U.S. judge throws out cell phone 'stingray' evidence
mobile.reuters.com
mobile.reuters.com
For example, say you're talking to your friend who sells weed and drive over to pick it up. The cops know you're buying drugs, so they pull you over for rolling through a stop sign, search your car, and "stumble" upon the weed. There is no way to prove they used a Stringray to get this information in the first place. Extrapolate this to other activities.
So whys is parallel construction a bad thing? Here's a different example. The FBI uses machine learning to develop models for predicting whether an individual is involved in terrorist activities. You are an innocent civilian who just so happens to a) be mulsim b) be an immigrant c) have recently visited a suspected country and d) work in agriculture and had to buy a lot of fertilizer recently. The FBI's system has labeled you a thread and that info was shared with the local authorities.
At midnight on a Tuesday, your home is raided based on this info. The local police use the fertilizer purchase as the reason. The rest came from the FBI. It's a no-knock raid. A family member is injured or killed in the process. You end up in jail for several days during the interrogation. Turns out you are a closet homosexual. Various other things surface. You go to trail. You're innocent. Much of the evidence is fabricated or spurious, so it's thrown out. You get found not guilty.
Your life is ruined. You are a disgrace to your religion. Your wife has divorced you. Your child has a permanent disability. You've lost your job. All because due process wasn't followed.
This is a country where a significant minority have elected a presidential candidate who activity argues against due process, using the argument that because terrorists don't follow due process neither should we. And that is an increasingly popular sentiment, that somehow following the law and ethics is liberal bullcrap, and that selective application of due process as a kind of loyalty test and reward is patriotic and heroic.
Because the police's job is not to "catch criminals", it is to "catch criminals within the boundaries of the law/constitution".
Anecdotally I'm sure there's plenty of examples out there, but in my personal experience, interactions with police are tense, adversarial, and scary, and that's if you haven't done anything illegal. Police should be jovial and friendly with the public they are supposed to protect. I see no evidence of that where I live.
http://www.nytimes.com/2005/06/28/politics/justices-rule-pol...
It was shaky legal ground to begin with, with clear precedent against the argument.
While a restraining order may not compel police to act in a certain fashion on demand, that has nothing to do with the general reason police exist to begin with, and the way they interact with the public. In a true government "of the people" the police exist to protect those people.
Later on, someone tries go push against that leaning on the theory that they're responsible for our safety. Supreme Court gets extra clear that they're not. That's while they continue to let laws from bribes stand. Little room for debate now. Also, anyone pushed into confessions using cops and prosecutor's legal right to lie about the evidence already knows system isnt about protecting people. That shit wouldnt exist if it was.
So no, they're neither intended to nor required to "serve and protect." They're instead enforcers of arbitrary laws that can protect or harm individual citizens. From there, individual departments or prosecutors might have policies (as some do) to treat community with respect while focusing activities on reducing actual harms. However, that's entirely voluntary.
Because the first half of parallel construction, the illegal thing, is ... well, illegal.
Either that or they're really pro-ruined lives?
Agreed. In that case they're misleading the court and the defense. Which is probably, you know, illegal. :)
Generalizing a bit, the people most likely to make that particular argument are in my experience also the people most likely to respond to "three felonies a day" type arguments. I don't know why, but the strongest law-and-order folks tend to also be the strongest anti-"big government" folks.
So framing parallel construction as a method to enable selective prosecution of anyone (see: "three felonies a day", given unlimited warrantless surveillance, you can Richelieu anybody you like) at any time -- with all the threat that implies of being used to expand government power without limit and intimidate, silence or outright imprison detractors -- is probably a more successful approach.
However, your example doesn't really require a Stingray. It shows that pre-crime modeling and no-knock warrants have negative outcomes (to which I agree).
Because try to hide the fact that they collected the incriminating information in an illegal manner.
Because due process matters. There, that answer takes care of both the 'illegal' and 'legal' activities.
> Your life is ruined. You are a disgrace to your religion. Your wife has divorced you. Your child has a permanent disability. You've lost your job. All because due process wasn't followed.
"He smelled of marijuana."
"In my expert opinion he appeared intoxicated."
"I saw residue that I believed to be an illegal substance."
"Suspect was in a neighborhood known for illegal activity."
"A drug dog signaled on the vehicle."
"While performing a safety check on one of the occupants I found a weapon, leading me to believe there may be more weapons in the vehicle."
Please, please, please, can we at least all get on the same page when it comes to what constraints there actually are on police in the real world. We can't possibly have a serious conversation about policing so long as there's naive comments like this in the discussion, that make sense only in a fantasy world that we have ample evidence does not exist, at least not in the US.
