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INDIANAPOLIS -- While wearing gang colors may be suspicious, its not enough to justify a stop by police unless criminal activity is involved, the Indiana Supreme Court said this week.

As a result of the decision, Jordan Jacobs, Indianapolis, had his conviction reversed for Class A misdemeanor possession of a handgun. The state court ruled that a police search leading to Jacobs arrest in 2015 was not allowed under the Fourth Amendment to the Constitution.

On Aug. 31, 2015, there had been numerous reports of gunshots fired on Indianapolis northeast side by youths wearing red clothing, indicating gang membership. The location near 30th Street and Keystone Avenue was known as a high crime area and police placed more attention on patrols.

Two days later during the afternoon, an Indianapolis police officer saw young men who looked like they should be in school at Beckwith Park, according to court records. Some of the teens were wearing red clothing. Jacobs, then 18, had been seen earlier carrying a red T-shirt.

When a park rangers car was in the area, Jacobs and another man walked away. They returned after the car left and Indianapolis Metropolitan Police Department officer Terry Smith, who is a gang detective, called for assistance. Smith ordered Jacobs to stop but he walked away. Another officer assisted in ordering Jacobs to the ground. Although handcuffed, Jacobs was told he was not under arrest but police saw a gun outlined in Jacobs pocket.

In Marion County court, Jacobs attorney objected to admitting the handgun into evidence on the grounds that the officers did not have reasonable suspicion to stop him under the Fourth Amendment. During a bench trial, Jacobs was found guilty and sentenced to one year probation.

In November, the Indiana Court of Appeals was split but found that Jacobs behavior in evading police in a high crime area provided enough suspicion that a crime was afoot.

The Indiana Supreme Court said that the officers belief that Jacobs was truant at 2 p.m. that day was enough for an investigatory stop. But the actual stop occurred after school had let out for the day.

The court also addressed Jacobs clothing. Membership in a gang, by itself, does not provide the basis for prosecution for criminal gang activity, Justice Mark S. Massa wrote. The State must prove that the individual was aware of the gangs criminal purpose.

He continued, Jacobs display of a red garment (which he was never wearing, and did not have at the time police approached), while standing among those clad in red, was thus insufficient to justify an investigatory stop under the Fourth Amendment.

The court said there was nothing to link Jacobs to the earlier gunfire.

Fourth Amendment

The Fourth Amendment states, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

See the original post:
Gang membership doesn't color a crime, court says - Greensburg Daily News

UPDATED: Thu., June 29, 2017, 9:05 p.m.

A man pulled from his home and arrested at gunpoint after two Spokane County Sheriffs deputies went to the wrong address achieved a partial victory this week when a federal judge ruled that the deputies violated his Fourth Amendment seizure rights and used excessive force.

Conner Griffith-Guerrero filed a federal civil lawsuit against Deputy Robert Brooke, Deputy Evan Logan and Spokane County in 2015, two years after the incident at his home on North Five Mile Road. Both sides filed summary judgment requests and this week U.S. District Court Judge Thomas O. Rice ruled that a portion of each request would be granted.

On Dec. 13, 2013, a resident on North Five Mile Road called 911 to report that there was a suspicious car parked at his neighbors house and his neighbor was in Arizona for the winter. He provided the address to the house, but deputies couldnt find the house and instead went to another home. They drew their guns and walked around the house, testing doors and shining their flashlights in windows, according to court documents.

Griffith-Guerrero was in the basement watching television when he saw the flashlights shining in. He said he was afraid he was about to be burglarized so he went upstairs and hit the front door to let whoever was outside know that someone was home, the lawsuit said. He went outside to look and saw someone with a gun. He screamed and ran into the house.

Brooke then identified himself and Griffith-Guerrero opened the door and was ordered outside the home and told to kneel in the front yard while he was handcuffed. He said that one of the deputies was pointing a gun at him the whole time, but the deputy testified in a deposition that he was merely holding his gun in the low ready position.

After it was determined that Griffith-Guerrero lived there, Brooke reportedly told him Youre lucky I didnt (expletive) shoot you, the lawsuit said.

According to court documents, Brooke received a shift counseling, described as the lowest level of discipline, for going to the wrong address.

