Michigan Supreme Court: Unrestricted phone searches violate Fourth Amendment

554 pointsposted 3 days ago
by mikece
(reclaimthenet.org)

124 Comments

pcaharrier

3 days ago

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.

Hilift

3 days 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.

tdeck

3 days ago

When Mom says no just ask Dad.

pcaharrier

2 days 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.

righthand

3 days 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

3 days 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

3 days 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.

snuxoll

3 days ago

Warrants are pre-trial activities to collect evidence, defendants (or, more likely, their attorneys) are still able to challenge the admissibility of evidence should a case go to trial. If it turns out a search warrant was requested in bad faith, or the trial judge (which won't necessarily be the same one that signed the warrant, and then there's appeals courts) finds the warrant was defective (overly broad, lack of probable cause, etc.) and should not have been issued in the first place then any evidence stemming from it could be thrown out.

"Fruit of the poisonous tree" simply means the entire chain, the initial evidence that was improperly acquired and anything that was discovered based upon it, gets thrown out. If a warrant was issued to dump the full contents of your phone, and they used location metadata from your photo library to start determining other locations to search and got warrants for those, then that entire chain of evidence gets thrown out if the court finds the initial warrant for your phone was invalid.

singleshot_

3 days ago

> then that entire chain of evidence gets thrown out

exceptions: unless it would have gotten found anyway, regardless (inevitable discovery); or the cops, against whom the doctrine of poisonous tree is held in order to keep them honest, just made an honest mistake.

dragonwriter

3 days ago

> If they have a warrant to the phone, what is poisoned fruit?

Litigation over the process, claims, and ultimately validity of the warrant happens after it is executed, where the product is used in a criminal case (one of the commonly argued problems with the FISA warrant process is that, because the products are not used in criminal cases, this never occurs, and because it is known that it will never occur, the constraints that the possibility of challenge places on both the conduct of executive agents seeking warrants and judges granting them also is missing.)

pcaharrier

3 days 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

3 days ago

That's why they get a warrant for the full contents of the phone though?

Yeul

3 days ago

If detectives had limitless time and resources they could go through every damn doorbell and CCTV camera but they ain't going to do that unless the case involves dead kids.

RajT88

3 days ago

Dead kids with wealthy or famous parents, anyways.

schrectacular

3 days ago

To me this is the real sinister issue with the current round of AI that I hear no one talking about. It will solve this problem for the powers-that-be.

daveidol

3 days ago

That part sounds like a good thing? Assuming the warrant was legitimate- that’s the part that feels problematic.

LadyCailin

3 days 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

3 days 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

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.

autoexec

3 days ago

The same public defenders that are unpaid and overworked to the point where they have less than 15 minutes total to work on your case while the prosecution has unlimited funds and resources?

Miranda rights don't work the way most people think they do (https://www.cgmbesq.com/blog/2022/july/the-many-misconceptio...) and courts have gone out of their way to deny people their rights.

The system is corrupt and broken from top to bottom.

0xDEAFBEAD

3 days ago

>the prosecution has unlimited funds and resources?

Nope. One needs to take the system in total.

"Since New York State’s 2019 discovery reforms were passed, dismissals in cases involving domestic violence rose 26 percent in New York City. In 2023, about 94 percent of cases were dismissed in New York City and nearly 50 percent were dismissed outside of New York City. In many cases, automatic dismissal of cases has put survivors of domestic violence and other crimes at greater risk."

https://www.governor.ny.gov/news/governor-hochul-and-state-o...

This increase is a direct result of passing 2019 "discovery reforms" designed to safeguard the rights of the accused. Read the list of examples on the page I linked and tell me that prosecutors in NYC have "unlimited resources".

It's a constant balancing act.

And BTW:

"Public defender jobs in many places are intensely competitive. Many of us went to law school specifically to become public defenders and have zero interest in working for a big firm. I had a merit scholarship to a top 20 law school and only applied to public defender jobs."

https://xcancel.com/kit_sionn_witch/status/17749841523596168...

autoexec

3 days ago

> This increase is a direct result of passing 2019 "discovery reforms" designed to safeguard the rights of the accused. Read the list of examples on the page I linked and tell me that prosecutors in NYC have "unlimited resources".

You'll notice that in all of those cases the prosecution had evidence and they just failed to hand it over or screwed up procedure. They can screw up badly enough that cases get dismissed, but that's not a lack of resources or time.

It's also a very different situation from public defenders who can do everything right but don't have the time or resources to get the job done. To be clear, I don't think that public defenders aren't skilled or qualified or willing to help. They're just very often insanely overworked to the point where they can't possibly put in the time their clients deserve. Even the NACDL admits that this is a problem.

