Hacker News Reader

Comment by Terr_ | Hacker News Reader

Even if practices so far have been unconstitutionally broad and sloppy, are there any scenarios where such a warrant for that kind of data could be valid?

For example, a small cottage in the woods is burned down with gasoline on a night the owner is absent. The police want to find the arsonist by asking for phones that connected to that tower that night, and there happen to be only 3 results, two of which are known neighbors. Still too broad?

In other words, should some of this hinge on the varying size/specificity of the result-set, rather than the query-parameters in isolation?

View on HN

A suspect runs into a garage with several unlocked cars, including yours. The suspect had drugs when he went into the garage and didn't when he came out. The drugs may be in any of the cars or none of them.

You would not get a search warrant in that case unless your car was the only one in the garage. The police don't know if there is three or even one phone connected to the tower in that time, and they should not get a warrant.

How far can probable cause stretch?

Can I say, "well it's probably in one of those 3 cars" so then I can get a warrant?

After the Boston Marathon bombing, they searched a 20-block area for the suspect (and found him). Was that legal?

Wasn't it a voluntary search?

There's actually a Slate article covering this topic[0]. First, consent was given for certain homes. However, the article also notes that under "exigent circumstances" warrantless searches are permitted:

> In exigent circumstances, or emergency situations, police can conduct warrantless searches to protect public safety. This exception to the Fourth Amendment’s probable cause requirement normally addresses situations of “hot pursuit,” in which an escaping suspect is tracked to a private home. But it might also apply to the events unfolding in Boston if further harm or injury might be supposed to occur in the time it takes to secure a warrant. A bomber believed to be armed and planning more violence would almost certainly meet such prerequisites.

[0]: https://slate.com/news-and-politics/2013/04/boston-bomber-ma...

A resident found him in his boat in his back yard and called police.

> After the Boston Marathon bombing, they searched a 20-block area for the suspect (and found him). Was that legal?

Uh, why wouldn't a cop be allowed to walk/drive/fly-over public roadways in a 20-block area and look from public land in any direction?

Also do note, they knew specifically who they were looking for and had location data from their cellphones [1]. Not a judge, but if I was and somebody wanted a search warrant to find a person at a location and their evidence was the dude's cellphone is there, I'd grant it.

[1]: https://en.wikipedia.org/wiki/Dzhokhar_Tsarnaev#Manhunt_and_...

> The police don't know if there is three or even one phone connected to the tower in that time.

Huh? The entire point the parent was making is that they do "know" which cell phones were connected during specific times.

> Huh? The entire point the parent was making is that they do "know" which cell phones were connected during specific times.

As I understand it, the point is that law enforcement does not know this, and thus they send a request to the service provider for all devices within this geofence within this timebox.

The service provider must then search the entirety of the relevant datastores for devices matching the geo- and time requirements.

In the specific cases in question, the officers had video evidence of one of the perpetrators using a cell phone, and used that to justify the warrant. The court ruled that even this was insufficient, but is part of the reason why they are not applying the exclusionary rule to these cases even though the evidence itself is inadmissible.

Wait, really?

If police say they have extremely good evidence to believe the drugs are in the garage, in the scenario you described, a court wouldn't issue a search warrant for the garage including any cars it contains?

I'm genuinely surprised. Is there a name for whatever legal principle prevents the court from doing so? I'd like to learn more about this.

Because from Wikipedia [1], I'd have assumed that this would be a cut-and-dried instance of probable cause [2]. Is it about the vehicle owners being different from the garage owner?

Edit: some quick googling seems to indicate that search warrants in the US can be issued to include all or specifically identified vehicles on a property, but no indication of what conditions need to be met.

[1] https://en.wikipedia.org/wiki/Search_warrant#United_States

[2] https://en.wikipedia.org/wiki/Probable_cause

It really depends on what is, at the time, considered "reasonable" search by the people with the monopoly on the violence.

generally, most laws are overlooked when the situation involves drugs. Cops can search you, your car, whatever on suspicion that drugs may be present.

> You would not get a search warrant [for several unlocked cars]

Hold up, you state that rather firmly but what's the reasoning that supports it?

What's the rationale that separates 1 car from "several" for probable cause?

____

I feel there's a risk of conflating:

1. Good reason to believe X is somehow involved a crime.

2. Probable cause to search for/inside something owned by X.

While there is a strong correlation between the answers to those two questions, they are definitely not the same.

The guy is making no sense. Or picked a bad fact pattern to make a point.

In the case he's describing you'd just get a search warrant for the garage and everything in it. Or, if you could establish probable cause (which seems likely here) you'd just go look for the drugs.

I wanted something slightly more realistic. It works just as well if the garage is an apartment building where everyone keeps their apartment unlocked.

A better analogy here, as some seem to struggle, would be the dealer goes into an apartment building and comes out empty handed, it could be in any of the apartments or none.

Maybe that's the answer: Allow them to see how many. They can ask for a warrant for *the* device in the geofence, excluding a list of known devices. The phone company either returns the identity of exactly one device or returns no data.

Clarification: is this garage a public one, containing different owners' cars? Or is it a private three-car garage? (I think you're talking about the former, while many of your responders are assuming the latter.)

