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The 4th Amendment Thread: Privacy, Search & Seizure, Chain of Custody
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Yeah, the way drug dogs are used bothers me significantly. They are kind of in this amorphous state between police officer and equipment, depending on what is more convenient to the handler / department at the time.
I personally think that dogs should be required to do regular re-certification / testing with their handler - at the very least annually, if not significantly more often. Also, following any and every apparent false-positive signal in the field. Of course, the testing / certification should be double-blind to prevent manipulation by the handler or tester. If dogs signal drugs but drugs aren't found after a search, that should be a big deal and call into question any other evidence that is found.
The use drug dogs is based on 'plain sight' doctrine, so a dog's 'claim' that drugs are present should absolutely be subjected to the same level of scrutiny as a human officer who searches based on evidence they claim was in plain sight. If that evidence they claim to have seen doesn't turn up after the search, that's a big fucking deal.
This is unknown and possibly false. iPhones were for quite a while aggregating all GPS data to Apple, regardless of whether you had the map open. I don't know if they still do this...
I know they were storing it in protected system space on the phone, are you sure they were sending it to apple also?
Your construction is backwards because the status quo was changed.
By the government.
Until recently, everybody in the nation thought that the status quo was "no, the government doesn't do this sort of pervasive monitoring and data collection". The burden of proof is on them.
Moreover, even if you disagree with the above: the default should be liberty. Reductions in liberty should, in all cases, be justified by those who wish to do so.
Liberty is the default.
Monitoring and collecting are not the same.
In what perceivable way has your liberty actually been diminished by this revelation?
They were not storing it in protected space. There was a big hooplah about it a few years back. It was just some file sitting in the base filesystem that was sent to Apple every 12 hours or so. I do not know where it is now but at the time it was a very poor system. And they didnt even get a hand slap for it either if I remember correctly.
Its a good thing that laws exist then instead of it being arbitrary exercises of power.
"Liberty" is not being able to ignore laws. Liberty is living in a state where you are not restrained by illegitimate laws. When the government enacted a minimum wage, "liberty" was not reduced. When the government prohibits murder, its not at the cost of "liberty." If the government reduced immigration laws or legalized pot it would not be an "increase in liberty."
John Locke - "In political society, liberty consists of being under no other lawmaking power except that established by consent in the commonwealth. People are free from the dominion of any will or legal restraint apart from that enacted by their own constituted lawmaking power according to the trust put in it."
There is no "burden of proof" other than what the Constitution and the electorate says. There isn't a giant Libertometer up in the sky that goes up and down depending on the number of laws that must be consulted. And if there was, it wouldn't go down because the government could subpoena your cell phone provider's call records.
QEDMF xbl: PantsB G+
While I agree with your argument, the bolded part isn't quite right, so I want to clear it up now in case this tangent gets some more discussion.
Drug dogs are an exception to the rule regarding searches not because of 'plain sight' doctrine, but because a dog is physically only capable of alerting on illegal substances (he wouldn't know your illegal bookkeeping slips from your shopping list, but pot smells like pot smells like pot) and because the USSC has held that persons are incapable of a reasonable expectation of privacy in contraband. Don't have my crim law book in front of me for the appropriate cites.
Did you read the article you linked? Here's the test:
18 sets of handler and dog in a church (minimal chance at bias due to previous presence of drugs or explosives)
Handelers told that red paper indicates presence of drugs
Four rooms as follows:
1) Nothing
2) Red Paper
3) 2 Tennis Balls, 2 Sausages (decoy scents)
4) Red Paper and decoy scents
In no room was there drugs or explosives. The only possible outcomes are the drug dog fails due to indicating drugs/explosives when there are none, or you don't find anything. This doesn't strike me as a test performed in good faith.
And how do you get 200+ failures out of 18 teams in 4 rooms? Especially when the tests states that nothing was found in the first or the third room?
