Shot Spotter System in Fort Myers Leads to an Arrest

The City of Fort Myers has instituted a ‘ShotSpotter’ system. This type of system alerts Myers Police when audio detectors are triggered by sounds that it recognizes as a shot from a firearm. The system not only ‘hears’ the shot go off, but can triangulate a location, much in the way cell-towers locate cell phones. It can be a very useful tool, but it can also raise all sorts of issues related to probable cause: such as whether the noise was actually a firearm and how accurate is the location system?

The system went off Wednesday night and ShotSpotter led officers to a home in the city. It was apparently the correct address, as resident Randolph Williams answered the door, bleeding from his head, and with a large pool of blood on the floor. Williams was detained, and officers searched the home. Inside, they found an apparent marijuana grow operation with lights and multiple apparent young and adolescent marijuana plants. Williams was arrested for multiple charges in relation to the grow operation and for resisting arrest.

While the officers found ample evidence for the drug charges, there is an issue with the legality of their search. While the ShotSpotter gives them reasonable grounds to investigate, it’s questionable whether that alone is grounds to search a home without a warrant. The news story appears to suggest they based their search on an exception of exigent circumstances- arguably that they were worried that there was possibly an injured person. Unfortunately for that argument, the injured person was the home owner, and he was already in custody. Whether or not there is an applicable exception to the warrant requirement (which is strictly construed in individuals’ homes) depends on the totality of the facts, to which I am not privy, but it is an interesting issue.

Challenges growing to use of Cell Phone location- “Geofencing” Warrants by Law Enforcement

Law enforcement is increasing its use of reverse-location warrants with companies like Google, known as “geofence” warrants. Instead of asking Google, or Verizon, or AT&T for the specific history of a person, these warrants ask for the identifying information of all the people in a certain area. For instance, a bank is robbed, and the authorities file a warrant on Google demanding that all of the Google Maps users with a certain radius of that bank be turned over to authorities. While the perpetrator may be included in that group, it could also potentially include the private data of dozens or even hundreds of innocent people. That’s where the biggest privacy concern arises.

The use of geofence warrants is growing, Google indicated that they were receiving 180 requests per week at the end of last year, and the numbers have been steadily increasing. The cases challenging these searches, generally most will target the lack of specificity and the invasion of privacy, have not yet resulted in many appellate decisions detailing when such warrants may be appropriate. One judge wrote in denying a warrant application, “The potential to use Google’s capabilities to identify a wrongdoer by identifying everyone (or nearly everyone) at the time and place of a crime may be tempting, but if the government can identify that wrongdoer only by sifting through the identities of unknown innocent persons … a federal court in the United States of America should not permit the intrusion.”

There is likely a path to make such reverse-location warrants valid, but it will likely encounter strict scrutiny to ensure limiting the request as narrowly as possible by size, time, and other factors to target the likely offenders, and not invade the privacy of law-abiding citizens. The concerns about unconstitutional intrusions were brought to light when NYC sought geofence data for people protesting and counter-protesting last year in the hunt for data about criminal rioters. The concern here is not only the invasion of privacy, but also the chilling effect on the 1st Amendment rights of lawful protestors. There are a lot of complex issues here, and it will likely be some time for the courts to develop guidance as to when geofence warrants are permissible, and when they are not.

Robert Kraft’s Charges Dismissed

Robert Kraft, the billionaire owner of the Patriots was charged in Palm Beach County with soliciting prostitution for allegedly going into a massage parlor and receiving sexual contact. His attorneys challenged the case on many fronts, but ultimately succeeded by attacking the validity of the search warrant that allowed them to place a video camera in the private areas of the massage parlor. The court was troubled by the fact that the cameras would film people in an intimate setting, many of which may not have been breaking the law. The State argued that the warrants were justified, in part because they could help fight human trafficking, but no trafficking charges were filed in relation to these cases.

The court suggested that such a warrant could potentially be possible if it included enough restrictions to prevent filming innocent individuals, but that it fell far short. Placing a video camera in such an intimate place is extremely invasive, and is the kind of thing that troubled the court greatly, and the court suppressed all the evidence obtained through these searches, which covered Kraft and several other co-defendants that were caught up in the same operation.

The State appealed the court’s ruling, and the case was on hold until the recent decision by the 4th DCA appellate court that agreed with the trial court. The court wrote, “The type of law enforcement surveillance utilized in these cases is extreme,” and set a precedent that will set limits on the use of “sneek and peek” warrants. The State declined to appeal the case to the Florida Supreme court, making today’s announcement that they were dropping the charges inevitable. Several other defendants, in multiple counties, who still had charges pending will see their cases dropped, and many of the others involved had already gotten their charges dropped by completion of a diversion program. Most importantly, this case, between the trial judge and the appellate court, has sent a strong message against law enforcement doing invasive searches like the sneek and peek warrants.

