evidence – Techdirt (original) (raw)

Suing Apple To Force It To Scan iCloud For CSAM Is A Catastrophically Bad Idea

from the this-would-make-it-harder-to-catch-criminals dept

There’s a new lawsuit in Northern California federal court that seeks to improve child safety online but could end up backfiring badly if it gets the remedy it seeks. While the plaintiff’s attorneys surely mean well, they don’t seem to understand that they’re playing with fire.

The complaint in the putative class action asserts that Apple has chosen not to invest in preventive measures to keep its iCloud service from being used to store child sex abuse material (CSAM) while cynically rationalizing the choice as pro-privacy. This decision allegedly harmed the Jane Doe plaintiff, a child whom two unknown users contacted on Snapchat to ask for her iCloud ID. They then sent her CSAM over iMessage and got her to create and send them back CSAM of herself. Those iMessage exchanges went undetected, the lawsuit says, because Apple elected not to employ available CSAM detection tools, thus knowingly letting iCloud become “a safe haven for CSAM offenders.” The complaint asserts claims for violations of federal sex trafficking law, two states’ consumer protection laws, and various torts including negligence and products liability.

Here are key passages from the complaint:

[Apple] opts not to adopt industry standards for CSAM detection… [T]his lawsuit … demands that Apple invest in and deploy means to comprehensively … guarantee the safety of children users. … [D]espite knowing that CSAM is proliferating on iCloud, Apple has “chosen not to know” that this is happening … [Apple] does not … scan for CSAM in iCloud. … Even when CSAM solutions … like PhotoDNA[] exist, Apple has chosen not to adopt them. … Apple does not proactively scan its products or services, including storages [sic] or communications, to assist law enforcement to stop child exploitation. …

According to [its] privacy policy, Apple had stated to users that it would screen and scan content to root out child sexual exploitation material. … Apple announced a CSAM scanning tool, dubbed NeuralHash, that would scan images stored on users’ iCloud accounts for CSAM … [but soon] Apple abandoned its CSAM scanning project … it chose to abandon the development of the iCloud CSAM scanning feature … Apple’s Choice Not to Employ CSAM Detection … Is a Business Choice that Apple Made. … Apple … can easily scan for illegal content like CSAM, but Apple chooses not to do so. … Upon information and belief, Apple … allows itself permission to screen or scan content for CSAM content, but has failed to take action to detect and report CSAM on iCloud. …

[Questions presented by this case] include: … whether Defendant has performed its duty to detect and report CSAM to NCMEC [the National Center for Missing and Exploited Children]. … Apple … knew or should have known that it did not have safeguards in place to protect children and minors from CSAM. … Due to Apple’s business and design choices with respect to iCloud, the service has become a go-to destination for … CSAM, resulting in harm for many minors and children [for which Apple should be held strictly liable] … Apple is also liable … for selling defectively designed services. … Apple owed a duty of care … to not violate laws prohibiting the distribution of CSAM and to exercise reasonable care to prevent foreseeable and known harms from CSAM distribution. Apple breached this duty by providing defective[ly] designed services … that render minimal protection from the known harms of CSAM distribution. …

Plaintiff [and the putative class] … pray for judgment against the Defendant as follows: … For [an order] granting declaratory and injunctive relief to Plaintiff as permitted by law or equity, including: Enjoining Defendant from continuing the unlawful practices as set forth herein, until Apple consents under this court’s order to … [a]dopt measures to protect children against the storage and distribution of CSAM on the iCloud … [and] [c]omply with quarterly third-party monitoring to ensure that the iCloud product has reasonably safe and easily accessible mechanisms to combat CSAM….”

What this boils down to: Apple could scan iCloud for CSAM, and has said in the past that it would and that it does, but in reality it chooses not to. The failure to scan is a wrongful act for which Apple should be held liable. Apple has a legal duty to scan iCloud for CSAM, and the court should make Apple start doing so.

This theory is perilously wrong.

The Doe plaintiff’s story is heartbreaking, and it’s true that Apple has long drawn criticism for its approach to balancing multiple values such as privacy, security, child safety, and usability. It is understandable to assume that the answer is for the government, in the form of a court order, to force Apple to strike that balance differently. After all, that is how American society frequently remedies alleged shortcomings in corporate practices.

But this isn’t a case about antitrust, or faulty smartphone audio, or virtual casino apps (as in other recent Apple class actions). Demanding that a court force Apple to change its practices is uniquely infeasible, indeed dangerous, when it comes to detecting illegal material its users store on its services. That’s because this demand presents constitutional issues that other consumer protection matters don’t. Thanks to the Fourth Amendment, the courts cannot force Apple to start scanning iCloud for CSAM; even pressuring it to do so is risky. Compelling the scans would, perversely, make it way harder to convict whoever the scans caught. That’s what makes this lawsuit a catastrophically bad idea.

(The unconstitutional remedy it requests isn’t all that’s wrong with this complaint, mind. Let’s not get into the Section 230 issues it waves away in two conclusory sentences. Or how it mistakes language in Apple’s privacy policy that it “may” use users’ personal information for purposes including CSAM scanning, for an enforceable promise that Apple would do that. Or its disingenuous claim that this isn’t an attack on end-to-end encryption. Or the factually incorrect allegation that “Apple does not proactively scan its products or services” for CSAM at all, when in fact it does for some products. Let’s set all of that aside. For now.)

The Fourth Amendment to the U.S. Constitution protects Americans from unreasonable searches and seizures of our stuff, including our digital devices and files. “Reasonable” generally means there’s a warrant for the search. If a search is unreasonable, the usual remedy is what’s called the exclusionary rule: any evidence turned up through the unconstitutional search can’t be used in court against the person whose rights were violated.

While the Fourth Amendment applies only to the government and not to private actors, the government can’t use a private actor to carry out a search it couldn’t constitutionally do itself. If the government compels or pressures a private actor to search, or the private actor searches primarily to serve the government’s interests rather than its own, then the private actor counts as a government agent for purposes of the search, which must then abide by the Fourth Amendment, otherwise the remedy is exclusion.

If the government – legislative, executive, or judiciary – forces a cloud storage provider to scan users’ files for CSAM, that makes the provider a government agent, meaning the scans require a warrant, which a cloud services company has no power to get, making those scans unconstitutional searches. Any CSAM they find (plus any other downstream evidence stemming from the initial unlawful scan) will probably get excluded, but it’s hard to convict people for CSAM without using the CSAM as evidence, making acquittals likelier. Which defeats the purpose of compelling the scans in the first place.

Congress knows this. That’s why, in the federal statute requiring providers to report CSAM to NCMEC when they find it on their services, there’s an express disclaimer that the law does not mean they must affirmatively search for CSAM. Providers of online services may choose to look for CSAM, and if they find it, they have to report it – but they cannot be forced to look.

Now do you see the problem with the Jane Doe lawsuit against Apple?

This isn’t a novel issue. Techdirt has covered it before. It’s all laid out in a terrific 2021 paper by Jeff Kosseff. I have also discussed this exact topic over and over and over and over and over and over again. As my latest publication (based on interviews with dozens of people) describes, all the stakeholders involved in combating online CSAM – tech companies, law enforcement, prosecutors, NCMEC, etc. – are excruciatingly aware of the “government agent” dilemma, and they all take great care to stay very far away from potentially crossing that constitutional line. Everyone scrupulously preserves the voluntary, independent nature of online platforms’ decisions about whether and how to search for CSAM.

And now here comes this lawsuit like the proverbial bull in a china shop, inviting a federal court to destroy that carefully maintained and exceedingly fragile dynamic. The complaint sneers at Apple’s “business choice” as a wrongful act to be judicially reversed rather than something absolutely crucial to respect.