From this decision is it doubtful that a judge would grant the warrant under any circumstances -- the knowledge, for example, that there are only three results, is only available after the warrant is executed. Since no warrant would be so granted, the data that only three results are found would never be discovered.

A judge could always choose to grant the warrant, but with full knowledge that any evidence uncovered will likely be inadmissible. Even if a judge grants such a warrant, it would likely be contested by the service provider (Google), and another judge would need to sign off on it, and likely an appelate court would have to deny certiorari in order. And even if it was allowed, at trial all of this would again be litigated with a fresh set of judges, and once again have to navigate up the apellate courts, and would most likely impair or cripple the prosecution of a case where it was used.

There might be exigent circumstances where the public needs outweigh the prosecutorial damage -- preventing an imminent bombing or something, but for routine criminal matters the geofence warrant is all but dead.

> There might be exigent circumstances where the public needs outweigh the prosecutorial damage -- preventing an imminent bombing or something, but for routine criminal matters the geofence warrant is all but dead.

Is there a strong reason to assume one way or another about whether this will get reviewed by the Supreme Court (and if so, whether it would be upheld)? My understanding is that the Fifth Circuit has become a bit notorious in recent years for its rulings being a bit out of the norm and reviewed disproportionately by the Supreme Court, but I don't know enough about whether this decision might be one of those.

I don’t think that this is a fair characterization of what it means for a circuit to have one of its decisions be heard by the Supreme Court. It makes it seem like being “reviewed” by the Supreme Court is a proxy for “out of the norm,” and that’s not the test for Supreme Court review. Many times a case will be heard out of a circuit where that circuit applies the same logic as the majority of other circuits, so the claim that there is a strong correlation between the circuit and adherence to the majority view seems extraordinary on its face.

Recall that the Supreme Court generally gets to decide what cases it hears and what it’s said about the cases it wants to hear is at https://www.law.cornell.edu/rules/supct/rule_10. It basically boils down to cases where there is a conflict between any two chains of appeals (federal circuits and states). But the Supreme Court is lazy (or smart), so when there is a conflict they usually want to see how other judges think and to see if a majority vote will arise. The cases that get granted are therefore normally just from one of the last circuits to adopt a view (often one of the previously espoused views from the other circuits), and I would need to see the data to believe that there is a bias with respect to whether they adhere to the majority view (if it exists).

> I don’t think that this is a fair characterization of what it means for a circuit to have one of its decisions be heard by the Supreme Court. It makes it seem like being “reviewed” by the Supreme Court is a proxy for “out of the norm,” and that’s not the test for Supreme Court review

My intent was for the statement of their decisions being considered extreme and their decisions being reviewed often to be two separate statements, the former an opinion I've seen often and the latter a statistical phenomenon. The latter doesn't imply the former, but I don't think it would be surprising that the former correlates with the latter.

That's only really true in an exceptionally antagonistic environment.

If your house were burned down, and the police canvassed your neighbors do you expect your neighbors to stonewall the police or help you, by helping the police?

In the same scenario you would expect the tower owner to try and help solve that crime of their own volition. So knowing some of the requirements should be attainable in any civilized society.

I'll admit to disliking the color of your curtains and they'll find the jerrycan for my lawnmower and suddenly I'm the prime suspect for arson. Sorry neighbour I'm not talking to the cops, hope you have insurance.

Concretely, most of the time, Google is the executor of these warrants. Now it's totally possible that you will find a Google employee sympathetic to law enforcement who is willing to kick off a flume job to isolate the users who were in the vicinity.

But that request is not going to make it through normal channels. And most of the customer data (especially PII) is very tightly controlled, so likely no such person exists who can run that job without authorization, and even if they did, they would be immediately fired afterwards, and possibly subject to criminal prosecution for violation of their user's privacy, depending on jurisdiction.

I think maybe they will still use it, it's just not admissable as evidence in court

https://www.law.cornell.edu/wex/fruit_of_the_poisonous_tree

> Fruit of the poisonous trees is a doctrine that extends the exclusionary rule to make evidence inadmissible in court if it was derived from evidence that was illegally obtained.

https://en.wikipedia.org/wiki/Parallel_construction

Another officer will get an "anonymous tip".

"Our Confidential Informant, Fuzzy Dunlop".

Two cops on The Wire do this, and basically register a tennis ball, hence the name, as their CI - https://www.youtube.com/watch?v=9GJa1_u-VLE

Search warrants are usually public record after they are unsealed. If they aren't included in evidence its a Brady violation and if caught the case is essentially dead. If the defense sees that the search warrant was given or executed first, they probably have a very strong argument that all the evidence is tainted. Parallel construction doesn't work very well when proof of tainted evidence is publicly available.

GP is probably referring to the practice of "Evidence Laundering" which has been deployed from time to time by law enforcement.

Still dubious that this would be used that way just because telecoms would be aware of this potential for misuse and would not give the data up without a subpeona or warrant, which under this ruling would not be allowed.

Government: we want a geofence warrant for ...

Court: no

Government: how much $ for this data?

Telco/bigtechco: ah, now we're talking

Legislative branch: No spending on that.

Executive: ...Ah...

More like "Executive: lol".

Back reconstruction enters the chat

Reply on news.ycombinator.com