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NYT-After N.S.A. Disclosures, Yahoo Moves to Encrypt Internal Traffic

NOVEMBER 18, 2013, 11:41 PM

By NICOLE PERLROTH

Thanks to the revelations of Edward Snowden, technology companies are feverishly enabling new security features in an effort to assure users, particularly abroad, that they are doing everything possible to secure their data from hackers and the National Security Agency.

On Monday, Yahoo’s chief executive, Marissa Mayer, said Yahoo had plans to add extra levels of security to the company’s business operation.

“As you know, there have been a number of reports over the last six months about the U.S. government secretly accessing user data without the knowledge of tech companies, including Yahoo,” Ms. Mayer wrote. “I want to reiterate what we have said the past: Yahoo has never given access to our data centers to the NSA or any other government agency. Ever.”

Both Yahoo and Google secure their data centers with full-time security details and state-of-the-art heat sensors, video cameras and, even in some cases, iris scanning technology. When servers at Google pass their prime, employees bludgeon them with steel pistons and put them through industrial shredders before recycling them, to ensure no data is left behind.

But that data flows from center to center on fiber optic cables owned by Internet backbone providers — and that, Google executives believe, is where intelligence agencies are tapping them.

Even before Mr. Snowden began releasing classified materials to journalists last June, Google grew suspicious that outsiders could tap its traffic between data centers and began encrypting that traffic. After the Snowden revelations, Google said it was accelerating those efforts.

On Monday, Ms. Mayer said Yahoo now planned to follow suit and encrypt the user traffic flowing between its data centers in 2014. “As we have said before, we will continue to evaluate how we can protect our users’ privacy and their data,” Ms. Mayer said.

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

How a Purse Snatching Led to the Legal Justification for NSA Domestic Spying

It began as an ordinary purse snatching. On an early Baltimore morning in 1976, a local street thug crouched alongside his green Monte Carlo, pretending to change a flat, biding his time. Finally, a young woman passed by walking alone to her suburban home. Smith wrenched her handbag from her grasp, jumped into his car and tore off down the street before the young victim could glimpse his license plate.

The perp, Michael Lee Smith, was apprehended weeks later, thanks in part to the police department’s use of a machine known as a “pen register” to track the threatening phone calls the assailant had started making to his victim. The court wrangling that followed, however, would continue for three years, and eventually land on the docket of the U.S. Supreme Court. In 1979 the court upheld Smith’s conviction, and his 10-year prison term.

Almost 35 years later, the court’s decision — in a case involving the recording of a single individual’s phone records — turns out to be the basis for a legal rationale justifying governmental spying on virtually all Americans. Smith v. Maryland, as the case is titled, set the binding precedent for what we now call metadata surveillance. That, in turn, has recently been revealed to be the keystone of the National Security Agency’s bulk collection of U.S. telephone data, in which the government chronicles every phone call originating or terminating in the United States, all in the name of the war on terror.

“When they started quoting Smith in the NSA investigation and inquiry, I was flabbergasted,” says James Gitomer, who was one of Smith’s two lawyers at the Supreme Court. ”I don’t think this case should be used as the foundation to justify the NSA. It doesn’t apply.”

To understand how a purse snatching led to the NSA’s controversial program, you have to look at Smith’s behavior after he made off with his victim’s bag. Smith became obsessed with the woman he mugged, and began terrorizing her with threatening phone calls after the robbery.

The victim called the police, and told them she’d spotted the purse-snatcher’s car driving past her residence. A beat cop started patrolling the area. According to court records, that cop happened to be in the vicinity of the victim’s residence when Smith himself accidentally locked his keys in his car. He sought the assistance of the officer to help him unlock the door of the Monte Carlo.

The officer “took the license number of the vehicle, learned that it was registered to … Smith, and so notified other investigating police officers,” according to records. (.pdf)

That’s where things got interesting from a legal point of view. Using a subpoena issued by the prosecutor, and not a probable-cause warrant signed by a judge, the authorities demanded that the local phone company begin making a record of every phone call originating from Smith’s home phone.

Chesapeake and Potomac Telephone Company did so using the state of the art in telephonic surveillance at the time: a device known as a pen register.