Furthermore, many people are prejudiced or bigoted. They see people different from themselves (which in today's world generally means people with dark skin or people who wear non-Western clothing) doing bad things, and they conclude that most or all people who are different from themselves do bad things. On that worldview, due process is an impediment to seeing justice done.
That mindset, together with democracy, leads to abuse.
0: http://newjimcrow.com/ (sourced from the book, chapter ... I think 3?)
In Canada, some recent trials have dramatically increased the threshold for what constitutes reasonable grounds for a search [0], but from what I understand, the rules are different in the US (e.g. that a drug dog can sniff the exterior of a vehicle, and in many circumstances drugs have been trained to alert on command from the handler).
[0] http://blueline.ca/articles/reasonable_suspicion_requires_ob...
If the balloon does not contain marijuana odor molecules, all evidence collected in the subsequent search is inadmissible. One cannot cross-examine a dog, and human cops are no more trustworthy than any other witness that has a personal stake in the outcome of the case. What people can see and hear can be recorded by cameras and microphones, and examined after the fact by both sides in the adversarial process. Allowing smell, touch, and taste "evidence" for determination of probable cause seems to be an end-run around due process.
"I smell weed" or "the dog alerted [because I signaled it to alert]" should not be a substitute for judicial oversight of police activity.
About a year later, I saw [2] from the Chicago Tribune from my hometown which pretty much completely confirmed what I was told. I apologized to him after reading that. The conversation seriously, seriously raised doubt towards the "don't talk to the police" advice, since it minimizes a very, very turbulent legal landscape.
[1] http://www.chicagotribune.com/news/watchdog/ct-waukegan-poli... [2] https://www.youtube.com/watch?v=6wXkI4t7nuc
But that's good. Don't let perfect be the enemy of better. Before this ruling, they didn't even have to go that far. While we assume that LEOs are good at parallel construction, standard human laziness applies and something will trip them up a lot of the time.
If a three-letter-agency is out to get YOU, specifically, you are hosed no matter what. However, that is a different problem from an LEO being able to vacuum up a ton of stuff and sift through it cheaply simply because they need a couple more collars to make their drug arrest quota.
If the NSA is out to get you, they will simply fabricate the evidence, no parallel construction needed.
That's not what a Stingray does.
The same folk love to critique and minimize those with privacy concerns for wearing "tin foil hats". I really, really don't understand it considering all that's happened...
I am a huge advocate for privacy and am strongly against unnecessary surveillance by governments and companies. On the other hand, if the evidence is compelling it seems a waste to discard it.
It's a hard question - do you think about the bigger picture: protect human rights by setting a precedence Or do you think think about the short term: convict a dangerous criminal.
In a more hypothetical scenario, if a dangerous serial killer was brought into court and there was only one compelling piece of evidence, but it was obtained in an extremely unlawful manner - what would a judge be expected to do?
Your hypothetical is clear: the defendant's counsel would ask the judge to throw out the case, and the judge would comply. To make it a bit less hypothetical: what if the compelling piece of evidence was obtained through torturing a witness?
(edit: also, a "dangerous serial killer" is not so until a judge has convicted him/her. You are begging the question by presuming guilt)
The standard reply is that evidence obtained from torture can't be compelling because it is by definition unreliable. I've never been happy with that, since some claims can easily be independently verified. (For example, if I wanted credentials for a bank account belonging to Bill Gates, and I tortured him for those credentials, I wouldn't be too worried over the fact that someone under torture will be willing to say anything to stop it, and thus I can never really know if he was telling the truth about his credentials -- I can just try to take money, and if it doesn't work I'll keep torturing him.)
Once we stipulate that the compelling evidence obtained from torture is known to be true, I think you'll find that a lot of people still consider this a tough question.
> edit: also, a "dangerous serial killer" is not so until a judge has convicted him/her. You are begging the question by presuming guilt
No, a dangerous serial killer is one regardless of conviction. It's fair game to have whatever facts you want in a thought experiment.
You're conflating the reason evidence from torture is inadmissible with one of the arguments against torture. Evidence from torture can't be admitted because we won't condone torture, ever (or, that's the theory, the real world is more, erhm, nuanced). The fact that intelligence from torture is unreliable is just one of a suite of arguments against torturing people in the first place, not a universal fact which is true for any information obtained through torture.
