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I’m not sure to whom the reasonable suspicion has to be announced? It makes it hard for me, a lay person, to understand the practical ramifications of this dec

I’m not sure to whom the reasonable suspicion has to be announced? It makes it hard for me, a lay person, to understand the practical ramifications of this decision. Would the suspicion have to be announced to me, when I’m asked to unlock my phone, or would it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone? If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”? The latter is only meaningful if the case goes to court, which feels like a stretch. There are many forms of punishment that can be meted out without having to go to court. Vexatious detention, confiscation of property, etc. The former seems silly — surely I can’t impede law enforcement because they haven’t justified their authority to me?

landryraccoon 7y ago
The point of the law is that even if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court. This is a crucial protection for citizens. The point of the ruling isn't that it prevents the search, it prevents the result of that search from being used against you. If law enforcement wishes to establish the guilt of a suspect in court, it has to use only evidence it obtained through legal means. https://dictionary.law.com/Default.aspx?selected=2087 https://dictionary.law.com/Default.aspx?selected=2087
- raincom 7y ago
  Besides "parallel construction", there is a third-party doctrine: https://en.wikipedia.org/wiki/Third-party_doctrine https://en.wikipedia.org/wiki/Third-party_doctrine
- mark-r 7y ago
  Unfortunately there is still parallel construction: https://en.wikipedia.org/wiki/Parallel_construction https://en.wikipedia.org/wiki/Parallel_construction Honest question: can illegally obtained evidence be used to get a search warrant?
  - bureaucrat 7y ago
    Yes. If the magistrate fails to notice the illegal-ness of the evidence and gives the warrant, it is valid nonetheless.
    - velosol 7y ago
      If the illegal-ness later comes to light would a court consider evidence from the 'valid' warrant tainted? Always, sometimes?
      - aidenn0 7y ago
        IANAL, but my understanding is that evidence obtained from an invalidated warrant is disallowed, unless the court finds that it was inevitable that the state would have discovered the evidence.
        bureaucrat 7y ago
        Nope. If the government fooled the magistrate, it is disallowed. However if the magistrate has failed to decode the law correctly and issued an unlawful or unconstitutional warrant, the evidence obtained by the warrant can be used in court.
      - waterheater 7y ago
        https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree In the specific case you're talking about, always.
  - gamblor956 7y ago
    No, if a warrant is obtained using illegal evidence, then you poison the warrant and all the evidence arising from it. Parallel construction happens way less frequently than people think it does, since it requires that there be an actual parallel path to the evidence that would have been available at the time the evidence was improperly obtained. It's basically only upheld when evidence was collected improperly through one means (i.e., a confession without Miranda disclosure), but could have been collected properly through other means available at the time of the improper collection (i.e., if the contents of the confession would have been revealed by a standard CSI search).
- threatofrain 7y ago
  That's certainly a crucial protection but if law enforcement conducts an embarrassing or destructive search (such as when police recently blew up a man's home), they can still essentially end you. But yes, it's good that you can't be simultaneously nailed in court with illegally collected evidence. * https://www.npr.org/2019/10/30/774788611/police-owe-nothing-to-man-whose-home-they-blew-up-appeals-court-says https://www.npr.org/2019/10/30/774788611/police-owe-nothing-...
  - hannasanarion 7y ago
    And in such a case, you can sue for harassment. The police can't routinely violate your rights just for the heck of it, they need to show a good-faith belief that what they're doing is legal and could produce evidence useful in court.
    - dalore 7y ago
      From the article: > But the problem with that argument, the appeals court ruled, is that courts have long held that police cannot be on the hook for property damage caused in the process of trying to make an arrest.
      - pas 7y ago
        That was a rather different problem than directly harassing the unlawfully searched person. In that case it was incompetence, gross negligence, and so on. Naturally it's hard to prove in court that the court's enforcement arm is at fault. And at first the guy tried to sue for damages but that was thrown out - because it's so well established - but still that's the point that should be hammered.
      - hannasanarion 7y ago
        Police can be held responsible if the arrest itself was illegal, an attempt to harass instead of execute the law in good faith.
    - thephyber 7y ago
      > And in such a case, you can sue for harassment. > they need to show a good-faith belief... That's not how being a plaintiff works, which is what is frustrating about this type of situation. They do some action which is legally questionable. You have to show standing and potentially damages to be able to bring the suit, then you have to prove that what they did was not a good faith belief that their actions were legal. The onus is on the person without the power with (typically) minimal resources.
