The following article appeared in Vice News on August 25, 2015:
“Law enforcement’s secretive and often-times warrantless use of the cellphone tracking device known as StingRay is receiving fresh scrutiny this week following an investigation into the Baltimore Police Department’s widespread use of the device in crimes both large and small.
The controversial devices mimic cellphone towers, pinging nearby phones and allowing police to locate phones within a vicinity and obtain their data, and are used by both the federal government and more than 50 police departments across the country, according to the American Civil Liberties Union (ACLU).
An investigation by USA Today found that Baltimore police have used the device in 837 criminal cases, including serious crimes such as homicide and shooting cases, as well as petty crime cases involving credit card theft and harassing text messages.
Most significantly, however, was not how often the devices were used but how infrequently their use was made known to prosecutors, judges, and defense attorneys as the cases made their ways through court. When officers did seek permission from the courts, not through warrants but through “pen register” orders, USA Today found that police officers in Baltimore described the devices as “advanced directional finding equipment” or “sophisticated electronic equipment” when seeking court permission for their use.
“I am astounded at the extent to which police have been so aggressively using this technology, how long they’ve been using it and the extent to which they have gone to create ruses to shield that use,” Stephen Mercer, the chief of forensics for Maryland’s public defenders, told the paper.
Maryland, like most of the rest of the country, has no laws requiring police to get warrants for StingRay use.
A case in Washington state last year, in which the Tacoma News Tribune found that judges had no idea they were signing off on StingRay use, led the state legislature to pass a law this May requiring a greater amount of clarity and detail in any such warrants in the future. It’s the first such law in the country.
‘There’s no way to surgically use StingRay. The only way it works is like a shotgun shooting in all directions’
The federal government came under fire in 2014 for StingRay use, leading the Senate Judiciary Committee to call on the Department of Justice (DOJ) to explain and defend the practice. The DOJ ultimately decided to voluntarily change its own Stingray policies, requiring a warrant for future use, though it added many exceptions into the new policy.
“The million dollar question is are the police getting search warrants, and the reason that’s important is because a warrant requires probable cause. Those are the orders the Fourth Amendment requires,” Christopher Soghoian, principal technologist at the ACLU, told VICE News.
Whether or not the departments are receiving warrants for StingRay use in individual criminal cases, there are almost always other citizens whose phones and data will be swept up in its use, Sohoian explained. The devices work by pinging all cell phones in a large geographic area.
“There’s no way to surgically use StingRay. The only way it works is like a shotgun shooting in all directions,” he said. “So the second concern is that this device, and many law enforcement agencies don’t tell the courts or defense lawyers when using them, short-circuits the democratic process and raises significant concern about a fair trial.”
Adina Schwartz, a criminal justice and law expert at John Jay College of Criminal Justice, said that StingRay use constitutes “real bulk collection” of private data. She cited ways in which police departments argue that it’s not an invasion of privacy, including a provision of the Fourth Amendment that holds that information you reveal to someone else is no longer private, but the defenses don’t hold up.
“I think basically what’s happened is the government operates by secrecy and people don’t know these devices are being used, in particular in criminal cases. If it’s not known, and a warrant isn’t requested, and after let’s say someone’s been convicted, it’s all too easy for the government to say we got it this way and this way,” she told VICE News.
Schwartz pointed out that when defense attorneys and privacy advocates have pushed law enforcement to get more information on the use of StingRay technology, many agencies have invoked a non-disclosure agreement signed by the agency with the corporation that makes the devices, Harris Moore.
But police departments also sign agreements with the FBI to not disclose details about StingRay. Documents obtained in April by the Guardian showed the FBI requested that police departments to decline sharing any information about it and to notify the FBI when requests were made.
USA Today reported that Baltimore signed a nondisclosure form with the FBI, which asks that all agencies do the same in order to use the technology. The Baltimore Police Department declined to comment on the USA Today investigation.”
The following article appeared on the website fourthamendment.com on May 12, 2015:
Joseph Rivers was hoping to hit it big. According to the Albuquerque Journal, the aspiring businessman from just outside of Detroit had pulled together $16,000 in seed money to fulfill a lifetime dream of starting a music video company. Last month, Rivers took the first step in that voyage, saying goodbye to the family and friends who had supported him at home and boarding an Amtrak train headed for Los Angeles.
