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Several years ago I had the opportunity to observe when a detective came to a magistrate's office to petition for a search warrant. The warrant sought to search

Several years ago I had the opportunity to observe when a detective came to a magistrate's office to petition for a search warrant. The warrant sought to search the contents of a person's phone, essentially without any limitations. The alleged crime was assault and battery on a family member. When asked "What is your probable cause that the phone is likely to contain evidence of the commission of this crime?" the detective had basically nothing to say (having put nothing to that effect in the affidavit for the search warrant) other than some vague (cooked up on the spot?) statements about the "mobile nature of our modern society and the fact that cell phones are everywhere and everyone has one." The magistrate denied the warrant, but it's a sad testament to the propensity of law enforcement to cut corners that that search warrant affidavit was far from the last one I saw that targeted the cell phone of an accused and claimed that it was necessary to search the entire contents of the phone.

righthand 1y ago
That’s because law enforcement is encourage to give least amount of effort to find any kind of damning evidence that a DA can use. The detective doesn’t care about justice but instead closing the case. If I have access to your entire phone, I can use anything I find against you as probable cause whether it’s related to the crime or not.
- pcaharrier 1y ago
  > If I have access to your entire phone, I can use anything I find against you as probable cause whether it’s related to the crime or not. Well, that gets into the "fruit of the poisonous tree" doctrine, but we're not doing a full criminal procedure law school course today . . . Ironically, I heard more than one detective say that when they "dumped" a phone like that, they rarely found much useful evidence. There's just too much information on any given cell phone to be able to go through it all. So, in the end, their fishing expeditions end up being a waste of time and resources.
  - 0cf8612b2e1e 1y ago
    If they have a warrant to the phone, what is poisoned fruit? It only becomes tainted evidence if they eg) stole the phone and rifled through it.
    - pcaharrier 1y ago
      If they have a warrant that adheres to the particularity requirement of the Fourth Amendment, then anything they might find that it outside the scope of the warrant would be illegally seized. For instance, if the search warrant were to say "search the contacts on the phone" and they go looking for pictures.
      - nemomarx 1y ago
        That's why they get a warrant for the full contents of the phone though?
        pcaharrier 1y ago
        A warrant for the full contents of the phone violates the particularity requirement.
        nemomarx 1y ago
        Have you heard about that being enforced very often?
        pcaharrier 1y ago
        I mean, there are a few noted here if you want a starting place for your research: https://www.law.cornell.edu/constitution-conan/amendment-4/particularity-requirement https://www.law.cornell.edu/constitution-conan/amendment-4/p...
        nemomarx 1y ago
- potato3732842 1y ago
  You believe way too much in the system. They DGAF about the DV. Maybe the charge will stick, maybe it won't. Sure they like it more than a traffic ticket but it's not much more valuable to them than a DUI. People get smacked upside the head every day and it's no big deal in their world. They want to use the DV as the pretext for a fishing expedition, In their minds maybe they can nail the guy on drug dealing or whatever other more interesting and valuable crime they can find
  - pcaharrier 1y ago
    >You believe way too much in the system. Who me? I assure you I don't. In the particular case I described above there were some factors about who the person was that make me pretty confident the police were wanting to sniff around for something juicier (though because of his situation, even the accusation of domestic violence was going to be enough to ruin certain things for him, even if nothing ever came of it). That's SOP for many things where, for example, certain departments train officers to use traffic stops as pretexts to "elevate" the encounter to a felony arrest. They don't care that the guy failed to come to a complete stop at that stop sign, but they like their chances of getting consent to search his vehicle and finding (or, in the egregious cases, planting) something else. Edit: I see that you weren't replying directly to me. Sorry about that.
  - righthand 1y ago
    I don’t disagree and I don’t really believe in the system anymore after the Daniel Penny trial.
- ocdtrekkie 1y ago
