28 ms·

Judge Rules Blanket Search of Cell Tower Data Unconstitutional

494 points by bradac56 2y ago

jmorenoamor 1y ago
Couldn't the data be anonymized in a way that the police can track and relate some hashed ids with crimes, and then, via judge approval, ask the telecom companies to deanonymize them?
hiatus 2y ago
> U.S. District Juste Miranda M. Du rejected this argument, but wouldn’t suppress the evidence. “The Court finds that a tower dump is a search and the warrant law enforcement used to get it is a general warrant forbidden under the Fourth Amendment,” she said in a ruling filed on April 11. “That said, because the Court appears to be the first court within the Ninth Circuit to reach this conclusion and the good faith exception otherwise applies, the Court will not order any evidence suppressed.” It continues to amaze me that police are the only group who can use the defense of ignorance of the law.
- Terr_ 2y ago
  Not only that, when they lie in conversations/interrogations, they can lie about what the law is, as well as what official acts can/will undertake. To me there is a fundamental difference between lies like: 1. "Your buddy in the next room already ratted you out." 2. "Sign this admission and you'll only get 6 months, tops. If you don't, we can seize your house and your mother will be living on the streets. "
  - nemomarx 2y ago
    I get your point but actually why can they lie and claim your buddy ratted you out?
    - p_ing 2y ago
      Tax payers don't care enough to force the congress critters to change the laws in <your home state>. Instead, you get human beings who are shielded by a thin piece of paper who can summarily execute you, then say "whoops, my bad". Police are nothing more than State-sponsored gang members.
      - pstuart 2y ago
        Many of those tax payers are fine with them being gang members, but only against "others" -- that's a feature, not a bug.
      - deepsun 2y ago
        State (any country, since the birth of monarchies) is the gang. It literally robs you ("taxes"), monopolized violence (only state is allowed to utilize it). But if it does a poor job at that, other states swoop in with their rules, no invitation needed.
        Retric 2y ago
        Cops are sufficiently independent to be a separate entity here. Under civil asset forfeiture they are literally allowed to go out and rob people independent of what any taxes might be.
      - duskwuff 2y ago
        > Police are nothing more than State-sponsored gang members. Sometimes very literally: https://en.wikipedia.org/wiki/Gangs_in_the_Los_Angeles_County_Sheriff%27s_Department https://en.wikipedia.org/wiki/Gangs_in_the_Los_Angeles_Count...
    - deleted 2y ago
      [deleted]
    - Zak 2y ago
      The assumption, as I understand it is that a guilty person is more likely to confess if they believe the evidence against them is strong, but an innocent person will not believe the lie because they know they didn't commit the crime and generate the purported evidence. I fear like many other old assumptions about criminal justice that isn't a close match to reality.
    - Terr_ 2y ago
      I imagine a lot of it is tradition, AFAICT it was never really banned in the US (or Britain), although in the US it was codified in 1969. [0] [0] https://en.wikipedia.org/wiki/Frazier_v._Cupp https://en.wikipedia.org/wiki/Frazier_v._Cupp
    - dghlsakjg 2y ago
      Simple answer? Because there is nothing prohibiting it.
  - plsbenice34 2y ago
    I dont see the difference, both should be illegal
  - LinuxBender 2y ago
    Never talk to the police. Let your lawyers do the talking.
    - gosub100 2y ago
      [flagged]
      - Kinrany 2y ago
        You're interpreting GP's comment in bad faith.
        AlexeyBelov 1y ago
        It's a pattern for this user. Seriously, read their comments. I don't understand why HN tolerated that.
        gosub100 1y ago
        someone has different views than you. can you handle that?
        gosub100 2y ago
        He used the word "never". That's not a word requiring interpretation. And for finding this gaping hole in his argument, I'm rewarded by getting flagged.
        Kinrany 2y ago
        People usually understand that rules can have exceptions, and natural language is limited in its precision.
        gosub100 2y ago
        [flagged]
  - some-guy 2y ago
    When I was a child, I thought police had to go to law school. How else would you enforce the law if you didn't know what the law was?
    - Clubber 2y ago
      They're supposed to be trained on it, and they probably get a week maybe, depending on the academy. The rest is how to beat your ass.
    - redeux 2y ago
      I took a class in college from a lawyer who said he started as a cop but wanted to understand the law better so he went to law school at night. When he graduated the chief (or whatever) told him he couldn’t practice law and be a cop, and even though he had no intention of actually being an attorney, they let him go.
      - bryanrasmussen 2y ago
        maybe related https://abcnews.go.com/US/court-oks-barring-high-iqs-cops/story?id=95836 https://abcnews.go.com/US/court-oks-barring-high-iqs-cops/st...
      - ein0p 2y ago
        Literally too smart to be regime muscle.
        jasonm23 1y ago
        Regime... how cute to call money a regime.
    - underdeserver 2y ago
      We all have to go to law school. How could you live in the world without breaking the law if you didn't know what the law was?
      - 2y ago
  - voxic11 2y ago
    They can't do 2. Or at least it would make the confession inadmissible evidence. The case law for this goes back more than a century. The general rule is that the police cannot promise you anything in return for a confession. > Bram v. United States, 168 U.S. 532 (1897), was a United States Supreme Court case that ruled that an alleged confession to a crime, in order to be admissible, must not be obtained by threats or violence, nor by any direct or implied promises, however slight. https://en.wikipedia.org/wiki/Bram_v._United_States https://en.wikipedia.org/wiki/Bram_v._United_States The ruling was later applied to the states as well in Malloy v. Hogan > The Court held that the Fifth Amendment's exception from compulsory self-incrimination is protected by the Fourteenth Amendment against abridgement by a state. When determining if state officers properly obtained a confession, one must focus on whether the statements were made freely and voluntarily without any direct or implied promises or improper influence. https://www.oyez.org/cases/1963/110 https://www.oyez.org/cases/1963/110 The "you will get X years instead of Y years" has repeatedly been found to make testimony inadmissible. You might be confusing it with plea bargains which are legal but don't involve the police and are actually binding agreements. The prosecutor cannot lie to you about what you will receive in return for your cooperation.
    - decimalenough 2y ago
      > The general rule is that the police cannot promise you anything in return for a confession. Yet plea bargaining is basically a promise in exchange for a confession (guilty plea), and that's why it's not allowed basically anywhere except the US.
