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>Michael Carson became the focus of a theft investigation involving money allegedly taken from a neighbor’s safe. >Authorities secured a warrant to search his

by duxup 1y ago

>Michael Carson became the focus of a theft investigation involving money allegedly taken from a neighbor’s safe. >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.

pcaharrier 1y ago
Pretty absurd and sadly common (in my several years' experience working in the criminal justice system). Good for Michigan for putting a stop to it.
- sidewndr46 1y ago
  As others have mentioned the courts in Michigan don't have any real authority to stop this. Also in the rare case that someone in law enforcement gets caught doing this sort of thing, the 'punishment' is that they have to promise not to do it again
  - mrkstu 1y ago
    They can stop Michigan judges from granting warrants that fall within this scope, which should stop 90%+ of the problem within their purview. 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.
    - pcaharrier 1y ago
      They hinted at the issue in footnote 11: "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).
      - lokar 1y ago
        They were probably hoping to build towards a nationwide rule
  - pcaharrier 1y ago
    >As others have mentioned the courts in Michigan don't have any real authority to stop this. 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?
    - sidewndr46 1y ago
      Michigan Supreme court does not have authority over Federal Agents. Michigan is a border state, so anyone is subject to stop and search at any time
      - pcaharrier 1y ago
        >Michigan is a border state, so anyone is subject to stop and search at any time You know, if you're a Homeland Security agent you have to tell us, right?
      - cosmicgadget 1y ago
        But they do have authority over local and state law enforcement.
  - EasyMark 1y ago
    What are you talking about? They have all the rights in the world if it's a Michigan state matter. They are the supreme interpreter of Michigan law in that state, and what 4th amendment rights mean, unless it's taken to federal court. THey obviously can't stop the feds. This decision would allow lawyers to block data outside of a warrants limits being used when it's obvious they ignored the warrant. That is extremely useful if you're representing someone
  - deleted 1y ago
    [deleted]
  - qingcharles 1y ago
    You're getting downvoted, but the reason the rule of suppression exists (it shouldn't) is because police and judges and DAs never get punished for this stuff. That's why judges created it. Someone tell me how many prosecutors in the history of the USA have been criminally convicted for sending known innocent persons to prison.
    - sidewndr46 1y ago
      I'd just settle for the number of judges behind bars for sending kids to prison for personal profit. As far as I know that number is once again zero thanks to our esteemed office of the President.
sidewndr46 1y ago
What's more absurd is that a warrant could ever establish such a restriction. If the suspect had a file named "Not evidence of me stealing my neighbor's safe" and "Definitely not a video of me practicing how to break open a safe" would it be fair to assume the warrant doesn't allow access to it?
- SamoyedFurFluff 1y ago
  I mean, at minimum I doubt anything on his phone is relevant from a year, two years ago.
  - pcaharrier 1y ago
    This a good point too. Information can become "stale" to the point that it's no longer enough to support a search warrant or a conviction. One example of such a holding here (though the defendant lost the motion to suppress on other grounds): https://www.courtlistener.com/opinion/3002057/united-states-v-prideaux-wentz-gary/ https://www.courtlistener.com/opinion/3002057/united-states-...
- CamperBob2 1y ago
  What's more absurd is that a warrant could ever establish such a restriction. 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.
- lesuorac 1y ago
  If the warrant doesn't have a restrictions on it then it's a "General Warrant" and that was a major complaint of the founders of the USA. They really didn't like it when cops showed up and took their furniture (think filing cabinet) because "it might contain evidence of sedition".
- pcaharrier 1y ago
  >If the suspect had a file named "Not evidence of me stealing my neighbor's safe" and "Definitely not a video of me practicing how to break open a safe" would it be fair to assume the warrant doesn't allow access to it? 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.
strathmeyer 1y ago
A good HackerNews poll would be to ask how many people have had their phones cloned by the police, I didn't know it was uncommon. I guess they've stopped since phones are encrypted.
- qingcharles 1y ago
  Don't secure your phone with face or fingerprint scan as it is lawful in the USA to force you to open it in those instances.
  - 542354234235 1y ago
    It is actually more complicated than that and being forced to provide a passcode is also legal precedent, but both biometrics and passcodes are still open legal questions. 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/2024/04/17/22-50262.pdf https://cdn.ca9.uscourts.gov/datastore/opinions/2024/04/17/2... [2] https://www.barclaydamon.com/webfiles/Publications/Unlock-Devices-Law-Chart-1.pdf https://www.barclaydamon.com/webfiles/Publications/Unlock-De...