  I would say the goal is probably securing a conviction for the crime the detective believes took place: Closing the case is not inherently enough, and while there are some, I doubt most investigators sleep well at night that they convicted someone they think is innocent. Our standard is "beyond a reasonable doubt" and ideally in a working justice system, judges should be throwing out any evidence which is prejudicial. So your detective has a general motive to find as much evidence as possible, overwhelming evidence, ideally, such that after all legal challenges have been passed through there is still enough evidence left on the table to concretely prove a case. Obviously there's a lot of places our justice system can and does break down, but it is generally designed on the concept everyone involved in prosecution and defense should work to create the best possible case for their understanding.
  - qingcharles 1y ago
    I've never met an DA investigator or a DA that gave a single hoot if someone was factually innocent (this is actually rare). Even this "going through the phone" thing might be ruled illegal, but that only matters if the case goes as far as filing a motion to suppress. And if you are represented by a public defender then I would say your chances are slim at having that happen. What normally happens in cases like this is that each side barter with what they have (DA: "we went through his phone and found photos of him with guns, drugs and money" vs. PD: "the search was illegal, if you pursue this I'll file for suppression") to get the longest sentence they can (DA) vs. the shortest sentence (PD) on a plea deal. I think the statistic is maybe 1% of criminal cases go to trial?
    - FireBeyond 1y ago
      Yeah, the US (mis)uses the plea deal to an appalling extent. It's amazingly fucked. Most other countries don't have the concept, or if they do, its use is generally fairly minimal, and heavily regulated - oftentimes, it might be "plead guilty to this one murder" in the case of a multiple homicide, to avoid having three separate costly trials.
      - AngryData 1y ago
- lenerdenator 1y ago
  Idk about other jurisdictions but locally that doesn't seem to be something I see a lot of in probable cause filings. Typically there's a reason the police were called to a given location and a reason they're honing in on the person they want to arrest, and they don't really need to dig around in someone's data to find a reason to justify the request for a warrant. IANAL, just some guy who gets bored and reads CaseNet. Yes, I am aware that this is not a sign of a healthy mind.
- LadyCailin 1y ago
  This is why you don’t talk to the police, ESPECIALLY if you’re innocent. Anything you say can and will be used against you. Never to help you. If you’re guilty, and you get found guilty because you accidentally confessed, who cares, you were guilty. If you were innocent, and you accidentally confessed, that is in fact a miscarriage of justice, but the police and courts don’t actually care about justice, if they did, the system would look massively different.
  - 0xDEAFBEAD 1y ago
    >the police and courts don’t actually care about justice, if they did, the system would look massively different. Seems overly cynical. How about public defenders, Miranda rights, etc.? The US court system is set up to be adversarial. The belief is that you get the best overall outcome by having one set of people who try to convict, and another set of people who try to acquit. One can also make the system look bad from the other direction by arguing that public defenders are terrible, because their job is to help criminals walk free. https://xcancel.com/katanaspeaks/status/1954636840272884111 https://xcancel.com/katanaspeaks/status/1954636840272884111 You're welcome to argue against the overall concept of an adversarial court system. But the system has to be taken in total, rather than selectively focusing on one side.
    - mapt 1y ago
      In the US, public defenders may try 1000 cases a year, may not meet you until five minutes before the initial plea, may have essentially zero investigative capability. Court cases may take years to arise, bail may be effectively denied by virtue of economics, and the plea bargain offered is often <5% of the sentence sought, while being the ultimate way of settling nearly every case. Arguing for the merits of an adversarial system is one thing. But many parts of due process are effectively completely dead for the vast majority of defendants, and prosecutorial discretion rules the justice system almost completely for those of us who aren't millionaires. "Adversarial" might work for OJ Simpson, but it hasn't worked for most of us for a long time, and the US prison system holds the most prisoners per capita in the world - it isn't close†. Defenders of the shortcuts we have created proudly justify it as saving the taxpayer money; of making workable a situation where they feel they are underfunded by an order of magnitude, but the reality is that it is justice amputated of essential components. If you want to save money, maybe consider making fewer things illegal, and imprisoning people for a shorter amount of time, but go back to actually holding real, speedy trials that are effectively adversarial in nature. In the meantime, we have a judge/jury/executioner in the DA's office, and they get re-elected electorally largely based on their conviction rate; Like shooting fish in a barrel. †Depending on how you view internment camps for specific minorities