- bdowling 7y ago
  > if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court. This is not strictly correct. If law enforcement violates your rights via an illegal search, they cannot use that evidence against you. However, they may be able to use the evidence against others. For example, suppose the police illegally search your house and find drugs and a list of customers. You may be able to exclude that evidence from being used against you but your customers may not be so lucky because it was not their 4th Amendment rights that were violated by the illegal search.
  - quickthrower2 7y ago
    Interesting, so there is an incentive to do an illegal search especially for drugs where you might find a higher up.
- lwf 7y ago
  Unless they claim to be acting in "Good faith", that is, didn't think at the time that the search was improper and it wasn't clearly settled law. https://en.wikipedia.org/wiki/Carpenter_v._United_States#Subsequent_developments https://en.wikipedia.org/wiki/Carpenter_v._United_States#Sub... You can win a Supreme Court case about a search being illegal, and still have that evidence be used to nail you on the original charge.
- zxcvbn4038 7y ago
  That’s not entirely true - I think the official term is creative reconstruction -and basically once they have evidence then they go back and document all of the things that, with perfect hindsight, would have caused reasonable suspicion so that obtaining the evidence then becomes justified. So John Doe has been caught transporting narcotics, and with perfect hindsight we know that John drives a much more expensive car then his his income allows, so that raised suspicion and justified searching the vehicle where the narcotics were found. That’s how it seems to work more or less.
  - rubyfan 7y ago
    You’re thinking of Parallel Construction https://en.m.wikipedia.org/wiki/Parallel_construction https://en.m.wikipedia.org/wiki/Parallel_construction
    - zxcvbn4038 7y ago
      That’s it! Thank you
calibas 7y ago
> surely I can’t impede law enforcement because they haven’t justified their authority to me Unless you've broken the law (and certain special cases), they have no authority over you. Because of the nature of their jobs, which requires them to sometimes take away a person's freedom or life, they must be held to a much higher level of accountability than your average person. You cite fear of harassment as a reason for not standing up to police, and to me that says something is deeply wrong with our current system.
- gnopgnip 7y ago
  >Unless you've broken the law (and certain special cases), they have no authority over you. This is not true at the border. They can seize your property, and delay you for what the law would say is temporary, but is long enough to be a major inconvenience.
  - deleted 7y ago
    [deleted]
JohnJEsq 7y ago
The search of a phone is like a search of any other thing in US law. Generally, searches require a warrant which implicitly requires probable cause, but there are some well-defined exceptions to the warrant requirement, and the probable cause requirement. One of these exceptions is the border search exception. US Courts have previously said this exception is reasonable for various reasons, and is an exception to both the warrant and probable cause requirements. The court in this case says it is an exception only for routine searches, and called the digital searches non-routine which don't fall entirely within the existing exception. Rather the court says non-routine searches don't require a warrant but do require a reasonable suspicion, a standard still below probable cause. A reasonable suspicion requires only the officer to have a suspicion they can state a reason for. For example, a phone's lock screen with CP would satisfy reasonable suspicion. > Would the suspicion have to be announced to me, when I’m asked to unlock my phone[?] No. Officers don't have to disclose to you their reasons. It's helpful, but not constitutionally required. >[W]ould it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone? Not necessarily. In a criminal prosecution violations of the Fourth Amendment can be excluded by the court. The theory underlying the exclusion is that without the exclusion there would be nothing to stop cops from violating your Fourth Amendment rights. A criminal defendant must challenge the use of the evidence found, and the officer must give their reason when the judge is trying to determine whether to allow the testimony. In the US, you can also sue the officers when they violate your rights and win money damages. That's what this case is. The officer as part of their defense must give their reasons to defend they didn't violate any constitutional rights. >If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”? Probably. Some courts may additionally require the officer to give a basis of why you fit that profile, or why someone who fits that profile reasonably is likely to carry illegal things. Typically just saying it matches a profile is sufficient.
- angry_octet 7y ago
  A lock screen is a reason for 'reasonable suspicion'? I'm not saying you're wrong, but it seems unreasonable. If I have a lock on my briefcase it isn't reasonable to suggest it's full of contraband.

