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United States v. Rederick, 2023 WL 3014781 (8thCir. 2023)

An investigator was monitoring Larry Rederickscell phone locationas part of an investigation into methamphetamine sales. After learning Rederick was driving to Nebraska to visit an individual known by police to be involved with drug dealing, the investigator called troopers, told them about his investigation and asked them to stop Rederick. He asked the troopers to try to establish an independent basis for the stop, but if not, to stop Rederick to investigate drug trafficking.

A trooper stopped Rederick for towing a trailer that did not have a light illuminating the rear license plate. A sedan was on the trailer. The trooper spent 16 minutes writing a warning ticket for the traffic violation. Within the first 12 minutes, he asked a detector dog team to come to the scene. The dog team arrived 22 minutes into the stop. Five minutes later, the dog gave a positive indication of the presence of a narcotic at both doors of the pickup and at the back of the sedan. A subsequent search revealed meth in the sedans trunk.

The trial court denied Redericks motion to suppress the evidence; a jury convicted Rederick for possession of methamphetamine. The court of appeals held the trooper had two independent, lawful bases on which to stop Rederick. First, there wasprobable causeto stop him for the traffic violation. Second, applying the collective knowledge doctrine, the troopers had reasonable suspicion to stop Rederick to investigate possible drug trafficking.

Thecollective knowledge doctrineconsiders the separate pieces of information held by multiple officers involved in an investigation: The collective knowledge of law enforcement officers conducting an investigation is sufficient to provide reasonable suspicion, and the collective knowledge can be imputed to the individual officer who initiated the traffic stop when there is some communication between the officers. It was not necessary for the troopers involved in the stop to know the details of the drug trafficking investigation. All they needed was a directive to stop Rederick that came from someone who hadreasonable suspicionto believe Rederick was trafficking in illegal drugs.

Rederick argued the troopers illegally delayed the traffic stop to conduct a detector dog sniff, citing the rule ofRodriguez v. United States(575 U.S. 348 (2015)). However, theRodriguezdecision is all about delaying a traffic stop to investigate. In this case, the troopers had an independent basis to detain Rederick. The troopers had reasonable suspicionbeforestopping Rederick and the reasonable suspicion remained throughout the stop. Only 27 minutes passed from the stop until the dogs indication: This delay did not violate the Fourth Amendment because the troopers acted diligently to pursue the mission of the stop: to assist with the investigation of Redericks drug-related activity.

Rederick relied on the testimony of Mary E. Cablk to argue the detector dog was unreliable. However, when directly asked whether the detector dog was reliable, Cablk quickly conceded, I cant tell you that he is or he isnt. (SeeUnited States v. Spikes(2021 WL 5014500 (D. Colo. 2021)) andUnited States v. Rederick(2021 WL 5547702 (D. So. Dakota 2021)).) As the trial court highlighted, Dr. Cablk has never trained any drug detection K-9 teams herselfDr. Cablk essentially found the records to be unavailing, in part because shedid not know howto interpret them. A trainer for the detection dog team testified that the agency used single-blind testing in certification. The handler produced training records showing positive, accurate field performance and certification. The court found no error in the assessment of the reliability of the detector dog because there were proper training records and certification done with single-blind testing.

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Collective knowledge doctrine applies to a traffic stop - Police News

A hot potato: Fusus is a surveillance platform integrating public and private cameras into an accessible, cloud-based surveillance network. Law enforcement organizations tout the technology as an essential expansion of monitoring capabilities by creating a real-time crime lab. However, privacy advocates and civil rights watchdogs see it as a threat to the Fourth Amendment and a high-risk cybersecurity target full of personally identifiable information.

Fusus is designed to provide law enforcement organizations (LEO) and other public safety institutions access to accurate, relevant information via a cloud-based network of authorized video monitoring assets. The company claims the platform "enhances all public safety and investigations assets for law enforcement, first responders, and private security personnel." The system began rolling out in several small participating cities and organizations in 2019, later expanding to a footprint of more than 33,000 supported cameras in more than 60 cities and counties nationwide.

Click to enlarge.

Law enforcement and public safety professionals say the system gives them much-needed access to real-time incidents, allowing faster response times and decreased criminal activity without risking the safety of local contributors. For example, businesses and other organizations regularly receiving requests to review video footage for investigative purposes can choose to deploy specific hardware devices, known as FususCores, to their network. Once deployed, these devices make it possible to include the owner's cameras in the area's more extensive Fusus network.

The system then adds authorized camera feeds to FususOne, a map-based interface that combines all access points into a single feed. Access to this aggregated dashboard and its tools saves law enforcement and other first responders valuable time by directly accessing the cameras and information rather than going to the site and requesting permission to review the video.

