News for hackers. Stuff that matters.
Re:FBI's Use of Paid Best Buy Informants Goes Deeper Than We... by sathackr on Tuesday March 06, 2018 @10:32PM (#16534063)
IANAL but I have read a ton of case law on similar subjects involving possession.

In the case of Rettenmaier, the possession laws work almost identical to drug possession laws.

When the contraband is not in actual possession(physically on the persons body, in pocket, etc...) then they must use the rules of constructive possession.

(At least in FL, and many other states are similar)

For constructive possession, they must prove:

1. The person had knowledge of the presence of the contraband

2. The person had the ability to exercise dominion and control over the contraband.

There used to be a 3rd rule "Knowledge of the illicit/illegal nature of the contraband" -- but IIRC that one got thrown out a few years ago making most possession crimes strict-liability.

For files in unallocated space, without any other evidence, neither of the rules could be satisfied and a good lawyer would get it dismissed before it ever went to trial. Now, if in an interview, the subject 'confesses,' then they may have 'evidence' of either rule, and the case can go to a jury for the facts to be decided.

There was a case in FL(a quick search didn't find it again) of a person driving a box truck full of marijuana that had a padlock on the doors to the cargo compartment. They were pulled over and the officers could smell the marijuana from outside the truck. They were convicted but the case was overturned on appeal because there was no evidence that the driver knew what marijuana smelled like (no knowledge of its presence) and no evidence that the driver had a key to the locked cargo compartment (no ability to exercise dominion or control)

https://www.law.cornell.edu/wex/constructive_possession

http://www.justiceflorida.com/when-is-someone-in-constructiv...

Re:FBI's Use of Paid Best Buy Informants Goes Deeper Than We... by jacobevelyn on Tuesday March 06, 2018 @10:49PM (#16534121)
Thanks for all the info! The case you described also sounded familiar to me so I set out trying to find it. No luck though; the closest I could come was California v. Acevedo[^1] and its related cases like United States v. Chadwick.

[1]: https://en.wikipedia.org/wiki/California_v._Acevedo

Re:FBI's Use of Paid Best Buy Informants Goes Deeper Than We... by sathackr on Tuesday March 06, 2018 @11:59PM (#16534355)
I dug a little deeper and still did not find it.

There were two similar cases, one in which the box truck had a pass-through into the cabin, and based on this, the conviction was upheld because it was deemed that the pass-through from the passenger compartment of the vehicle into the cargo compartment allowed the defendants knowledge and control.

In the other case, there was no pass through and the conviction was overturned.

I will dig through some more files tomorrow. They were both State of Florida cases.

Another interesting(older) case was one in which a defendant was seen leaving an unoccupied house, was 'stopped and frisked' and a Tylenol(or some other legal OTC drug) bottle containing some sort of illegal drug(MDMA or something like that) was found in his actual possession(on his body). The defendant told the police that he had taken the bottle from the house and was unaware it contained illegal drugs. The conviction was overturned because while he knew of the presence of the pills in the bottle and could clearly exercise dominion and control as it was in his actual possession, there was no evidence to indicate he had knowledge of the illicit nature of the substance.

Re:FBI's Use of Paid Best Buy Informants Goes Deeper Than We... by joering2 on Tuesday March 06, 2018 @11:30PM (#16534248)
Amazing case. I dont think however it will stand the test of time today.

A driver that supposedly doesnt know how marihuana smells (how do you prove he does or does not) drives across the state moving tons of contraband so long as he does not posses a key to the truck's locker.

Re:FBI's Use of Paid Best Buy Informants Goes Deeper Than We... by TheSpiceIsLife on Wednesday March 07, 2018 @12:58AM (#16534548)
I guess in court you ‘prove’ that a person has no knowledge of the smell of marijuana by all of:

a) they make a statement under oath to the effect that they have no knowledge

b) they and their immediate family / propuesta they live with have no relevant convictions or charges that would contradict the above, and no known links to anyone who clearly does (no electronic communications collect as evidence)

c) they are otherwise a just, upright, and moral citizen

Re:FBI's Use of Paid Best Buy Informants Goes Deeper Than We... by sathackr on Wednesday March 07, 2018 @08:48AM (#16536262)
The burden of proof is on the prosecution. The defendant has a right to remain silent(5th amendment) and that silence cannot be used against him/her.

If there is no evidence* that the person knows what marijuana smells like, then their knowledge of what it smells like cannot be proved, so there is no issue of fact for a jury to consider, and the case should be dismissed.

* - 'evidence' is a very low bar to meet. It can be something as benign as a conversation about herbal remedies. Once there is some sort of 'evidence' -- it can go to trial and is up to the jury (the trier of fact) to determine if indeed that conversation about herbal remedies proves the defendant knows what marijuana smells like.

One thing I found interesting is that nearly every type of charge has a set of jury instructions that tell the jury exactly what they must decide. They are quite enlightening. FL Jury instructions for most drug offenses:

http://www.floridasupremecourt.org/jury_instructions/instruc...

Specifically possession(RTF) http://www.floridasupremecourt.org/jury_instructions/chapter...

Re:FBI's Use of Paid Best Buy Informants Goes Deeper Than We... by lacklery on Tuesday March 06, 2018 @11:03PM (#16534172)
it could be used for further inquiry or investigation. in the case of the computer the owner would not even know.