The pen register was first described in Samuel Morse’s 1840 telegraph patent. It’s a fully automatic Morse Code receiver that used a pen to mark dots and dashes on a spool of paper tape, in theory replacing human operators at the receiving end of a telegram. In practice, the mechanical technology proved too slow to keep up with an adept telegraph operator.

But the pen register enjoyed a second life as a phone-spying device. Attached to a phone line, it would mark a single dash for each pulse from a rotary spin dial, producing an accurate record of every phone number dialed. Later models moved past paper tape to print out the actual digits with time and date stamps. By the 1970s, they could even handle Touch Tones.

The pen register was attached to Smith’s line at the phone company central office for two days, and it showed him dialing the victim’s number, providing all the evidence police needed for an arrest.

The woman identified Smith in a lineup. He was convicted of robbery and related charges.

Here is an audio transcript of the Supreme Court’s oral arguments in Smith v. Maryland held March 28, 1979. Courtesy of The Oyez Project at IIT Chicago-Kent College of Law.

In his appeals, Smith argued that the Fourth Amendment — which grants people the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” — applied to the telephone numbers he dialed. The government, he argued, can’t start recording that information without a warrant issued by a judge on the same “probable cause” standard used to get a search warrant.

Stephen Sachs, Maryland’s attorney general at the time, argued the other side before the Supreme Court. Citing an earlier case involving a Georgia bootlegger undone by his bank records, Sachs insisted that Americans have no legitimate expectation of privacy in information they transmit to a business — in this case the phone company.

On June 20, 1979, the high court issued its 5-3 opinion in Smith v. Maryland, ruling against Smith.

Writing for the majority, Justice Harry Blackmun:

FIRST, WE DOUBT THAT PEOPLE IN GENERAL ENTERTAIN ANY ACTUAL EXPECTATION OF PRIVACY IN THE NUMBERS THEY DIAL. ALL TELEPHONE USERS REALIZE THAT THEY MUST ‘CONVEY’ PHONE NUMBERS TO THE TELEPHONE COMPANY, SINCE IT IS THROUGH TELEPHONE COMPANY SWITCHING EQUIPMENT THAT THEIR CALLS ARE COMPLETED. ALL SUBSCRIBERS REALIZE, MOREOVER, THAT THE PHONE COMPANY HAS FACILITIES FOR MAKING PERMANENT RECORDS OF THE NUMBERS THEY DIAL, FOR THEY SEE A LIST OF THEIR LONG-DISTANCE (TOLL) CALLS ON THEIR MONTHLY BILLS. IN FACT, PEN REGISTERS AND SIMILAR DEVICES ARE ROUTINELY USED BY TELEPHONE COMPANIES ‘FOR THE PURPOSES OF CHECKING BILLING OPERATIONS, DETECTING FRAUD, AND PREVENTING VIOLATIONS OF LAW.’

And thus, a digit-collection device attached to a lone purse snatcher’s telephone set the legal precedent used, three decades later, to justify the bulk collection of the same information on every single American. Nobody is more surprised by the long-term ramifications of the case than the prosecutor who won it.

“It was a routine robbery case. The circumstances are radically different today. There wasn’t anything remotely [like] a massive surveillance of citizens’ phone calls or communications,” Sachs says. “To extend it to what we now know as massive surveillance, in my personal view, is a bridge too far. It certainly wasn’t contemplated by those involved in Smith.”

Justice Potter Stewart, writing a dissent in Smith v. Maryland, eerily anticipated today’s discussions about the revelatory nature of phone metadata:

THE NUMBERS DIALED FROM A PRIVATE TELEPHONE — ALTHOUGH CERTAINLY MORE PROSAIC THAN THE CONVERSATION ITSELF – ARE NOT WITHOUT ‘CONTENT.’ MOST PRIVATE TELEPHONE SUBSCRIBERS MAY HAVE THEIR OWN NUMBERS LISTED IN A PUBLICLY DISTRIBUTED DIRECTORY, BUT I DOUBT THERE ARE ANY WHO WOULD BE HAPPY TO HAVE BROADCAST TO THE WORLD A LIST OF THE LOCAL OR LONG DISTANCE NUMBERS THEY HAVE CALLED. THIS IS NOT BECAUSE SUCH A LIST MIGHT IN SOME SENSE BE INCRIMINATING, BUT BECAUSE IT EASILY COULD REVEAL THE IDENTITIES OF THE PERSONS AND THE PLACES CALLED, AND THUS REVEAL THE MOST INTIMATE DETAILS OF A PERSON’S LIFE.