Fourth Amendment government agency doctrine is well-established, and there are numerous cases applying it in the context of platforms’ CSAM detection practices. Yet Jane Doe’s counsel don’t appear to know the law. For one, their complaint claims that “Apple does not proactively scan its products or services … to assist law enforcement to stop child exploitation.” Scanning to serve law enforcement’s interests would make Apple a government agent. Similarly, the complaint claims Apple “has failed to take action to detect and report CSAM on iCloud,” and asks “whether Defendant has performed its duty to detect and report CSAM to NCMEC.” This conflates two critically distinct actions. Apple does not and cannot have any duty to detect CSAM, as expressly stated in the statute imposing a duty to report CSAM. It’s like these lawyers didn’t even read the entire statute, much less any of the Fourth Amendment jurisprudence that squarely applies to their case.

Any competent plaintiff’s counsel should have figured this out before filing a lawsuit asking a federal court to make Apple start scanning iCloud for CSAM, thereby making Apple a government agent, thereby turning the compelled iCloud scans into unconstitutional searches, thereby making it likelier for any iCloud user who gets caught to walk free, thereby shooting themselves in the foot, doing a disservice to their client, making the situation worse than the status quo, and causing a major setback in the fight for child safety online.

The reason nobody’s filed a lawsuit like this against Apple to date, despite years of complaints from left, right, and center about Apple’s ostensibly lackadaisical approach to CSAM detection in iCloud, isn’t because nobody’s thought of it before. It’s because they thought of it and they did their fucking legal research first. And then they backed away slowly from the computer, grateful to have narrowly avoided turning themselves into useful idiots for pedophiles. But now these lawyers have apparently decided to volunteer as tribute. If their gambit backfires, they’ll be the ones responsible for the consequences.

Riana Pfefferkorn is a policy fellow at Stanford HAI who has written extensively about the Fourth Amendment’s application to online child safety efforts.

Filed Under: 4th amendment, class action, csam, evidence, proactive scanning, scanning
Companies: apple

New Jersey Trying To Salvage Its Sketchy AF Infant DNA Harvesting Program By Claiming It’s All About Health

from the excuses-excuses dept

The state of New Jersey has been sued twice over its infant DNA program. Like the rest of the nation, New Jersey hospitals collect a blood sample from newborns to test them for 60 different health disorders. That part is normal.

But New Jersey is different. Rather than discard the samples after the testing is complete, it holds onto them. For twenty-three years. That’s unusual. And it’s a fair bet that almost 100% of New Jersey parents are unaware of this fact.

There’s a reason parents don’t know this and it has nothing to do with parents just not paying attention when this test is performed. According to the lawsuits, New Jersey healthcare professionals do what they can to portray the testing as mandatory, even though it isn’t. They also take care to keep parents uninformed, never once informing them that they are free to opt out of the testing for religious reasons.

The state, however, is fine with this. The biggest beneficiary of this program is state law enforcement, which can freely obtain these DNA samples without having to go through the trouble of obtaining a warrant. Warrants are needed to obtain DNA samples from criminal suspects, but there’s nothing stopping cops from searching the DNA database for younger relatives of the suspect whose DNA might still be in the possession of the state’s Health Department.

That’s why the state is facing multiple lawsuits, making it an anomaly in this group of 50 states we Americans call home. And that’s likely why the state’s health officials are trying to healthwash this by crafting a new narrative for this uniquely New Jersey handling of infant blood tests. Here’s Elizabeth Nolan Brown with a summary of the rebranding for Reason.

Mandatory genomic sequencing of all newborns—it sounds like something out of a dystopian sci-fi story. But it could become a reality in New Jersey, where health officials are considering adding this analysis to the state’s mandatory newborn testing regime.

Genomic sequencing can determine a person’s “entire genetic makeup,” the National Cancer Institute website explains. Using genomic sequencing, doctors can diagnose diseases and abnormalities, reveal sensitivities to environmental stimulants, and assess a person’s risk of developing conditions such as Alzheimer’s disease.

Ernest Post, chairman of the New Jersey Newborn Screening Advisory Review Committee (NSARC), discussed newborn genomic sequencing at an NSARC meeting in May. An NSARC subcommittee has been convened to explore the issue and is expected to issue recommendations later this year. It’s considering questions such as whether sequencing would be optional or mandatory, the New Jersey Monitor reported.

The state wants to take what’s already problematic and make it a privacy nightmare. But, you know, for the children. The framing encourages people to think this is about early detection and preemptive responses to expected long-term health problems.

And that’s not to stay it won’t have the stated effect. The problem is the state hasn’t been honest about its newborn DNA collection in the past and health care providers (whether ignorant of the facts or instructed to maximize consent) haven’t been exactly trustworthy either.

Now, the state wants to expand what it can do with these blood samples despite not having done anything to correct what’s wrong with the program as it exists already. This just opens up additional avenues of abuse for the government — something it shouldn’t even be considering while it’s still facing two lawsuits related to the existing DNA harvesting program.

The ACLU is obviously opposed to this expansion. The statement it gave to the New Jersey Monitor makes it clear what’s at stake, and what needs to happen before the state moves forward with gene sequencing of newborn blood samples.

If New Jersey adopts genomic sequencing, policymakers must create “a real privacy-protective infrastructure to make sure that genomic data isn’t abused,” said Dillon Reisman, an ACLU-NJ staff attorney.

“What we’re talking about is information from kids that could allow the state and other actors to use that data to monitor and surveil them and their families for the rest of their lives,” Reisman said. “If the goal is the health of children, it does not serve the health of children to have a wild west of genomic data just sitting out there for anyone to abuse.”

Maybe that will happen before this program goes into effect. But it seems unlikely. Given the history of the existing program, the most probable outcome is a handful of alterations as the result of court orders in the lawsuits that are sure to greet the rollout of this program. The state seems super-interested in getting out ahead of health problems. But it seemingly couldn’t care less about heading off the inherent privacy problems the new program would create.

Filed Under: dna, dna samples, evidence, new jersey, privacy

Court Reverses Conviction After Cops Lied To Suspect About Having A Warrant To Search His Phone

from the good-luck-with-weak-ass-case,-coppers dept

It’s well-known that cops can lie to suspects to obtain confessions or further information from suspects. But not always. This Delaware case, brought to us by FourthAmendment.com, demonstrates that while lying in interrogation rooms is usually cool and fine, it isn’t when it moves someone to consent to a search they wouldn’t have agreed to under other circumstances.

Shaheed Matthews was convicted of murder in 2019. The case against Matthews was extremely flimsy, but prosecutors shored it up with evidence taken from his cell phone. Here’s how the court describes the rest of the evidence in its decision [PDF] that overturns the murder conviction on the basis of ineffective assistance of counsel:

No direct physical evidence linked Matthews to Terry’s shooting. Instead, the State relied on circumstantial evidence—including evidence from Matthews’s cellphone, witness testimony, video camera footage of varying quality, and gunshot residue of an unknown vintage found on Matthews’s jacket.

This opening summary underplays just how lousy this so-called “evidence” was. The testimony from the officers was generally terrible, with them even admitting that the bullet casings found at the scene couldn’t be traced to any particular weapon, not even the murder weapon the cops never found.

The video “evidence” wasn’t any better.

The video surveillance evidence—devoid of sound and mostly in black and white—is of varying, and often poor, quality. In the portions of the videos in which people are visible, the low quality of the images and the distance from which the video was recorded preclude any conclusive identification of the individuals.

No problem, said the prosecutor. We also have these recordings!

The State also played three better quality clips of the surveillance video taken from 241 Parma Avenue. Two videos, about eight seconds long, show two individuals running down Parma Avenue at 10:46 p.m. One individual appears to have at least one arm outstretched and seems to be running behind another individual wearing a dark jacket and a hood on their head. The third video shows a car driving down Parma Avenue at 10:47 p.m. Detective Reid acknowledged that he could not clearly discern the vehicle’s make and model, nor could he see the vehicle’s license plate number or its occupants.