      - bryanrasmussen 2y ago
        plea bargaining in the U.S also is a promise that they will recommend that you get a particular deal, but the judge in sentencing can decide not to take that deal.
        voxic11 2y ago
        Yes maybe my wording was clumsy but that is what I was attempting to say. The important thing is the prosecutor is not allowed to lie to you as part of the plea bargain. If they promise to do something like give a specific recommendation to the judge they must do it or risk the verdict being overturned.
- wutwutwat 2y ago
  Who does the court work for? The government. Who do the police work for? The government. Yeah yeah, they work for “the people” “the tax payer” whatever. They work for the government. They get their paychecks from the same place. What are you expecting here? This isn’t equal.
  - ceejayoz 2y ago
    There's a very good chance the cops in question do not work for the Federal government. They certainly don't work for the judicial branch. It isn't a perfect setup, but it's better than many.
    - ty6853 2y ago
      The whole thing is intertwined. Podunk cops often get put on 3 letter task forces and work in a mutual arrangement with each other. They often have a really clever scam going on where they kick seizures up to federal agencies, since it is so much harder to block/contest federal forfeitures than local ones, and then the federal agencies kick back a fraction of it. Maybe their paychecks don't come from the federal government nominally but in practice it's highly intermixed.
    - wutwutwat 2y ago
      They all get paid from my pay check. They work for the government. Level doesn’t matter. They protect their own.
      - JumpCrisscross 2y ago
        > Level doesn’t matter This level of civic and legal ignorance is a large part of why our country is in the mess that it is.
        wutwutwat 2y ago
        Yes, thank you. It is my fault. Glad someone is calling it out!
- mjd 2y ago
  The rule that illegally obtained evidence is inadmissible exists to disincentivize the police from obtaining evidence illegally. But if the police believed, in good faith, that a particular search was legal and reasonable, based on the fact that a judge authorized them to perform it, then excluding the resulting evidence doesn't serve that purpose. Update: This is not a new thing. The good-faith exception has been in U.S. law for decades. See https://en.wikipedia.org/wiki/Good-faith_exception https://en.wikipedia.org/wiki/Good-faith_exception . You may not like it, but it's not something the judge just made up out of thin air.
  - ty6853 2y ago
    If I believe, in good faith, I have not broken the law. I should not be convicted.
    - mjd 2y ago
      This is not responsive. The police did not commit a crime here. Also note that there are good-faith defenses to all sorts of crimes, because (for example) there is a difference between knowingly defrauding a customer and just making a mistake.
      - ceejayoz 2y ago
        > The police did not commit a crime here. They did, however, violate the Fourth Amendment. Per the court.
        mjd 2y ago
        The Fourth Amendment was violated by the magistrate judge who issued the illegal warrant, not by the police officers who, acting in in good faith, executed it.
        RHSeeger 2y ago
        No, the judge told them they were allowed to do it. The act of doing it is what violated the fourth amendment. If they hadn't acted on the warrant, the fourth amendment wouldn't have been violated. The judge was _wrong_, but the police are the ones that violated the amendment.
- ren_engineer 2y ago
  cell tower dump and general geofence warrants to Google/Apple were how many Jan 6th protesters were found and charged. Courts threw out all their arguments about this very issue. This is standard practice and was celebrated as cops being smart here's a Washington Post article lamenting that Google was cutting back on how long they hold location data and how hundreds of people wouldn't have been prosecuted without it- https://archive.ph/r7afb https://archive.ph/r7afb
- dataflow 2y ago
  You seem to be misrepresenting the situation. Ignorance of the law is not the defense they are invoking here. Ignorance of the law is when you claim you didn't follow the law because you were unaware it existed. This is a case where the court believes police did know the law and did try to follow it in good faith -- that's how they got to their conclusion that it's constitutional -- and that no court had yet reached a different conclusion in that district, until now. These are distinctly different situations.
- AdrianB1 2y ago
  In most cases police is seen as serving the government and having all sorts of protections from sovereign immunity (confirmed in a case when a SWAT team partly destroyed the wrong house), qualified immunity (invented by SCOTUS, there is no such law) and practical legal immunity based on the fact that DAs rarely prosecute and even juries rarely find them guilty when prosecuted. This is why the ignorance of the law is accepted in so many cases as a defense for police, but not for citizens.
- anon6362 2y ago
  US police, in effect, are a lawless, violent, honorless, untouchable, mafia who protect and serve primarily a landed aristocracy. In some ultra-exclusive communities, city police are literally reduced to Dashers and grocery getters. Similar venues and communities in the States also pay for hybrid PMC/LE QRFs who roll with battle rattle more than body armor and long guns.
  - cyberax 2y ago
    Dude, lay off the bong pipe. > In some ultra-exclusive communities, city police are literally reduced to Dashers and grocery getters Care to name a few?
    - TheJoeMan 2y ago
      Not OP, but have you heard the craziness of Indian Creek Village in Miami? [1]. Their police force is 15 for a community of 41 homes[2]. [1] https://en.wikipedia.org/wiki/Indian_Creek,_Florida https://en.wikipedia.org/wiki/Indian_Creek,_Florida [2] https://www.indiancreekvillagefl.gov/police/police-staff-directory https://www.indiancreekvillagefl.gov/police/police-staff-dir...
      - cyberax 2y ago
        And where does it say that they bring groceries?
- lazystar 2y ago
  read between the lines; this is the Kohberger case. > the Court will not order any evidence suppressed. this keeps him from getting off scott free
reverendsteveii 2y ago
How many times recently have we seen rulings from judges that establish that something is definitely illegal but the person who did is still allowed to do it or at least there's no mechanism by which they can be punished for doing it? Having laws and then picking and choosing when they'll be enforced and against whom is the same as not having laws in the first place. And before you cite the good faith exception, passing a law that says "It's legal to pick and choose when the law applies" doesn't legitimize it.
- dylan604 2y ago