Today, Smith provides constitutional cover for a legion of federal and state laws that enable authorities from the FBI down to the local sheriff to compel banks, hospitals, bookstores, telecommunications companies, and even utilities and internet service providers — virtually all businesses — to hand over sensitive data on individuals or corporations, without having to show probable cause that the target is a criminal, or even that a crime was committed.But the most dramatic citation of the Smith precedent was, until the Edward Snowden leaks, a secret one.

In a 2006 update to the Patriot Act’s Section 215, Congress allowed the secret Foreign Intelligence Surveillance Court to authorize warrants for most any type of “tangible” records, including those held by banks, doctors and phone companies. And the federal authorities only need to show that the information is “relevant” to an authorized investigation.

Unbeknownst to the public, the NSA, FBI and the Foreign Intelligence Surveillance Court all interpreted the authority as allowing indiscriminate bulk collection. The secret interpretation surfaced only last June, when the Guardian newspaper published the first of the Snowden leaks: a classified opinion from the secret court requiring Verizon to provide the NSA with a complete set of U.S. telephone metadata — all phone numbers of both parties involved in all calls, the international mobile subscriber identity number for mobile callers, calling card numbers used in the call, and the time and duration of the calls.

The government confirmed the authenticity of the document, and has since said the same secret orders are issued every three months for all U.S. carriers.

To fend off criticism of the program and to show that it was legal, the Obama administration released a “White Paper” (.pdf) in August outlining the legal basis for the spying, specifically citing Smith v. Maryland. “[T]he Supreme Court held that the Government’s collection of dialed telephone numbers from a telephone company did not constitute a search of [Smith] under the Fourth Amendment,” the administration noted, “because persons making phone calls lack a reasonable expectation of privacy in the numbers they call.”

In a rare declassified opinion (.pdf) from the FISA court released August 29, Judge Claire V. Eagan addressed the key point: If it’s legal to spy on a single purse snatcher without a warrant, then it’s legal to spy on literally everyone.

“Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence,” Eagan wrote.

Testifying last week before the Senate Intelligence Committee, Deputy Attorney General James Cole defended the administration’s reliance on an old precedent involving ancient technology. But he cited Eagan’s opinion to shore up support that the spy program was lawful:

“Some have questioned the applicability of Smith because it was issued over 30 years ago, and it did not concern a situation where the government collected and retained bulk metadata and aggregated it all in one place,” he told senators. “However, the recent opinion of the FISA court addressed that specific issue.”

Congress isn’t likely to withdraw the Patriot Act authority behind the metadata program, either, despite pending legislation in the Senate. The House already flatly rejected a proposal to do so even though the author of the Patriot Act — Rep. Jim Sensenbrenner (R-Wisconsin) — said the government is abusing the law by collecting records of all telephone calls in the United States.

Sensenbrenner said he never thought every telephone call would become relevant to a terrorism investigation. The government, he said, has advanced a “dangerous version of relevance.”

But in the wake of the Snowden disclosures, privacy advocates are uncharacteristically optimistic that Smith might be ripe for review by the Supreme Court. The American Civil Liberties Union, the Electronic Frontier Foundation and the Electronic Privacy Information Center have all filed federal lawsuits challenging the constitutionality of the bulk surveillance — though they’ll have to surmount the issue of “legal standing” first.

The Smith case is on the mind of today’s Supreme Court. When the justices ruled last year that authorities usually need a court warrant to affix GPS devices to vehicles, Justice Sonia Sotomayor offered a glimmer of hope to privacy activists. Mentioning Smith in a concurring opinion, she wrote “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

“This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor added. “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the email addresses with which they correspond to their internet service providers; and the books, groceries, and medications they purchase to online retailers.”