lovich 1y ago
Is that cutting corners? It sounds more like trying to break the law so they could find _anything_ to throw at the guy. With how many laws we have on the books, everyone on the planet can be found guilty of some violation if their life is examined with a fine toothed comb
- pcaharrier 1y ago
  >Is that cutting corners? It sounds more like trying to break the law so they could find _anything_ to throw at the guy. In my experience, yes, in many cases it was more laziness than something nefarious. Police often have a theory of the case in their head that just doesn't make it onto the affidavit. Things that seem obvious to them after investigating the case for some length of time are not as obvious to someone seeing it for the first time on a search warrant affidavit. Fishing expeditions happen, no doubt, but let's also remember Hubbard's corollary to Hanlon's razor: "Never attribute to malice or stupidity that which can be explained by moderately rational individuals following incentives in a complex system." They get in a hurry, don't read the affidavit with fresh eyes, and forge ahead anyway because they're under pressure to close cases quickly. Not that that's a good thing, but it's distinct from people who are intent on just breaking the law and violating people's rights.
FireBeyond 1y ago
It very much blows my mind, but also sadly unsurprising. I watched a local Superior Court hearing, where a prosecutor argued against a motion to revoke bail/bond conditions. Thankfully, the Judge had a different perspective: Prosecutor: "Because blah blah blah, and in addition, the defendant shows zero signs of taking responsibility for his actions, we..." Judge, cutting her off: "I'm going to stop you there. The defendant entered a plea of not guilty and has not been found guilty at trial as of this moment. In the eyes of the court, the defendant has precisely zero obligation to take responsibility for alleged actions." I was also juror on a trial for theft (stealing from an organization by the treasurer). The theft had occurred but the amount of rubber stamping was horrific. "It looks like $50K was stolen, including approximately $20K in diverted checks". In fact, the bank statements showed that no checks were diverted, and it was painfully obvious (in the statements, in some months, the checks claimed to be diverted were the -only- transactions, so it wasn't a hard find), and there was even a statement from the organization's president, taken by the Sheriff's Office, "It was later found that the checks had been deposited properly". But everyone, Sheriff, org, prosecutor had "oops, failed to remove that amount from the claimed loss", and the defendant's attorney had to bend over backwards to demonstrate this. At one point, the prosecutor had said "Demonstrate to us how you came to the number of $30K"... "Uh, if you want to claim the loss is $50K, it's on you to prove THAT. It's not on us to prove it is LESS".
Hilift 1y ago
Another magistrate in the same building may have granted it. That part of the legal process as they say, sometimes contains preliminary information and may be prone to errors.
- pcaharrier 1y ago
  In other jurisdictions that might have worked, but not in this one where this magistrate was the only one on duty at the time.
- tdeck 1y ago
  When Mom says no just ask Dad.
singleshot_ 1y ago
> "mobile nature of our modern society and the fact that cell phones are everywhere and everyone has one." An LEO citing to Carpenter for the opposite of its holding?
delusional 1y ago
You're making the argument that the system is broken with an example of the system working? I guess the semantic trick is that you don't reveal that the system actually stopped him until the very end of the comment, and in much less space. About 2/3 of the comment is describing the warrent, only the last 1/3 reveals that it's a nothing burger because it was denied. Obviously law enforcement are going to cut corners. They're human beings, who are mostly interested in stopping crime. That's exactly why we force them to get warrents, to have a dispassionate believer in "the Law" as an ideal concept check in with their investigation.
- mcny 1y ago
  They should be following the law. We want "defense in depth" in everything and not have a single point of failure. > They're human beings So are judges and they will make mistakes. Remember that a judge signed the warrant in Kansas. Previously, on HN: https://news.ycombinator.com/item?id=41240755 https://news.ycombinator.com/item?id=41240755
  - delusional 1y ago
    Now you're making a completely different argument centered around structural problems, and you cannot make that argument from a single anecdote.
    - saghm 1y ago
      Well yeah, the person who responded to you isn't the same one who you responded to originally. Sometimes when you disagree with one person, someone else can still have a valid point about your disagreement even if they don't fully agree with the first person you responded to.

