hckrnws

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.

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.

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.

> 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.

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.

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.

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.

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

A warrant for the full contents of the phone violates the particularity requirement.

Have you heard about that being enforced very often?

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/p...

That does seem pretty helpful, I'll try and run down the list later

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.

Dead kids with wealthy or famous parents, anyways.

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

>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.

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.

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?

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

>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.

>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.

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.

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

>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?

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

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

>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?

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.

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).

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

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.

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.

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?

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".

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.

>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.

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

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.

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

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?

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.

I mean, at minimum I doubt anything on his phone is relevant from a year, two years 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-...

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?

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?

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

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" ?

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.

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.

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.

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

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.

Exactly. This has literally never happened for overbroad searches.

Sudden outbreak of common sense.

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...

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.

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.

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".

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.

Now do facial recognition surveillance cameras