Alexander Abdo, the ACLU attorney challenging the program, said there is a huge difference between short-term, targeted surveillance and indefinite, mass surveillance.

“One way of understanding why the two-day, targeted surveillance in Smith cannot possibly justify the perpetual, dragnet surveillance of every American, is to ask whether the result in that case would have been the same if the phone-records program were at issue,” he says. “In other words, how would the Supreme Court have decided Smith in 1979 if the government had relied upon a database of every single American’s call records to capture a single criminal? The court would have given a very different answer to that very different question.”

Howard Cardin, the Baltimore attorney who defended Smith in oral arguments before the Supreme Court, recalls it being a “simple” case.

“I don’t think anybody anticipated the far-reaching effect that it has had,” he said.

The FISA Courts Are Even Worse Than You Knew

By Jeffrey Rosen

Last week, with little fanfare, the Foreign Intelligence Surveillance Court (FISA) released a previously secret opinion upholding the National Security Agency’s mass surveillance of telephone metadata. The opinion, which deserves more attention than it has received, is a cavalier piece of work. Judge Claire Eagan fails even to consider, let alone to rebut, the strong arguments suggesting that the NSA programs violates both the U.S. Constitution and section 215 of the Patriot Act, the statutory provision the government has invoked to authorize it. The Electronic Privacy Information Center (EPIC) has asked the Supreme Court to conduct an independent review of the legality of the NSA surveillance program, and Justice Antonin Scalia said yesterday that he expects the Court to eventually hear a version of the case. But because the Court may be unlikely, for technical reasons, to rule squarely on the merits, congressional reform of the FISA court is now more urgent than ever.

Read rest of the article here http://www.newrepublic.com/article/114853/fisa-court-decision-upholding-surveillance-joke

Cellphone privacy issue heats up

By Lyle Denniston

More than 80 percent of adult Americans have a cellphone, and they make heavy use of them: calling for more than 2.3 trillion minutes a year and sending nearly 2.2 trillion text messages annually.  And it is fair to assume that a good many of those users consider what they do with their devices to be private.  It is far from certain, though, that the Constitution protects cellphone privacy.  The courts are starting to give answers to that question.

Even as courts struggle with the issue of whether they have any role to play in reviewing the government’s sweeping global surveillance of all kinds of electronic communications, including cell phone calls and texting, other courts are deeply involved in examining the constitutionality of government monitoring of cell phone use as part of investigations of crime.

This week, in back-to-back decisions, two federal appeals courts explored the privacy issue, and came to quite different conclusions, though in different settings.   In both cases, the constitutional issue was the same: whether the Fourth Amendment requires the government to get a court-approved search warrant to monitor cell phone use.  One court said yes, the other no.

One of those rulings involved a routine illegal drug case originating in Boston, the other focused on three FBI investigations in Texas.  In the Boston case, officers learned where a suspect lived, and got other information about him, by examining the contents of a cell phone that the man had with him when he was arrested.   The focus of the Texas investigations remains under wraps but the case involves a request by federal agents to obtain tracking data from cell towers operated by telephone companies – in other words, electronic tracks of the places where a cell phone has been used.

In the Boston case, the officers did not have a search warrant; indeed, they believed that they did not need one.  They got access to the man’s cell phone at the police station, and they simply engaged it to get information, just as they might look into his pockets to make sure he had no weapons. They turned out to be wrong about their authority to do that.   The Circuit Court of Appeals for the First Circuit had ruled earlier, and essentially reaffirmed on Monday, that the officers’ operation of the cell phone to get calling data was a search, requiring a warrant under the Fourth Amendment.

A cellphone, according to the First Circuit’s view, is not just a telephone; some of those devices have huge electronic storage capacity, and they contain much that is highly personal in nature – photos, videos, messages of all kinds, contacts, Internet searches, purchases, financial and medical records.  To the millions of Americans who carry around such devices, with them virtually everywhere they go, they are a trove of private data, that court found.

In the Texas probes, the federal agents were relying upon a federal law, the Stored Communications Act of 1986, which allows access to cellphone data upon a government request based on less suspicion than would be required for a search warrant.  In a ruling on Tuesday, the U.S. Court of Appeals for the Fifth Circuit decided that no warrant was necessary.  It approved the applications for cellphone tracking data, finding that the location information belonged to the telephone company and was not private for the phone users.