righthand 1y ago

That’s because law enforcement is encourage to give least amount of effort to find any kind of damning evidence that a DA can use. The detective doesn’t care about justice but instead closing the case. If I have access to your entire phone, I can use anything I find against you as probable cause whether it’s related to the crime or not.

pcaharrier 1y ago
> If I have access to your entire phone, I can use anything I find against you as probable cause whether it’s related to the crime or not. Well, that gets into the "fruit of the poisonous tree" doctrine, but we're not doing a full criminal procedure law school course today . . . Ironically, I heard more than one detective say that when they "dumped" a phone like that, they rarely found much useful evidence. There's just too much information on any given cell phone to be able to go through it all. So, in the end, their fishing expeditions end up being a waste of time and resources.
- 0cf8612b2e1e 1y ago
  If they have a warrant to the phone, what is poisoned fruit? It only becomes tainted evidence if they eg) stole the phone and rifled through it.
  - pcaharrier 1y ago
    If they have a warrant that adheres to the particularity requirement of the Fourth Amendment, then anything they might find that it outside the scope of the warrant would be illegally seized. For instance, if the search warrant were to say "search the contacts on the phone" and they go looking for pictures.
    - nemomarx 1y ago
      That's why they get a warrant for the full contents of the phone though?
      - pcaharrier 1y ago
        A warrant for the full contents of the phone violates the particularity requirement.
        nemomarx 1y ago
        Have you heard about that being enforced very often?
        pcaharrier 1y ago
        I mean, there are a few noted here if you want a starting place for your research: https://www.law.cornell.edu/constitution-conan/amendment-4/particularity-requirement https://www.law.cornell.edu/constitution-conan/amendment-4/p...
        nemomarx 1y ago
potato3732842 1y ago
You believe way too much in the system. They DGAF about the DV. Maybe the charge will stick, maybe it won't. Sure they like it more than a traffic ticket but it's not much more valuable to them than a DUI. People get smacked upside the head every day and it's no big deal in their world. They want to use the DV as the pretext for a fishing expedition, In their minds maybe they can nail the guy on drug dealing or whatever other more interesting and valuable crime they can find
- pcaharrier 1y ago
  >You believe way too much in the system. Who me? I assure you I don't. In the particular case I described above there were some factors about who the person was that make me pretty confident the police were wanting to sniff around for something juicier (though because of his situation, even the accusation of domestic violence was going to be enough to ruin certain things for him, even if nothing ever came of it). That's SOP for many things where, for example, certain departments train officers to use traffic stops as pretexts to "elevate" the encounter to a felony arrest. They don't care that the guy failed to come to a complete stop at that stop sign, but they like their chances of getting consent to search his vehicle and finding (or, in the egregious cases, planting) something else. Edit: I see that you weren't replying directly to me. Sorry about that.
- righthand 1y ago
  I don’t disagree and I don’t really believe in the system anymore after the Daniel Penny trial.
ocdtrekkie 1y ago
I would say the goal is probably securing a conviction for the crime the detective believes took place: Closing the case is not inherently enough, and while there are some, I doubt most investigators sleep well at night that they convicted someone they think is innocent. Our standard is "beyond a reasonable doubt" and ideally in a working justice system, judges should be throwing out any evidence which is prejudicial. So your detective has a general motive to find as much evidence as possible, overwhelming evidence, ideally, such that after all legal challenges have been passed through there is still enough evidence left on the table to concretely prove a case. Obviously there's a lot of places our justice system can and does break down, but it is generally designed on the concept everyone involved in prosecution and defense should work to create the best possible case for their understanding.
- qingcharles 1y ago