Public defenders can also make a good living, but I think it's clear that private defense attorneys get paid more on average.

A lot of the problems come down to a lack of accountability. Police who commit even the most egregious offenses often don't face meaningful consequences, and the judges, prosecutors, attorneys general have even less accountability.

Even access to our justice system is highly limited for people without a lot of money and outcomes are often determined by who has the most cash to spend.

The results of the whole system speak for themselves. You simply don't get the incarceration rate the US has with a fair and just system.

axus

2 days ago

Maybe if they hired more public defenders, applying for the job would be less competitive?

mapt

2 days 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

frontfor

3 days ago

It’s not about cynical: it’s a purely risk/reward calculation. If you talk to the police and nothing happened, you don’t gain anything. If you’re found guilty though, it turns into a massive inconvenience. There’s no positive ROI.

ocdtrekkie

3 days 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

3 days 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

3 days 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

3 days ago

I think a big part of the problem is if a person goes to trial in the US, if they still get a charge, even if it is much lower than what they were originally charged with, they are on the hook for all the court costs on top of all the fines and fees and jail costs and 10 different line item charges they will get already. And most people balk at the exorbitant costs when it is presented.

FireBeyond

3 days ago

Hah, in Florida, if you spend time in jail, even if charges are dropped or you are found not guilty, you will still be billed for your incarceration. And failure to pay this is a ... you guessed it ... criminal offense.

lenerdenator

3 days 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.

potato3732842

3 days 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

3 days 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

3 days ago

I don’t disagree and I don’t really believe in the system anymore after the Daniel Penny trial.

FireBeyond

3 days 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".

lovich

3 days 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

3 days 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.

singleshot_

3 days 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

3 days 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

3 days 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

delusional

2 days ago

Now you're making a completely different argument centered around structural problems, and you cannot make that argument from a single anecdote.

saghm

2 days 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.

duxup

3 days 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

3 days 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

3 days 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

pcaharrier

3 days 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

3 days 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

cosmicgadget

3 days ago

But they do have authority over local and state law enforcement.

pcaharrier

3 days 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?

mrkstu

3 days 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

3 days 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

3 days ago

They were probably hoping to build towards a nationwide rule

EasyMark

3 days 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

qingcharles

3 days 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

3 days 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.

strathmeyer

3 days 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.

thaumasiotes

3 days 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.

Interactions with the police, in any capacity at all, are uncommon.

qingcharles

3 days 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

2 days 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/2024/04/17/2...

[2] https://www.barclaydamon.com/webfiles/Publications/Unlock-De...

kstrauser

3 days ago

Or do, but practice squeezing the buttons to lock it when you need to. For example, if you hold an iPhone's buttons for more than a couple of seconds, it'll revert to requiring a passcode to unlock, even if you'd normally use face or touch ID to open it.

qingcharles

3 days ago

This doesn't work reliably :) If someone puts a gun straight to your head and tells you not to move you will not want to squeeze any buttons or reach into your pocket.

sidewndr46

3 days 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?

CamperBob2

3 days 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

3 days 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".

ratelimitsteve

3 days ago

I think you could reasonably restrict a warrant by last time a file was created or accessed, at least. If those files with those names were created months before or after the incident, for example.

Warrants establish such restrictions all the time. The classic example is what's called the sugar bowl doctrine. In a nutshell: if you're looking for stolen televisions you can't look in the sugar bowl. If, to torture the metaphor further, you see car keys peaking out of the top of the sugar bowl you can apply for a further warrant. In the case of forensically investigating a phone, you would just keep the forensically-sound copy of the phone's data while you waited for a judge's permission to poke around in that folder.

sidewndr46

3 days ago

I guess we should all just run that bash one liner to update the last modified time stamp to 1970 then, so we won't be subject to a search

ratelimitsteve

3 days ago

and then the forensic analyst would note that and hold a forensically-sound copy while a new warrant was issued, because every file's MAC data being set to 0 would provide articulable suspicion that evidence cannot be filtered by date. So now the search has expanded to include your entire device and, given your history of attempting to tamper with evidence, the entirety of any other seized device as well. Congratulations?

sidewndr46

3 days ago

Which would mean there are no restrictions on what they can search at that point? Right?