  “That said, because the Court appears to be the first court within the Ninth Circuit to reach this conclusion and the good faith exception otherwise applies, the Court will not order any evidence suppressed.” At least the weasel words allow/recognize that the decision is made on a branch of unknown strength. The branch may snap if other judges overrule, or it may be found to be a main branch if other judges uphold the decision. I'm not a legal scholar, but that's the first I've heard of this type of acknowledgement. However, seems like the courage ran out at that point instead of denying the evidence to be used, and letting it go to appeal to test the thickness of that branch.
  - refulgentis 2y ago
    "Weasel words" "courage ran out" ... "I'm not a legal scholar," :/ I'd at least avoid the mind-reading.
- _DeadFred_ 2y ago
  Remember in every system people push up to and just as far over the line as they can get away with. 'Good faith' is given when chain of custody is broken. 'Good faith' is given way too much. Either the 4th Amendment is serious enough to have power/force over law enforcement/judicial, or it doesn't. And with good faith, it doesn't. 'our side violated the law but because of the divisions of power, our side didn't violate the law and we are going to give good faith to our side that our side was acting in good faith'. It's all window dressing to say 'the fourth amendment is superseded by other factors that a judge get's to decide at their discretion and the fourth amendment is not in fact the law of the land, a judge can overrule it with 'good faith''.
flipnotyk 2y ago
"It's unconstitutional and illegal, but you're not being held accountable and you can still use the data." Yeah that tracks.
- mjd 2y ago
  It is not reasonable to hold someone accountable for doing something illegal in 2020 that was only determined to be illegal in 2025. The police officers applied to a judge for a warrant. The judge gave them the warrant. Now another judge says that the warrant should not have been issued in the first place. How is that the police's fault? How would you hold them accountable?
  - deleted 2y ago
    [deleted]
  - pcaharrier 2y ago
    This is the basic idea of the good faith exception to the exclusionary rule. The exclusionary rule was supposed to deter police misconduct (e.g., searching a house without a warrant, thereby violating the Fourth Amendment) by preventing them from using evidence they never should have had. But the deterrence rationale doesn't hold up that well when the police reasonably (and that's key) believed that they were acting lawfully.
    - _DeadFred_ 2y ago
      'Your constitutional rights were violated but tough luck, nothing can be done about it because the court is extending special 'good faith' courtesy to the police that you don't get (some animals are more equal than others in court decisions/considerations when minor laws (the fourth amendment) are broken)'. And people wonder why American's are apathetic to it all. A judge can just wave away constitutional violations all day/every day because 'good faith'.
      - garbagewoman 2y ago
        Go back and reread the comment you replied to. The exception can only happen once, because the precedent doesn’t exist until that ruling is made.
mjd 2y ago
It took me a while to track down the actual opinion. The case, United States v Spurlock, is 3:23-cr-00022 in the Nevada federal district. The opinion itself is ECF document #370, and I have hosted a copy at https://plover.com/~mjd/misc/cell-tower-dump-opinion.pdf https://plover.com/~mjd/misc/cell-tower-dump-opinion.pdf in case other people are interested.
- aftbit 2y ago
  Thanks for finding this! Here's a link to Courtlistener/RECAP, which has a copy of this hosted for free as well. Docket: https://www.courtlistener.com/docket/67397036/united-states-v-spurlock/?page=2 https://www.courtlistener.com/docket/67397036/united-states-... Order: https://storage.courtlistener.com/recap/gov.uscourts.nvd.162305/gov.uscourts.nvd.162305.370.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.nvd.162...
- LiamPowell 2y ago
  They've clearly read this to write this article. I don't understand why they don't at the very least reference it, even if they don't provide a direct link.
transpute 2y ago
EFF tool to counter BYOT (Bring Your Own Tower), https://news.ycombinator.com/item?id=43283917 https://news.ycombinator.com/item?id=43283917
Analemma_ 2y ago
Do law schools even bother teaching about "fruit of the poisoned tree" anymore? It's clearly a dead letter; this is yet another ruling that if you gather evidence illegally you'll get a finger-wag but allowed to proceed as usual. Why even have a notion of legality of evidence if it doesn't matter?
- mjd 2y ago
  The purpose of the "fruit of the poisonous tree" doctrine is to disincentivize illegal collection of evidence. But there has always been a good-faith exception to it: if the police genuinely believed that what they were doing was legal, as they did in this case, relying on established legal precedent, then throwing out the evidence doesn't disincentivize anything. But the declaration that cell tower dumps are illegal now disincentivizes future police from relying on dumps, since they now know (or should know) that such evidence will be thrown out. And more to the point, magistrate judges will stop issuing warrants for cell tower dumps.
  - topspin 2y ago
    "fruit of the poisonous tree" is one of those "magic words" that a lot of people think will preclude prosecution. Judges frequently make exceptions and judgement calls on whether a given search was legal, and people are frequently convicted on "poisoned" evidence, and evidence compromised in all sorts of other ways.
  - reverendsteveii 2y ago
    >since they now know (or should know) but can you hold them to that in any manner or does each officer need to be told officially and continue to plead ignorance of the law until they are in some documented way informed of it? can you plead ignorance of the law if you know it's not legal to dump all traffic from a cell phone tower but no one said that it's not legal to dump all the traffic from a web server (assuming for the sake of argument the obv interpretation that this ruling applies to all data stores that contain data from multiple people)? Every time you need to violate the constitution can you just have the new guy do it? Does declaring this illegal actually do anything to protect the rights of people who did nothing wrong and had their data seized and pored over by police anyway?
thatguymike 2y ago
If this holds, can cops still ask for whether a specific phone number was present on a cell tower at a certain time? I can't tell if it's the breadth of the data collection that's unconsitutional because it catches lots of innocent people's data; or if it's the concept of using cell towers altogether.
- mjd 2y ago
  It's the breadth. Searches have to be narrowly tailored to provide evidence of the specific crime being investigated. There's discussion of this on pages 12–13 of the judge's opinion. https://plover.com/~mjd/misc/cell-tower-dump-opinion.pdf https://plover.com/~mjd/misc/cell-tower-dump-opinion.pdf