  I've never met an DA investigator or a DA that gave a single hoot if someone was factually innocent (this is actually rare). Even this "going through the phone" thing might be ruled illegal, but that only matters if the case goes as far as filing a motion to suppress. And if you are represented by a public defender then I would say your chances are slim at having that happen. What normally happens in cases like this is that each side barter with what they have (DA: "we went through his phone and found photos of him with guns, drugs and money" vs. PD: "the search was illegal, if you pursue this I'll file for suppression") to get the longest sentence they can (DA) vs. the shortest sentence (PD) on a plea deal. I think the statistic is maybe 1% of criminal cases go to trial?
  - FireBeyond 1y ago
    Yeah, the US (mis)uses the plea deal to an appalling extent. It's amazingly fucked. Most other countries don't have the concept, or if they do, its use is generally fairly minimal, and heavily regulated - oftentimes, it might be "plead guilty to this one murder" in the case of a multiple homicide, to avoid having three separate costly trials.
    - AngryData 1y ago
lenerdenator 1y ago
Idk about other jurisdictions but locally that doesn't seem to be something I see a lot of in probable cause filings. Typically there's a reason the police were called to a given location and a reason they're honing in on the person they want to arrest, and they don't really need to dig around in someone's data to find a reason to justify the request for a warrant. IANAL, just some guy who gets bored and reads CaseNet. Yes, I am aware that this is not a sign of a healthy mind.
LadyCailin 1y ago
This is why you don’t talk to the police, ESPECIALLY if you’re innocent. Anything you say can and will be used against you. Never to help you. If you’re guilty, and you get found guilty because you accidentally confessed, who cares, you were guilty. If you were innocent, and you accidentally confessed, that is in fact a miscarriage of justice, but the police and courts don’t actually care about justice, if they did, the system would look massively different.
- 0xDEAFBEAD 1y ago
  >the police and courts don’t actually care about justice, if they did, the system would look massively different. Seems overly cynical. How about public defenders, Miranda rights, etc.? The US court system is set up to be adversarial. The belief is that you get the best overall outcome by having one set of people who try to convict, and another set of people who try to acquit. One can also make the system look bad from the other direction by arguing that public defenders are terrible, because their job is to help criminals walk free. https://xcancel.com/katanaspeaks/status/1954636840272884111 https://xcancel.com/katanaspeaks/status/1954636840272884111 You're welcome to argue against the overall concept of an adversarial court system. But the system has to be taken in total, rather than selectively focusing on one side.
  - mapt 1y ago
    In the US, public defenders may try 1000 cases a year, may not meet you until five minutes before the initial plea, may have essentially zero investigative capability. Court cases may take years to arise, bail may be effectively denied by virtue of economics, and the plea bargain offered is often <5% of the sentence sought, while being the ultimate way of settling nearly every case. Arguing for the merits of an adversarial system is one thing. But many parts of due process are effectively completely dead for the vast majority of defendants, and prosecutorial discretion rules the justice system almost completely for those of us who aren't millionaires. "Adversarial" might work for OJ Simpson, but it hasn't worked for most of us for a long time, and the US prison system holds the most prisoners per capita in the world - it isn't close†. Defenders of the shortcuts we have created proudly justify it as saving the taxpayer money; of making workable a situation where they feel they are underfunded by an order of magnitude, but the reality is that it is justice amputated of essential components. If you want to save money, maybe consider making fewer things illegal, and imprisoning people for a shorter amount of time, but go back to actually holding real, speedy trials that are effectively adversarial in nature. In the meantime, we have a judge/jury/executioner in the DA's office, and they get re-elected electorally largely based on their conviction rate; Like shooting fish in a barrel. †Depending on how you view internment camps for specific minorities

lovich 1y ago

Is that cutting corners? It sounds more like trying to break the law so they could find _anything_ to throw at the guy. With how many laws we have on the books, everyone on the planet can be found guilty of some violation if their life is examined with a fine toothed comb