The company says police and other officials do not have unfettered reign over the camera streams. The system relies on policy-based conditional access, which gives camera owners the final say regarding whether or not to grant or deny access to their camera streams. Fusus and its clients claim this makes the system a low-risk but high-return tool for expanding monitoring activities.

Opponents argue the platform creates a supersized network of cameras and personal data, increasing the potential for abuse and misuse. The Triad Abolition Project's Nia Sadler cites the potential for over-policing areas already receiving increased attention and potentially (and unfairly) targeting minority groups, protestors, or others based on demographics or affiliations.

Albert Fox Cahn, founder of the Surveillance Technology Oversight Project (S.T.O.P.) in New York, believes Fusus creates many privacy and civil rights concerns to consider before implementation.

"Fusus takes surveillance tools that are constitutional on their own, and aggregates them into the kind of persistence tracking that is blatantly unconstitutional (when used by government bodies)," Cahn told Reuters.

From a technical standpoint, the amount of data aggregated in Fusus and the number of users accessing it raises concerns. The potential for exploiting connections to thousands of disparate feeds could make the technology a prime target for hackers looking to sow chaos or obtain unauthorized access to available personal or business information. If there's one thing we've learned about cloud-based technologies nothing is ever truly safe.

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Privacy and civil rights groups warn against rapidly growing mass ... - TechSpot

The FBI is facing scrutiny regarding its use of a controversial provision of the Foreign Intelligence Surveillance Act (FISA) after they queried for communications of and about a Member of Congress without a warrant. The Bureau is defending its actions and arguing it should be able to conduct warrantless defensive searches that attempt to root out foreign influence or other nefarious actions targeting the person being queried. Thats an audacious demand because defensive surveillance is precisely the excuse the government has used to justify some of its most egregious political spying over the past 60 years.

Right now, Section 702 of FISA lets the government engage in warrantless surveillance of foreigners abroad, including all the communications they have with Americans. The FBI goes to that stockpile of private conversations and deliberately seeks out Americans emails and text messages, bypassing the Fourth Amendments warrant requirement entirely. After years of compliance violations and abuse, Congress may be poised to close this backdoor search loophole.

But now the FBI is pushing for a huge exception, arguing it should be allowed to keep the current warrantless system for defensive searches, such as the recently revealed case where they queried communications of and about U.S. Rep. Darin LaHood because they believed he was the target of foreign espionage and influence operations.

But history is filled with chilling examples of how easily the notion of conducting defensive surveillance to protect Americans from foreign influence can be a pretense for politically motivated surveillance abuse. For example, J. Edgar Hoover authorized the monitoring of Dr. Martin Luther King Jr. ostensibly to defend against alleged communist influence efforts aimed at King and other civil rights leaders. In reality, it was motivated by Hoovers racism and hatred of the civil rights movement.

Detecting and defending against purported foreign influence and subversion was a frequent excuse for monitoring political dissidentssuch as the antiwar movement, Black activists, students, and other left-leaning groupsthroughout the 1960s and 70s for the abusive COINTELPRO surveillance system. The FBI even described the notion of defensive surveillance as something that offers us a fertile field to develop valuable intelligence on leftist political groups despite a lack of evidence of actual foreign danger.

Justifying spying on vulnerable communities and dissidents as a defensive measure to protect against foreign actors has continued into the 21st century. After the September 11 attacks, the New York Police Department, with federal support, engaged in mass surveillance of Muslim communities. They justified monitoring mosques, community centers, student groups, and the daily lives of average Americansactions with serious harmsas necessary to guard against influence and infiltration by foreign actors like al Qaeda. Even more recently, the FBI and DHS have raised the idea of foreign influence as a basis for monitoring Black Lives Matter activists. In 2020, then President Donald Trump and Attorney General Bill pushed the notion that potential foreign subversion through Antifa justified broad surveillance and police action against protesters.

These examples also show the dangers of a split warrant standard for sensitive queries, as Privacy and Civil Liberties Board Member Beth Williams proposed at a Congressional hearing last week. Her proposal would keep warrantless queries as a general practice but add heightened protections for certain queries, such as those involving elected officials, members of the media, and religious figures. The types of surveillance abuse weve seen from the 1960s to the past decade are replete with examples of the government targeting individuals who do not fall into any of these categories, and are simply normal people. Past compliance reports have clearly demonstrated how problematic US person queries can target such a broad range of individualsrelatives of FBI personnel, crime victims, political commentators, students, law enforcement sources, and business leadersthat no such sensitive queries rule could shield all those in need of protection.

The decades-long pattern shows that a blank check for warrantless defensive searches of Americans communications collected pursuant to Section 702 could be abused for political or other purposes. To be sure, there are certain to be many genuine situations where the FBI and other intelligence agencies want to investigate and root out foreign influence efforts or other nefarious actions by foreign actors targeting Americans. The government should be able to pursue those investigations through its broad arsenal of lawful investigative tools, including appropriately predicated and judicially authorized searches of communications.