I totally agree as someone that knows a little about dog psychology that dogs take ques (queues?) from their owner/master/handler, so it's not suprising that in a limited number of cases the dogs can be wrong. On the other hand, they have a nearly 100% hit rate when drugs/explosives are present, even in quantities much less than what a human could detect without specialized equipment. So, how far are you willing to go to protect the innocent? Dogs are a valuable tool, and aren't being grossly misused.
The status quo hasn't changed since the 70's. What has happened is that generations of people have grown up in a world with vastly different technology than the 70's, and haven't learned what the status quo is.
So, the status quo and government haven't changed, it's just that the population and technology have. As recent rulings have shown, it probably is time for the government's position to change, but I don't see it happening any time soon.
Also, Liberty =/= Privacy
So, illegitimate is a negative, and not is a negative, let's cancel them out and see what's left:
Liberty is living in a state where you are restrained by legitimate laws.
This may be a strawman, but I don't really see that a good definition of liberty should involve restraint.
I like John Locke's defintion, because you can see that the influence of lobbyists, the rich, corporations, etc on politics and the government is acting to drop the dial on our libertometer. The problem though, is that when a large number of people are outraged by something that the government is doing, it means the government is doing it without the "consent of the commonwealth" ans against "the trust put in it.". So, while we've put the government in place, it's committing an abuse that goes against liberty. Locke's definition assumes a fully legitimate and morale government.
I'll let this quote from another thread go unedited, because its funny how little this discussion has progressed.
Posh, no one at the NSA really gives a damn about your phone sex. They're not going to waste their time illegally wiretapping you in the hopes of getting phone sex conversations. The fact that you think that the NSA actually cares about you at all is an example of your sense of priviledge, the feeling of "I am so special that people are willing to break the law just to know more about me!"
Speaking as an actual minority, this whole NSA thing doesn't scare me in the least. The same goes for most of my very outspoken minority friends. Do you know why? Because if the police want to start harassing minorities just for the sake of being jerks, then breaking the law to spy on people has the lowest return on investment imaginable. The government employees who want to get their racism on aren't going to apply for jobs at the NSA. They're going to apply for jobs doing traffic duty where they can pull over random black people for shits and giggles.
This isn't about protecting minorities. If it was, there are far better causes for you to spend your time on. This is the fear of "Holy shit, this is something that theoretically could affect me as well (although in all likelihood it won't)."
And then go for the 'much better things to do than this' fallacy?
This is not a compelling argument.
http://www.ucdmc.ucdavis.edu/welcome/features/2010-2011/02/20110223_drug_dogs.html
And for how you get 200 failures, it's likely that teams may have gone through the rooms more than once for repeatability, and they were told there could be up to 3 target scents
It was a test to see if dogs signal falsely, not how well they can detect real drugs. Specifically false positives when the handlers are expecting triggers. False positive rate is a thing
So it's okay for you to speak on behalf of all minorities everywhere on this issue, but it's not okay for me to speak from my personal minority perspective?
As opposed to your fallacy of pretending that this is somehow a major concern for minority rights groups when it's really not?
Okay, let's suppose that the NSA starts randomly snooping on random minorities. And then what? They can't do anything with the information. They can't use it in court. They can't reveal what they know.
About the only two things they can do is a) tip off the police to be on the lookout for brown people, and b) laugh at brown people behind their backs. Which are two things that they can already do right now, so what's the point when given the potential risk?
Either you literally are unable to read, or you are unable to argue without strawmanning and using terrible analogies at every point.
Your arguments are so poor I can't even address them! I would like to, but I don't know how!
His point is pretty simple, posh - there are a lot bigger privacy fish to fry than online privacy. The problem is that a lot of those issues are more targeted, so it's hard to get outrage going, especially when you can manage to add a moral element to things, i.e. very invasive financial examinations to confirm eligibility for benefits. Minorities aren't worried about the NSA, because there are much more invasive forms of surveillance both official and not targeted at them.
Then you challenge the legality of the constructed reason.
For instance, suppose I break into your house and notice that you have a garage full of child pornography. But I can only give an anonymous tip, because I don't want to be arrested for burglary. Even if the police believe the tip, they still need probable cause before they can go inside and look for themselves.