Multiple “witnesses” were called to the stand, but none of them could positively ID anyone they saw after they heard gunshots.

Then there was the gunshot residue “evidence,” which wasn’t any better than anything else supplied to the court.

A forensic scientist from a materials characterization lab testified that “there was a population of gunshot residue present” on Matthews’s jacket. She acknowledged that she could not tell how long the gunshot residue had been present on his coat, noting that she could not “say how [gunshot residue] got there, [or] when it got there. Just that it’s there.” She conceded that “it was possible” that “it could have gotten there a month ago, a year ago” or even “multiple years ago” and that gunshot residue “can sometimes get trapped within the weave of the fabric” and can “actually stay . . . on fabric[] for a long period of time.

Yeah. Not great. That’s why the prosecution relied so heavily on the cell phone evidence. Not that there was much evidence there either. The prosecution made a big deal of this innocuous text message exchange between Matthews and his girlfriend the morning after the (apparently still-unsolved) shooting:

Johnson: “I love you so much, and I cannot lose you.” Matthews: “You won’t babe. Come to me as soon as you get off[.]” Johnson: “Changes have to be made now, okay[.]” Matthews: “I agree.”

The prosecution also talked a lot about calls that were completed, calls that were missed, calls that were never made to certain people (suggesting the lack of phone calls to the murder victim showed Matthews had no reason to call him because he knew he was dead), and some other stuff gleaned from his phone during the forensic search.

Like this:

[T]he State introduced text messages that Matthews exchanged with an unknown person on December 20, 2017, in which Matthews inquired about the cost of a “Taurus Millennium,” and, after the individual replied “450[,]” Matthews responded with, “[t]hat’s too much.”

And this:

In addition, the State presented evidence of Matthews’s search history on December 25 and 26, 2017, showing that he “searched through Google” the terms “Ruger 45” and “Ruger P97.” On cross-examination, Detective Reid acknowledged that Matthews’s internet search was “just a general search” and that “[t]here’s no indication a purchase was made, or any attempt to purchase.”

Somehow, the Lionel Hutzs in charge of this case decided the phone stuff was the smoking gun (you know, in lieu of an actual smoking gun).

In total, the State mentioned the cellphone evidence at least eighteen times in its closing argument.

The prosecution convinced the jury to convict. And that conviction withstood multiple challenges at multiple levels before this one landed in front of the state’s Supreme Court. It’s not a motion to suppress the evidence. That came and went with the jury trial. Matthews argues his counsel was ineffective for failing to move to suppress the phone evidence during his trial.

The Supreme Court agrees. The phone evidence should have been suppressed because the investigators obtained it illegally. That’s not all that unusual. Constitution violations by crime fighters are pretty common.

It’s how the investigators did it that’s unusual. They asked Matthews about his cell phone. At first, he denied having one. After a bit more questioning he admitted he owned one and where it could be found. Then one of the investigators (as captured on another detective’s body cam) had this exchange with Matthews:

[Unknown Detective]: Well, here’s the thing; we have a search warrant for it.
[Matthews]: Okay. [Unknown Detective]: Okay? So, uh, we’re going to take it anyway. Matthews: Yeah, you can [unintelligible][.]

Yeah, that wasn’t true. At all.

At trial, Detective Eugene Reid, one of the lead detectives on the case, confirmed that the police seized Matthews’s cellphone: “we had a search warrant to collect his [cellphone], and we collected that from him at his residence.” In fact, the police did not secure a search warrant until the following day.

After taking some time to chastise the trial court for allowing the prosecution to propel this pile of so-called evidence past it and into the hands of a jury, the Supreme Court says the “consent” to a search wasn’t actually consensual because the detective lied about the existence of a search warrant.

At most, Matthews provided consent to search his cellphone after law enforcement told him they had a warrant. This is insufficient. Under Bumper, there can be no consent where the official conducting the search has first asserted that they have a warrant.

And that precedent was clear enough his counsel should have, at the very least, filed a motion to suppress the evidence.

Ambiguity as to whether a party provided valid consent is resolved against a finding of consent. Here, we find that Matthews did not provide valid consent to the detectives to search his cellphone. Thus, trial counsel’s failure to move to suppress the evidence obtained from Matthews’s cellphone was deficient under Strickland.

If this evidence had been suppressed, the government’s closing arguments would have had at least 18 fewer assertions about Matthews’ alleged guilt. Without those, it’s unlikely a jury would have arrived at the conclusion it did. The conviction is reversed. The government will have to try to prove its case again, only without the phone stuff that didn’t really add all that much to its tiny pile of circumstantial evidence.

Given this bruising opinion from the state’s top court, one would expect the government to nolle pros this case. Then again, prosecutors playing with house money have nothing to lose by being vindictive. Matthews has been reverted back to “innocent until proven guilty” but he’s far from free to go.

Filed Under: 4th amendment, cell phone, delaware, evidence, police misconduct, privacy, warrant

Appeals Court Tells Cops They Can’t Hold A House Hostage For Hours Before Finally Deciding To Get A Warrant

from the Fourth-still-operative-no-matter-how-many-cops-are-dicking-around dept

Most people would respond to a possible drug overdose by seeking immediate medical attention and following up with medical professionals to see how the victim is faring.

I mean, that’s what the EMTs who responded to a drug overdose call did. They took Corban Elmore’s son to the emergency room and, from there, medical professionals did everything they could to return the teen to health.

Unfortunately, police officers are also first responders. So, they showed up and treated it like a crime scene. To be fair, a drug overdose would suggest the presence of illegal drugs. But their decision to hold a home hostage while they engaged in an ancillary investigation shows these cops were only concerned with turning an unfortunate event into criminal charges.

And they got them, too. Only it was nothing drug-related. Instead, by taking over Elmore’s house for most of the day and kind of wandering around the property, they managed to nail Elmore on felon-in-possession charges after finding guns on the property.

Elmore’s son was taken to the hospital by EMTs at 11 am. An officer arrived at Elmore’s house before the EMTs showed up and asked if Elmore knew what drugs his son had taken. Elmore indicated a metal box in his son’s room. Inside the box were drugs including fentanyl and Propofol. The EMTs took the box with them and, after administering Narcan, managed to restore Elmore’s son’s breathing.

That should have been the end of that. But it wasn’t. [h/t Short Circuit/Institute for Justice]

A half-hour later, Detective Patrick Smith showed up and told officers to “secure” the house and prevent anyone from leaving or entering. By that point, Elmore was already headed to hospital, trailing the ambulance that had picked up his son.

At 2:00 pm, the officers were still there. Elmore had yet to return from the hospital, but his wife (Jessica Hayes) had returned from her own hospital stay (for a foot injury) with their younger child. Officers refused to allow Hayes to enter home. When Elmore returned, they did the same thing. The officers claimed the house was a “crime scene” and that no one would be allowed to enter. They then stated they were looking for “whatever else might be in there [that is] drug-related.”

The drugs were with the EMTs. The potential “suspect” (by which I mean the teenage overdose victim) was awake and could easily be found at the hospital if officers needed someone to question. And yet, the officers on the scene continued to pretend the house must remain intact. At no point, did any officer agree to accompany anyone inside to feed the pets or retrieve any items they might need while being forcibly prevented from entering their own home.

Meanwhile, back at the sheriff’s office, the supposed investigation slowly moved forward. Detective Smith made a series of phone calls, speaking to the EMTs and asking a pharmacist about the drugs found in the metal box HE ALREADY HAD IN HIS POSSESSION.