pcaharrier 1y ago
>Is that cutting corners? It sounds more like trying to break the law so they could find _anything_ to throw at the guy. In my experience, yes, in many cases it was more laziness than something nefarious. Police often have a theory of the case in their head that just doesn't make it onto the affidavit. Things that seem obvious to them after investigating the case for some length of time are not as obvious to someone seeing it for the first time on a search warrant affidavit. Fishing expeditions happen, no doubt, but let's also remember Hubbard's corollary to Hanlon's razor: "Never attribute to malice or stupidity that which can be explained by moderately rational individuals following incentives in a complex system." They get in a hurry, don't read the affidavit with fresh eyes, and forge ahead anyway because they're under pressure to close cases quickly. Not that that's a good thing, but it's distinct from people who are intent on just breaking the law and violating people's rights.

FireBeyond 1y ago

It very much blows my mind, but also sadly unsurprising. I watched a local Superior Court hearing, where a prosecutor argued against a motion to revoke bail/bond conditions. Thankfully, the Judge had a different perspective: Prosecutor: "Because blah blah blah, and in addition, the defendant shows zero signs of taking responsibility for his actions, we..." Judge, cutting her off: "I'm going to stop you there. The defendant entered a plea of not guilty and has not been found guilty at trial as of this moment. In the eyes of the court, the defendant has precisely zero obligation to take responsibility for alleged actions." I was also juror on a trial for theft (stealing from an organization by the treasurer). The theft had occurred but the amount of rubber stamping was horrific. "It looks like $50K was stolen, including approximately $20K in diverted checks". In fact, the bank statements showed that no checks were diverted, and it was painfully obvious (in the statements, in some months, the checks claimed to be diverted were the -only- transactions, so it wasn't a hard find), and there was even a statement from the organization's president, taken by the Sheriff's Office, "It was later found that the checks had been deposited properly". But everyone, Sheriff, org, prosecutor had "oops, failed to remove that amount from the claimed loss", and the defendant's attorney had to bend over backwards to demonstrate this. At one point, the prosecutor had said "Demonstrate to us how you came to the number of $30K"... "Uh, if you want to claim the loss is $50K, it's on you to prove THAT. It's not on us to prove it is LESS".

Hilift 1y ago

Another magistrate in the same building may have granted it. That part of the legal process as they say, sometimes contains preliminary information and may be prone to errors.

pcaharrier 1y ago
In other jurisdictions that might have worked, but not in this one where this magistrate was the only one on duty at the time.
tdeck 1y ago
When Mom says no just ask Dad.

singleshot_ 1y ago

> "mobile nature of our modern society and the fact that cell phones are everywhere and everyone has one." An LEO citing to Carpenter for the opposite of its holding?

delusional 1y ago

You're making the argument that the system is broken with an example of the system working? I guess the semantic trick is that you don't reveal that the system actually stopped him until the very end of the comment, and in much less space. About 2/3 of the comment is describing the warrent, only the last 1/3 reveals that it's a nothing burger because it was denied. Obviously law enforcement are going to cut corners. They're human beings, who are mostly interested in stopping crime. That's exactly why we force them to get warrents, to have a dispassionate believer in "the Law" as an ideal concept check in with their investigation.

mcny 1y ago
They should be following the law. We want "defense in depth" in everything and not have a single point of failure. > They're human beings So are judges and they will make mistakes. Remember that a judge signed the warrant in Kansas. Previously, on HN: https://news.ycombinator.com/item?id=41240755 https://news.ycombinator.com/item?id=41240755
- delusional 1y ago
  Now you're making a completely different argument centered around structural problems, and you cannot make that argument from a single anecdote.
  - saghm 1y ago
    Well yeah, the person who responded to you isn't the same one who you responded to originally. Sometimes when you disagree with one person, someone else can still have a valid point about your disagreement even if they don't fully agree with the first person you responded to.