IncreasePosts 2y ago
So the warrant is forbidden - could the police just ask nicely for the data and have telcos provide it?
- autoexec 2y ago
  If police just ask they'll usually be rejected, but police have found it a lot easier to offer to pay for that data and companies have been happy to turn it over while stuffing their pockets with taxpayer money.
_p2zi 2y ago
Paywall free link: https://www.courtwatch.news/p/judge-rules-blanket-search-of-cell-tower-data-unconstitutional https://www.courtwatch.news/p/judge-rules-blanket-search-of-...
thrance 2y ago
[flagged]
excalibur 2y ago
Did they blow the cell phone snooping machine up when they were done like in The Dark Knight?
Jimmc414 2y ago
Interesting that the recent ruling against blanket cell tower data searches wouldn't have affected the Mark Gooch case. In that insatnce, investigators used targeted cell phone data (ie "geofencing") to track his movements, not a mass data collection. Under the new standards, this type of focused surveillance would still be permitted. https://www.youtube.com/watch?v=YBBTfy29WKI https://www.youtube.com/watch?v=YBBTfy29WKI They absolutely wouldn't have caught him without the cell phone data, highlighting in my mind, the fine line between privacy and safety, which is something I personally struggle to articulate clearly. While it's reassuring this ruling wouldn't affect this case, I can easily see how "tower dumps" could be misused. It's confusing, though, that the judge ruled this unconstitutional action permissible "just this once." Either it's unconstitutional or it's not. Judges shouldn't have the authority grant one-time exceptions.
- mjd 2y ago
  The judge's opinion explains this in detail. It depends on the so-called "good-faith exception" to the exclusionary doctrine. The idea is that if the police tell the truth in their warrant application of what they are looking for and why, the judge issues a search warrant, and the police lawfully execute the warrant, then there's no point in suppressing the evidence just because, years later, it's determined that the warrant should not have issued. https://en.wikipedia.org/wiki/Good-faith_exception https://en.wikipedia.org/wiki/Good-faith_exception
  - djrj477dhsnv 2y ago
    There is a point: protecting the accused against unconstitutional searches. That certainly seems important. Whether the police violated the constitution in good faith or not is irrelevant when it comes to the rights of the accused.
    - darawk 2y ago
      There's no point in protecting one individual against an unconstitutional search that proves him guilty. The constitutional issue is the ability to have conducted the search in the first place. The only reason we suppress accurate, but unconstitutionally obtained evidence is to disincentivize the action in the future. This "good-faith exception" strikes that balance pretty ideally. The defendants rights were violated, but there is no doubt about the legitimacy of the data, and what it implies. Police now know they cannot use this method in the future, so suppressing the evidence in this particular case does not disincentivize anything, as long as its made clear that it cannot be done in the future.
dmix 2y ago
Ontario Canada figured this out in 2016. https://financialpost.com/technology/police-breached-cellphone-customers-charter-rights-ontario-judge-rules https://financialpost.com/technology/police-breached-cellpho...
fsckboy 2y ago
what's the difference between eyewitnesses reporting their recollections of EMF data gathered by their eyes, a surveillance camera collecting and recording EMF data, and a cell tower collecting and recording EMF data? In the case of the cell tower, the suspect is always carrying a "flashlight", but in the other cases he may be.
- VanTheBrand 2y ago
  because the law is not a math equation and context matters.
  - fsckboy 2y ago
    the contexts are identical, it's how, and as importantly why, i constructed my question: criminal does something, is detected, claims "but for my detection, i would not be before this court" police investigating canvas for witnesses, canvas for ring doorbells cams, and ... canvas for cell towers. identical, not analogous.
- axus 2y ago
  Reasonable eyewitnesses omit people + location + times weren't suspicious. The camera only leaves out people at other locations, the cell tower data doesn't leave anyone out.
tlogan 2y ago
I assume this will go all the way to the Supreme Court. Is issuing a warrant to do blanket search of cell tower data unconstitutional?
- sigwinch 2y ago
  “and the persons or things to be seized” suggests otherwise. NSLs wouldn’t be challenged this way.
- nzeid 2y ago
  I am not a lawyer but here it goes: If the target of the warrant itself is the carrier/telecom - probably constitutional, but I imagine there'd need to be a pretty good explanation. If the target of the warrant itself is a single customer of the carrier/telecom - Absolutely unconstitutional. E.g. You can't get the transaction history of every customer of a bank just because one of its customers is a suspect. (Edited for clarity.)
riffic 2y ago
guess they'll just keep doing it anyways and will now do "parallel construction" to get a case through court.
ccleve 2y ago
The issue in this case is being tested in other cases. It's about the "third party doctrine", the theory that the fourth amendment does not cover our information if it is in the possession of a third party. https://nclalegal.org/press_release/ncla-asks-supreme-court-to-hear-case-on-privacy-rights-for-records-shared-with-third-parties/ https://nclalegal.org/press_release/ncla-asks-supreme-court-... I blogged about this some time ago: https://ccleve.com/p/a-privacy-amendment https://ccleve.com/p/a-privacy-amendment
keernan 2y ago
I've never been completely comfortable with the concept of potentially freeing criminals because of wrongful conduct by the police. The argument is there must be a way to protect society against the use of illegal methods by the police. I'm not confident, however, that the Exclusionary Rule actually accomplishes its purposes. I suspect the police 'roll the dice' all the time in their investigations, knowing full well they are unlikely to pay much of a personal price if their illegality gets discovered. I've always thought charging police for their illegal conduct in a special federal system that handled all cases of wrongful conduct by police nationwide; with high conviction rates and penalties that start with termination and loss of pension and move on from there to add long prison terms. A system with special judges and prosecutors and civilian oversight. Not likely to happen, so I guess we are stuck with letting criminals and the cops walk free.
johnea 2y ago
I wonder if this also applies to the widely deployed stingray cell tower emulators, which effectively institute a Man In The Middle breach of cell phone communications...
deleted 2y ago
[deleted]
fdb345 2y ago
The Constitution needs to be mirrored in all Western Nations otherwise Tyranny is guaranteed.
- deleted 2y ago
  [deleted]