He never made it. From the Albuquerque Journal:
A DEA agent boarded the train at the Albuquerque Amtrak station and began asking various passengers, including Rivers, where they were going and why. When Rivers replied that he was headed to LA to make a music video, the agent asked to search his bags. Rivers complied.
The agent found Rivers’s cash, still in a bank envelope. He explained why he had it: He was starting a business in California, and he’d had trouble in the past withdrawing large sums of money from out-of-state banks.
The agents didn’t believe him, according to the article. They said they thought the money was involved in some sort of drug activity. Rivers let them call his mother back home to corroborate the story. They didn’t believe her, either.
The agents found nothing in Rivers’s belongings that indicated that he was involved with the drug trade: no drugs, no guns. They didn’t arrest him or charge him with a crime. But they took his cash anyway, every last cent, under the authority of the Justice Department’s civil asset forfeiture program.
Rivers’s life savings represent just a drop in the Justice Department’s multibillion-dollar civil asset forfeiture bucket. Rivers has retained a lawyer in the hope of getting at least some of his money back. Rivers says he suspects he may have been singled out for a search because he was the only black person on that part of the train.
There is no presumption of innocence under civil asset forfeiture laws. Rather, law enforcement officers only need to have a suspicion — in practice, often a vague one — that a person is involved with illegal activity in order to seize their property. On the highway, for instance, police may cite things like tinted windows, air fresheners or trash in the car, according to a Washington Post investigation last year.
Attorney General Eric Holder is barring local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred. The Post’s Robert O’Harrow Jr. explains the most sweeping check on police power to confiscate personal property since the seizures began three decades ago. (The Washington Post)
The DEA declined to comment in detail to the Albuquerque Journal’s Joline Guierrez Krueger, though it did say that Rivers was not targeted because of his race. The Albuquerque DEA office did not immediately respond to a request by The Washington Post for more information about the case.
Once property has been seized, the burden of proof falls on the defendant to get it back — even if the cops ultimately never charge them with a crime. “We don’t have to prove that the person is guilty,” an Albuquerque DEA agent told the Journal. “It’s that the money is presumed to be guilty.”
The practice has proven to be controversial. Earlier this year, then-U.S. Attorney General Eric Holder announced measures restricting the use of some types of civil asset forfeiture. But as the Institute for Justice noted in a February report, these changes only affect a small percentage of forfeitures initiated by local law enforcement agencies, not federal ones like the DEA. About 90 percent of Justice Department seizures won’t be affected at all.
Asset forfeiture is lucrative for the DEA. According to their latest notification of seized goods, updated Monday, agents have seized well over $38 million dollars’ worth of cash and goods from people in the first few months of this year. Some of the goods may be directly related to ongoing criminal investigations, but most of them are not.
For instance, in fiscal year 2014 Justice Department agencies made a total of $3.9 billion in civil asset seizures, versus only $679 million in criminal asset seizures. In most years since 2008, civil asset forfeitures have accounted for the lion’s share of total seizures.
The Obama administration has generally pushed forward on criminal justice reform. Under Holder, who recently resigned as attorney general, the Justice Department took a hands-off approach to state-level marijuana laws, changed its drug sentencing policies and issued new rules to curb racial profiling.
But asset forfeiture has not been targeted much for reform. Asset forfeitures have more than doubled during President Obama’s tenure, a Washington Post analysis found last year. The DEA, meanwhile, has been skeptical of the administration’s agenda, openly opposing sentencing reforms and marijuana reforms, and defying Congressional bills meant to curb DEA raids on medical marijuana dispensaries.
But with DEA administrator Michele Leonhart stepping down this month under a cloud of controversy, Obama may name a successor who will aim the agency in a different direction.
The irony of Rivers’s case is that five days before his money was seized, New Mexico’s governor signed into law a bill abolishing civil asset forfeiture in that state. The bill passed unanimously in New Mexico’s House and Senate, a sign of the widespread opposition to the practice.
But New Mexico’s law only affects state law enforcement officials. As a result, in New Mexico — and everywhere else, for that matter — DEA agents will be able to board your train, ask you where you’re going and take all your cash if they don’t like your story, all without ever charging you with a crime.
In the case of the State of Florida versus Kleiber, the court ruled that wiping a DUI manslaughter suspect’s arm with a dry gauze before drawing blood does not invalidate the blood draw.