But theres a reason the Fourth Amendment does not prohibit unreasonable offensive search and seizuresno matter what the governments motive is or claims to be, we need a strong and consistent shield to protect our citizens and our democracy. Before searching for an Americans private communications, get a warrant.

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There Is No Defensive Search Exception to the Fourth Amendment ... - Center for Democracy and Technology

Last week, FBI officials boasted that in 2022 their agents had spied on only 120,000 Americans without search warrants! Under the Constitution, that number should be ZERO.

This revelation is supposed to give members of Congress comfort that the folks we have hired to preserve, protect and defend the Constitution are in fact doing so. In reality, the FBI and their cousins at the National Security Agency continue to assault and violate a core freedom protected by the Constitution the right to be left alone.

The reason for the FBI revelation last week is the pending expiration of Section 702 of the Foreign Intelligence Surveillance Act and the bipartisan animosity toward its extension.

Section 702 is unconstitutional on its face as it directly contradicts the core language of the Fourth Amendment. On its face, it permits the feds to conduct warrantless surveillance on foreign persons who are either physically or digitally present in the United States and all with whom they communicate American or foreign who are located here.

Thus, for example, if you call or text or email an art dealer in Florence, Italy, from your home in New Jersey or your cousin in Geneva, Switzerland, calls or texts or emails you at your home in California, the FBI can monitor all those communications without a search warrant. And then the feds can monitor the future calls you make and texts and emails you send. And then they can monitor all the communications of the persons you reached and all the persons they reach. As this expands on and on to the sixth degree, the numbers grow exponentially to hundreds of millions.

The reason for the search warrant requirement is to prevent a repeat of what British agents did to the American colonists before the Revolutionary War. Then, secret British courts in London issued general warrants to British agents in America, which authorized the bearer to search wherever he wished and seize whatever he found.

When the British used their general warrants to search colonial homes ostensibly looking for tax stamps in compliance with the Stamp Act, they were really attempting to predict who among the colonists entertained revolutionary ideas that might lead to a revolt against the king.

The existence and the enforcement of the Stamp Act proved so unpopular that Parliament rescinded it after just one year. But the former bond between colonials and their king had been irreparably breached and a sea change in colonial thinking pervaded the land. The core of that sea change was not taxation without representation; it was "freedom."

To the colonial mindset, freedom had one universal meaning. It meant freedom from the government from king and Parliament.

The sea change in colonial thinking resulted in an ideological welcome mat for the Declaration of Independence. When Thomas Jefferson was holed up in a Philadelphia rooming house for five days in June 1776 writing and revising the Declaration, he thought he was crafting the ideological fountainhead of a minority of landowners who despised the king's autocracy. Yet, within a year, farmers and laborers joined the popular and bloody revolt that ended in 1783 with freedom from England.

What about freedom from the new government here?

When the Constitution was ratified six years later, it had no amendments and made no mention of personal liberty. Five of the ratifying states had insisted upon the promise of the addition of a Bill of Rights as a pre-condition to ratification.

And so, the first task of the new Congress was to comply with that promise and craft a Bill of Rights, lest these five states secede from the new union. What became the Fourth Amendment protected the quintessentially American right to be left alone.

It states that "the right of the people to be secure in their persons, houses, papers, and effects" shall be secure and may be violated by the government only pursuant to a search warrant issued by a neutral judge and based on probable cause of crime and the warrant must specifically describe the place to be searched or the persons or things to be seized.

There is no exception in the amendment for foreign people, bad people, dangerous people, violent people, people the government hates or fears. By the plain meaning of its English words, the amendment protects ALL people. There is no limitation in the amendment to government personnel engaged in law enforcement. The amendment restrains ALL government. The very purpose of the amendment is to present an obstacle to all government because the amendment protects the natural human right to personal privacy.

James Madison and his colleagues who drafted the amendment made a value judgment consistent with their Judeo-Christian-informed morality namely, that natural rights trump governmental needs.

The violation of privacy is a form of government aggression. Madison knew the tendencies of government toward aggression. The Fourth Amendment was to be the bulwark against it. The people could protect themselves against private aggressors, but they'd need a clause in the supreme law of the land and independent judges to restrain government aggressors.

After 50 years of studying, teaching, writing about, judging, interpreting and just plain explaining the Constitution, I am convinced that those in government don't believe its words or accept its values. They don't feel bound by it.

They have crafted mechanisms of all sorts like Section 702 to evade and avoid it. They will claim that it impairs their duties. Yes, it does intentionally so, and in the name of personal liberty. Today, liberty is impaired for foreign persons, an immutable characteristic. Tomorrow it could be impaired for any other immutable trait. Of what value is a Constitution with congressionally crafted, politically based exceptions? None.