Heather Yakely, the attorney representing Spokane County and the deputies, argued that the deputies had reasonable suspicion to approach the house and detain Griffith-Guerrero. The deputies were checking for signs of a burglary and Yakely argued there was no violation of the Fourth Amendment because deputies never crossed the threshold into the house.

Rice said the deputies did have the right to check the home for signs of a break-in, but ruled the deputies committed a warrantless seizure and used excessive force. Searches and seizures inside a home without a warrant are presumptively unreasonable, he wrote. It does not matter that the officers did not actually enter the house to make the arrest.

Ordering plaintiff out of his home is a categorical violation of his Fourth Amendment rights whether it is called a temporary detention or an arrest, it was a seizure.

Rice wrote that he found the defenses arguments that the deputies did not use excessive force unconvincing.

Pointing guns at plaintiff, ordering him out of his home at night and onto his knees in his own front yard to handcuff him was objectively unreasonable under the circumstances, Rice wrote.

Rice did agree with Yakely on another issue. He ordered Spokane County dismissed from the lawsuit because Griffith-Guerrero didnt show that there was a pattern or practice of officers conducting illegal warrantless searches.

Rice ruled that Griffith-Guerreros claims of assault and battery, false arrest and imprisonment and negligence in the lawsuit can be pursued.

Read the rest here:
Federal judge rules two deputies used excessive force - The Spokesman-Review

ANALYSIS/OPINION:

This week, constitutional law experts and the law enforcement community were abuzz after the U.S. Supreme Court added Carpenter v. United States to its docket, a case that could reshape government data collection and the Fourth Amendment in the internet Age. The Fourth Amendment asserts that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. Timothy Carpenter, the petitioner in this case, alleges that his Fourth Amendment rights were violated.

The case comes at a time when domestic surveillance by intelligence agencies is under scrutiny, and smartphone and internet records are playing a greater role in law enforcement investigations. It raises an important legal question about the applicability of old doctrines that give the government immense power in the Information Age.

Carpenter was convicted of taking part in six armed robberies in Michigan and Ohio. The FBIs evidence at trial included information collected from his cellphone carrier without a warrant, including location information that placed him in the vicinity of the robberies. Police almost certainly could have gotten a search warrant for Carpenters phone records. The appeals court upheld his conviction and dismissed his argument because, as most courts hold in these cases, personal information gathered from businesses like phone companies is not a search or seizure and doesnt require a warrant.

Before the creation of the web or smartphones, courts developed whats known as the third party doctrine for Fourth Amendment cases. This doctrine denies that information turned over to a third party like phone call and location information automatically transmitted to a phone company when placing a call is protected by Fourth Amendment. The doctrine derives from Supreme Court decisions from the 1970s about phone and bank records.

Today, technological advancements mean we each turn over tremendous amounts of personal data to third parties simply with routine use of the digital services of our age. New services that transmit data to the internet cloud, like smart homes, voice-activated devices, and Google Docs, offer law enforcement an even bigger treasure trove of personal records that, under the third party doctrine, does not require a warrant to collect.

The mere fact that the Supreme Court agreed to hear the Carpenter case was a small victory for civil liberties groups. The third party doctrine is a blunt instrument that, in our connected world, permits too many low-value fishing expeditions by law enforcement. Cellular phone companies in particular are inundated with law enforcement subpoenas every year for user data, including user location. Verizon, for instance, reported that the government issued more than 120,000 subpoenas to the company in 2016 over 350 per day. Legal teams at Google, Facebook, Amazon and Uber are required to sift through similar government requests for information.

The political right and left have bristled in recent years against intrusive and often secretive government data collection. Conservatives were alarmed when The Wall Street Journal broke news last October that federal agents in Southern California had co-opted state license plate readers and drove around a parking lot to collect information about thousands of gun show attendees. For years, police departments around the country have spent millions acquiring cell site simulators that jam cellular signals and collect data from hundreds of nearby smartphone users. Progressives have alleged that these devices are used to identify people at mass protests.

The third party doctrine denies that such information can ever be unreasonably seized or searched. As the Cato Institute argues in its amicus brief in the Carpenter case, its time for the court to strip away the decades of privacy doctrine that has permitted police data collection to metastasize.

