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NYT Editorial on Supreme Court Case on Warrantless Search

The New York Times

 

November 12, 2013
When the Police Enter a Home

By 

The home is “at the very core” of the Fourth Amendment’s protection against unreasonable government intrusion, as the Supreme Court has said repeatedly. It is where a person’s expectation of privacy is greatest.

The first line of defense of this privacy is the warrant requirement. If police officers want to search a home without a warrant, they are required to get a tenant’s consent. If one tenant consents and another does not, the objector’s wish prevails.

But what if the police lawfully arrest the objecting tenant and remove him from the home, may they enter then? That is the question the Supreme Court is considering on Wednesday in Fernandez v. California.

In 2009, Los Angeles police investigating what they believed to be a gang-related assault and robbery saw one of the suspects enter a nearby apartment. They knocked on the door, and a woman holding an infant answered. She had a fresh wound on her face and blood on her hand and shirt. When the police saw the suspect behind her, they asked him to step outside. He said, “You don’t have any right to come in here. I know my rights.”

The police arrested the man, Walter Fernandez, on charges of domestic violence, and he was taken to the police station. An hour later, the police returned to the home and asked the woman, Mr. Fernandez’s girlfriend, if they could enter. She consented, and the subsequent search turned up a shotgun, ammunition and a knife allegedly used in the robbery.

Mr. Fernandez received an enhanced sentence of 14 years for the gang-related assault and robbery. He appealed, arguing that the enhancement was based on evidence collected in an unlawful search of his home. The state court rejected his appeal, finding that the police’s warrantless entry was legal because he was no longer there to object. Once he was gone, the state claimed that his girlfriend’s consent rendered the search lawful.

But there is no reason to complicate existing law in such circumstances. A tenant’s right to object to a warrantless search should not depend on whether he can permanently stand guard at his front door. If the police have probable cause to make an arrest, they will almost surely have the basis for a warrant as well. Warrants can be issued in a matter of minutes, and, in the meantime, the police can secure the home if they are concerned that evidence may be destroyed.

The state contends that obtaining consent is “simpler, faster and less burdensome” than getting a warrant. But that is precisely the point. By forcing the government to get a judge’s approval before intruding into a private home, the warrant requirement ensures oversight of law enforcement and informs citizens that the search has been authorized by a neutral arbiter.

The home, as the court has said, has long enjoyed “special protection as the center of the private lives of our people.” The justices should reaffirm that principle and require police who wish to search a home to get a warrant, even if the only person standing in their way is in a holding cell.

http://www.nytimes.com/2013/11/13/opinion/when-the-police-enter-a-home.html?_r=0

Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence

The New York Times

October 26, 2013

By 

WASHINGTON — The Justice Department for the first time has notified a criminal defendant that evidence being used against him came from a warrantless wiretap, a move that is expected to set up a Supreme Court test of whether such eavesdropping is constitutional.

Prosecutors filed such a notice late Friday in the case of Jamshid Muhtorov, who was charged in Colorado in January 2012 with providing material support to the Islamic Jihad Union, a designated terrorist organization based in Uzbekistan.

Mr. Muhtorov is accused of planning to travel abroad to join the militants and has pleaded not guilty. A criminal complaint against him showed that much of the government’s case was based on intercepted e-mails and phone calls.

The government’s notice allows Mr. Muhtorov’s lawyer to ask a court to suppress the evidence by arguing that it derived from unconstitutional surveillance, setting in motion judicial review of the eavesdropping.

The New York Times reported on Oct. 17 that the decision by prosecutors to notify a defendant about the wiretapping followed a legal policy debate inside the Justice Department.

The debate began in June when Solicitor General Donald B. Verrilli Jr. discovered that the department’s National Security Division did not notify criminal defendants when eavesdropping without a warrant was an early link in an investigative chain that led to evidence used in court. As a result, none of the defendants knew that they had the right to challenge the warrantless wiretapping law.

The practice contradicted what Mr. Verrilli had told the Supreme Court last year in a case challenging the law, the FISA Amendments Act of 2008. Legalizing a form of the Bush administration’s program of warrantless surveillance, the law authorized the government to wiretap Americans’ e-mails and phone calls without an individual court order and on domestic soil so long as the surveillance is “targeted” at a foreigner abroad.