494 points by bradac56 2y ago

Couldn't the data be anonymized in a way that the police can track and relate some hashed ids with crimes, and then, via judge approval, ask the telecom companies to deanonymize them?

hiatus 2y ago

> U.S. District Juste Miranda M. Du rejected this argument, but wouldn’t suppress the evidence. “The Court finds that a tower dump is a search and the warrant law enforcement used to get it is a general warrant forbidden under the Fourth Amendment,” she said in a ruling filed on April 11. “That said, because the Court appears to be the first court within the Ninth Circuit to reach this conclusion and the good faith exception otherwise applies, the Court will not order any evidence suppressed.” It continues to amaze me that police are the only group who can use the defense of ignorance of the law.

Terr_ 2y ago
Not only that, when they lie in conversations/interrogations, they can lie about what the law is, as well as what official acts can/will undertake. To me there is a fundamental difference between lies like: 1. "Your buddy in the next room already ratted you out." 2. "Sign this admission and you'll only get 6 months, tops. If you don't, we can seize your house and your mother will be living on the streets. "
- nemomarx 2y ago
  I get your point but actually why can they lie and claim your buddy ratted you out?
  - p_ing 2y ago
    Tax payers don't care enough to force the congress critters to change the laws in <your home state>. Instead, you get human beings who are shielded by a thin piece of paper who can summarily execute you, then say "whoops, my bad". Police are nothing more than State-sponsored gang members.
    - pstuart 2y ago
      Many of those tax payers are fine with them being gang members, but only against "others" -- that's a feature, not a bug.
    - deepsun 2y ago
      State (any country, since the birth of monarchies) is the gang. It literally robs you ("taxes"), monopolized violence (only state is allowed to utilize it). But if it does a poor job at that, other states swoop in with their rules, no invitation needed.
      - Retric 2y ago
        Cops are sufficiently independent to be a separate entity here. Under civil asset forfeiture they are literally allowed to go out and rob people independent of what any taxes might be.
    - duskwuff 2y ago
      > Police are nothing more than State-sponsored gang members. Sometimes very literally: https://en.wikipedia.org/wiki/Gangs_in_the_Los_Angeles_County_Sheriff%27s_Department https://en.wikipedia.org/wiki/Gangs_in_the_Los_Angeles_Count...
  - deleted 2y ago
    [deleted]
  - Zak 2y ago
    The assumption, as I understand it is that a guilty person is more likely to confess if they believe the evidence against them is strong, but an innocent person will not believe the lie because they know they didn't commit the crime and generate the purported evidence. I fear like many other old assumptions about criminal justice that isn't a close match to reality.
  - Terr_ 2y ago
    I imagine a lot of it is tradition, AFAICT it was never really banned in the US (or Britain), although in the US it was codified in 1969. [0] [0] https://en.wikipedia.org/wiki/Frazier_v._Cupp https://en.wikipedia.org/wiki/Frazier_v._Cupp
  - dghlsakjg 2y ago
    Simple answer? Because there is nothing prohibiting it.
- plsbenice34 2y ago
  I dont see the difference, both should be illegal
- LinuxBender 2y ago
  Never talk to the police. Let your lawyers do the talking.
  - gosub100 2y ago
    [flagged]
    - Kinrany 2y ago
      You're interpreting GP's comment in bad faith.
      - AlexeyBelov 1y ago
        It's a pattern for this user. Seriously, read their comments. I don't understand why HN tolerated that.
        gosub100 1y ago
        someone has different views than you. can you handle that?
      - gosub100 2y ago
        He used the word "never". That's not a word requiring interpretation. And for finding this gaping hole in his argument, I'm rewarded by getting flagged.
        Kinrany 2y ago
        People usually understand that rules can have exceptions, and natural language is limited in its precision.
        gosub100 2y ago
        [flagged]
- some-guy 2y ago
  When I was a child, I thought police had to go to law school. How else would you enforce the law if you didn't know what the law was?
  - Clubber 2y ago
    They're supposed to be trained on it, and they probably get a week maybe, depending on the academy. The rest is how to beat your ass.
  - redeux 2y ago
    I took a class in college from a lawyer who said he started as a cop but wanted to understand the law better so he went to law school at night. When he graduated the chief (or whatever) told him he couldn’t practice law and be a cop, and even though he had no intention of actually being an attorney, they let him go.
    - bryanrasmussen 2y ago
      maybe related https://abcnews.go.com/US/court-oks-barring-high-iqs-cops/story?id=95836 https://abcnews.go.com/US/court-oks-barring-high-iqs-cops/st...
    - ein0p 2y ago
      Literally too smart to be regime muscle.
      - jasonm23 1y ago
        Regime... how cute to call money a regime.
  - underdeserver 2y ago
    We all have to go to law school. How could you live in the world without breaking the law if you didn't know what the law was?
    - 2y ago
- voxic11 2y ago
  They can't do 2. Or at least it would make the confession inadmissible evidence. The case law for this goes back more than a century. The general rule is that the police cannot promise you anything in return for a confession. > Bram v. United States, 168 U.S. 532 (1897), was a United States Supreme Court case that ruled that an alleged confession to a crime, in order to be admissible, must not be obtained by threats or violence, nor by any direct or implied promises, however slight. https://en.wikipedia.org/wiki/Bram_v._United_States https://en.wikipedia.org/wiki/Bram_v._United_States The ruling was later applied to the states as well in Malloy v. Hogan > The Court held that the Fifth Amendment's exception from compulsory self-incrimination is protected by the Fourteenth Amendment against abridgement by a state. When determining if state officers properly obtained a confession, one must focus on whether the statements were made freely and voluntarily without any direct or implied promises or improper influence. https://www.oyez.org/cases/1963/110 https://www.oyez.org/cases/1963/110 The "you will get X years instead of Y years" has repeatedly been found to make testimony inadmissible. You might be confusing it with plea bargains which are legal but don't involve the police and are actually binding agreements. The prosecutor cannot lie to you about what you will receive in return for your cooperation.