Apparently having nothing better to do, the officers at the house took pictures of the exterior of the home, supposedly for a pending warrant application. That’s when the scope of the investigation suddenly changed. From the decision [PDF]:

Back at Elmore’s property, officers on the scene took photos of the home’s exterior for the search-warrant application. In so doing, one officer saw what looked like a gun safe and a long, plastic gun carrier through the front windows. The officer relayed this information to Smith, which prompted him to run a criminal-history check on Elmore. The check revealed that Elmore had four felony convictions.

In the home of the Second Amendment, it is truly hard to fathom why the observation of gun paraphernalia would have justified a criminal records search. Guns are legal to own (not for felons, of course, but the cops didn’t know that when they “observed” this) and this “investigation” was supposedly focused on “drug-related” criminal activity. Given these facts, it’s clear Detective Smith was just looking for any reason at all that might justify officers taking a home hostage for hours on end simply because one officer was the first person on the scene of a reported drug overdose.

Now that the detective finally had something to work with, he actually started working. Eight hours after taking over Elmore’s home, Smith applied for a search warrant, citing specifically the gun safe observed by officers and Elmore’s prior felony conviction. He got the warrant 20 minutes later. Then he rushed to the scene did this:

With the warrant in hand, Smith stopped for food at McDonald’s and then drove to Elmore’s property.

The lower court saw no problem with this, refusing to suppress the evidence obtained from a search performed more than eight hours after law enforcement took over Elmore’s home. It also had no problem with the multiple “delays” during Detective Smith’s investigation, which included not only his unhurried stop for some food, but his unilateral decision to shift the focus from drugs to felon-in-possession charges.

The Tenth Circuit Appeals Court is not nearly as amenable. What the lower court ruled to be good, if not particularly great, police work, the Tenth Circuit says is unacceptable and unconstitutional. It says that while the officers may have initially been justified in seizing the home prior to an expected search (and accompanying warrant), any credible claims of exigent circumstances steadily dissipated as Detective Smith wandered off on investigative tangents for several hours before seeking a warrant and McDonald’s.

Here, like in Shrum and unlike in McArthur, the officers denied Elmore any entry into his home, even with police supervision. And critically, the government has not identified, nor can we discern, any law-enforcement interest that justified this encroachment on Elmore’s Fourth Amendment interests in his home. On the contrary, the government concedes that the officers could have “gone further to accommodate . . . Elmore[]” and authorized “brief, supervised access to the home.” Indeed, allowing supervised entry would have achieved the only asserted law enforcement need—preventing the destruction of evidence—while protecting Elmore’s Fourth Amendment interests in his home. Because the officers made no effort, much less a reasonable effort, to strike a sound balance between those competing interests, this factor weighs heavily against the government.

Also, unlike in another case cited by the government, the extended duration of the home seizure wasn’t due to the unavailability of a magistrate to approve a warrant. In that case, a 19-hour seizure occurred, but most of those hours were nighttime hours where it might have been much more difficult to find a judge. In contrast, this entire debacle occurred during business hours — something confirmed by the fact that it only took the detective 20 minutes to get his warrant signed.

Time is of the essence, says the Tenth, especially when that’s the argument (exigent circumstances) the government wants to rely on:

In short, after seizing a home without a warrant, an officer must make it a priority to obtain a search warrant that complies with the Fourth Amendment. This obligation requires the officer to act with diligence to present a warrant application to a judicial officer at the earliest reasonable time based on the probable cause the officer possessed at the time of the seizure. Smith failed to act with such diligence here. Instead, he waited an unreasonably long time to obtain a search warrant so that he could investigate not only the overdose event, but also Elmore for unrelated criminal conduct. So this factor also weighs heavily against the government.

Because it was an unconstitutional seizure, the fact that the search was supported by a warrant doesn’t matter. And there’s no inevitable discovery available as a defense here, either. Even though it’s true the warrant very eventually obtained by the detective would have resulted in the discovery of illegally-owned guns, the warrant itself relied on information (the gun safe seen through the house windows) that would not have been discovered without the unconstitutional seizure of the home. (And, for that matter, was evidence of nothing until Detective Smith — for reasons completely unexplained — decided to run a criminal background search on the father of the overdose victim while supposedly investigating the overdose itself.)

Even that argument doesn’t matter because the government never explicitly raised it. The end result is a suppression of evidence, which means officers took over a man’s house while his son was hospitalized to accomplish little more than providing Elmore with a solid basis for civil lawsuit.

Filed Under: 10th circuit, 4th amendment, corban elmore, evidence, patrick smith, warrant

Gavin Newsom Jumps On Moral Panic Bandwagon To Ban Phones In School Despite Evidence Suggesting It Doesn’t Work

from the ban-grandstanding dept

We live in the age of performative lawmaking. Something must be done! This is something. We will do it. Who cares about the tradeoffs, nuances, or the evidence? Throw all that out the window and DO SOMETHING. And if you’re going to DO SOMETHING why not make it big, bold, and already proven ineffective? At least it will get you headlines.

The underlying concerns about kids and technology are often quite legitimate. It’s reasonable to worry about kids being distracted or spending too much time on phones or social media. But just because there are concerns, it doesn’t mean that an outright ban is an effective policy or necessary. It would be nice if policy making involved actually looking at the evidence rather than making calls based on gut decisions.

But apparently, that’s not how it works.

Last month, we had an article about California Governor Gavin Newsom’s wife pushing an evidence-free moral panic about kids and social media. The very next day, we had a story by two Australian professors who had looked at all research on the question of whether or not banning phones in school was effective. They found that the evidence simply did not support banning phones in school. They concluded “the evidence for banning mobile phones in schools is weak and inconclusive.”

Certainly, some studies showed small positive benefits to removing phones, but many also showed negative effects. As we discussed on our most recent podcast with another researcher in the field, such bans can cause other problems as well.

And, so, of course, California Governor Gavin Newsom has fully jumped on board with the idea of banning phones entirely in schools.

Gov. Gavin Newsom called on Tuesday for a statewide ban on smartphone use in California schools, joining a growing national effort to curb cyberbullying and classroom distraction by limiting access to the devices.

Mr. Newsom, who has four school-age children, said he would work this summer with state lawmakers to dramatically restrict phone use during the school day in the nation’s most populous state.

Again, the actual evidence has shown that it’s not at all clear that an outright ban is effective, and it has failed in many places. New York City tried to ban phones in schools a decade ago and it failed, miserably. It was enforced unequally, often targeting kids in low-income communities, and parents wanted to know that in an emergency, their kids could call. At the time, NYC’s school chancellor said “lifting the cell phone ban is about common sense.”

Apparently, here in California, we no longer believe in common sense. Or evidence. We believe in the “feels” of the governor and his wife.

Of course, New York seems to be backsliding as well. Just a few weeks ago, New York’s Governor Kathy Hochul… also called for banning phones in schools, as if there wasn’t already evidence as to why such bans don’t work in her own state.

Again, I don’t think anyone believes that kids should be on their phones all day. But an outright ban is a blunt instrument that hasn’t worked all that well. Instead, it seems like there should be room for variability. Let parents, teachers, and school principals figure these things out on a more micro level, rather than implementing a flat out statewide ban.

But, alas, when we’re living in an age of moral panics, apparently such nuances and more focused approaches aren’t allowed.

Filed Under: california, data, evidence, gavin newsom, kathy hochul, kids, new york, phones in schools, schools

State Court Says There’s A Reasonable Expectation Of Privacy In Conversations With Non-Cops In Interrogation Rooms

from the caveats-apply dept

Kind of an odd bit of Fourth Amendment jurisprudence here, given all the factors. (h/t FourthAmendment.com)

Obviously, some conversations have an expectation of privacy, even when they’re held in police interrogation rooms. Those would be ones between the suspect and their legal representation. But that’s not really a Fourth Amendment issue as it is about privileged communications. The government isn’t allowed to eavesdrop on suspects as they work on a legal defense and/or make statements to their lawyer.

