Judge Rules Blanket Search of Cell Tower Data Unconstitutional

https://www.404media.co/judge-rules-blanket-search-of-cell-tower-data-unconstitutional/

433•bradac56•18h ago

Comments

hiatus•17h ago

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

It continues to amaze me that police are the only group who can use the defense of ignorance of the law.

Terr_•17h ago

Not only that, when they lie in conversations/interrogations, they can lie about what the law is, as well as what official acts can/will undertake.

To me there is a fundamental difference between lies like:

1. "Your buddy in the next room already ratted you out."

2. "Sign this admission and you'll only get 6 months, tops. If you don't, we can seize your house and your mother will be living on the streets. "

nemomarx•17h ago

I get your point but actually why can they lie and claim your buddy ratted you out?

p_ing•17h ago

Tax payers don't care enough to force the congress critters to change the laws in <your home state>.

Instead, you get human beings who are shielded by a thin piece of paper who can summarily execute you, then say "whoops, my bad".

Police are nothing more than State-sponsored gang members.

pstuart•16h ago

Many of those tax payers are fine with them being gang members, but only against "others" -- that's a feature, not a bug.

deepsun•12h ago

State (any country, since the birth of monarchies) is the gang. It literally robs you ("taxes"), monopolized violence (only state is allowed to utilize it). But if it does a poor job at that, other states swoop in with their rules, no invitation needed.

Retric•7h ago

Cops are sufficiently independent to be a separate entity here.

Under civil asset forfeiture they are literally allowed to go out and rob people independent of what any taxes might be.

duskwuff•7h ago

> Police are nothing more than State-sponsored gang members.

Sometimes very literally:

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

Zak•16h ago

The assumption, as I understand it is that a guilty person is more likely to confess if they believe the evidence against them is strong, but an innocent person will not believe the lie because they know they didn't commit the crime and generate the purported evidence.

I fear like many other old assumptions about criminal justice that isn't a close match to reality.

Terr_•15h ago

I imagine a lot of it is tradition, AFAICT it was never really banned in the US (or Britain), although in the US it was codified in 1969. [0]

[0] https://en.wikipedia.org/wiki/Frazier_v._Cupp

dghlsakjg•12h ago

Simple answer?

Because there is nothing prohibiting it.

plsbenice34•16h ago

I dont see the difference, both should be illegal

LinuxBender•16h ago

Never talk to the police. Let your lawyers do the talking.

santoshalper•15h ago

Because someone, somewhere needs to see this today

https://www.youtube.com/watch?v=d-7o9xYp7eE

lcnPylGDnU4H9OF•15h ago

To add to this: it is the police's job to positively identify those who commit crimes. If they are questioning you, it is because 1) they are investigating a crime and you are a suspect (maybe not the prime suspect but a suspect) and 2) they do not have evidence that reasonably proves that you committed whatever crime (or lack thereof) they are investigating. (Simple game theory for 2: if they had the evidence, they'd use it to obtain an arrest warrant and then prosecute the case; no need for more investigation.)

This isn't good advice only for people who have possibly committed a crime but also (and especially) for those who are confident that they have not. The police are asking you questions to "get to the bottom of it" and they encounter people every day who do think they can lie to get out of a crime; they think you might try to lie to get out of a crime. They won't trust your words but they will verify your words. If your words turn out to be false, then they'll tell the judge/jury that you lied to them, not that you were mistaken; in the absence of stronger evidence (against someone else) they might claim you were possibly even intending to direct their investigation toward a red herring with your falsehoods.

The only revision to this advice I've heard in the past decade-and-a-bit: tell the police your real first and last name if they ask. It's not always a requirement but some states have "stop and ID" laws, which means you have to identify yourself to law enforcement during a "lawful detention" (other states instead require it after an arrest).

autoexec•15h ago

> The police are asking you questions to "get to the bottom of it" and they encounter people every day who do think they can lie to get out of a crime;

I don't even think they are all that interested in getting to the truth of the matter, they are mostly concerned with getting an arrest and conviction. If it'll be easier to throw you behind bars than to find and arrest the dangerous person who actually committed the crime they aren't all going to choose more work and risk "officer safety" when they can just take you and call it a day. Especially not if they're already prejudiced against you or you bruised their fragile ego somehow.

EFreethought•14h ago

I wonder how much of the state of affairs is due to the "enshitification" of law enforcement. I think a lot of towns/cities require officers to give out a minimum number of citations/tickets per month.

If you are told to care about a number, you will care about a number.

lcnPylGDnU4H9OF•14h ago

Those numbers influence promotions/raises. It is probable that higher-paid cops commit more civil rights violations than lower-paid by virtue of them being more likely by comparison to have undue arrests and convictions on their record (and ~equally likely to encounter actual criminal behavior).

oivey•7h ago

Enshitification would imply they were ever good. Police brutality has been a constant throughout US history, particularly against minorities, among many other things.

testing22321•14h ago

This x 1000.

A friend was a career LAPD detective, and he gave me the talk. He said because I’m a nice guy I might try to help the police by explaining what I saw in detail. He was adamant that I never ever do that, because in the absence of someone to pin it on, they would find a way to pin it on me. He saw it as literally their job.

No matter what, even if you are just standing there when something happens, don’t talk to the police.

Loughla•13h ago

I've told this story on here before. When I was 16 or 17, the place I was working got robbed. The guy just opened the register while I was fixing part of the greenhouse building.

The police showed up and took my statement, in which I said I didn't hear a car, so I assume he just ran off.

They took me in about two weeks later for an official statement. Then told me I had to take a polygraph because my stories didn't match. The story didn't change. The officer at the scene wrote that I said I saw the guy run off.