> since some claims can easily be independently verified
That's basically the Jack Bauer school of torture: You have a bad guy, and you know for a fact that he knows where the bomb is, and if/when he tells you, you can confirm immediately. If that situation occurred in the real world, I would assume that most people would bite their tongues and accept torture. But there is no evidence that it does. It's "What was your role in planning the attack? Who is the person in this picture? Who knows where Osama is hiding?" [source: Zero Dark Thirty] -- Sure, eventually, you can sort-of confirm these things, but torture really isn't effective if you have months-long feedback cycles.
> You're conflating the reason evidence from torture is inadmissible with one of the arguments against torture.
No, I'm complaining that in much of what I read on this topic, the argument I stated is presented in the terms I stated it in: no evidence given under torture can ever be trusted, because people under torture will say whatever you tell them to say. I find that aggravating, because it is clearly wrong.
It's misleading to say it's one of a suite of arguments presented against torturing people in the first place; it is one of two, the other being that we shouldn't torture people because it is invariably morally wrong.
I don't think it's a coincidence that arguments that we should never torture people no matter what rely so heavily on different premises of invariability. But while the moral-incorrectness invariability claim can be defended, the untrustworthiness invariability claim can't be.
But how do you know whether the person presented in the dock is a dangerous serial killer?
> It's fair game to have whatever facts you want in a thought experiment.
The whole point of a trial is to establish facts. In reality, we cannot ever guarantee things like this; we can only ever say how convincing the evidence is for a particular history of events.
For the thought experiment you could go with clear video evidence that had been tainted by a bad search.
There were widespread accusations of attempts to 'frame' OJ and of police racism. It was both right and necessary to discard the questionable evidence, otherwise a large part of the public would have believed that he was wrongly convicted. Evidence is not just for the courtroom, it's to rule out allegations of improper conviction and unfair treatment by the general public.
I agree that OJ probably did it based on what's known, I'm just nitpicking that one bit.
I'm saying that a more specific thought experiment, one where there is someone in custody, with clear (but tainted) video evidence of them committing multiple murders is in line with the more general thought experiment proposed upthread. So the various lawyers, the judges, the cops, they all have knowledge of the clear video evidence and the question is whether it can be used at trial or not.
So you could have a whole bunch of people really comfortable calling the suspect a murderer (because they've seen the evidence) and no path to a conviction.
This gives policemen some really bad incentives to follow through on. Currently, the penalty for obtaining evidence illegally(or suppressing exculpatory evidence) is a slap on the wrist, so LEOs would have an incentive to collect as much evidence as possible, ignoring due process violations, because there's always a chance that evidence is ruled "clear evidence" at trial.
You would have to institute severe penalties for police officers, and then you are likely to end up with a law that has little effect in practice, except for corruption - LEOs will shy away from using it, except in cases where they know they can get away with it(bought prosecutor/judge, friendly jury, etc), or, admittedly, in cases where they really believe they're catching The Bad Guy(tm). The problem with this kind of law is that it has little effect for the majority of people(except for the headline that we caught one more Bad Guy(tm) per year using it), but it usually ends up as a tool to oppress minorities or those with deviant political and social views, as those are the ones a jury is most likely to be biased against.
Consider also that most criminal cases actually end with a plea bargain pre-trial. There is no jury to argue in front of in most of them, so all you'd have in front of you is evidence that the prosecutor is claiming to be "clear evidence"(still unproven), and your overworked PD telling you that the likelihood of the prosecutor not getting a conviction is in the single digits. You would have to allow judges to rule on whether something is "possibly clear evidence", but judges naturally favor the prosecution(most judges are ex-prosecutors, and they are usually on friendly terms with prosecution/police officers).
Due process is already trampled daily, without this "clear evidence" law that you propose. Police officers fabricate justifications for stops and searches out of thin air, prosecutors violate Brady by hiding exculpatory evidence(so much so that Chief Judge Kozinski highlighted it in a dissent - http://www.abajournal.com/news/article/epidemic_of_brady_vio...), trials take a stupidly long amount of time, PDs are exhausted, overworked and underpaid, etc. Your theoretical addition to it won't really make a significant impact - there's a million other ways for prosecutors to get a conviction, this will just be one extra tool in the toolbox. It won't be making the situation much worse, but it'd still be worse.
You do realize that the whole point of procedure is to make sure that evidence isn't tainted, right?
True enough, but the point he raises is at what point do you justify illegal actions.
In your example, torture may or not bear fruit, depending on if your suppositions are correct.
The point is generally that in order for extreme measures to be taken, extreme justification must be given. And in general the justifications needed for torture would be so high that you would probably be able to convict without it, i.e. You can only torture someone if you knew beyond any doubt they dunnit.