Then there’s the assumption that pretty much everything a cop would like to listen to is recorded, starting with anything said in interrogation rooms (minus attorney-client communications) and ending with phone calls placed from jail phones. (On the other hand, if a cop doesn’t want anyone to hear the conversation, recordings in interrogation rooms just disappear, or never spring into existence.)

That’s one assumption of the expectation of privacy: there isn’t one. But, as this decision [PDF] from the Supreme Court of Rhode Island points out, there can be an expectation of privacy in interrogation room conversations with people who aren’t cops. It won’t work for everyone. There are a lot of things that need to happen, beginning with a solid invocation of rights by the person being interrogated.

It began this way:

On February 6, 2020, at approximately 6:15 a.m., Providence police officers executed an arrest warrant at the home of [Marklyn] Brown’s mother and apprehended Mr. Brown. Later that morning, at approximately 9:45 a.m., five different Providence police officers began questioning Mr. Brown in an interview room at the police station about his alleged involvement in Ms. Pereira-Roldan’s death, and sought to obtain a confession from him. Throughout the duration of this interrogation, the interrogating officers engaged in repeated attempts (1) to convince Mr. Brown that the state had obtained overwhelming evidence of his guilt in this matter; (2) to persuade Mr. Brown to admit his involvement in killing Ms. Pereira-Roldan based on a theory that he accidentally shot her; and (3) to pressure Mr. Brown into accepting responsibility for his alleged actions through their insistence that he had a moral obligation to do so.

The usual coercion didn’t work. Marklyn Brown steadfastly refused to talk to the police officers. He repeatedly expressed his willingness to speak to only one person: his mother. This statement — along with all his refusals to talk to the officers — was captured by the PD’s recording devices.

“MR. BROWN: I want to talk to my mom. That’s all I want to talk to.

“[DETECTIVE] MICHAEL: I can make that happen. I can definitely make that happen. ’Cause we told your mom that we would call her. Your mom doesn’t know what’s going on, just to let you know. Okay? I will get on making a call to your mom to come down here. Okay?

“MR. BROWN: Yeah, ’cause that’s the only person I really want to talk to as of, like, right now. Only person I want to talk to.”

Despite explicitly acknowledging the facts that Brown would not talk to them and only wanted to talk to his mom, the officers continued interrogating him for another three hours. Detective Michael’s promise to “get on” that phone call to Brown’s mom was apparently just another of those famous cop conversational tactics. You know: a lie.

Finally, the officers did bring in Brown’s mom to talk with him. The officers then implied he was being left alone to have a private conversation.

“MR. BROWN: WHAT’S GOING ON?

“[DETECTIVE] OTRANDO: Boss. Mom’s here.

“MR. BROWN: All right. How can I speak with her?

“[DETECTIVE] OTRANDO: We’re gonna bring Mom in here.

“MR. BROWN: Okay.

“[DETECTIVE] OTRANDO: We’re gonna leave this room.

“MR. BROWN: Fair enough. I appreciate that.”

The detectives then physically left the room to give Brown the privacy they insinuated they were providing him with. But they didn’t shut off their recording devices. They listened in on this “private” conversation, interrogated Brown for three more hours, and then finally allowed him to return to his cell.

This led to the trial court suppressing the evidence the cops had obtained by eavesdropping:

Ultimately, the trial justice suppressed both the interrogation, beginning at page twenty-two of the interrogation transcript, and Mr. Brown’s entire conversation with his mother. The trial justice determined that Mr. Brown asserted his right to remain silent when he stated that he wanted to speak with his mother and only with his mother, thus clearly implying that he did not want to speak with them. With respect to Mr. Brown’s conversation with his mother, the trial justice determined that those same statements to the interrogating officers, recorded on page twenty two of the interrogation transcript, also clearly implied that Mr. Brown reasonably expected that the officers would not involve themselves in his conversation with his mother when left alone with her. In evaluating Mr. Brown’s expectation of privacy, the trial justice noted the lack of evidence indicating that the interrogating officers informed his mother that they would record their conversation. Finally, the trial justice supported his decision to suppress the remainder of the interrogation by referencing Mr. Brown’s affirmative statement, once the interrogation resumed, that he did not wish to answer any further questions.

The government appealed this decision, arguing that there’s no expectation of privacy in conversations held in interrogation rooms where cops have access to recording devices. But that’s simply not true, says the court. And the Rhode Island State Constitution. And the US Constitution.

Brown had made it exceedingly clear he was going to exercise his right to remain silent by refusing to talk to the officers. He also made it clear he only wished to speak to one person, who definitely wasn’t a cop. The cops led him to believe this conversation would be private. They made the same insinuation to his mother when she was allowed to speak to him.

It was only after they’d already violated the Constitution that they went in and made it clear to Mr. Brown that they’d done exactly that. Unbelievably, it’s this unforced error the government thinks should have waived any privacy expectations Brown might have had.

“[SERGEANT] ZUENA: Trying to help you out, man. She’s trying to help you out, man. She told a few things, what you guys discussed, man. That’s all. I’m just telling you. How the * * * would I know that?

“MR. BROWN: Camera.

“[SERGEANT] ZUENA: The cam-, what’s the camera got to do with it?

“MR. BROWN: There’s a camera in this room, and it’s probably being voice-recorded. I know what you guys do in an interrogation room.”

Aha! said the government. He did know his “private” conversation was being recorded, ipso facto no expectation of privacy.

But that’s not how this works, says the court. Not under the Constitution, whether it’s the one put together by the federal government or the one we’ve erected in Rhode Island.

Mr. Brown’s acknowledgement of Sgt. Zuena’s awareness of the content of the conversation simply demonstrates that, during this interaction with Sgt. Zuena, Mr. Brown learned that the police had eavesdropped on his conversation. The fact that Mr. Brown identified the medium through which the police monitored the conversation does not necessarily imply that Mr. Brown knew, from the inception of the conversation, that the interrogating officers were recording it.

And arguing that Brown should have assumed any conversation he had in this room would be listened to by cops misses the point, as well. Just because it might be reasonable to assume this doesn’t mean a reasonable expectation of privacy in conversations with non-cops simply doesn’t exist. Especially not when a suspect has already invoked (even indirectly) the right to remain silent by making it clear they will not talk to cops. That all of this occurred in the confines of a police interrogation room changes nothing.

First, we have unmistakably held that the Fourth Amendment and article 1, section 6 of the Rhode Island Constitution protect people, not the locations they find themselves in. Where, as here, interrogating officers create an environment that reasonably allows an individual suspected of a crime to believe that they may have a private conversation, an objectively reasonable expectation of privacy in the content of that conversation exists.

Second, we have held that law enforcement officers lack the authority to engage in an indirect interrogation of a suspect when they do not have the authority to proceed with a direct interrogation. Even if this Court assumed that Mr. Brown had a full awareness that the interrogating officers recorded his conversation from the outset, Mr. Brown’s invocation of his right to remain silent prevented them from attempting to extract further information in support of their investigation.

That’s the key part there: because he had invoked his right to remain silent, even without a recognized expectation of privacy, the officers would have still been denied access to this evidence because it was obtained by someone else and never offered directly to the officers by the person on the other end of the conversation.

Of course, this just means the cops are free to try to sweat down the other end of the conversation. But since they’re not suspected of any criminal acts, they’ve got more options, including a flat refusal to discuss the conversation. And if the only reason officers are interested in this person because they eavesdropped on a conversation the conversants assumed would be private, they can’t even use this illicit information gain as leverage against the non-suspect.

So, it is held: there’s a reasonable expectation of privacy in some conversations occurring in cop sweat boxes, but probably only in cases where rights have been invoked and cops have been dumb enough to ensure people their conversation would be private shortly before they all put their headphones on and started listening in.