I was shitting bricks. A cop friend of my parents told me that this was common. They didn't have a suspect, I was a young kid, so they were just trying to get me to admit to it. He said they would tell me I failed the polygraph test and to just come clean.

That's what they did. They tried to pin it on me, but I legit didn't do it, so I would never confess. Even after they tried the 'you'll only get probation of you confess now, but if this goes to trial you'll be tried as an adult' nonsense.

And that's the story of how I learned to never, ever, ever speak to a police officer without legal counsel, even if you're straight up the victim in the situation.

What a fucking mess this country is in terms of policing.

galkk•5h ago

This is just wtf…

In my origin country they require witnesses to sign off witness statements. This isn’t the case here, in the US?

How you were summoned? Was it official? What if you’d shown with lawyer?

I think that now it’s already established that polygraphs are bullshit. Could you refuse it?

rendall•4h ago

> Could you refuse it?

Definitely, unless ordered by a judge. He needed a lawyer to advise him.

criddell•1h ago

Did you take the polygraph?

lIl-IIIl•12h ago

Couldn't they also be questioning you because 3) you are a witness?

What is one to do if they have material information and a vested interest in crimes being solved and getting the right people be held responsible?

JoshTriplett•10h ago

Get a lawyer, talk to that lawyer, work with that lawyer to carefully provide that information without putting yourself at risk.

garbagewoman•9h ago

Even in response to “did you see someone running that way?”?

JoshTriplett•9h ago

I was talking about questioning that's occurring to investigate a crime committed in the non-immediate past. I wasn't commenting on what to do about a possible crime in progress.

DrillShopper•10h ago

Corollary: if talking to the cops helped you then the police wouldn't be so eager to talk to you

fdb345•2h ago

Im sorry but Ive got to talk to them to take the fucking piss out of them.

My interview tapes are hilarious.

some-guy•16h ago

When I was a child, I thought police had to go to law school. How else would you enforce the law if you didn't know what the law was?

Clubber•15h ago

They're supposed to be trained on it, and they probably get a week maybe, depending on the academy. The rest is how to beat your ass.

redeux•14h ago

I took a class in college from a lawyer who said he started as a cop but wanted to understand the law better so he went to law school at night. When he graduated the chief (or whatever) told him he couldn’t practice law and be a cop, and even though he had no intention of actually being an attorney, they let him go.

bryanrasmussen•7h ago

underdeserver•14h ago

We all have to go to law school.

How could you live in the world without breaking the law if you didn't know what the law was?

reaperman•12h ago

There have been many periods in US history where sets of laws were purposefully created that criminalized activities that nearly ~100% of the population engage in. The intent of those isn't to stop those activities, and there's no intent of prosecuting everyone. The intent is to be able to prosecute any individual person or someone close to them, at any arbitrary point in time.

Many of today's lawmakers no longer have that intent, but the system as a whole still keeps running in a manner that allows tools of that nature to be used against targeted individuals and populations.

underdeserver•11h ago

Yup. Today these are traffic laws (even if you're a pedestrian).

01HNNWZ0MV43FF•9h ago

For the curious: https://en.wikipedia.org/wiki/Selective_enforcement

gosub100•13h ago

PDs have attorneys on call and prior to that they can call their sergeant if they are unsure. Even real lawyers don't know every aspect of every law on the books.

What baffles me is the hypocrisy in the political party that wants more government and regulation is the same one that hates the men who enforce it.

01HNNWZ0MV43FF•9h ago

I think a good police force could exist, but the current implementation could use improvement

voxic11•7h ago

They can't do 2. Or at least it would make the confession inadmissible evidence. The case law for this goes back more than a century. The general rule is that the police cannot promise you anything in return for a confession.

> Bram v. United States, 168 U.S. 532 (1897), was a United States Supreme Court case that ruled that an alleged confession to a crime, in order to be admissible, must not be obtained by threats or violence, nor by any direct or implied promises, however slight.

https://en.wikipedia.org/wiki/Bram_v._United_States

The ruling was later applied to the states as well in Malloy v. Hogan

> The Court held that the Fifth Amendment's exception from compulsory self-incrimination is protected by the Fourteenth Amendment against abridgement by a state. When determining if state officers properly obtained a confession, one must focus on whether the statements were made freely and voluntarily without any direct or implied promises or improper influence.

https://www.oyez.org/cases/1963/110

The "you will get X years instead of Y years" has repeatedly been found to make testimony inadmissible. You might be confusing it with plea bargains which are legal but don't involve the police and are actually binding agreements. The prosecutor cannot lie to you about what you will receive in return for your cooperation.

decimalenough•7h ago

> The general rule is that the police cannot promise you anything in return for a confession.

Yet plea bargaining is basically a promise in exchange for a confession (guilty plea), and that's why it's not allowed basically anywhere except the US.

bryanrasmussen•7h ago

plea bargaining in the U.S also is a promise that they will recommend that you get a particular deal, but the judge in sentencing can decide not to take that deal.

voxic11•6h ago

Yes maybe my wording was clumsy but that is what I was attempting to say. The important thing is the prosecutor is not allowed to lie to you as part of the plea bargain. If they promise to do something like give a specific recommendation to the judge they must do it or risk the verdict being overturned.

qingcharles•6h ago

In Illinois I noticed they modified the template admonitions they read to the defendant during a guilty plea to say something like "has anyone promised you anything, except for this plea agreement?"

voxic11•6h ago

Can you give any sources for plea bargains not being used outside of the US? I'm mostly familiar with US law but my understanding is that plea deals are used in most commonwealth/adversarial system countries such as the UK, Canada, and Australia.

For example I can find a lot of Australian lawyers discussing plea deals.

> There are three main types of plea deals in Australia:

> Charge Bargaining – The defendant pleads guilty to a lesser charge than initially filed. For example, a charge of aggravated assault may be reduced to common assault.