landryraccoon 7y ago

The point of the law is that even if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court. This is a crucial protection for citizens. The point of the ruling isn't that it prevents the search, it prevents the result of that search from being used against you. If law enforcement wishes to establish the guilt of a suspect in court, it has to use only evidence it obtained through legal means. https://dictionary.law.com/Default.aspx?selected=2087 https://dictionary.law.com/Default.aspx?selected=2087

raincom 7y ago
Besides "parallel construction", there is a third-party doctrine: https://en.wikipedia.org/wiki/Third-party_doctrine https://en.wikipedia.org/wiki/Third-party_doctrine
mark-r 7y ago
Unfortunately there is still parallel construction: https://en.wikipedia.org/wiki/Parallel_construction https://en.wikipedia.org/wiki/Parallel_construction Honest question: can illegally obtained evidence be used to get a search warrant?
- bureaucrat 7y ago
  Yes. If the magistrate fails to notice the illegal-ness of the evidence and gives the warrant, it is valid nonetheless.
  - velosol 7y ago
    If the illegal-ness later comes to light would a court consider evidence from the 'valid' warrant tainted? Always, sometimes?
    - aidenn0 7y ago
      IANAL, but my understanding is that evidence obtained from an invalidated warrant is disallowed, unless the court finds that it was inevitable that the state would have discovered the evidence.
      - bureaucrat 7y ago
        Nope. If the government fooled the magistrate, it is disallowed. However if the magistrate has failed to decode the law correctly and issued an unlawful or unconstitutional warrant, the evidence obtained by the warrant can be used in court.
    - waterheater 7y ago
      https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree In the specific case you're talking about, always.
- gamblor956 7y ago
  No, if a warrant is obtained using illegal evidence, then you poison the warrant and all the evidence arising from it. Parallel construction happens way less frequently than people think it does, since it requires that there be an actual parallel path to the evidence that would have been available at the time the evidence was improperly obtained. It's basically only upheld when evidence was collected improperly through one means (i.e., a confession without Miranda disclosure), but could have been collected properly through other means available at the time of the improper collection (i.e., if the contents of the confession would have been revealed by a standard CSI search).
threatofrain 7y ago
That's certainly a crucial protection but if law enforcement conducts an embarrassing or destructive search (such as when police recently blew up a man's home), they can still essentially end you. But yes, it's good that you can't be simultaneously nailed in court with illegally collected evidence. * https://www.npr.org/2019/10/30/774788611/police-owe-nothing-to-man-whose-home-they-blew-up-appeals-court-says https://www.npr.org/2019/10/30/774788611/police-owe-nothing-...
- hannasanarion 7y ago
  And in such a case, you can sue for harassment. The police can't routinely violate your rights just for the heck of it, they need to show a good-faith belief that what they're doing is legal and could produce evidence useful in court.
  - dalore 7y ago
    From the article: > But the problem with that argument, the appeals court ruled, is that courts have long held that police cannot be on the hook for property damage caused in the process of trying to make an arrest.
    - pas 7y ago
      That was a rather different problem than directly harassing the unlawfully searched person. In that case it was incompetence, gross negligence, and so on. Naturally it's hard to prove in court that the court's enforcement arm is at fault. And at first the guy tried to sue for damages but that was thrown out - because it's so well established - but still that's the point that should be hammered.
    - hannasanarion 7y ago
      Police can be held responsible if the arrest itself was illegal, an attempt to harass instead of execute the law in good faith.
  - thephyber 7y ago
    > And in such a case, you can sue for harassment. > they need to show a good-faith belief... That's not how being a plaintiff works, which is what is frustrating about this type of situation. They do some action which is legally questionable. You have to show standing and potentially damages to be able to bring the suit, then you have to prove that what they did was not a good faith belief that their actions were legal. The onus is on the person without the power with (typically) minimal resources.
bdowling 7y ago
> if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court. This is not strictly correct. If law enforcement violates your rights via an illegal search, they cannot use that evidence against you. However, they may be able to use the evidence against others. For example, suppose the police illegally search your house and find drugs and a list of customers. You may be able to exclude that evidence from being used against you but your customers may not be so lucky because it was not their 4th Amendment rights that were violated by the illegal search.
- quickthrower2 7y ago
  Interesting, so there is an incentive to do an illegal search especially for drugs where you might find a higher up.
lwf 7y ago
Unless they claim to be acting in "Good faith", that is, didn't think at the time that the search was improper and it wasn't clearly settled law. https://en.wikipedia.org/wiki/Carpenter_v._United_States#Subsequent_developments https://en.wikipedia.org/wiki/Carpenter_v._United_States#Sub... You can win a Supreme Court case about a search being illegal, and still have that evidence be used to nail you on the original charge.
zxcvbn4038 7y ago
That’s not entirely true - I think the official term is creative reconstruction -and basically once they have evidence then they go back and document all of the things that, with perfect hindsight, would have caused reasonable suspicion so that obtaining the evidence then becomes justified. So John Doe has been caught transporting narcotics, and with perfect hindsight we know that John drives a much more expensive car then his his income allows, so that raised suspicion and justified searching the vehicle where the narcotics were found. That’s how it seems to work more or less.
- rubyfan 7y ago
  You’re thinking of Parallel Construction https://en.m.wikipedia.org/wiki/Parallel_construction https://en.m.wikipedia.org/wiki/Parallel_construction
  - zxcvbn4038 7y ago
    That’s it! Thank you