  - decimalenough 2y ago
    > The general rule is that the police cannot promise you anything in return for a confession. Yet plea bargaining is basically a promise in exchange for a confession (guilty plea), and that's why it's not allowed basically anywhere except the US.
    - bryanrasmussen 2y ago
      plea bargaining in the U.S also is a promise that they will recommend that you get a particular deal, but the judge in sentencing can decide not to take that deal.
      - voxic11 2y ago
        Yes maybe my wording was clumsy but that is what I was attempting to say. The important thing is the prosecutor is not allowed to lie to you as part of the plea bargain. If they promise to do something like give a specific recommendation to the judge they must do it or risk the verdict being overturned.
wutwutwat 2y ago
Who does the court work for? The government. Who do the police work for? The government. Yeah yeah, they work for “the people” “the tax payer” whatever. They work for the government. They get their paychecks from the same place. What are you expecting here? This isn’t equal.
- ceejayoz 2y ago
  There's a very good chance the cops in question do not work for the Federal government. They certainly don't work for the judicial branch. It isn't a perfect setup, but it's better than many.
  - ty6853 2y ago
    The whole thing is intertwined. Podunk cops often get put on 3 letter task forces and work in a mutual arrangement with each other. They often have a really clever scam going on where they kick seizures up to federal agencies, since it is so much harder to block/contest federal forfeitures than local ones, and then the federal agencies kick back a fraction of it. Maybe their paychecks don't come from the federal government nominally but in practice it's highly intermixed.
  - wutwutwat 2y ago
    They all get paid from my pay check. They work for the government. Level doesn’t matter. They protect their own.
    - JumpCrisscross 2y ago
      > Level doesn’t matter This level of civic and legal ignorance is a large part of why our country is in the mess that it is.
      - wutwutwat 2y ago
        Yes, thank you. It is my fault. Glad someone is calling it out!
mjd 2y ago
The rule that illegally obtained evidence is inadmissible exists to disincentivize the police from obtaining evidence illegally. But if the police believed, in good faith, that a particular search was legal and reasonable, based on the fact that a judge authorized them to perform it, then excluding the resulting evidence doesn't serve that purpose. Update: This is not a new thing. The good-faith exception has been in U.S. law for decades. See https://en.wikipedia.org/wiki/Good-faith_exception https://en.wikipedia.org/wiki/Good-faith_exception . You may not like it, but it's not something the judge just made up out of thin air.
- ty6853 2y ago
  If I believe, in good faith, I have not broken the law. I should not be convicted.
  - mjd 2y ago
    This is not responsive. The police did not commit a crime here. Also note that there are good-faith defenses to all sorts of crimes, because (for example) there is a difference between knowingly defrauding a customer and just making a mistake.
    - ceejayoz 2y ago
      > The police did not commit a crime here. They did, however, violate the Fourth Amendment. Per the court.
      - mjd 2y ago
        The Fourth Amendment was violated by the magistrate judge who issued the illegal warrant, not by the police officers who, acting in in good faith, executed it.
        RHSeeger 2y ago
        No, the judge told them they were allowed to do it. The act of doing it is what violated the fourth amendment. If they hadn't acted on the warrant, the fourth amendment wouldn't have been violated. The judge was _wrong_, but the police are the ones that violated the amendment.
ren_engineer 2y ago
cell tower dump and general geofence warrants to Google/Apple were how many Jan 6th protesters were found and charged. Courts threw out all their arguments about this very issue. This is standard practice and was celebrated as cops being smart here's a Washington Post article lamenting that Google was cutting back on how long they hold location data and how hundreds of people wouldn't have been prosecuted without it- https://archive.ph/r7afb https://archive.ph/r7afb
dataflow 2y ago
You seem to be misrepresenting the situation. Ignorance of the law is not the defense they are invoking here. Ignorance of the law is when you claim you didn't follow the law because you were unaware it existed. This is a case where the court believes police did know the law and did try to follow it in good faith -- that's how they got to their conclusion that it's constitutional -- and that no court had yet reached a different conclusion in that district, until now. These are distinctly different situations.
AdrianB1 2y ago
In most cases police is seen as serving the government and having all sorts of protections from sovereign immunity (confirmed in a case when a SWAT team partly destroyed the wrong house), qualified immunity (invented by SCOTUS, there is no such law) and practical legal immunity based on the fact that DAs rarely prosecute and even juries rarely find them guilty when prosecuted. This is why the ignorance of the law is accepted in so many cases as a defense for police, but not for citizens.
anon6362 2y ago
US police, in effect, are a lawless, violent, honorless, untouchable, mafia who protect and serve primarily a landed aristocracy. In some ultra-exclusive communities, city police are literally reduced to Dashers and grocery getters. Similar venues and communities in the States also pay for hybrid PMC/LE QRFs who roll with battle rattle more than body armor and long guns.
- cyberax 2y ago
  Dude, lay off the bong pipe. > In some ultra-exclusive communities, city police are literally reduced to Dashers and grocery getters Care to name a few?
  - TheJoeMan 2y ago
    Not OP, but have you heard the craziness of Indian Creek Village in Miami? [1]. Their police force is 15 for a community of 41 homes[2]. [1] https://en.wikipedia.org/wiki/Indian_Creek,_Florida https://en.wikipedia.org/wiki/Indian_Creek,_Florida [2] https://www.indiancreekvillagefl.gov/police/police-staff-directory https://www.indiancreekvillagefl.gov/police/police-staff-dir...
    - cyberax 2y ago
      And where does it say that they bring groceries?
lazystar 2y ago
read between the lines; this is the Kohberger case. > the Court will not order any evidence suppressed. this keeps him from getting off scott free

