Attorney Cordell will talk Privacy on NBC-2 Tonight

Attorney Spencer Cordell

This week the House Committee on Oversight and Government Reform released a bipartisan report calling for standards on how cell-phone tower simulators, known as Stingrays, are used by government agencies. We don’t know how extensively they are being used, or even how much data they are able to collect: not just from criminals, but from average citizens whose phones get caught up. We do know there have been abuses in the past.

NBC-2 is doing a story tonight, and I may show up with some comments. The Stingray, and the secrecy around the agencies’ use of the technology is troubling. There are legal means to use technology, the most straightforward is just to get a warrant. We encourage standards and oversight, especially in Florida, which leads the country in Stingray use.

Tune in to NBC-2 tonight at 6 p.m.

Federal Court Throws out Stingray Evidence

This week a federal court ruled that evidence collected by use of a Stingray was inadmissible where a warrant was not obtained. Stingrays are devices that mimic cell phone towers. They allow government agents to track the whereabouts of cell phones without the knowledge of the cell phone users. It is unknown how many agencies employ the use of Stingrays, because they also promise to keep them secret when they acquire them.

The DOJ issued a policy that their agents are supposed to get warrants before using the devices. That was a smart move, predicting the legal outcome when the Stingray evidence was challenged. This investigation occurred before that change in policy, and if the Feds had continued to collect this evidence without warrants… a lot more cases would be in Jeopardy. The DOJ policy does not govern local law enforcement agencies, who stand to have a lot of evidence in jeopardy if they have not been obtaining warrants, in light of this Federal Court decision.

FMPD Ought to Release the Video of the Questionable Search

News reports have surfaced this week that people are accusing FMPD officers of an improper, invasive search. Michael McDonald was pulled over by officers, who say they smelled a strong odor of marijuana. They sought to search Mr. McDonald, and gave him a pat down. Officers indicate they felt something that felt like a baggie, and that when they asked McDonald about it, he became “very uncooperative and hostile” toward officers. However, they also indicate that he admitted that it was a bag containing marijuana.

Michael McDonald

Mr. McDonald then agreed to retrieve the marijuana, and handed it to officers. They patted him down again, and felt something else concealed in his pants. And that’s where things started to go really wrong.

Officers say McDonald did not respond to their commands, They say he tried to kick an officer in the face (leading to a felony charge for resisting with violence). Officers literally held his legs down. They physically spread his legs and cut his underwear to recover baggies containing heroin and cocaine from inside his undergarments. He alleges that they further probed his rectum with a finger during the search.

When NBC-2 first aired the story, they included a response from Chief Eads, who indicates he has seen both the cell-phone video, and the officer body-cam videos and that no cavity search occurred. I said, hey, that’s a great reason for officers to wear body-cams… so that if they are accused of something they didn’t do, the video evidence can exonerate them. I think body cams will be more of a help to law enforcement than a hindrance.

Then, NBC-2 reported the following day that they have made a public records request for the videos, but the police department has refused to release them. That’s a bad look, FMPD. If the video shows what you say it shows, then RELEASE THE VIDEO!

FMPD told NBC they weren’t releasing the video because there is an ongoing criminal investigation (which is an exception to the Sunshine Laws on public records). That sounds at least a little questionable, as Mr. McDonald was arrested and charged that day: which was 2 weeks ago. It sure sounds like they are claiming that an investigation is ongoing, to avoid releasing the video. Again, bad look FMPD. If the video exonerates your officers, release the video! Don’t make excuses.

Seriously, the news story might be over by now if the video proves that the officers did nothing wrong.

There still may be an issue with the way the search was handled, even if there was no cavity search. While an odor of marijuana gives officers sufficient probable cause to conduct a search, and search that involves removing or arranging clothing to “permit a visual or manual inspection” of private areas is governed by Florida’s strip search statute,Fla. Stat. Sec. 901.201. That statute says that such a search must be conducted “…on premises where the search cannot be observed by persons not physically conducting or observing the search…” The fact that such searches are being performed in public, on the roadside, in full view of people with camera phones, does not sound like it is in compliance with the statutory strictures. Of course, we’ll have a better idea when FMPD releases the video.