> Sentence Bargaining – The defendant pleads guilty in exchange for a lighter sentence recommendation from the prosecution.

> Fact Bargaining – The prosecution and defence agree on which facts will be presented to the court, potentially influencing sentencing outcomes.

https://newsouthlawyers.com.au/plea-deals-in-australia-what-...

If you just mean that plea deals are not used by inquisitorial systems then obviously that makes sense.

brigandish•5h ago

Please bargains are allowed and used in the UK but their existence is not as explicit as in the US, hence most (English or perhaps British) people thinking they may not exist in English or Scottish common law. There’s certainly less statistical data on their use collected.

wutwutwat•17h ago

Who does the court work for? The government. Who do the police work for? The government.

Yeah yeah, they work for “the people” “the tax payer” whatever. They work for the government. They get their paychecks from the same place.

What are you expecting here? This isn’t equal.

ceejayoz•17h ago

There's a very good chance the cops in question do not work for the Federal government. They certainly don't work for the judicial branch. It isn't a perfect setup, but it's better than many.

ty6853•17h ago

The whole thing is intertwined. Podunk cops often get put on 3 letter task forces and work in a mutual arrangement with each other. They often have a really clever scam going on where they kick seizures up to federal agencies, since it is so much harder to block/contest federal forfeitures than local ones, and then the federal agencies kick back a fraction of it.

Maybe their paychecks don't come from the federal government nominally but in practice it's highly intermixed.

wutwutwat•17h ago

They all get paid from my pay check. They work for the government. Level doesn’t matter. They protect their own.

JumpCrisscross•17h ago

> Level doesn’t matter

This level of civic and legal ignorance is a large part of why our country is in the mess that it is.

ty6853•17h ago

It's ironic that Milton Friedman, the guy that invented income tax withholding, was one of the staunchest fighters against it in the end.

They all get their paycheck straight out your paycheck before you even think about it. It's absolutely brilliant. No one would actually pay for most the horse-shit we get in return if you had to sign the check.

mjd•17h ago

The rule that illegally obtained evidence is inadmissible exists to disincentivize the police from obtaining evidence illegally.

But if the police believed, in good faith, that a particular search was legal and reasonable, based on the fact that a judge authorized them to perform it, then excluding the resulting evidence doesn't serve that purpose.

Update: This is not a new thing. The good-faith exception has been in U.S. law for decades. See https://en.wikipedia.org/wiki/Good-faith_exception . You may not like it, but it's not something the judge just made up out of thin air.

ty6853•17h ago

If I believe, in good faith, I have not broken the law. I should not be convicted.

mjd•17h ago

This is not responsive. The police did not commit a crime here.

Also note that there are good-faith defenses to all sorts of crimes, because (for example) there is a difference between knowingly defrauding a customer and just making a mistake.

ceejayoz•17h ago

> The police did not commit a crime here.

They did, however, violate the Fourth Amendment. Per the court.

mjd•16h ago

The Fourth Amendment was violated by the magistrate judge who issued the illegal warrant, not by the police officers who, acting in in good faith, executed it.

RHSeeger•16h ago

No, the judge told them they were allowed to do it. The act of doing it is what violated the fourth amendment. If they hadn't acted on the warrant, the fourth amendment wouldn't have been violated. The judge was _wrong_, but the police are the ones that violated the amendment.

mjd•16h ago

“No warrants shall issue, but upon probable cause, … and particularly describing the place to be searched, and the persons or things to be seized.”

Judge Magit violated the amendment by issuing the warrant.

_DeadFred_•15h ago

If my lawyer tells me selling a specific analog version of fentanyl is legal because it's different enough/whatever, and I good faith sell an analog version of fentanyl, do I get a good faith exemption?

lucb1e•15h ago

Bad analogy but I'll try it:

I take it fentanyl is some illegal drug, but some people can legally sell drugs (licensed apothecaries). If they go for a license, get it approved, then sell a drug, and then it turns out the license is invalid due to no fault of their own and should not have been issued, I don't think anyone is surprised if the apothecary is not on the hook for that. But I'm not a lawyer, much less a judge, so who knows what they'd actually rule

In the example where "someone told me to do it", you're glossing over evidence (this was in writing, not hearsay). In the example of addictive substances, you can be reasonably expected to do your own research and not take a random person's written word for it. The analogy is so hyperbolic, I don't get the impression you're trying to reasonably think about this case

_DeadFred_•12h ago

Fentanyl is an illegal drug. There is an Analog Acct that makes it so that close analogs to fentanyl are illegal. That was done because people were making analogs and getting away with it.

Drug dealers then went to their lawyers and asked if certain formulations fell under the Analog Act. Their lawyer said no and wrote out how they were legal and didn't fall under the analog act. They sold the drugs and went to prison even though they thought they were in the clear (so good faith should apply, right?).

This is a real case that I have experience with so not sure why I'm being called out as acting in bad faith or making up a ridiculous scenario. This is a real scenario with the people sitting in prison still (for another 5 years).

lucb1e•9h ago

Right, I see. There's still the difference of having official permission according to the legal system, such as the search warrant being a mechanism codified in law, or the mechanism to get a license as an apothecary to operate a pharmacy

If there is no such license you can apply for, I'm not sure there exists a system by which you can be indemnified from criminal prosecution for doing such sales (or possession or whatever the case may be)