Filed Under: 4th amendment, evidence, expectation of privacy, interrogation, marklyn brown, privacy, rhode island

UK MPs In Full Moral Panic Decide To Ignore The Research, Push For Dangerous Ban On Phones For Kids

from the such-nonsense dept

The moral panic about kids and technology these days is just getting dumber and dumber. The latest is that MPs in the UK are considering an outright ban on smartphones for kids under 16.

Just last week, we posted about a thorough debunking of the “mobile phones are bad for kids” argument making the rounds. We highlighted how banning phones can actually do significantly more harm than good. This was based on a detailed article in the Atlantic by UCI psychologist and researcher Candice Odgers, who actually studies this stuff.

As she’s highlighted multiple times, none of the research supports the idea that phones or social media are inherently harmful. In the very small number of cases where there’s a correlation, it often appears to be a reverse causal situation:

When associations are found, things seem to work in the opposite direction from what we’ve been told: Recent research among adolescents—including among young-adolescent girls, along with a large review of 24 studies that followed people over time—suggests that early mental-health symptoms may predict later social-media use, but not the other way around.

In other words, the kids who often have both mental health problems and difficulty putting down their phones appear to be turning to their phones because of their untreated mental health issues, and because they don’t have the resources necessary to help them.

Taking away their phones takes away their attempt to find help for themselves, and it also takes away a lifeline that many teens have used to actually help themselves: whether it’s in finding community, finding information they need, or otherwise communicating with friends and family. Cutting that off can cause real harm. Again, as Odgers notes:

We should not send the message to families—and to teens—that social-media use, which is common among adolescents and helpful in many cases, is inherently damaging, shameful, and harmful. It’s not. What my fellow researchers and I see when we connect with adolescents is young people going online to do regular adolescent stuff. They connect with peers from their offline life, consume music and media, and play games with friends. Spending time on YouTube remains the most frequent online activity for U.S. adolescents. Adolescents also go online to seek information about health, and this is especially true if they also report experiencing psychological distress themselves or encounter barriers to finding help offline. Many adolescents report finding spaces of refuge online, especially when they have marginalized identities or lack support in their family and school. Adolescents also report wanting, but often not being able to access, online mental-health services and supports.

All adolescents will eventually need to know how to safely navigate online spaces, so shutting off or restricting access to smartphones and social media is unlikely to work in the long term. In many instances, doing so could backfire: Teens will find creative ways to access these or even more unregulated spaces, and we should not give them additional reasons to feel alienated from the adults in their lives.

But still, when there’s a big moral panic to be had, politicians are quick to follow, so banning mobile phones for teens is on the table:

The committee says that without urgent action, more children could be put in harm’s way.

It recommended the next government should work with the regulator, Ofcom, to consult on additional measures, including the possibility of a total ban on smartphones for under-16s or having parental controls installed as a default.

The report notes that mobile phone use has gone up in recent years:

Committee chairman Robin Walker said its inquiry had heard “shocking statistics on the extent of the damage being done to under-18s”.

The report found there had been a significant rise in screen time in recent years, with one in four children now using their phone in a manner resembling behavioural addiction.

Again, most of those studies cover the time when kids were locked down due to COVID, so it’s not at all surprising that their phone usage went up. And, as Odgers has shown, there’s been no actual data suggesting any real or significant causal connection between phone use and mental health problems for kids.

Incredibly, since this is happening in the UK, you’d think that maybe the MPs could wander over to Oxford (surely, they’re aware of it?) and talk to Andrew Przybylski, who keeps releasing new studies, based on huge data sets, that show no link between phone/internet use and harm. He’s been pumping these out for years. Surely, the MPs could be bothered to go take a look?

But, no, it’s easier to ignore the real problem (and the hard societal solutions it would entail) and instead play up the moral panic. Then, they can do something stupidly, dangerously counter-productive like banning phones… and claim victory. Then, when the mental health problems get worse, not better, they can find some other technology to blame, rather than taking a step back and wondering why they’re failing to provide resources to help those dealing with a mental health crisis.

Filed Under: banning phones, evidence, mental health, mental health crisis, moral panic, teens, uk

Court To Cops: Sucking At Your Job And Slow-Walking A Stop Means You Lose All Your Evidence

from the pls-tell-me-about-yr-training-and-expertise dept

Pretextual stops. Let’s talk about it.

Cops who perform traffic stops are rarely performing traffic stops because they care about traffic safety. They’re looking for something — anything — else. Driving a car on public roads puts you on the outside of the Fourth Amendment. Warrants aren’t required. Reasonable suspicion is the low bar that has to be reached to search a car.

Then there’s a bunch of other stuff. Asset forfeiture encourages pretextual stops because rolling the dice on a traffic stop may mean walking away with a whole lot of cash. If the violation is severe enough, officers may claim the vehicle must be towed, which means they’ll get a freebie search as they “inventory” the contents of the car before handing it over to the impound lot.

The requirements are so low for warrantless searches of cars that courts have had to do a bit of double-duty to ensure the Fourth Amendment didn’t become completely irrelevant. Exploitation of this loophole finally resulted in the Supreme Court setting down a few limits with its Rodriguez decision. Cops can keep their pretense, but they must make an effort to honor it. Artificially extending the stop to engage in a fishing expedition got a little more difficult. Most importantly, it meant cops couldn’t just screw around in hopes of bringing in a drug dog to give them the reasonable suspicion they needed to perform a search.

In reality, this just means cops with K-9 s are constantly on the road, hoping to be within minutes of any pretextual stop. It also means cops have expanded their theories about suspicious behavior. Courts, to their credit, are pushing back more frequently on both tactics following the Rodriguez decision. But the fact remains that, like nearly everything else involving law enforcement, you can’t push back against the government until after it’s already locked you up.

The nice thing is that courts are far more critical of pretextual stops, especially when the officers can’t be bothered to maintain the pretense. In this case, via FourthAmendment.com, the pretense couldn’t be maintained because the officers were so incompetent they weren’t even capable of exploiting the many constitutional loopholes still available to them.

In this case, defendant Said Alan Angulo-Gaxiola got stopped and, following a lot of fortuitous bungling by officers, managed to get hit with multiple drug possession charges. The officers’ luck ran out once Said moved to suppress the evidence, but oh man, that is a trip worth taking, even if we all know what the destination is.

This is from the opening of the Utah federal court decision [PDF]:

On Saturday, March 18, 2023, near six o’clock on a sunny spring night, Sevier County Sheriff’s Deputy Bodee Wells stopped a truck Said was driving because Wells suspected its dark window tint violated Utah law. Said did not have a driver’s license but produced valid border crossing cards issued by the United States to him and his passenger, his brother Saul Angulo-Gaxiola. Said also offered that Saul had a Mexican driver’s license. But Wells did not ask for Saul’s license, or the truck’s vehicle registration, or proof of insurance.

There’s the pretext. Window tint, like the odor of marijuana, is always in the optical/olfactory senses of the beholder. All you need is a reason, and things like window tint or marijuana odor produce no evidence that can be thoroughly challenged in court. They produce nothing in terms of documents, inventories, lab results, or anything else. They are things officers claim to perceive, which limits the discussion to “your word against ours,” which is an equation that almost always favors cops.

It didn’t work here. First, there’s the immediate abandonment of the pretense by failing to ask for registration or insurance info. Then there’s Deputy Bodee Wells, who was incapable of recognizing legal documents beyond (apparently) Utah-issued drivers licenses.

The border crossing cards and the names on them confused Wells, who had only been working as a patrol officer for a few weeks. So he requested help from Sevier County Sgt. Aaron Richards.

While it’s fine to ask for help, that doesn’t keep the Rodriguez clock from ticking. Extending a stop for anything other than the reason for the stop isn’t permitted, even if it’s just to seek clarification from another law enforcement officer.