NBC has also reported on a similar incident involving an allegedly invasive search, also on video, just a few weeks prior and only a short distance away from Mr. McDonald’s search. As a criminal law practitioner, I have seen cases where officers just grabbed people shorts and pulled them down on the side of the road, so there may be a policy training issue with local law enforcement (it is not limited to FMPD). Or maybe not. Maybe they have done nothing wrong, as the chief said. Many of these questions will be answered when they meet their statutory obligation under the Sunshine law to release the video. If it’s bad, don’t cover it up. If it exonerates the officers, the city should want the video released!

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

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

Warrants Required for GPS Tracking : 3rd Circuit

• Major Appellate Court Ruling: the 3rd Circuit Rules that a warrant is required to place a GPS tracking device on a vehicle

In 2012, the Supreme Court ruled in United States v. Jones, (132 S.Ct. 945, 2012,) that placing a GPS tracking device on a vehicle does constitute a search. The Supreme Court declined to rule whether such a search required a warrant, or if such searches are therefore unreasonable under the Constitution. The lower courts had punted on the issue since then, allowing good faith exceptions for GPS devices placed prior to the Jones ruling. This week, the 3rd Circuit issued a ruling that declared that not only does the placement of a GPS tracking device on someone’s vehicle constitute a search, such searches do require a warrant. United States v. Harry Katzin, et. al. (Docket No. 12-2548, Fed. 3rd Cir, 2013). [Case text included in linked Wired story.]

This does not prevent the government from using GPS tracking devices, it merely requires that the Constitutional warrant requirement be adhered to before they do so. The agents and prosecutors in the Katzin case knew about the Jones ruling, but did not bother to even ask for a warrant, even though they probably could have gotten one. Now, the evidence obtained as a result of the search will be excluded from any future trial, due to the government’s willful disregard for the Defendants’ Constitutional rights. This case will likely set a strong precedent, as it is in line with recent Supreme Court holdings.

In Florida, the Jones case has been followed in appellate cases refuting warrantless searches of cell phones [Smallwood v. State, 113 So.3d 724 (Fla. 2013)], and limiting officers who come onto property without warrants for investigatory purposes [Powell v. State, 120 So.3d 577 (Fla. 1st DCA 2013)].

via drudge: http://www.wired.com/threatlevel/2013/10/warrant-required-gps-trackers/

Federal Judge Rules Stop-and-Frisk Policy in NYC is Unconstitutional

• NYPD has been systematically violating citizens’ rights for years

Federal Judge Shira Scheindlin has ruled that New York City police have been illegally detaining and searching people for several years running. Stop and frisk searches are permissible under certain circumstances, known as Terry stops, but the law requires that officers has a reasonable belief that a crime has been, or is about to be committed. The judge ruled that officers have been stopping people with no lawful reason, violating their constitutional right to be free of unreasonable searches and seizures. What makes the policy more appalling is that the City’s policy frequently targeted minorities, making the unlawful stops based on racial discrimination.

Judge Scheindlin noted that in 88 percent of the stops, the individuals were released without so much as a ticket. According to her, such a high percentage suggests that there was not a credible suspicion in the first place. If a baseball player only has a .12o batting average, he wouldn’t be playing baseball very long. Since these stops are supposed to be predicated by a founded suspicion, you would expect the percentage of discovered infractions to be very high. The double concern is not only that thousands of innocent people’s rights are being violated by the officers who are supposed to protect and serve them, but that by targeting minorities, and young men in particular, they further alienate these demographics from trusting the police. The NYPD policy has been proven to be practicing unlawful policies in court, and it is a shame.

The mayor has argued that the policy has led to a reduction of the crime rate. First, the causation has not been proven. Second, the results are legally irrelevant. Finally, is it worth catching a few more kids with weed to violate our citizens’ rights on a regular basis? Is it worth alienating a generation against the NYPD? Aren’t the underlying Constitutional Rights worth protecting? Yes they are, and this was a brave, correct decision by the court. Congrats to the attorneys who fought so hard to prove this case.