The question reminded me of a 2019 case where two parties went to the judge to get a ruling on something, without there being damages or claims. (Here, a potential buyer and seller could ask to decide whether a certain substance would be legal to sell before the sale happens, steering clear of prosecution until there is a ruling.) Reading that case back, the legal provision that made this possible only applies to situations where the parties are free to do whatever (such as with a contract dispute); it does not work for creating jurisprudence on criminal law. Asking ChatGPT as a quick last attempt, it proposes to ask a lawyer (you've shared how well that worked) or to sue the government over the law that makes the sale illegal which would be void if the judge goes "this substance doesn't fall under that law anyway" and then you've got jurisprudence to work with. The latter sounds a bit strange, not sure if that's actually possible, but it'd be worth exploring for such edge cases where it may or may not be criminal to do a certain thing

Of course, I totally see how this is a double standard: you've done your homework and to the best of everyone's knowledge it's legal, and then when it turns out you're wrong, whether you get sent to prison depends on whether it was the government who sanctioned it. Everyone can make an honest mistake, government or no

I don't know the intentions of the drugs dealers you have experience with. If there are legit purposes for the specific analog they were selling (that is, purposes falling outside of the spirit of the law that makes fentanyl (analogs) illegal) then it seems strange that a judge would send them to prison for years. Was a long prison sentence perhaps compulsory due to some minimum sentence requirement as part of this war on drugs thing? Wondering this since our government is implementing more and more minimum punishments despite research showing this does not deter the behavior and also increases recidivism due to the longer time you spend outside society, losing any position that you had in it. It's great

_DeadFred_•9h ago

In the United States you can sell non-controlled supplements. For example you used to be able to buy MDMA (street name ecstasy/molly) over the counter at health food stores in the 1980s before the government classified it. In my area there are all kinds of strange stimulants sold in gas stations, and something called kratom people seem to get mildly hooked on.

The drug dealers were ex-marines that received debilitating injuries fighting in Afghanistan, became addicted to pain pills when they came home, and because of their injuries were unable to work. So they were selling drugs. Then the analog act came around, which made a large amount of closely related drugs illegal. They were drug dealers, and should be in prison. Someone died from these weird compounds they were bringing in from China to try and skirt the Analog Act. But these guys in their head justified it because they were using the same compounds, and they felt they needed to subdue their pain. But these guys also didn't hide it. They had a lawyer that they ran things by. They bought cars from dealerships with their money, not trying to hide it in any way.

I don't think 'good faith' should apply to them. But also don't think 'good faith' should supersede the United States Constitution. If it applies to the prosecution side, it should apply to the defense. A judge shouldn't be able to waive away our Constitution just because it's inconvenient in a prosecution. In the US, even if something is determined unconstitutional and that determination means people should be released from prison, every single person impacted has to go to court and prove it applies to them. We should release people imprisoned unConstitutionally, but we don't, because again it's inconvenient to the legal system. There is even a time limit on those people to go to court, and if they don't in time (say because they don't know, because they aren't notified) then they are bared from bringing it up in a motion to the court.

Drugs are a hard one. I blew up my life over addiction. Many around me were to. Some were using drugs, some alcohol, some gambling, some risky sex. One interesting feature of American society is we used to give people a second chance. For old guys like me, many of the characters in westerns were criminals turned better as law men one town over. These guys would have been completely different if they were receiving adequate pain care and some sort of job opportunities when they came back from war. I think society needs that. But it also can't enable bad behavior. Interesting/complex times.

Sorry for my wall of text.

heavyset_go•7h ago

Just curious, what case are you referencing?

everforward•12h ago

18 U.S. Code § 242, “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States…”.

The judge erred in granting the warrant, the police violated the above statute. Them being unaware would be an affirmative defense, that does require admission of the above crime.

qingcharles•6h ago

Police can commit statutory crimes to gather evidence in the USA. I'd like to see any solid ruling that says otherwise.

What they cannot do is violate certain constitutional rights to do so without triggering exclusion.

encom•17h ago

If you can cite previous court cases in your favour, you probably won't.

JumpCrisscross•17h ago

> If I believe, in good faith, I have not broken the law. I should not be convicted

How often does this actually happen in criminal matters?

mjd•17h ago

It's a perfectly reasonable defense to a charge of mail fraud, for example.

Or employing illegal aliens. "But they told me they had work visas, and they showed me what later turned out to be expertly-counterfeited visas!" Why shouldn't that get you off the hook, if true?

ty6853•17h ago

Jeremy Kettler -- bought a silencer completely made and sold within his state (no interstate commerce) and believed based on the Kansas Second Amendment Act (I think that was the name) which legalized intrastate NFA items that it was 100% legal. His own state representatives had advertised to their constituents that the law exempted silencers that never crossed state boundaries. The buyer and seller did it openly and even had photos on facebook, seemingly totally oblivious this would actually still touch federal law / interstate commerce.

Cody Wilson -- Went to a sugar daddy website that verifies IDs to ensure all 'escorts' are 18 which is a pretty good faith way to do it IMO. Woman seemingly had fake ID at some point, and also lied and turned out to be like 16 or 17. At some point later she underwent counseling at school and admitted she was an escort, after which a criminal investigation happened and Mr. Wilson was arrested. As a strict liability crime, there was no defense that due diligence was done to ensure the escort was 18.

JumpCrisscross•16h ago

The SAFA case is complicated, granted, and rare; it reached the appellate circuit for a reason.

CSAM and child sexual assault are one of the few areas of criminal law where we confer (in my opinion, correctly) absolute liability.

Broadly speaking, I think more cops have been convicted of duty-related crimes than unsuspecting random convicted of and punished for a crime they didn’t know they committed.

ty6853•16h ago

These kind of convictions aren't rare in the firearms domain. People get arrested or convicted all the time for doing stuff they had no idea was illegal. More recently a Navy Sailor (Patrick Adamiak) in the pipeline to be a SEAL was convicted after selling an imported parts kit that had been destroyed per ATF guidelines from the early 2000s. But apparently when he resold it, (after buying it openly from gunbroker), the ATF decided the way the kit was cut up was wrong and put him away for 20 years. Oh yes they had a few other excuses -- he had a decomissioned RPG tube, so the ATF just put an entirely other gun inside the fucking tube and fired it to claim it still work.