You also seem to be operating from a standpoint that because I am subject to a search, there exists evidence of me committing a crime. That's a pretty slippery slope from where I'm standing.

ratelimitsteve

2 days ago

I'm operating from the assumption that there would be evidence that the phone was tampered with, and it's a reasonable assumption because your premise explicitly states that you'd be altering MAC data. Whether there's evidence of a crime doesn't actually enter into it, once there is evidence that the warrant restrictions are being exploited to hide something there's articulable suspicion that the entire device is a valid place to look for evidence. Whether that search actually finds anything is irrelevant to the discussion entirely.

sidewndr46

2 days ago

You used the phrase "given your history of attempting to tamper with evidence". If I have a history of tampering with evidence, then I implicitly committed a crime of some kind. One cannot tamper with evidence without a crime.

ratelimitsteve

2 days ago

oh well then yeah I think we can assume that you committed the crime that you said you committed in the original comment and also that the evidence you explicitly said would be there would be there.

lovich

3 days ago

The warrant is giving special, temporary powers to the police.

How do you think a warrant couldn’t establish such restrictions when it’s already loosening existing restrictions on the police?

sidewndr46

3 days ago

You're not providing examples of any actual restrictions that can be put on a warrant. Is the judge going to give the officers byte offsets to look at on a block device?

lovich

3 days ago

The warrant is literally removing restrictions from the police. I don’t know why I would need any examples for someone to be able to understand why that would mechanically mean that the warrant could be written in a way that is not carte Blanche for the police.

Ukv

3 days ago

Something like "call logs and text messages sent between 22nd and 26th of August" would be common, to my understanding.

sidewndr46

3 days ago

Well that's a funny thing, because what is a text message? Does it include RCS? Does it include WhatsApp? What about Telegram?

I made a text file and emailed it to my boss a few weeks back, is that a "text" ?

kstrauser

3 days ago

In my albeit limited experience around lawyers and the legal system in general, judges are not amused by clever wordplay. Sometimes they'll entertain specific challenges to specific wordings, but in general the plain, obvious definition of something is the one they'll go with.

A text message is something in Messages.app or the Google equivalent. It may include a message in Signal or WhatsApp, but I suspect they'd want to see some case precedence supporting that. It almost certainly isn't a screenshot in their photos app, or a message written in text in the notes app, or Aretha Franklin spelling out R-E-S-P-E-C-T in the music app.

It's a message in the phone's commonly used messaging app. Anything much beyond that is likely to earn a scolding from an unimpressed judge.

chowells

3 days ago

The law is not computer code, and this is a feature. Playing word games does not get you out of your legal responsibilities. Was it a text communication in the specified time frame? Then it really doesn't matter what protocol and encodings were used.

Ukv

3 days ago

That there are fuzzy boundaries is not a blocker for a field that is largely built on drawing lines on fuzzy boundaries - a judge can make the determination if necessary.

My answer would be: yes "text messages" includes RCS as well as SMS, but not whatsapp/telegram/an email attachment, and that the warrant should've been more specific if it wanted the latter - but ask your lawyer if you're uncertain what's being requested.

maxerickson

3 days ago

It doesn't restrict their eyes, it restricts their use of the information.

pcaharrier

3 days 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.

sidewndr46

3 days ago

Using a refrigerator analogy here is absolutely absurd. It's a large physical object. I can store more copies of Wikipedia on my phone than I can ever store in a refrigerator

Ukv

3 days ago

The refrigerator is presumably an example to illustrate the general point, that scope is limited to where there's reason to believe there is likely evidence.

If a suspect is alleged to have been on the phone with an accomplice while committing a crime then a warrant for call logs during that time period would be appropriate, but not just open-ended trawling through all the suspect's devices for potential clues, is my understanding.

Johnny555

3 days ago

>A four-justice majority agreed. They emphasized that digital search warrants must be precise, listing exactly what investigators are seeking and explaining why those specific data types or timeframes are relevant

How do they limit the police to what was in the warrant? How do they prevent them police from searching the entire phone, and if they find something else incriminating, use parallel construction to find other evidence that justifies a warrant for a broader phone search? "We didn't find anything in our initial phone search, but now we have an informant that told us to look at his email in November last year"

tobinc

3 days ago

Oh cool so I'm sure we'll see fines or imprisonments or something right?

nozzlegear

3 days ago

No, you'll see illegally gathered evidence thrown out, and the prosecutor could be in real danger of losing their case too if that's all they had to go on.

qingcharles

3 days ago

Exactly. This has literally never happened for overbroad searches.

ranger_danger

3 days ago

FYI The entire state of Michigan falls within the 100-mile border zone, where searches do not have as much protection:

https://www.aclu.org/know-your-rights/border-zone

Also friendly reminder that "the Constitution does not grant aliens any protections when trying to enter the United States."

https://en.wikipedia.org/wiki/United_States_ex_rel._Knauff_v...

