Michigan Supreme Court: Unrestricted phone searches violate Fourth Amendment
reclaimthenet.org
reclaimthenet.org
Well, that gets into the "fruit of the poisonous tree" doctrine, but we're not doing a full criminal procedure law school course today . . .
Ironically, I heard more than one detective say that when they "dumped" a phone like that, they rarely found much useful evidence. There's just too much information on any given cell phone to be able to go through it all. So, in the end, their fishing expeditions end up being a waste of time and resources.
"Fruit of the poisonous tree" simply means the entire chain, the initial evidence that was improperly acquired and anything that was discovered based upon it, gets thrown out. If a warrant was issued to dump the full contents of your phone, and they used location metadata from your photo library to start determining other locations to search and got warrants for those, then that entire chain of evidence gets thrown out if the court finds the initial warrant for your phone was invalid.
exceptions: unless it would have gotten found anyway, regardless (inevitable discovery); or the cops, against whom the doctrine of poisonous tree is held in order to keep them honest, just made an honest mistake.
Litigation over the process, claims, and ultimately validity of the warrant happens after it is executed, where the product is used in a criminal case (one of the commonly argued problems with the FISA warrant process is that, because the products are not used in criminal cases, this never occurs, and because it is known that it will never occur, the constraints that the possibility of challenge places on both the conduct of executive agents seeking warrants and judges granting them also is missing.)
Who me? I assure you I don't.
In the particular case I described above there were some factors about who the person was that make me pretty confident the police were wanting to sniff around for something juicier (though because of his situation, even the accusation of domestic violence was going to be enough to ruin certain things for him, even if nothing ever came of it). That's SOP for many things where, for example, certain departments train officers to use traffic stops as pretexts to "elevate" the encounter to a felony arrest. They don't care that the guy failed to come to a complete stop at that stop sign, but they like their chances of getting consent to search his vehicle and finding (or, in the egregious cases, planting) something else.
Edit: I see that you weren't replying directly to me. Sorry about that.
Our standard is "beyond a reasonable doubt" and ideally in a working justice system, judges should be throwing out any evidence which is prejudicial. So your detective has a general motive to find as much evidence as possible, overwhelming evidence, ideally, such that after all legal challenges have been passed through there is still enough evidence left on the table to concretely prove a case.
Obviously there's a lot of places our justice system can and does break down, but it is generally designed on the concept everyone involved in prosecution and defense should work to create the best possible case for their understanding.
What normally happens in cases like this is that each side barter with what they have (DA: "we went through his phone and found photos of him with guns, drugs and money" vs. PD: "the search was illegal, if you pursue this I'll file for suppression") to get the longest sentence they can (DA) vs. the shortest sentence (PD) on a plea deal.
I think the statistic is maybe 1% of criminal cases go to trial?
Most other countries don't have the concept, or if they do, its use is generally fairly minimal, and heavily regulated - oftentimes, it might be "plead guilty to this one murder" in the case of a multiple homicide, to avoid having three separate costly trials.
IANAL, just some guy who gets bored and reads CaseNet. Yes, I am aware that this is not a sign of a healthy mind.
Seems overly cynical. How about public defenders, Miranda rights, etc.?
The US court system is set up to be adversarial. The belief is that you get the best overall outcome by having one set of people who try to convict, and another set of people who try to acquit.
One can also make the system look bad from the other direction by arguing that public defenders are terrible, because their job is to help criminals walk free. https://xcancel.com/katanaspeaks/status/1954636840272884111
You're welcome to argue against the overall concept of an adversarial court system. But the system has to be taken in total, rather than selectively focusing on one side.
Miranda rights don't work the way most people think they do (https://www.cgmbesq.com/blog/2022/july/the-many-misconceptio...) and courts have gone out of their way to deny people their rights.
The system is corrupt and broken from top to bottom.
Nope. One needs to take the system in total.
"Since New York State’s 2019 discovery reforms were passed, dismissals in cases involving domestic violence rose 26 percent in New York City. In 2023, about 94 percent of cases were dismissed in New York City and nearly 50 percent were dismissed outside of New York City. In many cases, automatic dismissal of cases has put survivors of domestic violence and other crimes at greater risk."
https://www.governor.ny.gov/news/governor-hochul-and-state-o...