Drug House Put Out “Come Back with a Warrant” Mat… So the Cops Did

Neighbors near a suspected drug house in San Carlos made several calls to the Sheriff’s Department about the concerning activity going on at the house. LCSO responded to investigate, and were greeted with a mat in front of the door that said “Come Back with a Warrant!”

The Mat

Deputies did just that, securing a warrant and coming back to search the home. Inside, they found quantities of Meth, Fentanyl, Heroin, Cocaine and various related paraphernalia. Three people were arrested, included the alleged ringleader who was charged with sale, possession, and possession of a place being used for selling drugs.

I’m really charmed by the handwritten mat. They actually sell mats like that– theoretically as novelty items. These guys didn’t pay for one… but they were serious about having a need for one. They should have also posted a sign that says “I’m not saying anything without speaking to my lawyer” to invoke some other important rights!

Amazon is Sharing Ring Doorbell Info with Law Enforcement

Ring doorbells have video cameras on them that allow people to view and record things happening in front of their homes. They are online, so people can be notified and watch when someone approaches their door, even when they are not at home, thanks to mobile devices. They are becoming more and more popular, and since they are owned by Amazon, they can even be linked up with Amazon’s Echo smart home systems.

However, and this may come as a surprise to people considering them, Amazon has partnered with hundreds of law enforcement agencies to share the surveillance data. That means that law enforcement may literally have a live feed from your house, or other homes in your neighborhood. The technology has benefits and concerns. This video surveillance net could help law enforcement catch more crooks, and has become a frequently used tool for that effect. However, the privacy concerns abound, that the government can be watching with multiple eyes around your neighborhood. Some 67 Florida agencies have already signed on to the program, so it looks like it’s not going away any time soon.

Brooklyn 99 used the Stingray as a Plot Device

We’ve talked about the secretive Stingray devices several times on crimcourts, and I’ve even talked about them on local TV. Stingrays are devices that mimic cell phone towers and can allow law enforcement to secretly collect cell phone data. The problem is, without a warrant, they can be used to unconstitutionally invade people’s privacy and to collect overbroad types of data from innocent citizens. It’s a clear violation of the constitutional prohibition on unreasonable searches.

On the pair of shows of the fictional New York police precinct “Brooklyn 99” which aired last night, the officers of the 99th precinct discover the new NYPD police commissioner has started using a Stingray to illegally collect data. The good guys set up a sting operation to bust the commissioner and end the illegal data collection program- a Stingray-sting! Hijinks ensue, but I won’t spoil the outcome for those who haven’t seen it. Nonetheless, it’s impressive that a comedy show used a hot button topic as the basis for an episode.

Sarasota Police try to Charge an Attorney Defending Her Client

Sarasota defense attorney, and friend of the firm, Varinia Van Ness had criminal charges sought by the Sarasota Police against her for her representation of her client. The mere fact that officers would even consider trying to charge a defense attorney for zealously doing her job is shocking. It’s petty, retaliatory, and an affront to our adversarial system of justice. Fortunately, the officer’s multiple attempts to file charges were rebuffed by cooler heads.

Attorney Varinia Van Ness, via
http://www.vannesslawgroup.com/

It started when two Sarasota detectives sought to serve search warrants on Ms. Van Ness’ client and his phone. The parties agreed to meet at Van Ness’ office but about 10 minutes into the meeting, it was revealed that a Detective Derek Galbraith had activated a recording device without notifying Ms. Van Ness. When she found out, she insisted he either terminate the recording, or to leave the office. He declined to turn it off, but he also declined to leave the office. She indicated he was trespassing, but he still wouldn’t leave and Van Ness eventually called 911 to get him to leave.

After detectives left, they tried to serve the warrants again at the client’s work, at his brother’s house, and even at his ex-girlfriend’s home. Van Ness and her client agreed to meet at the police department. When the Detectives read the phone warrant, a spelling error was noticed in the client’s name, and Van Ness and her client left the room, though they ultimately did submit a DNA sample. Later that day, Detective Dan Riley from the Sarasota PD requested that a warrant be issued for the arrest of attorney Van Ness for obstruction of justice.

Fortunately, the warrant was never issued. It was submitted to a judge who recognized that the case involved a defense attorney doing her job, which would be a valid challenge to the warrant. He said it would have to be reviewed the State Attorneys office to see if formal charges were warranted. Sarasota PD didn’t give up, and submitted the warrant request to the State Attorney’s office. The local SAO had a conflict of interest, and the case was reassigned to the 20th Judicial Circuit SAO, who also declined to file charges. Sarasota PD took one more shot, submitting the case to FDLE, who also declined to pursue charges. The case was reviewed by three separate independent judges/agencies, who all agreed there was no merit to bringing charges.