A group of plaintiffs led by Amnesty International had challenged the law as unconstitutional. But Mr. Verrilli last year urged the Supreme Court to dismiss the case because those plaintiffs could not prove that they had been wiretapped. In making that argument, he said a defendant who faced evidence derived from the law would have proper legal standing and would be notified, so dismissing the lawsuit by Amnesty International would not close the door to judicial review of the 2008 law. The court accepted that logic, voting 5-to-4 to dismiss the case.

In a statement, Patrick Toomey, staff attorney with the American Civil Liberties Union, which had represented Amnesty International and the other plaintiffs, hailed the move but criticized the Justice Department’s prior practice.

“We welcome the government’s belated recognition that it must give notice to criminal defendants who it has monitored under the most sweeping surveillance law ever passed by Congress,” Mr. Toomey said. “By withholding notice, the government has avoided judicial review of its dragnet warrantless wiretapping program for five years.”

The Justice Department change traces back to June, when The Times reported that prosecutors in Fort Lauderdale and Chicago had told plaintiffs they did not need to say whether evidence in their cases derived from warrantless wiretapping, in conflict with what the Justice Department had told the Supreme Court.

After reading the article, Mr. Verrilli sought an explanation from the National Security Division, whose lawyers had vetted his briefs and helped him practice for his arguments, according to officials with knowledge of the internal deliberations. It was only then that he learned of the division’s practice of narrowly interpreting its need to notify defendants of evidence “derived from” warrantless wiretapping.

There ensued a wider debate throughout June and July, the officials said. National security prosecutors raised operational concerns: disclosing more to defendants could tip off a foreign target that his communications were being monitored, so intelligence officials might become reluctant to share crucial information that might create problems in a later trial.

Mr. Verrilli was said to have argued that there was no legal basis to conceal from defendants that the evidence derived from legally untested surveillance, preventing them from knowing they had an opportunity to challenge it. Ultimately, his view prevailed and the National Security Division changed its practice going forward, leading to the new filing on Friday in Mr. Muhtorov’s case.

Still, it remains unclear how many other cases — including closed matters in which convicts are already service prison sentences — involved evidence derived from warrantless wiretapping in which the National Security Division did not provide full notice to defendants, nor whether the department will belatedly notify them. Such a notice could lead to efforts to reopen those cases.

This article has been revised to reflect the following correction:

Correction: October 27, 2013

An earlier version of this article incorrectly stated that a criminal complaint showed that much of the government’s case against Jamshid Muhtorov was based on e-mails and phone calls intercepted under a 2008 surveillance law. The complaint does not say that the particular communications it cites were obtained directly from such surveillance.

http://www.nytimes.com/2013/10/27/us/federal-prosecutors-in-a-policy-shift-cite-warrantless-wiretaps-as-evidence.html?ref=todayspaper&pagewanted=print

Above the Law – FBI’s Case Against Silk Road Boss Is A Fascinating Read

It’s been known for quite some time that the feds were desperately trying to hunt down the folks behind Silk Road, the somewhat infamous “dark web” e-commerce site, accessible only via Tor, which was famous mainly for selling drugs in a slightly anonymous fashion. Of course, when the news came out recently that the FBI had used malware to reveal Tor Browser users, many believed that this was part of an attempt to track down Silk Road, and that seems increasingly likely after the FBI announced this morning that it has arrested Silk Road’s owner, Ross William Ulbricht, who went by the moniker “Dread Pirate Roberts” online. Turns out that Ulbricht was based in San Francisco and was arrested at the public library, of all places….The case against him (pdf) is interesting, because beyond just going after him for helping to distribute illegal drugs, they claim that he solicited a Silk Road user in a murder-for-hire request (though he’s not charged with that), to potentially go after a different Silk Road user who was threatening to reveal the identities of people on the site (the user claimed to have hacked a large vendor’s account, and demanded $500,000 to not reveal names). They also go after him (of course) with a CFAA violation claim and a money laundering claim. Of course, we’ve seen the DOJ inflate and pile on charges against people in the past, so it will be worth watching to see what details come out of this — but soliciting a murder, if true, seems like a fairly big deal.