If they don't have probable cause, any evidence they find will be thrown out.
You 100% missed the point there. Say the constructed reason is legit- it can't be challenged successfully. They take the "tip" and build PC around it, use a "random" drug dog, whatever. But it would not have occurred except for the illegal search, which is never disclosed. What is the recourse? There has been an illegal action, but no punishment or suppression for that action.
"Oh, our dogs barked while we walked by his house. Sure, we didn't find any drugs, but please let us use this non-related evidence."
If the constructed reason is legit, what's the problem? Do you think that anonymous tips should be banned altogether?
Suppose I notify the police that I witnessed a mob boss killing someone, but I don't want to testify against him. The police follow up by collecting a mountain of evidence to confirm my story. According to you, no investigation should have been allowed. And if the mob boss manages to murder me, then he gets off Scott free.
The only reason it could be a problem is profiling. Which the police can already do on their own without any illegal wiretapping from the NSA.
Actually, the dog signaling can be used to generate probable cause for a search. I'm not exactly sure how it would work with an officer walking a dog up to your door and getting a warrant based on the dog's signaling alone, but police certainly can search your car if the dog indicates it contains drugs.
Once a search warrant is issued, evidence of other crimes that police find while conducting the initial search would generally be admissible. There are certain restrictions on where / what the police can search for that can be argued later in court - for example, if the police have a search warrant only to see if a stolen car is hidden in your garage, unrelated evidence they found by turning on your computer and rummaging through your files would likely be inadmissible. However, search warrants can be written broadly (search for stolen vehicles, or evidence of a stolen vehicle ring) that would allow police to search your computer and files, making any evidence of illegal activity they found likely admissible,
I'm not opposed to allowing anonymous tips. I am opposed to allowing law enforcement to bypass the chain of custody and reporting requirements by anonymously providing tips in a professional and institutionalized / systematic capacity. I'm also opposed to allowing police - through drug dogs and handlers - to generate probable cause on a whim, even when it's proven that probable cause is as likely to be a false-positive.
Parallel construction, drug dogs, anonymous tips etc are all important tools with a real and necessary purpose. As long as they are used in good faith, with proper oversight and care, they should be available to law enforcement. I'm just not convinced - based on information that has been presented about their use - that they are being used legally or in good faith.
Parallel construction (as being used by the NSA / DEA) seems to be structured explicitly to avoid any possible challenge in court. That's concerning. Drug dogs have been proven to have a bias and the information they are providing to law enforcement is not reliable. That's concerning as well. Even more concerning is that - like polygraphs - law enforcement seems content to ignore the actual issues with that data or work to improve their processes, and rather exploit the 'bugs' in the system to serve a very questionable purpose.
The basic principle is once a 4th violation occurs, anything connected to that is gone. This throws that out the window. It doesn't matter if the following actions are legit, the original action poisons the investigation.
And an anonymous tip from Joe random is a hell of a lot different from anonymous tip from Joe, head of the local DEA office.
So, now we've demonstrated that humans can have an influence on the use of dogs for detection purposes that can give probable cause. This is not surprising considering dog psychology. My question then would be what is the miss rate, and what is considered to be an acceptable miss rate? We know the hit rate is at or very near 100%.
If the miss rate based on actual field use is at or lower than the miss rate based on probable cause in general, then I don't see an issue existing at all. I can't find any information regarding a study done to this effect, however.
But your entire issue with parallel construction here rests on the problems with constructed chain of evidence (specifically the drug dog) and not the idea itself.
You aren't arguing against parallel construction, you are arguing against drug dogs.
I agree, because an anonymous tip from Joe, head of the local DEA office is no longer anonymous.
That said, I think most of the "anonymous" tips used in construction really aren't, so.
Nooot really. He's arguing against both, I'm not arguing against drug dogs at the moment. Here, ignore the dogs:
Also see above about "anonymous" not really being such. Also seriously, a cop could do a B/E, find evidence, call in a tip to himself, and work up a warrant from there. Parallel construction as a method of verifying unreliable information to get PC? OK, but needs to be monitored. Parallel construction to hide possible 4th amendment violations or other lawbreaking by law enforcement? Fuck no.