An officer investigating a fatal crash suspected that the defendant was under the influence and he took steps to draw blood. His blood draw kit had an iodine swab which met the requirements of Florida Administrative Code Rule 11D-8.012, which requires that the suspect’s skin be cleansed with an antiseptic that does not contain alcohol prior to the draw. The defendant said he was allergic to iodine, so a paramedic wiped his skin with a dry gauze.
Under Florida’s implied consent statute, “[a]ny insubstantial differences between approved methods or techniques and actual testing procedures, . . . shall not render the test or test results invalid.” § 316.1933(2)(b), Fla. Stat (2010). Thus, minor deviations from the rules will not prohibit the test results from being presented, as long as “there is evidence from which the fact finder can conclude that the [test] itself remained accurate.” State v. Donaldson, 579 So. 2d 728, 729 (Fla. 1991).
In this case, the trial court erroneously applied a strict compliance test by concluding that the mere fact that dry gauze, rather than an antiseptic, was used to cleanse Kleiber’s arm mandated suppression of the blood test results. The trial court failed to consider whether the blood test would still be reliable notwithstanding the use of dry gauze. See Fla. Admin. Code R. 11D-8.012(7) (“Notwithstanding any requirements in Chapter 11D-8, F.A.C., any blood analysis results obtained, if proved to be reliable, shall be acceptable as a valid blood alcohol level.”).
In the federal case of United States v. Harris, police officers entered the accused person’s home without a search warrant in order to look for another person. Their entry was illegal, and the evidence that they seized was suppressed. The Court said:
“In the present case, the Task Force possessed an arrest warrant for Thornton when they went to Harris’ home. Therefore, the primary issue before the Court is whether law enforcement agents had “reason to believe” that Thornton, the subject of a valid arrest warrant, resided at and was presently within 3347 Eleanor Street. Based on the circumstances, the Court finds that the Task Force did not have a reasonable belief that the subject of the arrest warrant was residing at and located within 3347 Eleanor Street.
The Government argues that the Task Force reasonably believed Thornton was living at 3347 Eleanor Street because several individuals stated that Thornton was seen around Eleanor Street. The Government supports its position with two cases from the Fifth Circuit, United States v. Route, 104 F.3d 59 (5th Cir. 1997) and United States v. Barrera, 464 F.3d 496 (5th Cir. 2006). Additionally, the Government analogizes this case to a Tenth Circuit decision, United States v. Denson, 775 F.3d 1214 (10th Cir. 2014).
In Route, police entered Route’s home based on an arrest warrant for a third party, Crossley. 104 F.3d at 61-62. Route moved to suppress the evidence in the house, arguing that police did not have reason to believe Crossley resided at and was presently within the residence. Id. The arresting officer relied on Crossley’s credit card applications, water and electricity bills, vehicle registration, and mailing address which all listed the particular residence that police searched. Id. at 62 n. 1. The Fifth Circuit held that the arresting officer had performed sufficient due diligence in concluding that Crossley lived at the particular residence. Id. at 62-63.
In Barrera, an officer attempted to execute an arrest warrant for Jose Barrera, a drug trafficker known to carry a gun. 464 F.3d at 497. The officer went to the address provided by Jose’s probation officer, but a visit to this location revealed Jose no longer lived there. Id. at 497. The officer then learned that Jose had been arrested at a specific address in Laredo, Texas, four months earlier, and provided the bail bondsman with the same address as his place of residence on the bond paperwork. Id. The Laredo police informed the officer that Jose was known to drive three specific vehicles, all three of which were located at the identified address. Id. at 497-98. When someone left the residence using one of the three vehicles, police conducted a traffic stop and determined that the driver was Jose’s brother. Id. at 498. Police entered the residence, found a firearm, and charged the defendant with possession of a firearm by a convicted felon. Id. at 498-99. The Fifth Circuit determined that the officer’s investigation provided him with a concrete reason to believe that Jose resided at and was within the particular residence, and the evidence did not support a belief that Jose was a mere guest at his brother’s residence. Id. at 504.