reverendsteveii 2y ago

How many times recently have we seen rulings from judges that establish that something is definitely illegal but the person who did is still allowed to do it or at least there's no mechanism by which they can be punished for doing it? Having laws and then picking and choosing when they'll be enforced and against whom is the same as not having laws in the first place. And before you cite the good faith exception, passing a law that says "It's legal to pick and choose when the law applies" doesn't legitimize it.

dylan604 2y ago
“That said, because the Court appears to be the first court within the Ninth Circuit to reach this conclusion and the good faith exception otherwise applies, the Court will not order any evidence suppressed.” At least the weasel words allow/recognize that the decision is made on a branch of unknown strength. The branch may snap if other judges overrule, or it may be found to be a main branch if other judges uphold the decision. I'm not a legal scholar, but that's the first I've heard of this type of acknowledgement. However, seems like the courage ran out at that point instead of denying the evidence to be used, and letting it go to appeal to test the thickness of that branch.
- refulgentis 2y ago
  "Weasel words" "courage ran out" ... "I'm not a legal scholar," :/ I'd at least avoid the mind-reading.
_DeadFred_ 2y ago
Remember in every system people push up to and just as far over the line as they can get away with. 'Good faith' is given when chain of custody is broken. 'Good faith' is given way too much. Either the 4th Amendment is serious enough to have power/force over law enforcement/judicial, or it doesn't. And with good faith, it doesn't. 'our side violated the law but because of the divisions of power, our side didn't violate the law and we are going to give good faith to our side that our side was acting in good faith'. It's all window dressing to say 'the fourth amendment is superseded by other factors that a judge get's to decide at their discretion and the fourth amendment is not in fact the law of the land, a judge can overrule it with 'good faith''.

flipnotyk 2y ago

"It's unconstitutional and illegal, but you're not being held accountable and you can still use the data." Yeah that tracks.

mjd 2y ago
It is not reasonable to hold someone accountable for doing something illegal in 2020 that was only determined to be illegal in 2025. The police officers applied to a judge for a warrant. The judge gave them the warrant. Now another judge says that the warrant should not have been issued in the first place. How is that the police's fault? How would you hold them accountable?
- deleted 2y ago
  [deleted]
- pcaharrier 2y ago
  This is the basic idea of the good faith exception to the exclusionary rule. The exclusionary rule was supposed to deter police misconduct (e.g., searching a house without a warrant, thereby violating the Fourth Amendment) by preventing them from using evidence they never should have had. But the deterrence rationale doesn't hold up that well when the police reasonably (and that's key) believed that they were acting lawfully.
  - _DeadFred_ 2y ago
    'Your constitutional rights were violated but tough luck, nothing can be done about it because the court is extending special 'good faith' courtesy to the police that you don't get (some animals are more equal than others in court decisions/considerations when minor laws (the fourth amendment) are broken)'. And people wonder why American's are apathetic to it all. A judge can just wave away constitutional violations all day/every day because 'good faith'.
    - garbagewoman 2y ago
      Go back and reread the comment you replied to. The exception can only happen once, because the precedent doesn’t exist until that ruling is made.

mjd 2y ago

It took me a while to track down the actual opinion. The case, United States v Spurlock, is 3:23-cr-00022 in the Nevada federal district. The opinion itself is ECF document #370, and I have hosted a copy at https://plover.com/~mjd/misc/cell-tower-dump-opinion.pdf https://plover.com/~mjd/misc/cell-tower-dump-opinion.pdf in case other people are interested.

aftbit 2y ago
Thanks for finding this! Here's a link to Courtlistener/RECAP, which has a copy of this hosted for free as well. Docket: https://www.courtlistener.com/docket/67397036/united-states-v-spurlock/?page=2 https://www.courtlistener.com/docket/67397036/united-states-... Order: https://storage.courtlistener.com/recap/gov.uscourts.nvd.162305/gov.uscourts.nvd.162305.370.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.nvd.162...
LiamPowell 2y ago
They've clearly read this to write this article. I don't understand why they don't at the very least reference it, even if they don't provide a direct link.

transpute 2y ago

EFF tool to counter BYOT (Bring Your Own Tower), https://news.ycombinator.com/item?id=43283917 https://news.ycombinator.com/item?id=43283917

Analemma_ 2y ago

Do law schools even bother teaching about "fruit of the poisoned tree" anymore? It's clearly a dead letter; this is yet another ruling that if you gather evidence illegally you'll get a finger-wag but allowed to proceed as usual. Why even have a notion of legality of evidence if it doesn't matter?

mjd 2y ago
The purpose of the "fruit of the poisonous tree" doctrine is to disincentivize illegal collection of evidence. But there has always been a good-faith exception to it: if the police genuinely believed that what they were doing was legal, as they did in this case, relying on established legal precedent, then throwing out the evidence doesn't disincentivize anything. But the declaration that cell tower dumps are illegal now disincentivizes future police from relying on dumps, since they now know (or should know) that such evidence will be thrown out. And more to the point, magistrate judges will stop issuing warrants for cell tower dumps.
- topspin 2y ago
  "fruit of the poisonous tree" is one of those "magic words" that a lot of people think will preclude prosecution. Judges frequently make exceptions and judgement calls on whether a given search was legal, and people are frequently convicted on "poisoned" evidence, and evidence compromised in all sorts of other ways.
- reverendsteveii 2y ago
  >since they now know (or should know) but can you hold them to that in any manner or does each officer need to be told officially and continue to plead ignorance of the law until they are in some documented way informed of it? can you plead ignorance of the law if you know it's not legal to dump all traffic from a cell phone tower but no one said that it's not legal to dump all the traffic from a web server (assuming for the sake of argument the obv interpretation that this ruling applies to all data stores that contain data from multiple people)? Every time you need to violate the constitution can you just have the new guy do it? Does declaring this illegal actually do anything to protect the rights of people who did nothing wrong and had their data seized and pored over by police anyway?

thatguymike 2y ago

If this holds, can cops still ask for whether a specific phone number was present on a cell tower at a certain time? I can't tell if it's the breadth of the data collection that's unconsitutional because it catches lots of innocent people's data; or if it's the concept of using cell towers altogether.

mjd 2y ago
It's the breadth. Searches have to be narrowly tailored to provide evidence of the specific crime being investigated. There's discussion of this on pages 12–13 of the judge's opinion. https://plover.com/~mjd/misc/cell-tower-dump-opinion.pdf https://plover.com/~mjd/misc/cell-tower-dump-opinion.pdf

IncreasePosts 2y ago

So the warrant is forbidden - could the police just ask nicely for the data and have telcos provide it?

autoexec 2y ago
If police just ask they'll usually be rejected, but police have found it a lot easier to offer to pay for that data and companies have been happy to turn it over while stuffing their pockets with taxpayer money.