The point of restricting the collection of evidence is to ensure that law enforcement go through a process with justification at each stage. This is to protect innocent/law abiding from law enforcement itself, as a lot of the acts they go through in the course of their business would be illegal if they were not law enforcement.
I asked about torturing a witness though, not the suspect.
It's so high that IMHO the only possible place for torture in a civilized legal system is as punishment for torture by someone acting in a position of authority; if you're at the point where the moral calculus favors torture, you give absolutely zero fucks about what happens to yourself afterwards.
.. then it's quite possible that the person is innocent and the evidence is wrong. After all, if someone is willing to break the law to get evidence, why wouldn't they just fabricate it?
See http://www.innocenceproject.org/ which has managed to overturn a large number of convictions by finding contradictory evidence, especially from DNA.
Once they've got all the evidence they can collate it all and decide which people were probably really nasty, try to build a case - or in really extreme cases, just claim that the already-gathered evidence shows something so heinous that they needn't bother with that.
But that initial ransacking of our personal space without warrant (i.e., without probable cause) is the problem, not just the use of that evidence in a trial. People should be secure in their homes without needing to worry about law enforcement deciding it's time for periodic fishing expedition.
In your situation, the judge would almost certainly be expected to throw out the evidence. I'd almost always prefer one guilty person go free than set a precedent that allows dodgy evidence and corrupt practices to convict innocent people. Plus - if the police /really/ know he's guilty, he'll be watched, and probably caught again.
Especially for drug crimes. The customers still want the product and the sellers still need to pay their bills so if they don't clean themselves up (which is a win-win since it didn't require prison or some else that's expensive or disruptive) they'll come back to the attention of authorities.
As it stands today, we accept a sort of compromise. Law enforcement is typically not punished for collecting evidence illegally, but the evidence is discarded, giving them a strong incentive to follow the rules.
Do you accept the evidence but throw the responsible people in jail? That's probably going to have a major chilling effect on law enforcement in general, since they encounter a lot of ambiguous situations. But if you don't punish them, then collecting evidence illegally might as well be legal.
Think about it this way: it's not a waste to discard illegally collected evidence, it's a waste to collect evidence illegally. That ends up saying the same basic thing, except it directs the blame at the party that's actually responsible for doing it wrong.
> the evidence is discarded, giving them a strong incentive to follow the rules.
I don't think that is a strong incentive at all. Such absurd exception from law enforcement is so advantageous to the criminal elements in the police and the government that they will use it to their advantage. A situation where one part of government is allowed to violate the law by another part of government with no law enforcement action means the checks and balances aren't working.
It is a waste, and one of the primary drivers for the saying "hard facts make bad law". (In this case, the bad law would be finding a reason to allow the evidence because it is necessary to punish someone who really ought to be punished.)
Excluding evidence is the method we have of enforcing the ban on illegal collection. There is an alternative system which would allow use of illegally collected evidence -- we could subject police who break the law to criminal penalties. But we make it almost impossible to prosecute police for anything they do, so instead we have to ignore what they find when they overreach.
(Note that if evidence is collected illegally by a private citizen, it won't be excluded.)
There should rightfully be public outcry when this does happen as well, because essentially the police bungled the investigation and let a (likely) guilty person get away with the crime. OJ Simpson is a well-known example of this (brought up elsewhere in thread).
In general, I'm willing to sacrifice a few people (including the people I love the most) to preserve just and fair institutions, but not the other way around.
The government can use evidence collected illegally if provided by a private party not at the behest of the government. AKA: Cops can't pay a PI to break into someone's house. Prosecutors can use evidence from a criminal who broke into someone's house and then sent it to the police. Prosecutors can use evidence collected by cops while in active pursuit of a third party.
There is also evidence that neither side can use. But, the https://en.wikipedia.org/wiki/Exclusionary_rule only applies to prosecutors.
There is a whole section on criminal procedure. The gist is, the police are expected to cross the line, infringing on rights on a fairly regular basis. It's up to the courts to throw out the excessive or egregious uses of power. Which, when you think about it, makes a lot of sense. They shouldn't step way over the line, ever. but you want police to push hard to find the "bad guys". sometimes they go excessively far and the bad guys go free. The thinking is, sometimes pushing to hard, and letting people go (innocent or not!) is preferable to timid officers that don't approach the line at all. We all want the "bad guys" to get caught.
It's whole different sections of government that decide where the line is. The police should push using every tool they have until the courts or the legislature say it's to much. You won't find a police officer, DA, defense attorney or judge that says the system is perfect. I think it's a pretty good heuristic though, the innocent pay a (hopefully) small price from time to time, in exchange more "bad guys" get caught.