This initiated a 30-minute traffic stop that ultimately resulted in a search of the car. As the court notes, neither officer ever bothered to write up, much less issue, a citation. The window tint level was never checked. And the compound ignorance of the officers led them to conclude innocent things were “suspicious.”

The search was initiated after a third deputy showed up with a drug dog, which “quickly alerted,” according to the officers’ testimony and the court’s own depiction of the events.

Fortunately, most of this stop was documented by body camera recordings. So, if the deputies wanted to raise factual disputes, they were limited by the far more forthright depiction of the events captured by their recording devices.

Not that it mattered. The testimony immediately distanced itself from the recordings.

Trooper Wells testified he remembers it was “pretty cold” that evening, but on the body camera footage, neither Said nor any of the (what becomes four) officers on the scene is ever wearing a coat or jacket and there is no visible breath vapor. Indeed, at one point while in his patrol car, the footage depicts Deputy Wells roll down his window during a stretch he is in his car for a few minutes.

This seems minimal, but it’s actually important. One might assume (logically) that the trooper might be mistaken about the weather during a traffic stop performed weeks prior to his testimony. But that’s not the case. It’s just one of many misrepresentations by the testifying officers — you know, the sort of thing regular people call “lies.”

Wells exited his car and approached the truck on the passenger side so he would not be in the path of passing traffic. By that time, the truck’s four side windows were all rolled down. Wells testified he thought this was “kind of odd because it was cold outside,” and “people only roll down one window to speak to us,” so that raised some suspicion that the occupants were airing out the truck. Wells did not further investigate any odors, ask the occupants to roll up any windows, or ask why all the windows were down.

That’s why the officer mentioned the temperature. (I have no idea why the court switches to “trooper” when referring to Wells. The first mention of Wells in the opinion states that he is a sheriff’s deputy. I’ll just use “officer” to refer to any of the officers and the court can do whatever it wants.)

Wells asked about the window tint. Said responded that he had just had it done and was told by the installer that he could take it back if it was too dark. Said also noted he resided in Las Vegas, something Wells acknowledged by stating he didn’t know the details about window tint legality in Nevada.

However, he was pretty sure that Said offering to have the tint fixed was “out of the normal.” Then he tripped up when testifying, claiming he had not heard whether or not the passenger had a valid drivers license — something that only would have made sense if he hadn’t said “OK, so neither of you have a drivers license here?”

After being confused by the identification cards he had received from the two people in the truck, Officer Wells finally moved forward with the stop. Or, at least, sideways. He called in another officer. And then he fucked up again.

Richards asked Wells if the men spoke English, and Wells responded that one does, explaining “[o]ne says he’s from Nevada and he just picked up his friend in Mexico.” Of course, that description is inaccurate in multiple ways. Said did not state that he had “picked up” Saul in Mexico. And Said told Wells Saul was his brother, not just a friend— which would explain their identical surnames on the border crossing cards.

It wasn’t until 13 minutes into the stop that Wells bothered to run the vehicle registration past dispatch. That call confirmed the truck belonged to the man driving it: Said Alan Angulo-Gaxiola. It had been registered in Nevada, confirming Said’s earlier assertions about having the window tint installed in Las Vegas.

Once all of this happened, Wells just sat in his car, waiting for the K-9 unit he had requested. He did nothing to move forward with his stated reason for the stop: the window tint. He also did nothing to answer any unanswered questions he might have had about the men in the truck.

A whole lot more screwing around went on. The other officer on the scene asked a bunch of questions unrelated to the stop. Said again stated he would try to take care of the tint problem when he returned to Las Vegas. Some other exploratory “small talk” was initiated by Officer Richards. None of this led to anything resembling reasonable suspicion. The only problem was the supposed lack of a valid Utah drivers license. Said’s brother, Saul, gave his Mexico drivers license to the cops to run in hopes of preventing the truck from being impounded.

Even though they had nothing to work with 20 minutes into an alleged window tint violation stop, the officers dragged it out even longer. Not only that, but Richards joined Wells in lying to the court about the details of the traffic stop:

Rather than do anything related to the license, Richards then recounted to Wells his suspicions based what he thinks Said told him during his questioning:

“_He told me they are going to Denver for vacation . . . first it was to work . . . then it was to vacation, visit a friend. And then it was . . . be there a week, then when you coming home? Monday._“

Of course, Said did not tell Richards he was going to Denver for vacation, or for regular work. He told Richards he was going to Denver to help a friend patch a house so the friend could paint it and prepare it to sell. And he didn’t tell Richards he would be in Denver for a week. He told him he would be there the weekend and had to be at work (at an unidentified time) on Monday in Las Vegas.

The recordings show Wells had pretty much completely abandoned the stop 23 minutes into it, ignoring everything about it while chatting to yet another officer who had arrived on the scene. No citation or warning had been issued, but it was pretty clear the brothers in the truck weren’t free to go.

And that’s where even more slow-walking of the stop occurs, solely to buy time to allow the K-9 unit to arrive.

During this time, Richards can be seen on his body camera video slowly entering the truck’s license plate information into his computer. He does this despite having obtained and reviewed the paper registration document from Said, comparing it to the truck’s VIN, and knowing dispatch already provided the return on the ‘28’ on the same license plate, and Wells told him it had come back registered to Said.

That’s just one of many ways officers try to work around the Rodriguez decision. If it looks like it’s a crucial part of a stop, hopefully it won’t be seen as unlawfully extending a stop. So, cops just do the normal traffic stop stuff slower and repeat steps as needed to drag out stops until their “probable cause on four legs” arrives on scene.

Because these officers combined ignorance (Wells and his stated inexperience) and a whole bunch of bullshit (the slow-walking and senseless redundant verification of information that had already been verified by other officers) to arrive at the conclusion they wanted (a warrantless search of the truck), the court is unwilling to allow the government to hold onto its ill-gotten evidence:

Based on the foregoing, the stop was prolonged due to unreasonable delinquency. The resulting delays caused the stop—over twenty-nine minutes from initiation to when the K-9 sniffed and alerted—to last much longer than needed to complete the traffic-based mission of issuing a citation for window tint and/or unlicensed driver and complete any needed safety checks. This violated the Fourth Amendment, and now warrants suppression of evidence and statements resulting from the stop.

The court says this whole thing could have been resolved in under 15 minutes, even if it gives credence to Officer Wells’ claims he had no idea what to do with the IDs he had received from Said and his brother. The second officer was able to verify the documents “within seconds” — something he did moments after the drug dog arrived and more than 15 minutes after his own arrival at the scene.

As for the suspicion multiple testifying officers called “reasonable,” the court says what’s captured on camera does not match the assertions of the officers. Instead, the officers (deliberately or otherwise) misrepresented statements made by Said and used these misrepresentations to justify their extension of the stop and the eventual search of the vehicle.

It’s good to see a court call out cops for attempting to route around Rodriguez with a whole bunch of bullshit. But this is just the time the cops got caught. This sort of thing happens all the time. The only reason we don’t see this handled in court more often is because most people who get fucked with by cops before being allowed to go generally don’t head right out and hire a lawyer. It’s people facing criminal charges that have the most to lose. But they’re still entitled to the same rights as the hundreds (or thousands) of drivers who have their rights violated daily by opportunistic cops.

Filed Under: 4th amendment, asset forfeiture, bodee wells, civil asset forfeiture, evidence, pretextual stops, said alan angulo-gaxiola, utah

Because Facial Recognition Tech Just Isn’t Sketchy Enough, Cops Are Now Running Searches Using AI-Generated Faces

from the two-wrongs-in-search-of-a-right-(to-violate) dept

Facial recognition tech is probably improving as time goes on. Given enough providers, controversy, and individuals who definitely want this tech to stop being so terrible at correctly identifying women and minorities, anything is possible.