In that case, even the Navy, which almost never does this to felons, terminated him with an honorable discharge and even let him run up all his liberty time before releiving him.

RHSeeger•16h ago

Hide some drugs in someone's luggage when they're traveling at an airport and then get back to me. There's tons of cases of people being arrested for things they either had no idea they doing or had no idea was illegal. And then even more where the police tack on lots of charges for someone that's already been arrested; for things that they had no idea they were a problem in the first place.

autoexec•14h ago

Hell, there are tons of examples of people being arrested for things that aren't crimes at all, and even for acts that are constitutionally protected. Police don't care because they know they'll get away with it (and might even get a paid vacation) when the case against the person who was arrested and likely lost their job as a result gets thrown out. If the unlawfully arrested person is lucky and/or wealthy enough to afford a good lawyer they might get a decent amount of tax payer money out of it.

__loam•17h ago

This is a weird concept to people in stem fields, but in law intent matters a lot. It's the difference between manslaughter and murder.

ty6853•16h ago

It apparently doesn't in one of the areas of which I have a high level interest. The ATF is constantly changing their mind on what a machine gun is, and if it is one, it is a strict liability crime.

Not long ago a guy was put in jail for creating business-card sized metal sheets with the image of a 'lightning link' (machinegun conversion device) on it. Not the actual device, just a picture of it etched <0.001" into the metal. Clearly just art, and even when the ATF cut it out they could not get it function as a machine gun. They gave it to an actual machinist, and even after a day he could not get it to function as a machine gun. They could only get it to do anything by literally jamming it into the gun and making it do hammer follow, which every AR-15 can do with the parts already in it.

Up until the guy was convicted I don't think anyone had any idea a picture of a machine gun on a metal card was a machine gun. They even convicted the guy advertising it, who never as far as I know actually distributed one.

kevin_thibedeau•16h ago

Meanwhile, you can use bump-stocks as a redneck machine gun all day long.

aftbit•16h ago

Are you talking about the AutoKeyCard case, Kristopher Ervin and Matthew Hoover? Ervin finally gets out of prison on 2025-05-03 and Hoover gets out on Christmas 2026.

ty6853•15h ago

Yes. Honestly I am astonished Ervin, the leader of that enterprise, is getting out so much sooner than Hoover who IIRC just advertised it.

addicted•16h ago

If you believe in good faith that you have not broken the law, and can reasonably convince a jury of that, you almost certainly will receive a lighter sentence than you would have otherwise and in some cases also be acquitted.

So this isn’t really a good argument even if we ignore the fact that it’s a non sequitur.

A better argument is that the good faith exception, while making sense in principle, can easily be abused by the police to make illegally obtained evidence look like it was done in good faith, and therefore the exception itself should be removed because of how difficult it is to actually gauge and enforce.

dragonwriter•16h ago

> If you believe in good faith that you have not broken the law, and can reasonably convince a jury of that, you almost certainly will receive a lighter sentence than you would have otherwise

Juries usually don't decide sentencing, and even if they did I don't think that would matter with crimes viewed as wrong in themselves (mala in se) though it might with crimes viewed as wrong because they are prohibited (mala prohibita).

ty6853•15h ago

Well there's also the case that a main component in having your sentence reduced is expressing genuine remorse.

I'm not sure how on earth someone could be remorseful for a mala prohibitum victimless offense while simultaneously maintaining they in good faith thought they were following the law. Any expression of those two views simultaneously would in practice be seen as not much more than "sorry I got caught -- doing something I thought was legal."

tedunangst•13h ago

Doesn't seem contradictory to explain you thought it was okay and had no ill intent, but now realize your mistake and won't do it again. Requiring regret is problematic when you're claiming innocence (didn't do it), but when all parties agree you did it, your concern is convincing them you won't do it again.

plsbenice34•17h ago

Excluding the evidence would incentivize police to stop choosing the most convenient interpretation of the law. They should have to try to make the most accurate interpretation, which means punishment when they are wrong. Just like for everyone else

mjd•16h ago

No. In 2020 the police went to a magistrate judge to ask for a warrant. The judge issued the warrant. Five years later, another judge has determined that the warrant should not have been issued in the first place.

That is not the fault of the police, and there is no reason to punish them for it.

Vegenoid•16h ago

The evidence can be suppressed without punishing the police.

RHSeeger•16h ago

> That is not the fault of the police, and there is no reason to punish them for it.

It's not punishing the police. It's not allowing them to use evidence that they shouldn't have been allowed to gather.

Fining them, firing them, and/or jailing them for breaking the law; those would be ways of punishing them. That's not what is being discussed here. Admittedly, we pretty much _never_ punish police no matter what they do, so it's kind of a moot point.

multjoy•15h ago

They were allowed to gather the evidence - they had a warrant from a judge. The judge erred, not the police.

gylterud•15h ago

But the point is justice for the people put through curt. It does not matter to them whose mistake it was.

vermilingua•12h ago

No, that is not the point. Common law does not exist to render justice to the people in and of itself, it exists to give the people a mechanism of getting that justice themselves.

I expect anyone that was convicted due to this dragnet would now be able to appeal.

RHSeeger•12h ago

Where is it written that, if a judge tells a police officer they can do something, they are legally allowed to do it, no matter how blatantly illegal it is? I'm open to being corrected, but I have a hard time believing that, if a judge told a officer they have permission to go out an summarily execute 40 random people in the mall, it would be legal for the officer to do so. And once _anything_ can be illegal even if a judge tells them two, you're now in a grey area figuring out what is/isn't illegal.