The Government also relies on a Tenth Circuit case that found officers had a reasonable belief that the subject of an arrest warrant was residing at and presently within a residence. In Denson, the Court found five facts that, in combination, were sufficient to establish that the subject of an arrest warrant was residing at and presently within a particular location: (1) Denson had recently opened a utility account at the relevant address; (2) police were unaware of any other address for Denson; (3) Denson had not reported any earnings, which suggested he was out of work and might be home during a workday; (4) Denson had absconded from probation and was hiding from law enforcement; and (5) the electric meter at the address was going faster than normal, suggesting someone was probably home. United States v. Denson, 775 F.3d 1214, 1217-18 (10th Cir. 2014).
In the present case, the Task Force lacked concrete evidence and insufficient corroboration that Thornton resided at 3347 Eleanor Street. The arrest warrants and Thornton’s driver’s license indicated that he resided at a different address than Eleanor Street. Unlike Route and Denson, there are no credit card applications, utility bills, vehicle registrations, or mailing address that would confirm that the person wanted in the arrest warrants lived at 3347 Eleanor Street. Unlike Barrera, Thornton had not previously been arrested at this particular residence, nor had he given this address as his place of residence to any third party that would indicate that he actually resided there. Moreover, the Task Force did not know what vehicles Thornton drove or that any such vehicles could be located near 3347 Eleanor Street. While persons on the run from police do not routinely establish utility bills in their name, in Denson the presence of a utility account combined with no knowledge of another address gave sufficient proof that the defendant resided at the particular home in question. Unlike Denson, there are no utility accounts and the Task Force officers or other law enforcement personnel had followed tips to no less than five other residences, thus raising serious doubts as to a reasonable belief that Thornton resided in any one particular location.
The information received from interviewees fails to establish that the Task Force had a reasonable belief Thornton resided at 3347 Eleanor Street. Most of the individuals the Task Force interviewed told officers they did not know where Thornton was living. In the interview with X, X indicated that Thornton was no longer in Louisiana. The Task Force entered the home based primarily on third-hand information from the associates of a shooting victim’s mother who claimed they saw Thornton walking in a general area of the city.
Finally, the Task Force knew that K.C. was the currently listed resident on the law enforcement database, that V lived inside the home, and that V would know Thornton’s current location. However, the Task Force did not contact K.C. or V to corroborate the information received from other sources prior to making the forced entry. Considering the lack of concrete evidence and insufficient corroboration to establish that Thornton associated himself with this particular address, the Court finds that the Task Force did not conduct sufficient due diligence to establish a reasonable belief that Thornton resided at and was presently within 3347 Eleanor Street. Therefore, the entry into 3347 Eleanor Street was not constitutionally permissible by virtue of the arrest warrant issued for Thornton.
2. Exigent Circumstances
The Government contends the Task Force’s entry into 3347 Eleanor Street was justified pursuant to the exigent circumstances exception to the warrant requirement. A warrantless entry will survive constitutional scrutiny if exigent circumstances exist to justify the intrusion. United States v. Rico, 51 F.3d 495, 500-01 (5th Cir. 1995). Exigent circumstances include those in which officers reasonably fear for their safety or the safety of others, where firearms are present, or where there is a risk of criminal suspects escaping or fear of destruction of evidence. United States v. Hicks, 389 F.3d 514, 527 (5th Cir. 2004). The Fifth Circuit has also held that the gravity of the underlying offense for which the arrest is being made is a factor in determining whether exigent circumstances existed. Id. at 527-28.
The Government claims Hicks roughly parallels the dilemma found in this case—a warrantless entry of a violent suspect’s residence for the purpose of arrest. Id. at 526-28. In Hicks, a police SWAT team entered the home of a suspect and arrested him without a warrant. Id. at 527. At the time, the police believed that the suspect had recently shot and killed a fellow police officer. Id. The Government claims the Task Force faced a similarly grave situation as the officers in Hicks. The Task Force was seeking to arrest Thornton, an individual with gang ties, who had injured at least three people. Additionally, the Task Force had received a complaint from the mother of a victim stating Thornton had threatened her child. Other individuals reported Thornton was on the run, aware of the police manhunt, likely armed, and willing to “shoot it out” with police to avoid jail. Therefore, the Government claims exigent circumstances existed in this case.