Once an individual makes a call, leaving an electronic data point at the nearest cell tower, that location has been exposed to the telephone company, and the phone user cannot complain if the company later hands that information over to the government, the Fifth Circuit Court said.

Although the facts differ in significant ways, the issue for the courts in each instance was whether the users of the cellphones had a “reasonable expectation of privacy,” one that most people would respect.  Over the years, as technology has advanced, the Supreme Court has not moved in a straight line in defining when government use of a new device or method intrudes on privacy in violation of the Fourth Amendment.

Just recently, the Supreme Court ruled that it did not invade the privacy of a person arrested on suspicion of a serious crime for police to use the new technology of DNA testing to take a sample from the suspect to seek a possible link to a different crime.   But the year before, the court ruled that police ordinarily should get a warrant before they attach a GPS tracking device to monitor, for a period of time, the movements a suspect made in his car.

In earlier decisions, the court has allowed police to conduct aerial surveillance of someone’s outdoor yard, even though they could not go into the yard at ground level, but the court also barred police from using a heat-sensing device aimed at the exterior wall of a house to see if marijuana was being grown inside.   The court also has reached varying results on police authority to use drug-sniffing dogs.

So far, the court has had little opportunity to explore the Fourth Amendment implications of cellphones’ use.  In fact, it recently turned down two appeals seeking clarification of claims to cell phone privacy.

But the conflicts among lower courts on that very issue have been growing deeper, thus increasing the chances that the Justices will, perhaps soon, get drawn into a case that provides a clear-cut test.  The Boston case may be such a case, because the federal government had fought energetically against the need to obtain a search warrant to examine the contents of a cellphone obtained during an arrest procedure.

And, while the Texas investigations case is not subject to appeal to the Supreme Court, because it only involved an effort by the government to get a cellphone location data order from a court, and there was no formal party on the other side of the case, other federal appeals courts are considering the privacy issue surrounding such data in cases involving actual criminal convictions, and rulings in that setting might well wind up in the Supreme Court.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

http://blog.constitutioncenter.org/2013/08/cellphone-privacy-issue-heats-up/

Do you Know your Rights?

People call me about a criminal case and state “Police didn’t read me my Rights”, thinking that means their case will be thrown out.  Unfortunately most people do not know that the police only have to warn you of your right to remain silent and that you can have a lawyer, if the interview is after you have been arrested or where you feel that you are in custody.  And if the police fail to do that, it only means that your statement can be thrown out of court.  That does not mean the case against you will be dismissed.

What are the rights a person has that has been accused of a crime?

a. Right to remain silent
b. Right to have an attorney present when interviewed by the police while in custody.
c. Right to for their house, car  or personal property searched without a warrant or pressing circumstances outline in the law.
d. Right not to be searched other than for weapons for the safety of the officer
e. Right for their phone and other electronic devices not to be searched without a warrant.
f. Right to not disclose their passwords and usernames to the police without a warrant.

The law is still developing regarding the expectation of privacy in the online world.  The police should  be required to get a warrant to get your emails, online activity, and search history from internet providers and companies, but that does not always happen.

We will address the law as it develops in the area of a person’s rights in the regards to their interaction with the police.

Know your rights, but most importantly EXERCISE THOSE RIGHTS.  Say to the officer I am not answering your questions without an attorney present, you cannot search my property without my attorney present.  Always be polite and respectful, but firm.

The back of my card that I hand out to my clients states “My attorney has told me not to talk to anyone about my case, to not answer any questions, and to not reply to accusations.  Call my attorney if you want to ask me questions, search me or my property, do any test, do any lineups, or any other I.D. procedures.  I do not agree to any of these things without my attorney present and do not waive any of my Constitutional Rights.”  I ask my clients to keep that card in their wallet and to pull it out when questioned by the police and hand it to the police officer.  Exercise your rights.

Know and Exercise your rights.