In addition, the complaint against him claims that Silk Road generated 9.5 million Bitcoins in revenue, leading to 600,000 Bitcoins in commissions (or roughly $1.2 billion in sales and $79.8 million in commissions). Of course, that seems noticeably higher than previous research had suggested. It also notes that the FBI itself made over 100 purchases on Silk Road — including ecstasy, cocaine, heroin, LSD and others. Apparently, they wanted a lot of evidence. And, in case you were wondering, the FBI informs us that their orders “have typically shown high purity levels of the drug the item was advertised to be on Silk Road.”

While the details in the complaint seem pretty thorough, there are some tidbits that stand out as questionable. The complaint clearly states that Bitcoin and Tor are both legal and have legitimate purposes, but it also says that Silk Road’s use of proxies to “hide the identities of those that run Silk Road… reflect his awareness of the illegal nature of the Silk Road enterprise.” I don’t quite see how wanting to be anonymous automatically suggests that you’re engaged in illegal behavior. Later in the complaint, the FBI agent spends an awful lot of time talking about how Ulbricht was interested in the Mises Institute, the well-known libertarian think tank. I’m not sure what that has to do with anything. The FBI notes that Dread Pirate Roberts’ defense of Silk Road included quoting Ludwig von Mises and Murray Rothbard (two economists closely associated with the Mises Institute), but lots of people follow the Mises Institute, so that seems like a stretch.

Another questionable tidbit: the FBI notes that Ulbricht posted a question to Stack Overflow using his real name, but “less than one minute later, Ulbricht changed his username at Stack Overflow from ‘Ross Ulbricht’ to ‘frosty.’” and then the FBI agent noted “I know that criminals seeking to hide their identity online will often use pseudononymous usernames to conceal their identity.” Later, after Ulbricht changes the email on the account to frosty@frosty.com — an invalid email address — the FBI agent similarly notes that “criminals seeking to hide their identity online will often use fictitious e-mail addresses.” Well, yes, but the same is true of people with perfectly legitimate reasons to be anonymous, or those who don’t want spam. While there does appear to be plenty of actual evidence, the use of these tidbits seems highly questionable.

The whole extortion/murder for hire story is a bit crazy. As noted above, one user contacted Dread Pirate Roberts, claiming to have hacked another vendor and obtained the details of users, which he’d release if not given $500,000 to pay off another drug supplier. Ulbricht asked the guy who was threatening him, a user who went by the name FriendlyChemist, to put him in touch with that supplier. After FriendlyChemist did so, Ulbricht used the opportunity to try to get that supplier to sell drugs via Silk Road. There was a further discussion, and when FriendlyChemist started getting anxious, the complaint says Ulbricht asked FriendlyChemist’s supplier how much “would be an adequate amount” in order to “put a bounty on his head.” After being quoted a price of $150,000 to $300,000 (rate dependent on “clean” or “not clean”) Ulbricht allegedly complained that the price was high, and noted that he’d previously hired someone to kill someone for $80,000. They eventually agreed to a price of $150,000 (16710 Bitcoins), and Ulbricht was told that the job was done: “Your problem has been taken care of. . . . Rest easy though, because he won’t be blackmailing anyone again. Ever.” Apparently a photo was supplied. The FBI notes that while this supposedly happened in Canada, Canadian law enforcement says that it didn’t happen.

The complaint also notes that Ulbricht has a LinkedIn page which includes a bit of a rant about “using economic theory as a means to abolish the use of coercion and aggression amongst mankind.” It also notes “I am creating an economic simulation to give people a first-hand experience of what it would be like to live in a world without the systemic use of force.” Not sure how one squares that with trying to hire someone to commit murder, but we’ll let others debate that.