While the violent offenses for which Thornton’s arrest warrants were issued are no doubt serious, the Court is not persuaded that exigent circumstances existed. Unlike Hicks, Thornton was not suspected of previously acting violently toward police. The Government’s argument that there was a danger posed to the Task Force’s safety or the safety of others is premised upon Thornton being within or reasonably believed to be within the premises. However, as discussed above, the Task Force did not reasonably believe that Thornton resided at and was presently within 3347 Eleanor Street. Furthermore, the Task Force did not observe or bear any activity within the house which would lead them to believe that contraband was inside or that an illegal act was taking place. Accordingly, the Task Force’s entry into the home is not valid pursuant to the exigent circumstances doctrine. Therefore, the Court finds that the Task Force’s entry into 3347 Eleanor Street violated the Fourth Amendment.”
In the federal case of the United States of America versus Javado Barner, the Eleventh Circuit Court of Appeals ruled that the trial judge erred when he denied Mr. Barner’s three-level reduction for acceptance of responsibility. The court of appeals concluded that this was one of those “unusual cases” in which the defendant went to trial, but “confessed to the factual elements of the crime of conviction.” The court pointed out that Barner had declined to plead guilty to the full indictment to pursue legal defenses as to the remaining counts–namely, that the conspiracy in which he participated was not a drug conspiracy, and that the Hobbs Act did not apply to his conduct. He was vindicated when the trial judge directed a verdict in his favor on eight counts, and the jury acquitted him on one count. Significantly, Barner did not take the stand in his defense, and he never denied having possessed the ecstasy.
In the case of Bryan Greenlee versus the State of Florida, Mr. Greenlee was convicted of four counts of possession of a firearm by a convicted felon. The court of appeals ruled that because each count was based on guns possessed during the same event, three of Greenlee’s convictions violated double-jeopardy principles and therefore had to be dismissed.
In the case of M.B. (a child) versus the State of Florida, the judge mistakenly ordered a 14-year-old to register as a sex offender after he found that the juvenile had touched his victims’ genitals over their clothing. Florida law only permits a judge to order a juvenile offender to register as a sex offender where the judge finds molestation involving unclothed genitals.
In the case of Torrey Grady versus North Carolina, Mr. Grady was convicted in North Carolina of a sexual offense in 1997 and of taking indecent liberties with a child in 2006. After serving his sentence for the 2006 crime, Grady was ordered to appear for a hearing to determine whether he should be subjected to satellite-based monitoring as a recidivist sex offender. Grady objected saying that the monitoring program would violate his Fourth Amendment right to be free from unreasonable searches and seizures. However, the lower-court judge disagreed and ordered Grady to enroll and be monitored for the rest of his life. Grady appealed to the North Carolina Supreme Court but lost. So he appealed to the U.S. Supreme Court which decided to send his case back to the North Carolina courts for more hearings. Specifically, the Supreme Court ruled that:
1. Because North Carolina’s program is clearly designed to obtain information, and because it does so by physically intruding on a person’s body, it constitutes a Fourth Amendment search.
2. The Fourth Amendment prohibits only unreasonable searches, and the reasonableness depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations; and
3. The North Carolina courts did not examine whether the monitoring program was reasonable when properly viewed as a search.
In the case of Keith Rancifer v. the State of Florida, Mr. Rancifer was convicted of trying to obtain a Florida identification card using a false name. However, the court of appeals overturned his conviction because:
1. It was undisputed that the birth certificate that Rancifer presented when he obtained the identification card was a certified copy of his actual birth certificate that was contained in records from New York State; and
2. The name on that birth certificate was the only legal name that Rancifer could have used when trying to obtain a Florida ID card.
In the case of Pedro Dominguez versus the State of Florida, a police officer went to a domestic disturbance call, saw Dominguez driving his vehicle away from the home, and ordered Dominguez to return to the home. After determining that no battery occurred, the officer noticed Dominguez parked “a little crooked”, that he could smell alcohol on him, and that Dominguez’ speech was slurred. The court of appeals said:
“Nothing on the officer’s observation constituted evidence that a crime was being or going to be committed, as the only observation the officer made was of Dominguez driving away from the home. The girlfriend did not report any battery. Although the judge found that the ‘signal 38’ call was frequently made for domestic violence disputes, this was unsupported by any testimony at the hearing. Nor do we think it would justify a stop, as the signal could be for both non-criminal as well as criminal incidents. Without more, an officer could have only a hunch that a crime might have occurred.”