This increase is a direct result of passing 2019 "discovery reforms" designed to safeguard the rights of the accused. Read the list of examples on the page I linked and tell me that prosecutors in NYC have "unlimited resources".
It's a constant balancing act.
And BTW:
"Public defender jobs in many places are intensely competitive. Many of us went to law school specifically to become public defenders and have zero interest in working for a big firm. I had a merit scholarship to a top 20 law school and only applied to public defender jobs."
https://xcancel.com/kit_sionn_witch/status/17749841523596168...
You'll notice that in all of those cases the prosecution had evidence and they just failed to hand it over or screwed up procedure. They can screw up badly enough that cases get dismissed, but that's not a lack of resources or time.
It's also a very different situation from public defenders who can do everything right but don't have the time or resources to get the job done. To be clear, I don't think that public defenders aren't skilled or qualified or willing to help. They're just very often insanely overworked to the point where they can't possibly put in the time their clients deserve. Even the NACDL admits that this is a problem.
Public defenders can also make a good living, but I think it's clear that private defense attorneys get paid more on average.
A lot of the problems come down to a lack of accountability. Police who commit even the most egregious offenses often don't face meaningful consequences, and the judges, prosecutors, attorneys general have even less accountability.
Even access to our justice system is highly limited for people without a lot of money and outcomes are often determined by who has the most cash to spend.
The results of the whole system speak for themselves. You simply don't get the incarceration rate the US has with a fair and just system.
Arguing for the merits of an adversarial system is one thing. But many parts of due process are effectively completely dead for the vast majority of defendants, and prosecutorial discretion rules the justice system almost completely for those of us who aren't millionaires. "Adversarial" might work for OJ Simpson, but it hasn't worked for most of us for a long time, and the US prison system holds the most prisoners per capita in the world - it isn't close†.
Defenders of the shortcuts we have created proudly justify it as saving the taxpayer money; of making workable a situation where they feel they are underfunded by an order of magnitude, but the reality is that it is justice amputated of essential components. If you want to save money, maybe consider making fewer things illegal, and imprisoning people for a shorter amount of time, but go back to actually holding real, speedy trials that are effectively adversarial in nature. In the meantime, we have a judge/jury/executioner in the DA's office, and they get re-elected electorally largely based on their conviction rate; Like shooting fish in a barrel.
†Depending on how you view internment camps for specific minorities
With how many laws we have on the books, everyone on the planet can be found guilty of some violation if their life is examined with a fine toothed comb
In my experience, yes, in many cases it was more laziness than something nefarious. Police often have a theory of the case in their head that just doesn't make it onto the affidavit. Things that seem obvious to them after investigating the case for some length of time are not as obvious to someone seeing it for the first time on a search warrant affidavit. Fishing expeditions happen, no doubt, but let's also remember Hubbard's corollary to Hanlon's razor: "Never attribute to malice or stupidity that which can be explained by moderately rational individuals following incentives in a complex system." They get in a hurry, don't read the affidavit with fresh eyes, and forge ahead anyway because they're under pressure to close cases quickly. Not that that's a good thing, but it's distinct from people who are intent on just breaking the law and violating people's rights.
I watched a local Superior Court hearing, where a prosecutor argued against a motion to revoke bail/bond conditions. Thankfully, the Judge had a different perspective:
Prosecutor: "Because blah blah blah, and in addition, the defendant shows zero signs of taking responsibility for his actions, we..."
Judge, cutting her off: "I'm going to stop you there. The defendant entered a plea of not guilty and has not been found guilty at trial as of this moment. In the eyes of the court, the defendant has precisely zero obligation to take responsibility for alleged actions."
I was also juror on a trial for theft (stealing from an organization by the treasurer). The theft had occurred but the amount of rubber stamping was horrific. "It looks like $50K was stolen, including approximately $20K in diverted checks". In fact, the bank statements showed that no checks were diverted, and it was painfully obvious (in the statements, in some months, the checks claimed to be diverted were the -only- transactions, so it wasn't a hard find), and there was even a statement from the organization's president, taken by the Sheriff's Office, "It was later found that the checks had been deposited properly". But everyone, Sheriff, org, prosecutor had "oops, failed to remove that amount from the claimed loss", and the defendant's attorney had to bend over backwards to demonstrate this. At one point, the prosecutor had said "Demonstrate to us how you came to the number of $30K"... "Uh, if you want to claim the loss is $50K, it's on you to prove THAT. It's not on us to prove it is LESS".