_p2zi 2y ago

Paywall free link: https://www.courtwatch.news/p/judge-rules-blanket-search-of-cell-tower-data-unconstitutional https://www.courtwatch.news/p/judge-rules-blanket-search-of-...

thrance 2y ago

[flagged]

excalibur 2y ago

Did they blow the cell phone snooping machine up when they were done like in The Dark Knight?

Jimmc414 2y ago

Interesting that the recent ruling against blanket cell tower data searches wouldn't have affected the Mark Gooch case. In that insatnce, investigators used targeted cell phone data (ie "geofencing") to track his movements, not a mass data collection. Under the new standards, this type of focused surveillance would still be permitted. https://www.youtube.com/watch?v=YBBTfy29WKI https://www.youtube.com/watch?v=YBBTfy29WKI They absolutely wouldn't have caught him without the cell phone data, highlighting in my mind, the fine line between privacy and safety, which is something I personally struggle to articulate clearly. While it's reassuring this ruling wouldn't affect this case, I can easily see how "tower dumps" could be misused. It's confusing, though, that the judge ruled this unconstitutional action permissible "just this once." Either it's unconstitutional or it's not. Judges shouldn't have the authority grant one-time exceptions.

mjd 2y ago
The judge's opinion explains this in detail. It depends on the so-called "good-faith exception" to the exclusionary doctrine. The idea is that if the police tell the truth in their warrant application of what they are looking for and why, the judge issues a search warrant, and the police lawfully execute the warrant, then there's no point in suppressing the evidence just because, years later, it's determined that the warrant should not have issued. https://en.wikipedia.org/wiki/Good-faith_exception https://en.wikipedia.org/wiki/Good-faith_exception
- djrj477dhsnv 2y ago
  There is a point: protecting the accused against unconstitutional searches. That certainly seems important. Whether the police violated the constitution in good faith or not is irrelevant when it comes to the rights of the accused.
  - darawk 2y ago
    There's no point in protecting one individual against an unconstitutional search that proves him guilty. The constitutional issue is the ability to have conducted the search in the first place. The only reason we suppress accurate, but unconstitutionally obtained evidence is to disincentivize the action in the future. This "good-faith exception" strikes that balance pretty ideally. The defendants rights were violated, but there is no doubt about the legitimacy of the data, and what it implies. Police now know they cannot use this method in the future, so suppressing the evidence in this particular case does not disincentivize anything, as long as its made clear that it cannot be done in the future.

dmix 2y ago

Ontario Canada figured this out in 2016. https://financialpost.com/technology/police-breached-cellphone-customers-charter-rights-ontario-judge-rules https://financialpost.com/technology/police-breached-cellpho...

fsckboy 2y ago

what's the difference between eyewitnesses reporting their recollections of EMF data gathered by their eyes, a surveillance camera collecting and recording EMF data, and a cell tower collecting and recording EMF data? In the case of the cell tower, the suspect is always carrying a "flashlight", but in the other cases he may be.

VanTheBrand 2y ago
because the law is not a math equation and context matters.
- fsckboy 2y ago
  the contexts are identical, it's how, and as importantly why, i constructed my question: criminal does something, is detected, claims "but for my detection, i would not be before this court" police investigating canvas for witnesses, canvas for ring doorbells cams, and ... canvas for cell towers. identical, not analogous.
axus 2y ago
Reasonable eyewitnesses omit people + location + times weren't suspicious. The camera only leaves out people at other locations, the cell tower data doesn't leave anyone out.

tlogan 2y ago

I assume this will go all the way to the Supreme Court. Is issuing a warrant to do blanket search of cell tower data unconstitutional?

sigwinch 2y ago
“and the persons or things to be seized” suggests otherwise. NSLs wouldn’t be challenged this way.
nzeid 2y ago
I am not a lawyer but here it goes: If the target of the warrant itself is the carrier/telecom - probably constitutional, but I imagine there'd need to be a pretty good explanation. If the target of the warrant itself is a single customer of the carrier/telecom - Absolutely unconstitutional. E.g. You can't get the transaction history of every customer of a bank just because one of its customers is a suspect. (Edited for clarity.)

riffic 2y ago

guess they'll just keep doing it anyways and will now do "parallel construction" to get a case through court.

ccleve 2y ago

The issue in this case is being tested in other cases. It's about the "third party doctrine", the theory that the fourth amendment does not cover our information if it is in the possession of a third party. https://nclalegal.org/press_release/ncla-asks-supreme-court-to-hear-case-on-privacy-rights-for-records-shared-with-third-parties/ https://nclalegal.org/press_release/ncla-asks-supreme-court-... I blogged about this some time ago: https://ccleve.com/p/a-privacy-amendment https://ccleve.com/p/a-privacy-amendment

keernan 2y ago

I've never been completely comfortable with the concept of potentially freeing criminals because of wrongful conduct by the police. The argument is there must be a way to protect society against the use of illegal methods by the police. I'm not confident, however, that the Exclusionary Rule actually accomplishes its purposes. I suspect the police 'roll the dice' all the time in their investigations, knowing full well they are unlikely to pay much of a personal price if their illegality gets discovered. I've always thought charging police for their illegal conduct in a special federal system that handled all cases of wrongful conduct by police nationwide; with high conviction rates and penalties that start with termination and loss of pension and move on from there to add long prison terms. A system with special judges and prosecutors and civilian oversight. Not likely to happen, so I guess we are stuck with letting criminals and the cops walk free.

johnea 2y ago

I wonder if this also applies to the widely deployed stingray cell tower emulators, which effectively institute a Man In The Middle breach of cell phone communications...

deleted 2y ago

[deleted]

fdb345 2y ago

The Constitution needs to be mirrored in all Western Nations otherwise Tyranny is guaranteed.

deleted 2y ago
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