calibas 7y ago

> surely I can’t impede law enforcement because they haven’t justified their authority to me Unless you've broken the law (and certain special cases), they have no authority over you. Because of the nature of their jobs, which requires them to sometimes take away a person's freedom or life, they must be held to a much higher level of accountability than your average person. You cite fear of harassment as a reason for not standing up to police, and to me that says something is deeply wrong with our current system.

gnopgnip 7y ago
>Unless you've broken the law (and certain special cases), they have no authority over you. This is not true at the border. They can seize your property, and delay you for what the law would say is temporary, but is long enough to be a major inconvenience.
- deleted 7y ago
  [deleted]

JohnJEsq 7y ago

The search of a phone is like a search of any other thing in US law. Generally, searches require a warrant which implicitly requires probable cause, but there are some well-defined exceptions to the warrant requirement, and the probable cause requirement. One of these exceptions is the border search exception. US Courts have previously said this exception is reasonable for various reasons, and is an exception to both the warrant and probable cause requirements. The court in this case says it is an exception only for routine searches, and called the digital searches non-routine which don't fall entirely within the existing exception. Rather the court says non-routine searches don't require a warrant but do require a reasonable suspicion, a standard still below probable cause. A reasonable suspicion requires only the officer to have a suspicion they can state a reason for. For example, a phone's lock screen with CP would satisfy reasonable suspicion. > Would the suspicion have to be announced to me, when I’m asked to unlock my phone[?] No. Officers don't have to disclose to you their reasons. It's helpful, but not constitutionally required. >[W]ould it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone? Not necessarily. In a criminal prosecution violations of the Fourth Amendment can be excluded by the court. The theory underlying the exclusion is that without the exclusion there would be nothing to stop cops from violating your Fourth Amendment rights. A criminal defendant must challenge the use of the evidence found, and the officer must give their reason when the judge is trying to determine whether to allow the testimony. In the US, you can also sue the officers when they violate your rights and win money damages. That's what this case is. The officer as part of their defense must give their reasons to defend they didn't violate any constitutional rights. >If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”? Probably. Some courts may additionally require the officer to give a basis of why you fit that profile, or why someone who fits that profile reasonably is likely to carry illegal things. Typically just saying it matches a profile is sufficient.

angry_octet 7y ago
A lock screen is a reason for 'reasonable suspicion'? I'm not saying you're wrong, but it seems unreasonable. If I have a lock on my briefcase it isn't reasonable to suggest it's full of contraband.