If the court takes up the Fourth Amendment issues, it should scrupulously apply the Fourth Amendments language: Are Carpenters phone records papers or effects? Were they searched or seized? Was the search or seizure unreasonable? Courts ask these questions in other criminal cases, but not when information leaves someones home or device. Justice must be served, but the third party doctrine short-circuits what should be a demanding constitutional analysis that protects us all.

Contracts between individuals and phone and app companies affirm the confidentiality of sensitive information, and courts should allow only reasonable searches of that data. We should not relinquish Fourth Amendment protections the moment a third party is involved especially in an era when devices in our pockets automatically transmit data.

Brent Skorup is a research fellow at the Mercatus Center at George Mason University. Melody Calkins is a Google Policy Fellow with Mercatus.

See the rest here:
A Supreme Court call on the third party doctrine - Washington Times

Early this month, the U.S. Supreme Court addedCarpenter v. United Statesto the roster for consideration in the upcoming October term.Carpenterwill mark the Courts first chance to address an important, as-yet unresolved question in the digital age: Does the Fourth Amendment require a warrant for law enforcement officials to obtain cell site location information, or CSLI, which reveal the location and movements of a cell phone user?

The case will address the tension between the Fourth Amendment and the Stored Communications Act, which Congress enacted as Title II of the Electronic Communications Privacy Act of 1986. The SCA specifies procedures that law enforcement may use to obtain certain records from third-party electronic communication services or remote computing services. But it does not require a warrant. Since its enactment, third-party service providers have routinely cooperated with law enforcement requests to disclosesubject to certain statutory requirementscustomer data. And notably the petitioner here does not attack the constitutionality of the SCA. Rather,Carpenterasks whether companies should require a warrant, supported by particularized findings of probable cause, before disclosing CLSI. This question has caused considerable doubt among service providers, which must balance responding to law enforcement demands for information with the privacy interests of their customers, and which also require a clear roadmap about what the appropriate procedures are.

The uncertainty among service providers responding to requests for customer information under the SCA is exacerbated by the existence of a significant circuit split concerning whether the Fourth Amendment applies to CSLI. There have been no fewer than 18 separate majority, concurring and dissenting opinions across five circuit courts on the issue, and courts have fractured over whether there is any reasonable expectation of privacy in CLSI and other customer data.Carpenterimplicates three different strains of Fourth Amendment jurisprudence: (1) the third party disclosure doctrine, (2) the physical trespass doctrine, and (3) the distinction between content and non-content information. The case will have the Court decide whether these doctrines, which first arose in the pre-digital world, still have continuing vitality today. And it will allow the Court to consider whether the accumulation of data by third-party service providersnow commonplacegives rise to any new privacy interests under the Fourth Amendment.

Background

In connection with the investigation of a series of armed robberies, federal prosecutors moved under the SCA for court orders requiring two cellular service providers to disclose 187 days of phone records, including CSLI, for petitioner Timothy Carpenter. Based on the CSLI, the government charged Carpenter with aiding and abetting robbery. Carpenter moved to suppress the evidence, but the district court rejected Carpenters argument and held that the governments collection was not a Fourth Amendment search. On appeal, the Sixth Circuit affirmed, holding (1) that the records did not disclose the contentof communications and thus were not entitled any Fourth Amendment protection; (2) that the disclosure of the records to third-party cellular providers defeated any reasonable expectation of privacy under the seminal caseKatz v. United States, 389 U.S. 347 (1967); and (3) that the physical trespass doctrinewhich the Supreme Court had revived in its recentRiley v. California, 134 S. Ct. 2473 (2014), andUnited States v. Jones, 565 U.S. 400 (2012), decisionsdid not apply.

Concurring in the outcome on alternative grounds, one member on the panel, Judge Jane Branstetter Stranch, wrote separately to air her concerns about the Fourth Amendment tests that courts have applied in this rapidly changing area of technology, especially in light of the sheer quantity of sensitive information procured without a warrant.