It appears that while Ulbricht was mostly careful to cover his tracks, he wasn’t always that careful. The complaint notes that Silk Road was first advertised on different forums by a user named “altoid,” in a manner that indicated altoid was connected with the site. Months later, altoid also posted elsewhere that he was looking to hire an “IT pro in the Bitcoin community” for “a venture backed Bitcoin startup company” — but then told interested people to contact him at his actual gmail address: rossulbricht@gmail.com. And, voila, the FBI had a name. Also, later, when Homeland Security officials intercepted a package that contained a bunch of fake IDs for Ulbricht, they showed up at his home in July. While he generally refused to answer questions, he did tell them that “‘hypothetically’ anyone could go onto a website named ‘Silk Road’ on ‘Tor’ and purchase any drugs or fake identity documents….” There was also the above mentioned Stack Overflow account, which (briefly) used his real name and email address, which indicated that he was working on a Tor hidden service, and posted some code that (in a modified form) was also found on Silk Road.

All in all, there does seem to be a fairly compelling case built against Ulbricht based on this (though, again, we’ve seen in previous DOJ cases where things aren’t always as they seem). At a first glance, they have a lot of evidence on him. However, some questions do remain. At the beginning of the post, we mentioned the whole thing where the FBI was using malware to identify Tor users… but, of course, that doesn’t show up anywhere in the complaint. Instead, the big “breakthrough” was when a “random border search” by DHS turned up those fake identities intended for Ulbricht. However, as Parker Higgins notes, it seems like this could be a case of “parallel construction” whereby the hacking revealed those details, and DHS was then tipped off to check packages sent to Ulbricht, seeking to create “parallel construction” of evidence, in order to launder the fact that the FBI had hacked its way into identifying Tor users. After all, we’d just reported on how the FBI was actively trying to avoid revealing its hacking/malware powers to technologically sophisticated individuals.

Either way, we’re sure that there will be plenty more news on this case.

The whole sealed complaint is available on the next page…

Trial Insider – Police Dog’s Bad Record Upends Murder Conviction

by 

July 29, 2013

The state prosecution’s handling of this Los Angeles murder case just smells bad.  The 9th U.S. Circuit Court of Appeals overturned the murder conviction of Gilbert Aguilar Monday, because state prosecutors failed to disclose the police dog that identified Aguilar’s scent had a history of mistaken scent identifications.

The only question in Aguilar’s case was the identity of the shooter who killed John Guerrero in 2001 while his car was stopped at a stoplight.

Aguilar’s defense was that another young Hispanic man, Richard Osuna, shot Guerrero.

Prosecutors produced evidence that “Reilly” the police dog alerted to a scent allegedly showing Aguilar’s scent was present on the front passenger seat of a car carrying the shooter.

What the prosecution did not do was mention that Reilly had a history of making mistaken scent IDs, even though it had stipulated to Reilly’s mistakes in a different trial several months earlier.

In addition, the dog’s scent ID was the only evidence linking Aguilar to the car.  While evidence against Aguilar was weak, “substantial” evidence suggested Osuna as the potential killer, according to Judge William Fletcher.

Osuna’s brother was shot several days before Guerrero was shot.  Two witnesses testified that Osuna jumped into a white Volkswager Beetle to pursue Guerrero’s car. Another witness testified Osuna toler her he had shot a “fool.”  But he was never investigated as a suspect.  In fact, the prosecutor in this case “expressly told the police not to pursue an investigation of Osuna,” Fletcher wrote, because it would be a “wild goose chase.”

By contrast, there was no clear motive for Aguilar to shoot Guerrero, no physical evidence tied him to the crime and the faces of Aguilar and Osuna are very similar but Aguilar is older and significantly taller.

Fingerprints later recovered in the Volkswagon matched Osuna but not Aguilar, according to the opinion.

Eye witnesses identified Aguilar as the shooter, but several of those earlier gave police physical descriptions that matched Osuna, rather than Aguilar.  At trial, the witnesses changed their descriptions to match Aguilar.

He was convicted in 2006.

A California Court of Appeal upheld Aguilar’s conviction, rejecting the dog-scent evidence issue.  Aguilar then took his appeals to federal court.

Fletcher found the prosecution failure to tell Aguilar’s defense lawyers about Reilly’s scenting problems was what’s known as a Brady violation, a standard that requires the government to turn over, or disclose, evidence potentially helpful to the defense.