At the moment, I would believe they were both wrong, and that the officer broke the law. I _think_ the judge also broke the law, but I don't know exactly how that works.

AStonesThrow•8h ago

Who commands the police officer to do things? Is it his/her superior, or the judge directly?

If there is a chain of command in any police department or Sheriff's Office, then the judge is not going to jump that chain and interpose herself in giving orders to a lowest-level officer who is on-the-ground and doing things.

The order's going to go to the office of their commander, who's going to evaluate it, and then it'll go through proper channels, so by the time your hypthetical "Police Officer in Summary Execution of 40 Innocent Consumers" then the order's been interdicted or validated as totally within the law as they interpret it?

9dev•1h ago

Explain again why the police is "punished" if someone isn’t detained in court?

autoexec•14h ago

Really we should be punishing the judge who approved it in the first place. A judge that violates the rights of the people shouldn't be allowed to be a judge.

equinoxnemesis•13h ago

There is obviously a line between what is and is not a permissible search somewhere and it's virtually inevitable that judicial rulings will from time to time err on both sides of that line (and they do). Punishing judges for ruling in ways which are later overturned would destroy rule of law at a fundamental level.

autoexec•13h ago

> Punishing judges for ruling in ways which are later overturned would destroy rule of law at a fundamental level.

Not where people's most fundamental rights are concerned. What it would do is cause judges to err on the side of caution before making a ruling that would violate the constitution which is exactly what we want judges to do.

immibis•3h ago

Then a Republican judge could just rule that obviously constitutional things were unconstitutional and punish all judges who don't agree, right?

rainsford•1h ago

That's obviously unworkable if you consider that even the Supreme Court's interpretation of fundamental rights can change over time. If a future Supreme Court overturns a prior Supreme Court decision in a way that expands a particular right, do we punish all the judges who followed the previous precedent? If we do, then we have a judicial system that encourages individual judges to ignore the Supreme Court, which doesn't seem like a good setup.

But more fundamentally, the system you're proposing doesn't just incentivize judges to err on the side of caution, it incentivizes them to never rule in favor of the government and just punt the decision to the next level. If the cost of ever being overturned on appeal in favor of an individual's rights is losing their job, while there is no corresponding downside of ruling the other way, there's basically no reason to ever risk granting a warrant, for example.

reverendsteveii•17h ago

Horseshit. This isn't a criminal conviction, the standard of mens rea doesn't and shouldn't apply. To add a good faith loophole only incentivizes two things: purposeful ignorance and lying.

mjd•16h ago

Learn to tell the difference between "I don't like it" and "horseshit".

The legal precedent for this goes back decades, and it's been argued by many people better-informed than you.

https://en.wikipedia.org/wiki/Good-faith_exception

einpoklum•15h ago

Reminds me of the de-facto good-faith exemptions for US police for not shooting civilians, or for the US government for arming death squads, or dictators, or genocidal military campaigns etc.

anon373839•15h ago

It is an established principle. But it also is an exception to how our legal system works: you are usually bound, retroactively, by new legal principles when courts “discover” them.

anigbrowl•15h ago

Agreed. Part of the problem here is that there are few consequences (other than perhaps non-promotion) for judges who issue bad warrants, and we don't have good information on how many warrant applications are rejected or wrongly granted.

ren_engineer•14h ago

cell tower dump and general geofence warrants to Google/Apple were how many Jan 6th protesters were found and charged. Courts threw out all their arguments about this very issue. This is standard practice and was celebrated as cops being smart

here's a Washington Post article lamenting that Google was cutting back on how long they hold location data and how hundreds of people wouldn't have been prosecuted without it- https://archive.ph/r7afb

dataflow•14h ago

You seem to be misrepresenting the situation. Ignorance of the law is not the defense they are invoking here.

Ignorance of the law is when you claim you didn't follow the law because you were unaware it existed.

This is a case where the court believes police did know the law and did try to follow it in good faith -- that's how they got to their conclusion that it's constitutional -- and that no court had yet reached a different conclusion in that district, until now.

These are distinctly different situations.

AdrianB1•14h ago

In most cases police is seen as serving the government and having all sorts of protections from sovereign immunity (confirmed in a case when a SWAT team partly destroyed the wrong house), qualified immunity (invented by SCOTUS, there is no such law) and practical legal immunity based on the fact that DAs rarely prosecute and even juries rarely find them guilty when prosecuted. This is why the ignorance of the law is accepted in so many cases as a defense for police, but not for citizens.

anon6362•14h ago

US police, in effect, are a lawless, violent, honorless, untouchable, mafia who protect and serve primarily a landed aristocracy. In some ultra-exclusive communities, city police are literally reduced to Dashers and grocery getters. Similar venues and communities in the States also pay for hybrid PMC/LE QRFs who roll with battle rattle more than body armor and long guns.

cyberax•12h ago

Dude, lay off the bong pipe.

> In some ultra-exclusive communities, city police are literally reduced to Dashers and grocery getters

Care to name a few?

TheJoeMan•12h ago

Not OP, but have you heard the craziness of Indian Creek Village in Miami? [1].

Their police force is 15 for a community of 41 homes[2].

[1] https://en.wikipedia.org/wiki/Indian_Creek,_Florida [2] https://www.indiancreekvillagefl.gov/police/police-staff-dir...

cyberax•5h ago

And where does it say that they bring groceries?

lazystar•10h ago

read between the lines; this is the Kohberger case.

> the Court will not order any evidence suppressed.

this keeps him from getting off scott free

reverendsteveii•17h ago

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

dylan604•17h ago

“That said, because the Court appears to be the first court within the Ninth Circuit to reach this conclusion and the good faith exception otherwise applies, the Court will not order any evidence suppressed.”