TheCraiggers

3 days ago

looks at map in confusion

Since the western side of the state is quite obviously more than 100 miles from Canada I had to look this up. Apparently it's because the lakes count as international borders. That seems pretty crazy to me, especially in the case of Lake Michigan.

harikb

3 days ago

Forget lakes, it can be interpreted as any airport with an international flight. We are all within "100 miles of a border" even when walking our dog in the morning.

RajT88

3 days ago

I am sure they claim this from time to time, but don't do so in writing.

Lake Michigan is considered a "coast" (which Chicagoans kind of like! See: "Third coast" stuff), but that bizarrely puts their jurisdiction ~70 miles into the Illinois cornfields based on them saying they treat the lake as a "coast".

thaumasiotes

3 days ago

The lakeshore is a coast. For border control purposes, it's a large body of water that borders the US and other countries. (Granted, there's a fairly tight bottleneck coming from Lake Huron.) There's no argument for not treating it as an oceanic border.

100 miles from the seashore also puts you into some clearly inland areas. Most locations 100 miles from the sea aren't organized around their "proximity" to the ocean.

RajT88

2 days ago

I mean - the argument for not treating the whole thing as an oceanic border is the fact that the territorial line of US and Canada Lakes Superior, Huron, Erie and Ontario - but not at all Lake Michigan.

Lake Michigan does not touch Canada. There are shipping ports along the shores of Lake Michigan, but it's an argument that it should not be treated as an oceanic border. No matter how you measure it, Chicago is hundreds of miles from the Canadian border.

thaumasiotes

a day ago

> Lake Michigan does not touch Canada.

This is like saying that the Atlantic Ocean can't touch Norway because the North Sea gets in the way. That's not an argument.

RajT88

21 hours ago

Astute readers of maps will recognize that The Upper Peninsula of Michigan gets in the way of Canada and Lake Michigan. QED: It's a fine argument among people who have looked at the map.

gbin

3 days ago

The current government refuses entry for political opinions by forcing people to give away their phone passwords. It is like a political test purge on a small scale showing what will happen to the country the minute they can free themselves from this pesky constitution.

tptacek

2 days ago

The 100-mile border zone thing is a myth ACLU uses to fundraise. There have been SCOTUS cases knocking the idea down. There has to be some nexus to an actual border crossing for "border zone" rules to apply. About the most it seems the government can sustainably do is set up fixed checkpoints, and even those are legally problematic.

This comes up on HN several times a year; there are longer discussions about it available in the search bar.

ranger_danger

2 days ago

How is it a myth?

https://www.snopes.com/news/2022/06/13/what-is-usa-border-en...

https://en.wikipedia.org/wiki/Border_search_exception

https://www.pennstatelawreview.org/wp-content/uploads/2020/0...

https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?ar...

https://www.truthorfiction.com/supreme-court-100-miles-borde...

https://brownpoliticalreview.org/constitution-100-miles-ques...

https://ballsandstrikes.org/legal-culture/border-patrol-100-...

tptacek

2 days ago

Read the Penn State Law Review article you just pasted.

Nobody's questioning whether CBP itself acts abusively within the US. As the law review article observes, CBP's abuses have little to do with the "100 mile" thing; they detained Sen. Patrick Leahy by the side of the road more than 100 miles way from any nominal border.

The article goes into great detail about what the courts have authorized; it's nothing like ACLU's claim. This is one area in which I think ACLU's advocacy is actively harmful: they're convincing people that the USG has statutory authorization to do things, things they actually do, for which they in fact have no authorization.

ranger_danger

2 days ago

I did, and:

> Originating in a decades-old federal statute, CBP has the authority to conduct stops and searches within a “reasonable distance” of a border, defined by regulation as 100 miles.

Does not sound like a myth to me...

https://www.law.cornell.edu/cfr/text/8/287.1

In fact this seems to say that not only is a 100-mile zone actually defined in law, but there are cases where more than 100 miles may be acceptable as well.

Am I missing something?

tptacek

2 days ago

The entire "legal analysis" section of the article, I think? It's hard for me to engage with a single sentence from the opening of the article, when the entire article is about the illegitimacy of CBP's interpretation of that statute. In particular, repeatedly throughout the entire article the author refutes your assertion that searches are authorized by the INA.

ranger_danger

2 days ago

How about this then... can we agree that CBP searches outside of a posted border crossing within 100 miles of a land border, appears to be a contested and unsettled issue that may be subject to the whims of the judge of each case, but cannot clearly be defined objectively as "a myth" like you put it.