The Old Ways Just Dont Work

Carpenterdemonstrates the difficulty of applying the canonical tests under existing Fourth Amendment jurisprudence to the modern day. For example, there is the third party disclosure doctrine, which grows out ofKatzs reasonable expectation of privacy test. For someone to have a reasonable expectation of privacy in a piece of information, (1) that person must subjectively exhibit an expectation of privacy and (2) that expectation must be objectively reasonable. The core concept is that people have no reasonable expectation of privacy in any information they disclose to third parties, because they already subjectively surrendered any such expectation with the fact of disclosure. Where the doctrine applies, you cannot even get past the first step of theKatzframework, andKatzhas remained black letter law on the books for half a century now. But in the digital age, where persons passively disclose so much information about themselves (and their whereabouts) to third parties at all times, what reasonable expectation of privacy could possibly be left?

Or take the related distinction that the Fourth Amendment marks between content information and non-content information, such as addressing. The idea here is that a person has no reasonable expectation of privacy in non-content information, because that is frequently disclosed, either to third-party service provider or to the public more broadly. Consider, for instance, a package sent through the mail: itscontentsare unknown and thus the sender has a reasonable expectation of privacy in that. But all other information about the packagethe return and target address, the amount of postage on it, its size, shape, and weightis ascertainable by any mail carrier or member of the public that comes into contact with it. And so there is no reasonable expectation of privacy in that kind of information. On balance, CLSI appears closer to what courts have traditionally considered addressing or other non-content information: it does not tell you what a person said or did, it just shows you where a person was.

Finally, there is the trespass theory of the Fourth Amendment, which the Supreme Court resurrected in its recent cases dealing with technology. InJones, the Court held that the unauthorized placement of a GPS tracker on a car for long-term surveillance triggered Fourth Amendment protections. Similarly, inRiley, the Court held that law enforcement needed a warrant to search a mobile phone. But this trespass notion does not appear to have any place inCarpentereither. Police did not track Carpenter, or break into his cell phone; they merely asked for records from a third party who kept them.

None of these doctrines apply cleanly. Still, given the accumulation of information, there is still some visceral notion that the Fourth Amendment should apply here. The only question is how?

How MayCarpenterResolve This Tension?

While the petitioner here did not request a full rejection of the third party disclosure doctrine, the Court may cull back on the third party disclosure doctrine. Chief Justice Robertss majority opinion inRileysuggested that persons still have some reasonable expectation of privacy in sensitive information collected over mobile phones and stored by service providers. Similarly, Justice Sotomayors concurrence inJoneswarned against a strict application of the third party doctrine: I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose, is for that reason alone, disentitled to Fourth Amendment protection. In both cases, the Court signaled that stringent adherence toKatzmay stop making sense as technology evolves. But those cases both side-stepped the issue by instead turning to the doctrine of physical trespass, and that doctrine cannot sensibly apply to the facts ofCarpenter.

It is also possible that the Court might create a new strain of jurisprudence based on the quantity of records requested. Such an approach would likely introduce certain issues of line-drawing, for instance, if a warrant is required for long-term tracking, while the SCA is sufficient for short-term. But, as Justice Samuel Anthony Alitos concurrence inJonesand Judge Stranchs concurrence in theCarpentercase point out, that might be appropriate. After all, in the modern era, it is not the disclosure of individual, isolated data points that seem problematic, but rather the accumulation of that data over time.

Which test will the Court apply? Service providers, and their customers, will have to wait until this October term to find out.

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Oh, The Places You'll Go: Mobile Geolocation Data and the 4th Amendment - Lexology (registration)

When an investigation involves potential fraud, almost any document or record could be related to it. Prosecutors often need to show that transactions that appear to be legal were misleading or deceptive, which might not be apparent on the face of the documents. So the description in the warrant of what the government can seize in a white-collar case is usually quite broad, covering general categories of records and computer files created over a substantial period of time, but cannot be so vague that almost anything could be seized.

The government obtained warrants to search Mr. Weys company, New York Global Group, and his New York City apartment for evidence that he used other companies and investors as part of a plan to manipulate the shares of companies used for mergers with China-based businesses. The warrants listed 12 categories of documents that related to transactions with 220 individuals and companies, including the seizure of computers and other electronic devices that might contain records related to them.

The key to any warrant that covers so much material is to properly identify the specific crimes that were committed so that there is some limitation on what types of records can be seized. It was on this point that Judge Nathan found the warrant in Mr. Weys case had failed.

The primary flaw was that while the affidavit submitted by an F.B.I. agent to a magistrate judge gave a reasonable description of the crimes under investigation, that document was not incorporated in the warrant, or even attached to it, to establish the parameters for the search.