by duxup 1y ago

pcaharrier 1y ago

Pretty absurd and sadly common (in my several years' experience working in the criminal justice system). Good for Michigan for putting a stop to it.

sidewndr46 1y ago
As others have mentioned the courts in Michigan don't have any real authority to stop this. Also in the rare case that someone in law enforcement gets caught doing this sort of thing, the 'punishment' is that they have to promise not to do it again
- mrkstu 1y ago
  They can stop Michigan judges from granting warrants that fall within this scope, which should stop 90%+ of the problem within their purview. 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.
  - pcaharrier 1y ago
    They hinted at the issue in footnote 11: "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).
    - lokar 1y ago
      They were probably hoping to build towards a nationwide rule
- pcaharrier 1y ago
  >As others have mentioned the courts in Michigan don't have any real authority to stop this. 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?
  - sidewndr46 1y ago
    Michigan Supreme court does not have authority over Federal Agents. Michigan is a border state, so anyone is subject to stop and search at any time
    - pcaharrier 1y ago
      >Michigan is a border state, so anyone is subject to stop and search at any time You know, if you're a Homeland Security agent you have to tell us, right?
    - cosmicgadget 1y ago
      But they do have authority over local and state law enforcement.
- EasyMark 1y ago
  What are you talking about? They have all the rights in the world if it's a Michigan state matter. They are the supreme interpreter of Michigan law in that state, and what 4th amendment rights mean, unless it's taken to federal court. THey obviously can't stop the feds. This decision would allow lawyers to block data outside of a warrants limits being used when it's obvious they ignored the warrant. That is extremely useful if you're representing someone
- deleted 1y ago
  [deleted]
- qingcharles 1y ago
  You're getting downvoted, but the reason the rule of suppression exists (it shouldn't) is because police and judges and DAs never get punished for this stuff. That's why judges created it. Someone tell me how many prosecutors in the history of the USA have been criminally convicted for sending known innocent persons to prison.
  - sidewndr46 1y ago
    I'd just settle for the number of judges behind bars for sending kids to prison for personal profit. As far as I know that number is once again zero thanks to our esteemed office of the President.

sidewndr46 1y ago

What's more absurd is that a warrant could ever establish such a restriction. If the suspect had a file named "Not evidence of me stealing my neighbor's safe" and "Definitely not a video of me practicing how to break open a safe" would it be fair to assume the warrant doesn't allow access to it?

SamoyedFurFluff 1y ago
I mean, at minimum I doubt anything on his phone is relevant from a year, two years ago.
- pcaharrier 1y ago
  This a good point too. Information can become "stale" to the point that it's no longer enough to support a search warrant or a conviction. One example of such a holding here (though the defendant lost the motion to suppress on other grounds): https://www.courtlistener.com/opinion/3002057/united-states-v-prideaux-wentz-gary/ https://www.courtlistener.com/opinion/3002057/united-states-...
CamperBob2 1y ago
What's more absurd is that a warrant could ever establish such a restriction. 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.
lesuorac 1y ago
If the warrant doesn't have a restrictions on it then it's a "General Warrant" and that was a major complaint of the founders of the USA. They really didn't like it when cops showed up and took their furniture (think filing cabinet) because "it might contain evidence of sedition".
pcaharrier 1y ago
>If the suspect had a file named "Not evidence of me stealing my neighbor's safe" and "Definitely not a video of me practicing how to break open a safe" would it be fair to assume the warrant doesn't allow access to it? 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.

strathmeyer 1y ago

A good HackerNews poll would be to ask how many people have had their phones cloned by the police, I didn't know it was uncommon. I guess they've stopped since phones are encrypted.

qingcharles 1y ago
Don't secure your phone with face or fingerprint scan as it is lawful in the USA to force you to open it in those instances.
- 542354234235 1y ago
  It is actually more complicated than that and being forced to provide a passcode is also legal precedent, but both biometrics and passcodes are still open legal questions. 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/2024/04/17/22-50262.pdf https://cdn.ca9.uscourts.gov/datastore/opinions/2024/04/17/2... [2] https://www.barclaydamon.com/webfiles/Publications/Unlock-Devices-Law-Chart-1.pdf https://www.barclaydamon.com/webfiles/Publications/Unlock-De...