An LEO citing to Carpenter for the opposite of its holding?
Obviously law enforcement are going to cut corners. They're human beings, who are mostly interested in stopping crime. That's exactly why we force them to get warrents, to have a dispassionate believer in "the Law" as an ideal concept check in with their investigation.
> They're human beings
So are judges and they will make mistakes. Remember that a judge signed the warrant in Kansas. Previously, on HN:
>Authorities secured a warrant to search his phone, but the document placed no boundaries on what could be examined.
>It permitted access to all data on the device, including messages, photos, contacts, and documents, without any restriction based on time period or relevance. Investigators collected over a thousand pages of information, much of it unrelated to the accusation.
Yeah that's pretty absurd.
Now the downside is that since they rely on the Federal Constitution in the ruling rather than the Michigan one, if the Supreme Court ever rules differently, this precedent will be overturned, even in Michigan.
"Our state Constitution, Const 1963, art 1, § 11, also guards against unreasonable searches and seizures. In fact, as amended by voter initiative in the 2020 general election, Const 1963, art 1, § 11 specifically provides that “[n]o warrant to . . . access electronic data or electronic communications shall issue without describing them . . . .” However, defendant’s claims below rested solely on Fourth Amendment principles. Therefore, we have no occasion to consider whether the language of Const 1963, art 1, § 11 provides broader protection than the Fourth Amendment in this context. Compare People v Lucynski, 509 Mich 618, 634 n 6; 983 NW2d 827 (2022) (noting that Const 1963, art 1, § 11 is interpreted coextensively with the Fourth Amendment unless there is a compelling reason for a different interpretation), with People v Bullock, 440 Mich 15, 30-31; 485 NW2d 866 (1992) (concluding that a textual difference between the Eighth Amendment and Const 1963, art 1, § 16 supported a broader interpretation of our state constitutional provision)."
So really the downside is that the defendant's lawyer didn't raise the state constitutional issue (which looks even clearer).
Who has said this? People are saying that a ruling of the Michigan Supreme Court won't stop Michigan police officers from getting search warrants without limitations? How did these people come to that conclusion?
You know, if you're a Homeland Security agent you have to tell us, right?
Someone tell me how many prosecutors in the history of the USA have been criminally convicted for sending known innocent persons to prison.
Absurd or not, it's what the Fourth Amendment requires, at least in spirit. The warrant must specify the scope of the search in advance ("...and particularly describing the place to be searched, and the persons or things to be seized.")
Police work is not supposed to be easy. When police work is easy, that's basically the definition of a police state.
They really didn't like it when cops showed up and took their furniture (think filing cabinet) because "it might contain evidence of sedition".
No, this is silly. That's not how search warrants ever work. The Fourth Amendment imposes no such "only search where labeled" requirement. It does, however, mean that police can only search areas where they are likely to find evidence of the commission of the crime that is alleged in the affidavit. For example, if the crime is theft of a full-size refrigerator and police have probable cause to believe that the stolen refrigerator is located at the residence of the accused, they can go into his house and look for the refrigerator anywhere that a refrigerator could be. That does not, however, given them the right to go rifling through his file cabinet or his underwear drawer, unless they have specific, articulable facts (i.e., not just a hunch) that there is probable cause that some other evidence of the commission of that crime will be found in such places.
What does that look like when searching a suspect's cell phone? Obviously every case is going to be different, but the point is that warrants cannot be utterly boundless. Such "general warrants" are one of the reasons the American colonists listed as a grievance against King George in the Declaration of Independence and today issuing such warrants would be considered prosecutable malfeasance in office. if police want to use search warrants as evidence-gathering tools they have to follow the law or convince the legislature to change it.
EDIT: Actually, consider this as an example.
California Penal Code § 653m says the following (subsection b): "Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business."
So let's say jilted boyfriend decides to ring up his ex-girlfriend a couple dozen times in the wee hours of the morning, but he uses something to block his caller ID. In that case, there might be evidence on his phone that he dialed the girlfriend's phone number when she claims the harassing phone calls came in. So can the police search his phone for evidence that he called her number? Absolutely. Can they look through everything on his phone (pictures, notes, settings, etc.)? Absolutely not.