Whether or not the trial prosecutor knew about Reilly’s history, the dog’s handler did and had an obligation to disclose it, according to Fletcher.

Aguilar must be released or given a new trial.

He was joined by Judges Harry Pregerson and Mark Bennett, visiting from the Northern District of Iowa.

Case:  Aguilar v. Woodford, No. 09-55575

http://www.trialinsider.com/?p=3861

4th Amendment Blog CA5: Defendant’s consent was strictly limited and limit was ignored; suppressed

Defendant was stopped for a traffic offense, and the officer had a tip that he had drugs. When consent was sought, defendant said only his luggage, memorialized on video. The officer started searching and searched the whole car, finding a hidden panel in the door. The search far exceeded the consent, and the search should have been suppressed. United States v. Cotton, 2013 U.S. App. LEXIS 13537 (5th Cir. July 2, 2013):

[More:]

The government’s argument rests on faulty understandings of both law and fact. True, if Cotton properly limited his consent to a search of his luggage, that consent would permit Viator to enter the car and search those items. It is also true that if, during such a limited entry into the vehicle, Viator were to discover evidence of a hidden compartment, that discovery might provide probable cause to search the suspected compartment. The video evidence and Viator’s own testimony, however, reveal that he discovered the loose screws and tool markings on the driver’s-side rear door panel not as he was trying to locate Cotton’s luggage and not as he was examining the contents of such luggage. Rather, after locating and searching the luggage in the backseat area of the car, Viator expanded his search for evidence of contraband to the vehicle itself by proceeding to examine, inter alia, the driver’s-side rear door. Authority to enter and search the car for Cotton’s luggage was not authority to search discrete locations within the car where luggage could not reasonably be expected to be found. Neither was it justification for lingering in and around the vehicle for 40 minutes—much longer than a search for and of Cotton’s luggage should or could conceivably last.

Again, this is obvious. Did the District Judge just not have the guts to suppress a search so clearly in violation of the Fourth Amendment?

http://fourthamendment.com/blog/index.php?blog=1&title=ca5_defendant_s_consent_was_strictly_lim&more=1&c=1&tb=1&pb=1

N.D.Ga.: SW for automobile permitted seizure of GPS inside by plain view to report car’s movements

When there was a search warrant for an automobile, the police seized the GPS in the vehicle not named in the search warrant because it was logical that the GPS would be able to provide information about defendant’s movements. United States v. Anyanwu, 2013 U.S. Dist. LEXIS 92175 (N.D. Ga. May 15, 2013):

In this case, Defendant does not contest that the officers were lawfully located where they could plainly view the GPS devices when they searched the automobile under the search warrant. Furthermore, it likewise appears that the officers, through their collective knowledge of the case, had probable cause to believe that the GPS devices would contain data that would show the movements of the vehicle, which, in turn, would corroborate other evidence of Defendant’s alleged illegal conduct in traveling to and from meetings where the fraudulent activity was carried on. Thus, although the GPS devices are not contraband, and were not included within the scope of the search warrants, there nevertheless was probable cause upon which the officers could have obtained a warrant to seize and search the devices for evidence of the crimes charged. Under these circumstances, the evidentiary nature of the GPS devices would be considered “immediately apparent,” warranting seizure under the plain view doctrine.

This is wrong and a potentially dangerous case. Can’t the police rationalize a reason to seize GPS out of any vehicle to catalog it’s movements under the guise of plain view? At least here they had a warrant to get in the court, but it would be easy to mold this case to one’s liking to justify seizure of anybody’s GPS to see where the car has been. It should be rejected on appeal.

http://fourthamendment.com/blog/index.php?blog=1&title=n_d_ga_sw_for_automobile_permitted_seizu&more=1&c=1&tb=1&pb=1

Legal Times – In Fourth Circuit, a Spotlight on Warrantless GPS Tracking

In Fourth Circuit, a Spotlight on Warrantless GPS Tracking

There’s no dispute that the traffic stop one morning in May 2009 was legitimate. The driver of a Pontiac Grand Prix failed to use a signal before turning into an exit lane to leave Interstate 95 in South Carolina.

