Tag Archives: search and seizure

Don’t Obscure your License Plates!

tagAn 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

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If You Think You Have a Secret, You’re Probably Wrong

Thanks to the omnipresence of electronic devices in our lives today, somebody probably knows everything you do. You have a cell phone in your pocket, which is essentially a listening device, your computer might have a camera on it that is potentially watching your every move, HAL 9000 style, and you might even be wearing a smart watch that is literally following you every step. All of those are able to collect data, store it, and potentially share it with others… perhaps even authorities. It’s potentially an avenue for the government to get in your homes and bedrooms.

Much of this technology is new, and the courts are still trying to determine what the limitations are on privacy, and what the government can access and use. The latest test case is actually in Germany, where prosecutors are using data compiled by Apple iPhone’s Health App: an app that is standard and pre-installed on the last several versions of iPhone. The Defendant refused to give up his passcode, by a cyber-forensics firm was able to crack it and give the data to prosecutors.

There are a lot of issues related to this, particularly here in the United States where different Constitutional rights come in to play. Obviously, the rights to privacy, unreasonable search and seizure, and due process are involved, but a major case last year even involved First Amendment aspects. In Arkansas, James Bates was accused of killing his friend Victor Collins, who was found drowned in Bates’ hot tub. In order to strengthen their case, prosecutors sought info from his iPhone to track his phone calls, and even his smart utility meter to demonstrate his water use (they planned to argue that he had hosed down his deck).

The prosecution also went after Alexa- the digital assistant program that works with his Amazon Echo device. Alexa listens and potentially records everything within the range of its microphone, so there’s a major question whether people would have an expectation of privacy around one. The prosecutors sought to obtain the data, when Amazon itself entered the fray with another claim: that they should not have to turn over the data because it would violate the First Amendment… that it could have a chilling effect on protected expression.

Ultimately, the Bates case did not decide the matters. Kathleen Zellner, the attorney who is handling Making a Murderer’s Steven Avery’s post-conviction claims, took over the case and since her defense was not dependent on the Amazon data, waived any objection and it was turned over. Ultimately, it probably did not play a role, as additional medical and forensic reviews apparently convinced the prosecutors that there was not a murder, at least not one that could be proven, and the charges were dropped without the case having to go to trial.

In the meantime, be aware that there is the potential that the government can find out a lot about you, from your computer, your social media, your phone, your watch, your car, your video game, your pacemaker, and in this case, they didn’t just go after Alexa, they used Bates’ hot water heater to charge him with a murder.

Here’s my Interview about Stringrays on NBC-2

122316bNBC-2 posted the story online that included my interview about the use of cell-phone tower imitators, that go by the brand name of Stingrays, and how they are being used to collect people’s data. There are still a lot of questions about the use of these devices, in part because the government is being so secretive about it. In many cases, their use can be legal, but they should definitely implement oversight, and get oversight from the courts by seeking warrants when they are being used.

For more in the issue, USA Today has been following the issue, and has a section devoted to it, here: http://www.usatoday.com/topic/f764896f-76b5-4789-a58e-e333b9b5bcfc/cellphone-surveillance/

And here is the NBC-2 story from last night: http://www.nbc-2.com/story/34124137/cell-phone-interceptors-used-by-govt-agency-to-gather-information

Here’s the Story from NBC regarding Surveillance Cameras I was Quoted

me nbc2b

Atty Spencer Cordell on NBC-2 [Who Dey]

The link is up from last night’s NBC-2 follow-up story regarding use of surveillance cameras. The law is a little unclear, but there’s no doubt the best practice is for law enforcement to get a warrant when they are going to use the cameras: even the guy from the camera company recommends it. And everybody, prosecutors and defense attorneys, agree that when video surveillance is used, it needs to be disclosed when a case goes forward. My friend Rene Suarez, who is quoted at the beginning of the story, makes a great point: if the use of video cameras is not disclosed, it shuts the judicial system out of the analysis regarding the legality of the tactics. That’s eliminating judicial oversight. If nothing is being done inappropriately, the investigators should have nothing to hide.

Here’s a link to the story, I will try to embed it, below.

NBC-2.com WBBH News for Fort Myers, Cape Coral & Naples, Florida

And here’s a link to our story yesterday.

Cops Have a New Way to Spy Inside Your Home

Law Enforcement Agencies have started buying new, portable radar devices that allow them to detect movement through walls. Essentially, they can tell how many people are in a house without going inside. They were initially developed for the military, but are spreading through law enforcement agencies across the country.

Radar by L3

Radar by L3

This is inherently problematic, because there is an expectation of privacy in one’s home. The Supreme Court has previously made it clear that such an invasion of the sanctity of one’s home requires a warrant, or is otherwise unreasonable. USA Today correctly covers the law on this: while the radars are new, the Court has previously and unequivocally declared that similar means of looking inside homes is not Constitutional without a warrant. The court issued a ruling several years ago about using infared scanners on homes, and more recently prohibiting dog sniffs of homes without warrant.

This can be an effective tool for law enforcement, provided they do it right. They need to get a warrant before utilizing radars and other devices that provide information from inside the home, and they need to make explicit in their application that they wish to use the device, and why there is probable cause to support it: otherwise any evidence obtained from such as search will be inadmissible.

via USA Today

Man’s Shirt Proclaims that he has Drugs, He is Arrested for Drug Possession

John Balmer and his Shirt

John Balmer and his Shirt

Florida Man John Balmer was in line in a Pasco County KMART when he saw a deputy walk in. He not-so-discreetly tried to hand a bag of drugs to the person in line behind him, who declined to take it. He put it on the ground and paid for his items. A clerk saw it and alerted the deputy. When they arrested him, they noted that his shirt says, “WHO NEEDS DRUGS. No, seriously, I have drugs.

What appeared to be  joke shirt, was not a joke at all. I can’t tell if he was charged with possession with intent, but with an advertisement for drugs prominently displayed on his shirt, deputies probably could have enhanced his charges. I don’t know if such an advertisement would give deputies reasonable suspicion to search somebody wearing that shirt, but in this case they didn’t have to. He abandoned the drugs to remove any 4th Amendment concerns for the searching officers.

via Concourse.

Supreme Court Decision on Law Enforcement Error

The Supreme Court has ruled this week that a reasonable error of law by law enforcement does not require suppression of the evidence improperly obtained. I will have more on this when I get a chance to read the decision in full, but wanted to go ahead and note it in a post as it is an important search and seizure precedent, that was just released a couple of days ago. I don’t think the stop would still stand in Florida, as our law does not appear to be as ambiguous as the North Carolina law, but I guarantee this case will be used to try to forgive law enforcement errors.