This type of attack on an attorney is shocking and very problematic to the justice system. Ultimately, the fear would be that if cops can go charge an attorney for advocating for their clients, the chilling affect on the job of defense attorneys would harm our criminal justice system and is an affront to the Constitutional protection to the right to be represented by an attorney. The Sixth Amendment guarantees the right to assistance of counsel, and it applies at every level of a criminal investigation.

It’s rare that law enforcement would seek to charge an attorney for advocacy in the normal course of their work. Usually, it takes something really egregious, the Paul Bergrin case in New Jersey springs to mind, where he assisted gangsters placing hits against witnesses. Only something extreme that goes beyond advocacy should even be considered, and even then, it should be reviewed by attorneys before being submitted for a warrant.

Asking a Detective to leave your office because they recorded you without permission is not obstruction of justice. Declining to have your client turn over his phone password when his name is spelled wrong on the warrant is not obstruction of justice. That’s advocacy. Zealous advocates like Varinia Van Ness are the first check against government overreach and the primary protection of individual Constitutional rights. We are lucky to have defense attorneys like Varinia.

via Sarasota Herald-Tribune

FMPD Sued for Arresting and Tasing a Man for No Legal Reason

Jones, about to be tased from behind

Two FMPD officers had no legal reason to arrest Holley Jones in April, 2018, but when he tried to walk away, they tasered him. The officers indicate they responded to a third-party complaint about a disorderly person, which apparently did not identify Jones. The whole incident is on body cam, and Mr. Jones is not causing a disturbance when officers come in and tell him they want to talk to him. When he declines to come outside, he tries to shake the officer’s hand, and the officer gets angry, and starts yelling at him not to touch him, pulls out his taser, and orders him outside. Jones says he did nothing wrong, and the officer says you’re real close to doing something wrong.

An officer is not allowed to detain someone, or order them around, unless he has evidence that they’ve done something wrong. Jones’ refusal to come outside isn’t improper because the officer doesn’t have evidence of a crime to have the authority to order him outside. People like to say you don’t have to consent to officers if you’ve done nothing wrong, but it results in poor Mr. Jones getting tased when he eventually runs away from the officers.

Something that’s nearly as bad as the unnecessary violence is that the officers mislead in their report to try to justify their actions. They indicate in their report that Jones did not seem to understand what they wanted him to do. The video is clear that he understood, but did not consent to following them outside or being searched. Then the officers say that when he ran back inside, he turned around in a “defensive posture with his arms raised,” and “a closed fist as if he was going to strike” the officer. The video clearly shows the officer is lying, as Jones is simply trying to evade the illegal arrest. The irony is that experienced criminal attorneys will recognize the “defensive posture” language as a phrasing that cops frequently use to justify use of force. In this case, thanks to the body-worn cameras, the truth is exposed. NBC-2 uploaded the video here, and it is somewhat graphic.

The case went to court, and on a motion to suppress, the state could not show a lawful detention, and the evidence was suppressed, leading to the case being dropped. Officers are allowed to talk to people in a consensual encounter, but they can’t just order people around who aren’t breaking the law. This should be a teaching tool, and body cams will help improve police and citizen interactions. In the meantime, this poor police work will probably lead to Mr. Jones getting paid. Not only that, they found substantial amounts of drugs on him, but he cannot be prosecuted due to the poor police work.

Supreme Court Rules that Warrants Needed for Driveway Searches

I haven’t had much time to post lately, but a substantial Supreme Court ruling this week demands a post. The Court ruled, by an 8-1 margin, that police searches that take place in the driveway of a home also require a warrant. Essentially, the court ruled that the curtilage of a home, that is, the immediate area surrounding the home, has similar protection to the home itself. In this case out of Virginia, an officer suspected that a stolen motorcycle could have been been stolen, and took it upon himself to peek under the cover. The Court found that the search was illegal because the officer did not obtain a warrant first.

Ultimately, this may not prove to be the most influential ruling… how many searches take place in a home’s driveway? Will this extend to the parking spot of an apartment complex? (I think so.) This ruling is not a great surprise, as the Supreme Court in the last few years has been very clear on the Constitutional protections for privacy against searches, particularly in relation to the home. And this will not hamstring law enforcement too much: cases like this one would present plenty of evidence to obtain a warrant.

Don’t Obscure your License Plates!

An appellate court decision came down this week that ruled that none of the lettering on your car tag can be obscured, even the “myflorida.com”. This appears to be a more strict interpretation of the law than had previously been enforced, due to language changes in the statute, and probably means that most license plate frames will be in violation. It’s not a defense if the dealer put it on there! Nor is it a defense for your tint being too dark if the dealer does it… These little nuisance violations can give the cops probable cause to stop you, even if you’re driving fine, and can result in expensive tickets!

via NBC-2