At least the weasel words allow/recognize that the decision is made on a branch of unknown strength. The branch may snap if other judges overrule, or it may be found to be a main branch if other judges uphold the decision. I'm not a legal scholar, but that's the first I've heard of this type of acknowledgement. However, seems like the courage ran out at that point instead of denying the evidence to be used, and letting it go to appeal to test the thickness of that branch.

refulgentis•8h ago

"Weasel words"

"courage ran out"

...

"I'm not a legal scholar,"

I'd at least avoid the mind-reading.

_DeadFred_•15h ago

Remember in every system people push up to and just as far over the line as they can get away with.

'Good faith' is given when chain of custody is broken. 'Good faith' is given way too much. Either the 4th Amendment is serious enough to have power/force over law enforcement/judicial, or it doesn't. And with good faith, it doesn't.

'our side violated the law but because of the divisions of power, our side didn't violate the law and we are going to give good faith to our side that our side was acting in good faith'. It's all window dressing to say 'the fourth amendment is superseded by other factors that a judge get's to decide at their discretion and the fourth amendment is not in fact the law of the land, a judge can overrule it with 'good faith''.

flipnotyk•17h ago

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

mjd•16h ago

It is not reasonable to hold someone accountable for doing something illegal in 2020 that was only determined to be illegal in 2025.

The police officers applied to a judge for a warrant. The judge gave them the warrant. Now another judge says that the warrant should not have been issued in the first place. How is that the police's fault? How would you hold them accountable?

pcaharrier•16h ago

This is the basic idea of the good faith exception to the exclusionary rule. The exclusionary rule was supposed to deter police misconduct (e.g., searching a house without a warrant, thereby violating the Fourth Amendment) by preventing them from using evidence they never should have had. But the deterrence rationale doesn't hold up that well when the police reasonably (and that's key) believed that they were acting lawfully.

_DeadFred_•15h ago

'Your constitutional rights were violated but tough luck, nothing can be done about it because the court is extending special 'good faith' courtesy to the police that you don't get (some animals are more equal than others in court decisions/considerations when minor laws (the fourth amendment) are broken)'.

And people wonder why American's are apathetic to it all. A judge can just wave away constitutional violations all day/every day because 'good faith'.

garbagewoman•9h ago

Go back and reread the comment you replied to. The exception can only happen once, because the precedent doesn’t exist until that ruling is made.

einpoklum•15h ago

You're conflating "holding accountable" and "letting benefit".

The question isn't whether the police officers who initiated the tower dump should go to jail or be fired, but whether the evidence they obtained would be admissible. It shouldn't be.

Also, a cell tower dump is not an act in good faith - neither in 2020 nor in 2025, regardless of whether the court lets it slide or not.

djrj477dhsnv•12h ago

> It is not reasonable to hold someone accountable for doing something illegal in 2020 that was only determined to be illegal in 2025.

Tell that to a financial regulator and see where it gets you. That's how it works for everyone else. Just because a law hasn't been clarified yet doesn't stop it from being applied to your past actions after courts have clarified it.

op00to•30m ago

If a warrant is later found unconstitutional, that means it was always legally invalid, not newly illegal in 2025.

mjd•17h ago

It took me a while to track down the actual opinion.

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

aftbit•16h ago

Thanks for finding this! Here's a link to Courtlistener/RECAP, which has a copy of this hosted for free as well.

Docket: https://www.courtlistener.com/docket/67397036/united-states-...

Order: https://storage.courtlistener.com/recap/gov.uscourts.nvd.162...

LiamPowell•7h ago

They've clearly read this to write this article. I don't understand why they don't at the very least reference it, even if they don't provide a direct link.

transpute•17h ago

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

Analemma_•17h ago

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

mjd•17h ago

The purpose of the "fruit of the poisonous tree" doctrine is to disincentivize illegal collection of evidence. But there has always been a good-faith exception to it: if the police genuinely believed that what they were doing was legal, as they did in this case, relying on established legal precedent, then throwing out the evidence doesn't disincentivize anything.

But the declaration that cell tower dumps are illegal now disincentivizes future police from relying on dumps, since they now know (or should know) that such evidence will be thrown out. And more to the point, magistrate judges will stop issuing warrants for cell tower dumps.

topspin•17h ago

"fruit of the poisonous tree" is one of those "magic words" that a lot of people think will preclude prosecution. Judges frequently make exceptions and judgement calls on whether a given search was legal, and people are frequently convicted on "poisoned" evidence, and evidence compromised in all sorts of other ways.

reverendsteveii•16h ago

>since they now know (or should know)

but can you hold them to that in any manner or does each officer need to be told officially and continue to plead ignorance of the law until they are in some documented way informed of it? can you plead ignorance of the law if you know it's not legal to dump all traffic from a cell phone tower but no one said that it's not legal to dump all the traffic from a web server (assuming for the sake of argument the obv interpretation that this ruling applies to all data stores that contain data from multiple people)? Every time you need to violate the constitution can you just have the new guy do it? Does declaring this illegal actually do anything to protect the rights of people who did nothing wrong and had their data seized and pored over by police anyway?

AdrianB1•14h ago

>> Does declaring this illegal actually do anything to protect the rights of people

Yes, next time they do it the data cannot be used in court as it was already declared anti-constitutional by that Circuit and good faith argument cannot be used. Good faith and not knowing the law are different; good faith can be used when the law is not clear enough and there was no rule to clarify.