But if you have to construct a legit chain of evidence, then that chain of evidence can be challenged in court.
Which as we've gone over several times now is not a solution. With the information from the illegal activity, it would not be hard to find a way to construct legal PC one way or another. Therefore there is no challenge and the illegal activity goes unchecked.
No, I'm arguing against both. EDIT - Re-reading my earlier post, I can see I was unclear and allowed those two issues to be conflated.
I'm against parallel construction, at least as an institutionalized method of government agents acting anonymously, but in a professional capacity, where a lack of anonymity would legitimately challenge the validity of evidence.
Separately, and independently, I'm arguing against drug dogs, which seemingly have a high rate of false positives.
While a drug dog certainly could be used in a parallel construction to generate probable cause - even with a false positive - and thus make evidence gained from a tip admissable as the search is legally legitimate, the use / misuse of drug dogs in that specific situation is a much narrower scope than my overall concerns.
I was just heading out the door so I can't expand on this, but police have what amounts to a blanket exception to the warrant requirement in the cases of cars. There are a few exceptions to this exception, involving permanently-stationed vehicles (read: disabled trailers) and some search incident to arrest issues that come up when a person is arrested as a result of an automobile search.
This doesn't make any sense.
If they can construct a legal PC, then there's no issue. You have a legal chain of evidence and it can be challenged in court. That's exactly what you want for the justice system.
The illegal activity is checked because it's illegal. Lots of illegal things make law-enforcement easier.
I'm haven't read the entire quote tree yet, but you can't make a "legal" PC by constructing one ex-post-facto. The point he's making is that the challenge to the chain of evidence isn't a a true check on police conduct, because police are intelligent enough to make sure that the tip passes muster.
It's an institutional problem, not a problem with the law. It's not really something that you can advocate good solutions for, other than "don't have corrupt police". That said, we'd be foolish to pretend it doesn't happen.
They have to generate the rest of the evidence chain too and that can be challenged.
Rights exist to protect people from abusive government behavior.
Laundering the result of abusive behavior into a chain of evidence that would have been lawful is not, altogether, a lawful or desirable result.
That said, that's why there's specific case law regarding what can and can't be used as a tip. There's ways to get around it, but it's still fairly rigorous and there's clear-cut criteria. At that point (i.e. calling in fake tips which pass muster), the issue is with the judges or magistrates signing off on them as much as it is the police calling them in.
Parallel construction isn't a tool to avoid any possible challenge in the court. It's a tool so that if one part of a case fails the challenge, the entire case won't fall apart. It's a legal tool to make sure you don't put all your eggs into one basket.
And an anonymous tip is not submittable as evidence in a trial. The only thing it can do is provide probable cause for obtainment of a search warrant. And to obtain a search warrant, there is a procedure to follow including having a judge sign off. So there is oversight in place to prevent abuse of anonymous tips. Any reasonable judge, after all, will become suspicious if the same officer or group of officers keep requesting warrants based on convenient anonymous tips. This is literally the check and balance for this required by the 4th amendment. It's only this evidence obtained by a search warrant that can be submitted as evidence.
Is it possible for this to be abused in an individual case? Certainly. Is it possible for this to be abused systematically? Only if the entire system is breaking down, which means we have a far bigger issue to address than just privacy and it's relation to the 4th amendment.
And keep in mind that police also police themselves through internal affairs. If an officer were found to be submitting anonymous tips to try and get warrants for information otherwise obtained illegally, they would be subject to discipline and possible expulsion, in addition to the fact that their investigation would be compromised.
We'd also be foolish to assume that our entire police system is sytematically corrupt. Because then the entire discussion about legality or constitutional protection becomes moot, because hey, the corrupt police don't care about any of that.
You have heard of the bullshit with the NYPD recently, civil forfeiture, etc.?
You're probably thinking of this.