NYPD’s Stop and Frisk Practice Challenged in Class-Action Suit

Right now the NYPD is on trial for civil rights violations for their stop and frisk policies. The question at trial is whether the police department unfairly targeted minorities for unlawful detentions and searches. Under the Constitution, we are protected against unreasonable searches and seizures from the government. Police are allowed to stop and pat people down (known as Terry stops) if they have probable cause to believe they are committing, are about to commit, or just committed a crime. Just because someone is a young man who happens to be a minority is not legal justification to detain otherwise innocent citizens.

The plaintiffs are claiming not only did the City frequently stop people without justification, but that they specifically targeted young, male minorities to stop and frisk without justification, strictly due to their age and race. The evidence is not merely anecdotal; among the witnesses that have testified include police officers who have indicated that there were quotas placed on them to issue citaions. The officers have brought in recordings from meetings with superior officers that appear to include specific directives to  target young male minorities. Officers have testified under oath that kids were being stopped for no reason. Plaintiffs have testified to being targeted multiple times without justification.

It is an affront to our Constitution that police officers would be so caught up in making arrests that they would step on the rights they are sworn to protect. The mindset in some law enforcement officers is that there are bad guys out there, and they are justified in what they do if they are pursuing those bad guys. However, except in circumstances outlined under law, it is inappropriate to infringe on the rights of many (perhaps a high percentage of the 5 million that have been stopped in the last decade) . Any stop that is not based on reasonable suspicion of actual criminal activity is a violation of someone’s constitutional rights. If it is proved that the NYPD deliberately ignored people’s rights through their policy, they are wrong, and should have to pay. That is the only remedy to prevent such illegal practices in the future.

The irony is that such policies may create greater challenges for law enforcement officers. The more innocent people who get harassed, the greater the distrust and resentment of law enforcement grows among citizens. That leads to greater difficulty in future enforcement efforts. The NYPD is vigorously fighting the allegations, saying their actions are lawful, and the city is safer than it has been in decades.

Perhaps, in light of the evidence, they should be scrutinizng their own policies. The money spent fighting the lawsuit bight be better spent hiring a PR firm to advertise a new NYPD that fights to protect the Constitution, and uses that as a springboard to rebuilding their relationship with the people they are sworn to protect. Admittedly, that would require admitting they did something wrong, which is harder for politicians than spending public money to defend themselves in court. It is much easier for politicians to claim to be tough on crime than to be perceived as not backing their police department, and bad cops go on hurting the reputation of the whole department, and cops everywhere.

Thanks to Aaron for alerting me to this story.

Supreme Court Overturns Dog-Sniff Case, State No Longer Required to Show Reliability in the Field

The Supreme Court overturned a Florida Supreme Court decision that required the state to demonstrate that dogs are reliable in the field. Justice Kagan wrote in her majority opinion that it would be sufficient for the state to show sufficient training and certification to make a dog’s alert reliable, unless there was a challenge to the sufficiency of that training. See Florida v. Harris, (U.S., Slip opinion No. 11-817, 2013). That is an extremely difficult showing for the defense, and essentially means that if the dog is certified, his alert will almost always allow a search (generally of a vehicle). It is worth noting

The best nose in the biz

One of the concerns is that if a dog doesn’t show that reliability in the field – alerting to actual drugs – that the dog may be alerting too often and creating improper searches. For instance, a dog might be so sensitive that it not only can detect when drugs are in a car, but also if there have EVER been drugs in a car. Drive a used car at your own risk of being searched! The ability of dogs to use their sense of smell is nothing short of incredible. However, there remains the risk of abuse by unscrupulous handlers, or even by handlers that unconsciously signal to the dog. One of my first cases as a defense attorney involved a search stemming from a questionable dog alert. My client said the handler walked the dog around the car, then yanked up on his collar so that he yelped, then called that an alert, and searched the car. The cops found 1 suspected marijuana seed. One of the cops involved (not the handler, though) was later fired for lying in police reports. Sadly, I see such abuses all the time as a defense practitioner. Here’s to good K-9’s.

In other K-9 news, a police dog in England recently wrote his own police report in a case. “I chase him. I bite him. Good Boy.” The tongue in cheek report was prepared after a statement request from prosecutors who didn’t realize that PC Peache was a canine officer. I hope the cop who wrote it doesn’t get in too much trouble… because that’s funny. A local handler told me that one time his dog was actually subpoenaed to court. Where do you want him to point?