Channeling Justice George Sutherland, if the provisions of the Constitution are not upheld when they pinch as well as when they comfort, they may as well be abandoned.

Andrew P. Napolitano's column is distributed by Creators.

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Napolitano: Does government believe in the Constitution ... - The Winchester Star

OPINION:

Last week, FBI officials boasted that in 2022, their agents had spied on only 120,000 Americans without search warrants. Under the Constitution, that number should be zero.

This revelation is supposed to give members of Congress comfort that the people we have hired to preserve, protect and defend the Constitution are in fact doing so. In reality, the FBI and their cousins at the National Security Agency continue to assault and violate a core freedom protected by the Constitution the right to be left alone.

The reason for this revelation is the pending expiration of Section 702 of the Foreign Intelligence Surveillance Act and the bipartisan opposition to its extension.

Section 702 is unconstitutional on its face as it directly contradicts the core language of the Fourth Amendment. On its face, it permits the feds to conduct warrantless surveillance on foreigners who are either physically or digitally present in the United States and all with whom they communicate American or foreign who are here.

Thus, for example, if you call or text or email an art dealer in Florence, Italy, from your home in New Jersey, or your cousin in Switzerland calls or texts or emails you at your home in California, the FBI can monitor all those communications without a search warrant.

And then the feds can monitor the future calls you make and texts and emails you send. And then they can monitor all the communications of the people you reached and all the people they reach. As this expands on and on to the sixth degree, the numbers grow exponentially to hundreds of millions.

The reason for the search warrant requirement is to prevent a repeat of what British agents did to the American colonists before the Revolutionary War. Then, secret British courts in London issued general warrants to British agents in America, which authorized the bearer to search wherever he wished and seize whatever he found.

When the British used their general warrants to search Colonial homes ostensibly looking for tax stamps in compliance with the Stamp Act, they were really attempting to predict who among the colonists entertained revolutionary ideas that might lead to a revolt against the king.

The existence and the enforcement of the Stamp Act proved so unpopular that Parliament rescinded it after just one year. But the former bond between the colonists and their king had been irreparably breached and a sea change in Colonial thinking pervaded the land. The core of that sea change was not taxation without representation; it was freedom.

To the Colonial mindset, freedom had one universal meaning. It meant freedom from the government from king and Parliament.

The sea change in Colonial thinking resulted in an ideological welcome mat for the Declaration of Independence. When Thomas Jefferson was holed up in a Philadelphia rooming house for five days in June 1776 writing and revising the Declaration, he thought he was crafting the ideological fountainhead of a minority of landowners who despised the kings autocracy.

Yet within a year, farmers and laborers joined the popular and bloody revolt that ended in 1783 with freedom from England.

What about freedom from the new government here?

When the Constitution was ratified six years later, it had no amendments and made no mention of personal liberty. Five of the ratifying states had insisted upon the promise of the addition of a Bill of Rights as a precondition to ratification.

And so the first task of the new Congress was to comply with that promise and craft a Bill of Rights, lest these five states secede from the new union. What became the Fourth Amendment protected the quintessentially American right to be left alone.

It states that the right of the people to be secure in their persons, houses, papers, and effects shall be secure and may be violated by the government pursuant only to a search warrant issued by a neutral judge and based on probable cause of crime and the warrant must specifically describe the place to be searched or the people or things to be seized.

There is no exception in the amendment for foreign people, bad people, dangerous people, violent people, or people the government hates or fears. By the plain meaning of its English words, the amendment protects all people. There is no limitation in the amendment to government personnel engaged in law enforcement. The amendment restrains all government. The very purpose of the amendment is to present an obstacle to all government because the amendment protects the natural human right to privacy.

James Madison and his colleagues who drafted the amendment made a value judgment consistent with their Judeo-Christian morality namely, that natural rights trump governmental needs.

The violation of privacy is a form of government aggression. Madison knew the tendencies of government toward aggression. The Fourth Amendment was to be the bulwark against it. The people could protect themselves against private aggressors, but theyd need a clause in the supreme law of the land and independent judges to restrain government aggressors.

After 50 years of studying, teaching, judging, interpreting, writing about, and just plain explaining the Constitution, I am convinced that those in government dont believe its words or accept its values. They dont feel bound by the law of the land.

They have crafted mechanisms of all sorts like Section 702 to evade and avoid it. They will claim that it impairs their duties. Yes, it does intentionally so, and in the name of personal liberty. Today, liberty is impaired for foreign people, an immutable characteristic. Tomorrow it could be impaired for any other immutable trait. Of what value is a Constitution with congressionally crafted, politically based exceptions? None.

Channeling Justice George Sutherland, if the provisions of the Constitution are not upheld when they pinch as well as when they comfort, they may as well be abandoned.

Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.

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Constitution might as well be abandoned if amendments are not ... - Washington Times