If a suspect is alleged to have been on the phone with an accomplice while committing a crime then a warrant for call logs during that time period would be appropriate, but not just open-ended trawling through all the suspect's devices for potential clues, is my understanding.
Warrants establish such restrictions all the time. The classic example is what's called the sugar bowl doctrine. In a nutshell: if you're looking for stolen televisions you can't look in the sugar bowl. If, to torture the metaphor further, you see car keys peaking out of the top of the sugar bowl you can apply for a further warrant. In the case of forensically investigating a phone, you would just keep the forensically-sound copy of the phone's data while you waited for a judge's permission to poke around in that folder.
You also seem to be operating from a standpoint that because I am subject to a search, there exists evidence of me committing a crime. That's a pretty slippery slope from where I'm standing.
How do you think a warrant couldn’t establish such restrictions when it’s already loosening existing restrictions on the police?
I made a text file and emailed it to my boss a few weeks back, is that a "text" ?
My answer would be: yes "text messages" includes RCS as well as SMS, but not whatsapp/telegram/an email attachment, and that the warrant should've been more specific if it wanted the latter - but ask your lawyer if you're uncertain what's being requested.
A text message is something in Messages.app or the Google equivalent. It may include a message in Signal or WhatsApp, but I suspect they'd want to see some case precedence supporting that. It almost certainly isn't a screenshot in their photos app, or a message written in text in the notes app, or Aretha Franklin spelling out R-E-S-P-E-C-T in the music app.
It's a message in the phone's commonly used messaging app. Anything much beyond that is likely to earn a scolding from an unimpressed judge.
It has been argued successfully that giving biometrics is analogous to giving blood, hair, fingerprints, standing in a lineup, providing a writing sample, or wearing certain clothes, all of which you can be compelled to do.
From my understanding, the current split about being compelled to provide passcodes, and to a much lesser extent biometrics, is the foregone conclusion exception stemming from the Fisher v. United States [1] case, where, as Justice White said “the existence and locations of the papers[were] a foregone conclusion and the [defendant’s physical act] adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers… [And so] no constitutional rights [were] touched. The question [was] not of testimony but of surrender.”
This has been used in relation to court cases on biometrics and passcodes [2]. It appears that courts that rule that you can be compelled seem to look narrowly at the passcode itself i.e. the government knows you own the phone and knows you know how to unlock it, so it is a foregone conclusion to provide it. Courts that rule you cannot be compelled seem to look at the phones contents i.e. the government does not know what is on the phone so decrypting the data would be providing protected testimony, or a stricter interpretation that you cannot be compelled to disclose the contents of the mind. The Supreme Court has declined multiple times to hear cases that would help settle the legal ambiguity, so it remains an evolving issue.
In short, a passcode is not a panacea and you may be compelled to provide it.
[1] https://cdn.ca9.uscourts.gov/datastore/opinions/2024/04/17/2...
[2] https://www.barclaydamon.com/webfiles/Publications/Unlock-De...
Interactions with the police, in any capacity at all, are uncommon.
How do they limit the police to what was in the warrant? How do they prevent them police from searching the entire phone, and if they find something else incriminating, use parallel construction to find other evidence that justifies a warrant for a broader phone search? "We didn't find anything in our initial phone search, but now we have an informant that told us to look at his email in November last year"
https://www.aclu.org/know-your-rights/border-zone
Also friendly reminder that "the Constitution does not grant aliens any protections when trying to enter the United States."
https://en.wikipedia.org/wiki/United_States_ex_rel._Knauff_v...
Since the western side of the state is quite obviously more than 100 miles from Canada I had to look this up. Apparently it's because the lakes count as international borders. That seems pretty crazy to me, especially in the case of Lake Michigan.
Lake Michigan is considered a "coast" (which Chicagoans kind of like! See: "Third coast" stuff), but that bizarrely puts their jurisdiction ~70 miles into the Illinois cornfields based on them saying they treat the lake as a "coast".
100 miles from the seashore also puts you into some clearly inland areas. Most locations 100 miles from the sea aren't organized around their "proximity" to the ocean.
Lake Michigan does not touch Canada. There are shipping ports along the shores of Lake Michigan, but it's an argument that it should not be treated as an oceanic border. No matter how you measure it, Chicago is hundreds of miles from the Canadian border.