It happens very often with 2A restrictions that are overturned by courts, but they are in effect for years and when they are repelled by courts then similar laws are passed just to be repelled years later, but during all the years there is an anti-constitutional law in place with prohibitions. So police cannot do cell searches, but local governments can enact anti-constitutional laws with intention and wipe rights successfully, for example laws that mandates telecom companies to provide the data to the police.

kevinventullo•16h ago

if the police genuinely believed that what they were doing was legal, as they did in this case, relying on established legal precedent, then throwing out the evidence doesn't disincentivize anything

This is obviously false. It would disincentivize the police from collecting evidence without first ensuring that the method of collection was legal.

multjoy•15h ago

They did. They went to a judge and got a warrant.

AdrianB1•14h ago

That does not make it legal and it does not eliminate the responsibility of asking for the warrant and using it.

Not saying there was a conspiracy here, but bad judges exist and arranging for a warrant is possible even for honest judges. If you are a policeman and you want to kill someone, get a judge to sign a "no knock" warrant, get in their house and shoot them, it happened many times; there were cases when the warrant was not even for the address of the poor guy that was killed and last year the warrant was for someone that borrowed a lawn mower from the judge who signed it and did not return it. So the warrant excuse is not so good.

thatguymike•17h ago

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

mjd•16h ago

It's the breadth. Searches have to be narrowly tailored to provide evidence of the specific crime being investigated. There's discussion of this on pages 12–13 of the judge's opinion.

https://plover.com/~mjd/misc/cell-tower-dump-opinion.pdf

IncreasePosts•17h ago

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

autoexec•14h ago

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

Improvement•16h ago

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

excalibur•16h ago

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

Jimmc414•16h ago

Interesting that the recent ruling against blanket cell tower data searches wouldn't have affected the Mark Gooch case. In that insatnce, investigators used targeted cell phone data (ie "geofencing") to track his movements, not a mass data collection. Under the new standards, this type of focused surveillance would still be permitted.

https://www.youtube.com/watch?v=YBBTfy29WKI

They absolutely wouldn't have caught him without the cell phone data, highlighting in my mind, the fine line between privacy and safety, which is something I personally struggle to articulate clearly. While it's reassuring this ruling wouldn't affect this case, I can easily see how "tower dumps" could be misused. It's confusing, though, that the judge ruled this unconstitutional action permissible "just this once." Either it's unconstitutional or it's not. Judges shouldn't have the authority grant one-time exceptions.

mjd•16h ago

The judge's opinion explains this in detail. It depends on the so-called "good-faith exception" to the exclusionary doctrine.

The idea is that if the police tell the truth in their warrant application of what they are looking for and why, the judge issues a search warrant, and the police lawfully execute the warrant, then there's no point in suppressing the evidence just because, years later, it's determined that the warrant should not have issued.

https://en.wikipedia.org/wiki/Good-faith_exception

djrj477dhsnv•12h ago

There is a point: protecting the accused against unconstitutional searches. That certainly seems important.

Whether the police violated the constitution in good faith or not is irrelevant when it comes to the rights of the accused.

darawk•3h ago

There's no point in protecting one individual against an unconstitutional search that proves him guilty. The constitutional issue is the ability to have conducted the search in the first place. The only reason we suppress accurate, but unconstitutionally obtained evidence is to disincentivize the action in the future. This "good-faith exception" strikes that balance pretty ideally.

The defendants rights were violated, but there is no doubt about the legitimacy of the data, and what it implies. Police now know they cannot use this method in the future, so suppressing the evidence in this particular case does not disincentivize anything, as long as its made clear that it cannot be done in the future.

dmix•15h ago

Ontario Canada figured this out in 2016.

https://financialpost.com/technology/police-breached-cellpho...

fsckboy•15h ago

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

VanTheBrand•15h ago

because the law is not a math equation and context matters.

fsckboy•12h ago

the contexts are identical, it's how, and as importantly why, i constructed my question: criminal does something, is detected, claims "but for my detection, i would not be before this court"

police investigating canvas for witnesses, canvas for ring doorbells cams, and ... canvas for cell towers.

identical, not analogous.

axus•12h ago

Reasonable eyewitnesses omit people + location + times weren't suspicious. The camera only leaves out people at other locations, the cell tower data doesn't leave anyone out.

tlogan•15h ago

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

sigwinch•15h ago

“and the persons or things to be seized” suggests otherwise. NSLs wouldn’t be challenged this way.

nzeid•14h ago

I am not a lawyer but here it goes:

If the target of the warrant itself is the carrier/telecom - probably constitutional, but I imagine there'd need to be a pretty good explanation.

If the target of the warrant itself is a single customer of the carrier/telecom - Absolutely unconstitutional.

E.g. You can't get the transaction history of every customer of a bank just because one of its customers is a suspect.

(Edited for clarity.)

riffic•14h ago

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

ccleve•13h ago

The issue in this case is being tested in other cases. It's about the "third party doctrine", the theory that the fourth amendment does not cover our information if it is in the possession of a third party.

https://nclalegal.org/press_release/ncla-asks-supreme-court-...

I blogged about this some time ago: https://ccleve.com/p/a-privacy-amendment

keernan•12h ago

I've never been completely comfortable with the concept of potentially freeing criminals because of wrongful conduct by the police.

The argument is there must be a way to protect society against the use of illegal methods by the police. I'm not confident, however, that the Exclusionary Rule actually accomplishes its purposes. I suspect the police 'roll the dice' all the time in their investigations, knowing full well they are unlikely to pay much of a personal price if their illegality gets discovered.

I've always thought charging police for their illegal conduct in a special federal system that handled all cases of wrongful conduct by police nationwide; with high conviction rates and penalties that start with termination and loss of pension and move on from there to add long prison terms. A system with special judges and prosecutors and civilian oversight.

Not likely to happen, so I guess we are stuck with letting criminals and the cops walk free.

johnea•11h ago

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

fdb345•2h ago

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

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Judge Rules Blanket Search of Cell Tower Data Unconstitutional

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