Rather than wait for the tech to catch up to the promises made by promotional materials, cops are apparently moving ahead with efforts that will cause even more problems for future tech adoption.

We’re already afflicted by at least one tech company that believes it’s perfectly OK to stock its database of billions of photos with any content not locked down on the internet. Beyond that, there’s the problems inherent to the systems themselves, which aggravate biased policing by doing their most accurate work when gazing on the faces of white males.

Now there’s this, which is the sort of thing that’s just a lawsuit waiting to happen. Here’s Paige Collins and Matthew Guariglia of the EFF with more details:

A police force in California recently employed the new practice of taking a DNA sample from a crime scene, running this through a service provided by US company Parabon NanoLabs that guesses what the perpetrators face looked like, and plugging this rendered image into face recognition software to build a suspect list.

Parabon has been offering its DNA-to-face services for years. It’s very proud of its ability to generate faces using nothing but DNA info. It has tons of cases listed on its site and provides links to news coverage of investigations aided by its ability to generate a DNA-based analogue for police suspect sketches.

Perusing the site, it’s immediately noticeable that lots of the DNA-based speculations look very little like the person arrested or charged. But that’s not really all that problematic. Parabon’s “snapshots” aren’t meant to be definitive descriptions of criminal suspects. They’re simply meant to contribute to ongoing investigations by giving cops something to post or hand out when asking people if they’ve seen anyone resembling these speculative pictures.

Sure, there’s always a chance this may result in a wrongful arrest or detention, but the company makes it clear these are nothing more than a best guess based on DNA profiles. It’s not great, but it’s not Parabon’s fault if cops decide to go a step or two further than the purpose for which these “snapshots” were intended.

That’s on the cops themselves. Parbon does not encourage this sort of use of its DNA snapshots. But cops who apparently have zero concern about adding AI speculation to AI speculation to engage in investigations are making things demonstrably worse by using Paragon’s “snapshots” for reasons they were never intended. Wrong + wrong never equals right.

This puts a second layer of speculation between the actual face of the suspect and the product the police are using to guide investigations and make arrests. Not only is the artificial face a guess, now face recognition (a technology known to misidentify people) will create a “most likely match” for that face.

We already know facial recognition tech is flawed. This more than doubles the magnitude of unintended consequences by feeding pure speculation to an algorithm that likely already has problems accurately identifying people, especially if those people are minorities or women. That it might perform better on white males doesn’t matter much when it’s just questionable AI being examined by other questionable AI.

As the EFF notes, the cited search was a violation of Parabon’s terms of service. But cops rarely care if they violate laws, much less a private party’s rules of engagement. Any case closed by violating rights and/or terms of service will be treated as a success story. Every failure will simply be considered the acceptable cost of doing police business, even if the failure results in an expensive lawsuit settlement.

What’s exposed here is the tip of the iceberg. If one cop shop is doing this, the odds are several have done the same thing. The only difference is they haven’t been caught yet. Coverage like this may make it clear cops prefer power to responsibility, but the best deterrent remains meaningful consequences for their careless actions. And, to date, this country has shown — via law enforcement agencies and the judicial system that handles lawsuits resulting from their abuses of power — it will almost always consider it better to suffer abuse than actually hold cops accountable.

Filed Under: ai, dna to face, evidence, facial recognition, police
Companies: parabon nanolabs

Investigation: ‘Gold Standard’ Of Evidence Turned To Pyrite By Colorado Crime Lab Employee

from the looks-like-law-enforcement-can't-be-trusted-to-handle-evidence dept

Law enforcement investigators and prosecutors have overwhelmingly embraced plenty of pseudoscience over the years, treating everything from bite marks to hair samples as conclusive evidence capable of singling out guilty parties.

Most claims were specious, backed only by “expert” statements from law enforcement crime lab employees solely interested in confirming prevailing law enforcement theories. And that’s when things are on the up and up. In multiple cases, forensic scientists and other crime lab employees have faked tests and falsified evidence to cover up everything from laziness to their own illegal drub habits.

DNA has long been considered the evidence no one can question. But it’s far from fallible. DNA indicates little more than something exists where other people exists. DNA is prone to cross-contamination — something that led law enforcement on a years-long pursuit of a nonexistent serial killer before investigators realized the DNA found at multiple crime scenes was actually that of the person packing the swabs investigators used when examining crime scenes.

Multiple factors make DNA far less reliable than it’s portrayed in popular media. DNA can be taken from one scene and deposited at another. Exclusion-focused tests can result in false positives simply by deciding the most common DNA at the site is an indicator of guilt. The lack of rigorous, consistent standards across all law enforcement agencies means a lot of so-called “evidence” derived from DNA at crime scenes is mostly the result of a forensic examiner’s interpretation of the data, rather than an empirical conclusion based on standardized best practices.

Then there’s things like this, where whatever value DNA evidence might have had was destroyed by lab misconduct, as Emma Tucker and Andi Babineau report for CNN.

A now-former forensic scientist with the Colorado Bureau of Investigation (CBI) manipulated or omitted DNA test results in hundreds of cases, an internal affairs investigation found, which prompted a full review of her work during her nearly 30-year career at the agency.

The CBI released the findings of the investigation into Yvonne “Missy” Woods Friday, which concluded Woods’ handling of DNA testing data affected 652 cases between 2008 and 2023, including posting incomplete results in some cases. A review of her work from 1994 to 2008 is also underway, according to the CBI.

“This discovery puts all of her work in question, and CBI is in the process of reviewing all her previous work for data manipulation to ensure the integrity of all CBI laboratory results,” the agency said. “CBI brought in third-party investigative resources to protect the integrity of the inquiry.”

These weren’t the actions of a new hire who simply didn’t know what they were doing or thought the real purpose of their employment was to support whatever investigators suggested would be the proper conclusion. Yvonne Woods worked for the CBI’s crime lab for nearly 30 years before her malfeasance was uncovered.

And this isn’t even all of it. What’s detailed above only covers half her career. Another investigation is underway to look into the details of her first 15 years of employment by the state.

As for Woods, her lawyer insists this was nothing more than a bit of incomplete paperwork. Attorney Ryan Brackey claims Woods “never created or reported any false inculpatory DNA matches or exclusions.” Maybe so, but that’s not what the CBI’s investigation (performed in conjunction with the Kansas Bureau of Investigation) determined.

The agency said its forensics team discovered Woods deleted and altered data that served to conceal evidence of her tampering as well as her failure to “troubleshoot issues within the testing process.” The agency said Woods’ manipulations “appear to have been the result of intentional conduct.”

This says something else. It says tampered evidence made its way into court and that evidence of this tampering was covered up by the forensic scientist.

Woods’ attorney also claims she never “testified falsely” in any hearing or trial that resulted in a false conviction or wrongful imprisonment. And, sure, this could possibly be true. But if the state’s Bureau of Investigation has already found 15 years of wrongdoing (and is currently digging into the other 15 years), the only way this assertion could be considered true at this point is if Woods never offered testimony during criminal proceedings.

And that’s obviously not the case:

Boulder District Attorney Michael Dougherty told CNN in a statement his office has identified 15 open cases and 55 closed cases in which Woods has testified as a witness.

One lawsuit naming Woods as part of the chain of events leading to the wrongful imprisonment of a man has been filed. With the results of the first half of the CBI’s investigation being made public — along with the date range and approximate number of cases affected — there will certainly be more to follow.

DNA’s only as good as the people examining it and the processes they follow. In the case of Woods and the CBI crime lab, this evidence doesn’t even begin to approach anything considered to be a “gold standard.” Instead, it’s just one thing to be manipulated in favor of law enforcement or, at best, something to be handled as carelessly as routine clerical busywork.

Filed Under: colorado, colorado bureau of investigations, dna, evidence, yvonne woods