The authorities initiated a traffic stop on the exit ramp that morning near Charleston. The passenger, police would later say, was nervous. His arms and legs were shaking, according to court records.

The stop wasn’t random. Local and federal investigators, working on a drug case, secretly were monitoring the movement of the car via a global positioning device—one that had been attached without a warrant.

The passenger, Naarl Richard, who was returning from a trip to New Jersey, was convicted at trial on heroin charges. While awaiting sentencing, the U.S. Supreme Court ruled in U.S. v. Jones that the warrantless installation of a GPS tracking device amounted to a “search” under the Fourth Amendment. (Defendant Antoine Jones’s conviction and life sentence were thrown out.)

Richard won a new trial based on the Supreme Court decision. The second time around, in the summer of 2012, prosecutors weren’t allowed to use the GPS data to explain how the police ended up finding him—and the drugs. He was convicted anyway. Richard is serving a 21-year prison sentence.

The legal fight is now playing out on appeal. A lawyer for Richard on May 17 asked the U.S. Court of Appeals for the Fourth Circuit to overturn the judgment, arguing that the trial judge should have suppressed the drug evidence because it flowed from the illegal use of the GPS device. The audio from the court hearing is here.

The case is important because, for prosecutors and federal agents, there isn’t much guidance among appellate courts on how to handle challenges of warrantless GPS tracking.

Federal trial judges are divided over when the “good faith” exception to the exclusionary rule—concerning when evidence of an unlawful search can be thrown out—should be in play.

One big issue for the appellate court: Did the traffic stop constitute a new and distinct crime such that it, as Richard’s lawyer said, “purged the taint of the government’s illegal use of a GPS tracking device?”

Richard’s lawyer, G. Wells Dickson Jr. of Charleston, S.C., urged the appeals court to set aside the verdict and grant Richard a new trial—with the drug evidence, 1,000 glassine bags of heroin, excluded. (The authorities found the drugs in a false compartment under the center console of the car in which Richard was a passenger.)

“It was a legal stop, with the driver giving consent to search—none of which would have happened if we hadn’t had the GPS,” Dickson said in the Fourth Circuit. “They wouldn’t have been there.”

In court papers in the appeal, Dickson wrote: “If the government’s logic is accepted, then law enforcement could use any illegal method of their choosing to develop leads on the location of a suspect and then follow that suspect until the individual made some minor mistake such as failing to use a turn signal or failing to yield to a yellow light. This would effectively render our Fourth Amendment protections meaningless.”

Nathan Williams, an assistant U.S. attorney in Charleston, told the appellate panel that the police acted in good faith when they installed and monitored the GPS device. The Grand Prix had been stationary for weeks, save for one trip to a laundry.

“The GPS tracker was applied to do what the officers would ordinarily do—without that technology—to determine when the vehicle was going to leave the area to connect with its source,” Williams said in court.

When investigators saw the car leave the state and reach New Jersey—the source of drugs, according to an informant—they moved into position to make a traffic stop. The stop was a pretext. Investigators didn’t know whether they’d find anything illegal in the car, which was driven by Richard’s girlfriend.

After car returned to South Carolina, the authorities followed it. They pulled it over after the driver failed to signal upon entering an exit lane. “Fairly marginal traffic offense,” Williams said in the appeals court.

Williams argued that the panel judges should find the heroin evidence admissible—despite the illegal search—because the police were not acting outside the scope of their authority.

“They were doing what we would want law enforcement to do,” Williams said. “There was certainly no flagrant misconduct.” Officers were following the rules they best they could, he said.

Williams wrote in court papers: “Detectives acted with an objective, good faith belief that their conduct was lawful.”

The Supreme Court’s decision in Jones last year has sweeping consequences for law enforcement investigators. Williams said that, in cases he was handling, GPS devices were shut down after the high court’s ruling.

Williams didn’t specify the number of cases. “Across the country,” he said, “reliance on the use of GPS… was in good faith.”

The appellate court judges didn’t immediately rule after the hearing.

http://legaltimes.typepad.com/blt/2013/05/in-fourth-circuit-a-spotlight-on-warrantless-gps-tracking.html?utm_source=feedly