Is that sufficient for you?

tptacek

2 days ago

No? You just said "how about this: I reject your argument". That's fine, we don't have to agree, but let's not pretend that we agree when we don't. What was said on this thread about the "100 mile zone" was wrong. It was wrong according to your own cite! (I just happened to have already read it, because, as I said, this comes up on HN a bunch).

What's funny is: depending on which ACLU page you hit, they don't even agree with themselves. Their new main "100 mile border" page is full of caveats, but their original 2014-vintage page, which is still on the first Google SERP, claims things like CBP authorization to search luggage within the "100 mile zone" (definitely no! do they do it? i'm sure they do; just not lawfully).

ranger_danger

2 days ago

We must be having some kind of disagreement on what "the 100 mile zone" even is then, because I thought the 8 CFR 287 link explicitly defined it. Can you please elaborate on exactly what it is you are claiming is a myth and why? I'd like to understand your point of view better.

And if this is indeed a settled issue as I believe you are claiming, can you cite any court cases that establish whether (whatever you claim is a myth) is actually legal or illegal?

tptacek

2 days ago

You claimed that "searches do not have as much protection" within (paraphrased) "the 100 mile zone". This is false, though it is something ACLU has repeatedly claimed (and which it now clarifies is false in its current guidance). Let's just start there.

Your own cites back up what I'm saying (as does the ACLU now) so I'm not going to find you new cites; start by rereading the ones you provided.

ranger_danger

2 days ago

> The statute apparently supporting Border Patrol’s authority within the border provides agents the authority to “board and search for aliens” on any “aircraft, conveyance, or vehicle” within a “reasonable distance from any external boundary of the United States.” (later defined as 100 miles in 1953)

> The regulation also provides exceptions to the 100-mile rule whereby the Commissioner of CBP or the Assistant Secretary for ICE may declare a larger distance to be “reasonable” on a case-by-case basis

> The same regulation also authorizes CBP to enter private property, other than residences, within 25 miles of the border without a warrant.

I know that's not 100, but I think it's still "less protection" than people would reasonably assume there to be.

> In cases testing the Fourth Amendment limits of Border Patrol’s authority to conduct warrantless searches of those entering the country at ports of entry (including functional border equivalents, such as international airports), the courts have used a balancing test whereby the Fourth Amendment privacy rights of entrants are weighed against the sovereign’s security interests at the border.31 The Supreme Court has decided that there is a reduced expectation of privacy at the border, holding that the government’s interest in monitoring and controlling entrants outweighs the privacy interest of the individual. Thus, routine searches without a warrant, probable cause, or reasonable suspicion are considered inherently reasonable and automatically justified in that particular context.

> Although nothing in the Fourth Amendment (or Constitution generally) provides for such a principle, this doctrine has become known as the “border search exception” to the warrant requirement of the Fourth Amendment. The precise limits to this exception are disputed and continue to be tested

How is this not clear that it is not a settled issue, and generally gives them greater permission to search (e.g. without a warrant) than say, a vehicle that's 500 miles away from any external boundary (at the least, a port of entry or international airport)?

tptacek

2 days ago

You are quoting this article misleadingly. Obviously, there is a border search exemption to the constitution. But, as the article and the ACLU both point out, it does not apply 100 (or 25) miles from the border; it applies only at actual border crossings. The article is not about the border search exemption; it's about the "100 mile zone", which, as I said, more or less creates only the ability for CBP to do superficial immigration checkpoints.

I don't understand how you think you're helping anyone by making these kinds of claims. Who is better off believing that the government has sweeping search powers that they don't actually have?

ranger_danger

2 days ago

> it does not apply 100 (or 25) miles from the border; it applies only at actual border crossings

I don't see how that's true because this law explicitly mentions 100 miles, three times.

https://www.law.cornell.edu/cfr/text/8/287.1

> The term reasonable distance, as used in section 287(a) (3) of the Act, means within 100 air miles from any external boundary of the United States

Surely I must be missing something?

tptacek

2 days ago

At this point you're arguing with your own sources. You're going to need to take it up with them, not me.

majorchord

2 days ago

I have to agree with parent, the quoted law very much establishes a 100 mile zone, as they said... and I still see zero evidence of it being "a myth". Plus you seem to be moving the goalposts and not accepting that.

tptacek

a day ago

I suggest you read the parent commenter's law review cite, which explains all these issues in detail. Or you can just go to ACLU's big page on this.

daft_pink

3 days ago

It’s sad that it’s the Michigan Supreme Court and not a federal court :(

mikece

2 days ago

Oh there's still a chance this is appealed to and overturned by SCOTUS....

dekken_

3 days ago

Now do facial recognition surveillance cameras