The architects of our legal framework thought otherwise:
>it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.
-John Adams' Argument for the Defense: 3–4 December 1770
http://founders.archives.gov/documents/Adams/05-03-02-0001-0...
That works until the police start hiding what they're doing from the courts and the legislature. Look at the hoops they've jumped through to keep Stingray information away from judicial scrutiny, even dropping entire cases rather than letting Stringray details come to light.
That's the whole intention of parallel construction, too. You step way over the line to collect evidence illegally, but then you find a way to pretend you only stepped over a little bit. Checks and balances only work when each side knows what the other is up to.
AIUI the German court system superficially also considers illegitimately obtained evidence inadmissible but has provisions that allow case-by-case decisions to be made in consideration of the severity of the crime. I think that is far more reasonable.
Imagine the classic crime drama scenario: a suspected serial killer is being interrogated by the police, the officer beats him up (breaking the law) to make him talk after exhausting all legal options. The killer reveals truthful information that helps locating the final victim and severely incriminates him.
If I understand the two systems correctly, under the US system the evidence would be inadmissible, even if it proved perpetrator's knowledge (which may be a major factor in proving his guilt). Under the German system the evidence might be considered because although it was gained illegally it is crucial to the case and the crime was so severe. In either case they officer should face severe consequences (though IMO likely not severe enough).
There was actually a situation similar to this in Germany a few years back: a police officer tortured a suspect to make him talk. I think he was thought to have abducted a child that was at the risk of dying. I'm not sure how it worked out but it sparked a similar discussion in German media about the ethics of the situation (with the general consensus being that the behaviour was blatantly illegal even if it may have saved a life).
For example it might be illegal to search a diplomat in the same way as would be legal for an ordinary civilian. But there's no obvious reason why evidence gathered from a non-permissible search would be less reliable than from a permissible one by default.
Likewise although it is true that torture is not a good means of gathering intelligence or extracting confessions (because there's a clear incentive for people to make up things just to stop the suffering) if the information can be verified it could still reasonably be considered evidence that the tortured person possessed perpetrator's knowledge.
"Evidence" is never absolute. Even if you have a video recording of a suspect shooting and killing a victim and then walking into police custody that's still not a 100% guarantee. Evidence is however cumulative (beyond a certain threshold anyway). You rarely base a conviction on a single piece of evidence alone.
The rule originates in a 1914 Supreme Court case, Weeks v. United States[1]. In that case, the police searched a man's home without a warrant and then introduced papers seized in the search as evidence to convict him of running an illegal lottery.
The court reasoned that this evidence must be excluded (and the conviction must be overturned) because to allow illegally obtained evidence to be used in a proceeding would "affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action."
In other words, if the 4th Amendment's protections against unreasonable searches and seizures are to mean anything, a Court cannot countenance the use of illegally obtained evidence.
I think this reasoning is persuasive even if it seems a bit formalistic. The state only has the power to convict you when it is itself acting lawfully. A conviction based on evidence it did not have the authority to obtain is meaningless.
[1]:https://supreme.justia.com/cases/federal/us/232/383/case.htm...
Considering how advance technology is there are already reasons to doubt any system which is not fully encrypted beyond the government's access of not having had evidence planted or manipulated.
Essentially: A serial killer told his lawyers where two of his victims were buried. Should the lawyers disclose this information even though their defendant was the only source?
It's interesting because it's not merely hypothetical, and their reporting is fairly good.
While it doesn't answer your question, the spirit of the answer can maybe inform the spirit of how one would answer your question.
In cases like this where it sounds like a number was found in a known drug dealer's phone, I can't imagine they would have had much trouble getting a judge to sign a warrant to track the phone?
You want to put that perp away so badly that you're willing to break the law to do so? It will be the only time in your career that you get to do it (because as soon as you do, your career is over), so choose the perp wisely...
[Edit: mikeash has a good point - the line can be grey. Police should only be jailed for deliberately, knowingly collecting illegal evidence, not for making a technical mistake that a defense lawyer with a vendetta can exploit to ruin them.]
There's a reason why all over the world, almost all legal systems, have terms and regulations restricting those kind of police overreach, EVEN if it's for "catching a serial killer" -- and it's not because lawmakers don't want to catch criminals.
It might seem absurd today (although it shouldn't, given the snowden papers), but power concentrated in government hands will be mistreated as soon as the person gets elected who is willing to use it. And if that happens, it's catastrophic.
I wonder how often it's used as a law enforcement tool with no intent to disclose its use.
Any idea what would happen to me, if I were to design, develop, produce and sell IMSI-catching devices?
(serious question)