4th Amendment Blog – FL1: Police entry to the yard to peer in home’s windows violated the Fourth Amendment

“Our state and federal constitutions declare that homes—whether castles or cabins, mansions or mobile homes—are protected spaces that require a warrant or other lawful basis to justify a governmental intrusion. At issue in this case is whether police officers entering the property of Russell Powell and Benjamin Wilbourn and peering into a window of their mobile home late at night after receiving an anonymous tip an hour earlier that marijuana plants were inside was a search that violated the Fourth Amendment. Because the officers intruded into a constitutionally protected area without a warrant and peered into a window from a part of the property where they had no lawful right to be, an unconstitutional search occurred.” Powell v. State, 2013 Fla. App. LEXIS 8166 (Fla. 1st DCA May 22, 2013):

It is a different matter when police officers choose to physically enter other portions of a home’s curtilage—areas where they have no right to be. See, e.g., Olivera v. State, 315 So. 2d 487, 488 (Fla. 2d DCA 1975) (leaving walkway and crossing grass to stand next to a window to listen to conversation inside was unreasonable). Even when governmental agents are engaging in otherwise lawful “knock-and-talks,” they can exceed the scope of a reasonable visit to a front door or porch through physical actions that encroach into areas in which the resident has a reasonable expectation of privacy. State v. Adams, 378 So. 2d 72, 74 (Fla. 3d DCA 1979) (standing on a chair on front porch to look down from a window into apartment was unreasonable). Cf. State v. Leonard, 764 So. 2d 663, 664 (Fla. 1st DCA 2000) (stretching to full height and standing on tiptoes on doorsill was reasonable).

Turning to the case at hand, we focus only on whether the officers peering into the window violated the Fourth Amendment. …

We begin with the burden of proof. Because the officers lacked a warrant at the time they looked in the window, the burden rested with the State to justify an exception to the warrant requirement. Hilton v. State, 961 So. 2d 284, 296 (Fla. 2007) (“When a search or seizure is conducted without a warrant, the government bears the burden of demonstrating that the search or seizure was reasonable.”); Kilburn v. State, 54 So.3d 625, 627 (Fla. 1st DCA 2011) (“A warrantless search is per se unreasonable under the Fourth Amendment subject to a few well-defined exceptions. … The State has the burden to prove that an exception to the warrant requirement applies.”) (citation omitted).

To meet its burden, the State presented the testimony of two officers along with the search warrant. Because the trial court made no written findings of fact, “we view the evidence and all reasonable inferences from it in the light most favorable to sustaining the order.” State v. DeLuca, 40 So. 3d 120, 123 (Fla. 1st DCA 2010). Of course, “a suppression order that turns on an issue of law is reviewed by the de novo standard of review.” Ikner v. State, 756 So. 2d 1116, 1118 (Fla. 1st DCA 2000).

Here, our task is made easy because there are no disputed facts: the officers candidly explained what they did and why they did it. No dispute exists that the officers were within the curtilage of the home when they peered into the window; the officers conceded as much in their testimony. To our knowledge, no court has held that an area within arm’s length of a home’s window is anything other than within the curtilage.

The question then becomes whether the officers looking into the window violated either the privacy or intrusion tests. We apply the latter first, it being the more straightforward. Under the intrusion approach, we query whether the police officers physically “occupied private property for the purpose of obtaining information” without express or implied permission to do so, thereby intruding into an area protected by the Fourth Amendment. Jones, 132 S. Ct. at 949. Here, the deputies initially followed established norms: they approached the front door via the pathway, took one step up, and knocked. Receiving no response, a private citizen would have had no choice but to depart immediately via the pathway. Indeed, Deputy Tysall acknowledged that if someone inside the home had told the officers to go away, they would have done so after asking if the occupants were okay.

The deputies, however, deviated from established norms by entering upon that portion of the property directly in front of the window. Nothing in their testimony or the record establishes any license to do that. The officers had to step off the front door step, move two feet to the left, and position themselves directly in front of the window, their faces no more than a foot away. At that point they were virtually within the home without breaking its close. Because they physically entered a part of the curtilage where they had no right to be for the purpose of gaining information, the intrusion test is met.

http://fourthamendment.com/blog/index.php?blog=1&title=fl1_police_entry_to_the_yard_to_peer_in_&more=1&c=1&tb=1&pb=1&utm_source=feedly