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Comment by andrewla | Hacker News Reader

I am not a lawyer, but the language of the opinion [1] seems to indicate that the geofence itself is not admissible, but evidence obtained as a result of it is still admissible:

> On November 4, 2022, Smith filed a Motion to Suppress— which the other Appellants joined—seeking to suppress all evidence derived from the November 2018 geofence warrant which was used to identify them as suspects.

They were identified as suspects, and further investigation produced more evidence, which formed the case. What they are saying is that the good faith exception prevents this from tainting all derived evidence in this case, which seems reasonable.

The good faith exception is an exception to the exclusionary rule, not to the admissibility of the evidence itself.

[1] https://www.ca5.uscourts.gov/opinions/pub/23/23-60321-CR0.pd...

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> the opinion [1] seems to indicate that the geofence itself is not admissible, but evidence obtained as a result of it is still admissible

That means they can geofence to get a short list of suspects, and then file proper warrants for some of them if they have more clues?

Not anymore, now that this precedent is set.

I'm still wondering how this precedent prevents parallel construction nonsense

I'm confused how parallel construction plays in here, nonsense adds another layer of confusion, but an attempt to help, tl;dr: the 5th Circuit has held that requesting a list of people/IPs/devices in a location is not permissible.

I'm just trying to guess a gap: engineers tend to see law as more iron, like code, and judge law based on inverse programming: if you can find some set of circumstances that creates a gap where the law isn't obeyed.

Ex. here, you might mean that this doesn't technically stop police from requesting geofenced data anyway, using it to get suspects, then not mentioning it at trial. Yes, technically, the police could ignore this, and request a warrant, then the judge could ignore it, then the tech companies could ignore it, the DA could collude with the police to hide that happened, and pretend they found the suspect a different way.

But it's impractical.

It's hard to spell out why, exactly, tl;dr: death penalty for your career if any of this is discovered by anyone, you can't do it by yourself, and these people are generally on the same team in our distanced analysis, people are tribal, and gov't attorneys/tech companies/judges/police can't rely on eachother's silence.

> It's hard to spell out why, exactly, tl;dr: death penalty for your career if any of this is discovered by anyone

How many careers have ended over discovery of parallel construction?

In this case it’s pretty simple: they won’t be able to obtain geofence warrants in the future.

So now we just have to rely on Google/Apple/cell-carriers to not hand over all the geofence data without a warrant. I'm sure the cops will be leaning _heavily_ on 3rd Party Doctrine next time they call up Google with their warrantless geofence data requests.

Interestingly, Google has recently started to shift their entire infrastructure for location tracking off their servers and onto users’ devices. Motivated in part by geofence warrants (and, in this commenter’s opinion, perhaps by anti-abortion laws in the US too).

It’s actually rather frustrating for me as I used to export and keep the GPS logs, for geotagging photos from a camera, which will need to be done per day now. Nonetheless, a smart move as they simply won’t hold this information anymore - even for those who opt-in to the feature.

Somewhat a shame since they have successfully tracked down serial killers by winnowing cell phones common to multiple crime scenes.

While I'm in favor of restricting warrants in this way, it is important to realize that it will result in some crimes being unpunished, and potentially even deaths.

There is a cost to living in a free society that needs to be recognized, even though it is still a cost worth paying.

There was a warrant in this case. That type of warrant is now deficient and electronic data holders like Google with easily refute future attempts to get data with a clearly deficient warrant. Parallel construction typically means a warrant was not given on the first pass.

It doesn't encourage Parallel construction unless you think any restriction on warrants does.

Well they need the warrant to get Google to give them the information in the first place, so they would not have the data to create the parallel construction.

This precedent doesn't prevent parallel construction at all. In fact, it encourages parallel construction.

No legal precedent can prevent parallel construction, because when it is done right, nobody but the police are actually aware that it took place.

Without speaking of the general case, this specific legal precedent does prevent parallel construction for this particular source of data.

In order to obtain the data that law enforcement would have to "discover" through parallel construction, they need Google to cooperate and run the analysis to give them the required data. They can try to make this request through informal channels, but Google will say that they need a warrant. They can't make the request through formal channels because no judge will give them a warrant. So that's pretty much it.

Parallel construction is this huge phantom menace on the internet but something that in real life occurs less frequently than a person being struck by lightning.

Law enforcement faces a very high burden to show that parallel construction would apply. (Not "could." Would.) This generally requires law enforcement to show that they were pursuing multiple parallel paths of investigation, and that basic investigatory work in one of the other paths of investigation would have legally led to the excluded evidence as a matter of course. To put it perspective how difficult this is, a former co-worker that is still with the public defender has seen the prosecutor succeed exactly once in 15 years in making a parallel construction argument.

The DEA is the only agency that successfully makes parallel construction arguments on a regular basis, and this is primarily because the DEA has the resources to actively pursue multiple parallel paths of investigation, and because in many cases the reason for using parallel construction is that key witnesses have a tendency to get murdered....

I don't see how that's reasonable.

"Well we kicked down the door to your house, which was wrong, but look at all this good evidence we got! I mean, c'mon, the guy is clearly guilty..."

Intent is the key to the good faith exception here.

If you intend to kick down a door to find evidence of wrongdoing, anything you find is inadmissible. But if you kick down a door because someone on the other side is screaming for help, evidence of other wrongdoing that you find is admissible still.

Here, they are saying that they had good reason to believe they could operate in the way that they did, so while the geofence evidence itself isn't able to be used, other evidence derived from that work is still usable. But going forwards, no one can use the geofence technique in good faith.

Bear in mind that physical cash is somehow able to be charged with crimes, thus enabling police theft via civil asset forfeiture. Even when the police had no reason to suspect there was any cash on people in the first place.

So it doesn't seem like much of a step to "the evidence was screaming to us from inside, begging to be found". It's about the same level of nonsense. ;)

Civil asset forfeiture is problematic and has been abused but it's completely separate from criminal evidence rules. The physical cash is never charged with a crime. Instead the government files a civil (not criminal) case alleging that the cash is the result of criminal activity. The burden of proof then is much lower than in a criminal trial, and often the plaintiff wins a default judgement.

Awesome. Now adapt that to evidence inside a house begging to be found. :)

You can't. Civil court is different from criminal court. The standards are different.

> So it doesn't seem like much of a step

Rebuttal, that seems like a huge step.

And intent is notoriously hard to prove. As long as there isn't an email saying "fuck the laws break it down" good luck proving the cops were the bad guy and every judge will side with them all day long. "Ope, another clerical error, Joe Admin Assistant screwed it up, we were just following orders."

This isn't true, nor is it how the US courts work. Prosecutors have to prove that their evidence is admissible and it can definitely be challenged easily by the defence. The police need to prove probable cause to enter in cases like this.

If “I thought they had a gun” is a free pass for cops to murder why won’t cops simply say “I thought I heard a cry for help” when they kick a door down without a warrant?

Not even a good analogy when it comes to technology. Standing close to the door could be considered illegal and even if you had the legal right to entire anything you would find could be inadmissible.

No, the analogy is breaking a rule in "good faith". It's absurd. Regular citizens can't do that. Ignorance of the law or "good intentions" isn't a defense for a normal person.

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