Because there were no apparent limits to what could be seized, the agents executing the warrants seemed to take just about everything they could get their hands on. In particular, Judge Nathan was troubled that agents took personal items with no apparent connection to the investigation, like X-rays of family members, childrens sports schedules, divorce papers, passports and family photographs.

In finding that the search violated the Fourth Amendment, the judge pointed out that failure to reference the suspected crimes would alone be enough to render the warrants insufficiently particularized.

The importance of including the crimes under investigation was highlighted in another recent case, involving the appeal of Ross W. Ulbricht, who once operated under the moniker Dread Pirate Roberts. He was sentenced to life in prison for helping set up and operate Silk Road, an anonymous online marketplace used to sell drugs and broker other illegal services. Crucial evidence came from his laptop, which was searched shortly after his arrest in a public library in San Francisco in 2013.

The warrant allowed agents to open every file to view the first few pages of a document, and search terms could be used to scan the laptops entire memory. In upholding the search, the United States Court of Appeals for the Second Circuit in Manhattan pointed out that files and documents can easily be given misleading or coded names, and words that might be expected to occur in pertinent documents can be encrypted; even very simple codes can defeat a preplanned word search.

While the description of what could be searched on Mr. Ulbrichts laptop was broad, it was permissible under the particularity requirement of the Fourth Amendment because the affidavit outlining the crimes under investigation was incorporated into the warrant, providing the necessary limitations on what could be viewed. Although that meant a very intrusive search that could include many personal documents, the appeals court found that such an invasion of a criminal defendants privacy is inevitable, however, in almost any warranted search.

Why did the government fail to meet this seemingly simple requirement of incorporating the description of the crimes under investigation in the warrant to search Mr. Weys office and apartment? There is no good explanation for that mistake, which led Judge Nathan to conclude that the warrants are in function if not in form general warrants, the death knell for any search.

One way the government could have seized virtually everything from Mr. Weys business and home would have been to offer evidence in the warrant application that his operation was completely fraudulent. Courts recognize that if a company is thoroughly permeated by fraud, such as a boiler-room operation or a bogus prescription drug dispensary, then any records connected to it would constitute evidence.

Although prosecutors made this argument to defend the seizure from Mr. Wey, they could not overcome two hurdles. First, this type of warrant is usually limited to a business rather than a home, at least unless there is substantial evidence that the home was really just an extension of the illegal operation. There was nothing in the warrant application involving Mr. Weys apartment that would indicate its primary use for that purpose, even though his wife assisted his advisory business from there.

Second, Judge Nathan found that the government did not set forth any evidence, explicit or implicit, that the scheme either constituted just the tip of iceberg with respect to fraudulent activity at Mr. Weys operation, or that the claimed fraudulent activity infused the entire business.

Perhaps the ultimate fallback in any case involving a flawed search warrant is the claim that the agents acted in good faith. The exclusionary rule is designed to deter governmental misconduct, and the Supreme Court noted in United States v. Peltier that where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.

That exception does not apply when a warrant is so clearly flawed that no reasonable agent would rely on it. Judge Nathan found that the warrants did not have any meaningful linkage to the suspected criminal conduct and limited only, at the outer boundaries, to some relationship to the owner/occupant of the premises being searched. Therefore, a claim of good faith to salvage the fruits of an otherwise unlawful search could not be supported, so the exclusionary rule required suppression of all the evidence seized.

I expect that the Justice Department will challenge the decision because the suppressed evidence is at the heart of the case against Mr. Wey. Although a defendant cannot appeal a denial of a suppression motion until after a conviction, the Criminal Appeals Act authorizes prosecutors to seek review of a decision granting such a motion so long as the United States attorney certifies that the appeal is not for the purpose of delay and the material would be substantial proof of a fact material in the proceeding.

Judge Nathans decision sends a clear message to agents and prosecutors in white-collar-crime investigations to tread carefully when using a search warrant to gather evidence. Although a treasure trove of materials can be obtained this way, failing to pay attention to the details of properly writing and executing a warrant can have devastating consequences for a case.

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Mishandle a Fraud Search, and All That Fine Evidence Could Be for ... - New York Times