This is like saying that the Atlantic Ocean can't touch Norway because the North Sea gets in the way. That's not an argument.
Not sure what your definition of forcing is, but you are well within your rights to decline to provide any passwords in the US. You may not get the device back (or want it back), but in theory nothing should happen to you.
https://en.wikipedia.org/wiki/Key_disclosure_law#United_Stat...
This comes up on HN several times a year; there are longer discussions about it available in the search bar.
https://www.snopes.com/news/2022/06/13/what-is-usa-border-en...
https://en.wikipedia.org/wiki/Border_search_exception
https://www.pennstatelawreview.org/wp-content/uploads/2020/0...
https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?ar...
https://www.truthorfiction.com/supreme-court-100-miles-borde...
https://brownpoliticalreview.org/constitution-100-miles-ques...
https://ballsandstrikes.org/legal-culture/border-patrol-100-...
Nobody's questioning whether CBP itself acts abusively within the US. As the law review article observes, CBP's abuses have little to do with the "100 mile" thing; they detained Sen. Patrick Leahy by the side of the road more than 100 miles way from any nominal border.
The article goes into great detail about what the courts have authorized; it's nothing like ACLU's claim. This is one area in which I think ACLU's advocacy is actively harmful: they're convincing people that the USG has statutory authorization to do things, things they actually do, for which they in fact have no authorization.
> Originating in a decades-old federal statute, CBP has the authority to conduct stops and searches within a “reasonable distance” of a border, defined by regulation as 100 miles.
Does not sound like a myth to me...
https://www.law.cornell.edu/cfr/text/8/287.1
In fact this seems to say that not only is a 100-mile zone actually defined in law, but there are cases where more than 100 miles may be acceptable as well.
Am I missing something?
Is that sufficient for you?
What's funny is: depending on which ACLU page you hit, they don't even agree with themselves. Their new main "100 mile border" page is full of caveats, but their original 2014-vintage page, which is still on the first Google SERP, claims things like CBP authorization to search luggage within the "100 mile zone" (definitely no! do they do it? i'm sure they do; just not lawfully).
And if this is indeed a settled issue as I believe you are claiming, can you cite any court cases that establish whether (whatever you claim is a myth) is actually legal or illegal?
Your own cites back up what I'm saying (as does the ACLU now) so I'm not going to find you new cites; start by rereading the ones you provided.
> The regulation also provides exceptions to the 100-mile rule whereby the Commissioner of CBP or the Assistant Secretary for ICE may declare a larger distance to be “reasonable” on a case-by-case basis
> The same regulation also authorizes CBP to enter private property, other than residences, within 25 miles of the border without a warrant.
I know that's not 100, but I think it's still "less protection" than people would reasonably assume there to be.
> In cases testing the Fourth Amendment limits of Border Patrol’s authority to conduct warrantless searches of those entering the country at ports of entry (including functional border equivalents, such as international airports), the courts have used a balancing test whereby the Fourth Amendment privacy rights of entrants are weighed against the sovereign’s security interests at the border.31 The Supreme Court has decided that there is a reduced expectation of privacy at the border, holding that the government’s interest in monitoring and controlling entrants outweighs the privacy interest of the individual. Thus, routine searches without a warrant, probable cause, or reasonable suspicion are considered inherently reasonable and automatically justified in that particular context.
> Although nothing in the Fourth Amendment (or Constitution generally) provides for such a principle, this doctrine has become known as the “border search exception” to the warrant requirement of the Fourth Amendment. The precise limits to this exception are disputed and continue to be tested
How is this not clear that it is not a settled issue, and generally gives them greater permission to search (e.g. without a warrant) than say, a vehicle that's 500 miles away from any external boundary (at the least, a port of entry or international airport)?
I don't understand how you think you're helping anyone by making these kinds of claims. Who is better off believing that the government has sweeping search powers that they don't actually have?
I don't see how that's true because this law explicitly mentions 100 miles, three times.
https://www.law.cornell.edu/cfr/text/8/287.1
> The term reasonable distance, as used in section 287(a) (3) of the Act, means within 100 air miles from any external boundary of the United States
Surely I must be missing something?
[1]: https://en.wikipedia.org/wiki/United_States_v._Verdugo-Urqui...