judge who signed the warrant.

Surely it is the judge who signed the warrant who was responsible for assuring that it was proper? It's only the blame of the law enforcement officer when they lie about the facts to get a warrant.

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Re: The blame lies with the judge who signed the warrant.

It is possible, and arguably reasonable, for sensible people to disagree over whether the principles stated in the Constitution and Bill of Rights change over time. However even those who take the position that they do not will mostly agree that as the environment in which criminal activity occurs, and the laws that establish the bounds of what constitutes criminal activity change, the case details presented to the police, prosecutors, and judges will change.

Court decisions like the one discussed here are case law, dependent on the particular details of the case at hand. Different judges will reach different conclusions from the same set of facts, as happened here, and may happen again if there is an en banc review or a Supreme Court appeal. There is no valid reason to presume that a decision overruled on appeal was necessarily wrong based on existing law and earlier precedent.

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Couldn't they just have shot him while he was attempting to escape, or something?

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Probable Cause guards against politically motivated persecution of dissidents

There are so many laws out there prohibiting various things that virtually everybody is a lawbreaker.

http://www.businessinsider.com/most-commonly-broken-laws-in-america-2013-10

If the police are allowed to search anybody they want for any reason they want, then there is nothing to stop them from targeting people for political reasons and throwing them in jail every time.

This kind of selective law-enforcement is already going on in USA. Blacks and other racial minorities are stopped and searched a lot more often than whites. That's why black people doing illegal drugs are much more likely to end up in jail and have a criminal record for the rest of their lives, than white people doing the same thing.

Many US states prohibit people with criminal records from voting in elections. And this kind of selective law-enforcement effectively skews the voting process in favor of whites and against blacks. You could argue with good reason that the cops might be doing this for political reasons.

And of course, this kind of thing can be done against any political dissident, who annoys the government too much for one reason or another.

The Bible says, everybody is a sinner, who needs to be punished by God. And that's the way it is in modern society, with many thousands of laws that make virtually everybody a lawbreaker. Giving the government God-like powers to search everybody and be all-knowing will make life Hell for everybody, except for those who are totally loyal to the government.

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FAIL

Bloody disgusting.

Cops are supposed to be BETTER people, and we're allowing criminal cops to go free because they deserve a second chance.

I guess this was why no charges were filed against the cop who searched a woman's vagina for ELEVEN MINUTES while it was being filmed on the cop car dash cam in the street where she had been pulled over. The local prosecutor said that no crime had been committed by the cop.

Only in the USA, unfortunately not.

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Can we ignore those people?

With so many places based in the USA, operations such as Google and Facebook and Twitter, lawyers in the UK and the EU as a whole have to pay attention to the US system. We've given the USA privileges under Data Protection laws and, because of those giant corporations, we maybe don't have much choice, but I sometimes feel that the EU isn't really trying. And can we expect a UK, sitting alone, to be able to do any better?

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WTF?

Re: Can we ignore those people?

@Dave Bell:"With so many places based in the USA, operations such as Google and Facebook and Twitter, lawyers in the UK and the EU as a whole have to pay attention to the US system. "

Uh, no.

US companies doing business in Europe need to comply with European law; they don't get to play by US rules.

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On the other hand

It's still legal to do a fishing expedition based on _all_ mobile connections to any given base station.

Collect enough sites and you have a very accurate tracking system.

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Bah!

The Totalitarian Secret Police State Clock just reset to December 16th 1983.

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