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Re:Court: Suspicionless Searches of Travelers’ Phones and La... by gorgoiler on Tuesday November 12, 2019 @03:46PM (#21518009)
I’m not sure to whom the reasonable suspicion has to be announced? It makes it hard for me, a lay person, to understand the practical ramifications of this decision.

Would the suspicion have to be announced to me, when I’m asked to unlock my phone, or would it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone? If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”?

The latter is only meaningful if the case goes to court, which feels like a stretch. There are many forms of punishment that can be meted out without having to go to court. Vexatious detention, confiscation of property, etc.

The former seems silly — surely I can’t impede law enforcement because they haven’t justified their authority to me?

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by landryraccoon on Tuesday November 12, 2019 @04:23PM (#21518313)
The point of the law is that even if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court. This is a crucial protection for citizens. The point of the ruling isn't that it prevents the search, it prevents the result of that search from being used against you. If law enforcement wishes to establish the guilt of a suspect in court, it has to use only evidence it obtained through legal means.

https://dictionary.law.com/Default.aspx?selected=2087

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by threatofrain on Tuesday November 12, 2019 @04:54PM (#21518592)
That's certainly a crucial protection but if law enforcement conducts an embarrassing or destructive search (such as when police recently blew up a man's home), they can still essentially end you.

But yes, it's good that you can't be simultaneously nailed in court with illegally collected evidence.

* https://www.npr.org/2019/10/30/774788611/police-owe-nothing-...

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by hannasanarion on Tuesday November 12, 2019 @07:55PM (#21520053)
And in such a case, you can sue for harassment. The police can't routinely violate your rights just for the heck of it, they need to show a good-faith belief that what they're doing is legal and could produce evidence useful in court.
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by thephyber on Thursday November 14, 2019 @06:13PM (#21540555)
> And in such a case, you can sue for harassment.

> they need to show a good-faith belief...

That's not how being a plaintiff works, which is what is frustrating about this type of situation.

They do some action which is legally questionable. You have to show standing and potentially damages to be able to bring the suit, then you have to prove that what they did was not a good faith belief that their actions were legal. The onus is on the person without the power with (typically) minimal resources.

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by dalore on Wednesday November 13, 2019 @05:11AM (#21522579)
From the article:

> But the problem with that argument, the appeals court ruled, is that courts have long held that police cannot be on the hook for property damage caused in the process of trying to make an arrest.

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by pas on Wednesday November 13, 2019 @05:26AM (#21522640)
That was a rather different problem than directly harassing the unlawfully searched person.

In that case it was incompetence, gross negligence, and so on. Naturally it's hard to prove in court that the court's enforcement arm is at fault.

And at first the guy tried to sue for damages but that was thrown out - because it's so well established - but still that's the point that should be hammered.

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by hannasanarion on Wednesday November 13, 2019 @09:33AM (#21524483)
Police can be held responsible if the arrest itself was illegal, an attempt to harass instead of execute the law in good faith.
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by mark-r on Tuesday November 12, 2019 @04:43PM (#21518482)
Unfortunately there is still parallel construction: https://en.wikipedia.org/wiki/Parallel_construction

Honest question: can illegally obtained evidence be used to get a search warrant?

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by gamblor956 on Tuesday November 12, 2019 @07:40PM (#21519939)
No, if a warrant is obtained using illegal evidence, then you poison the warrant and all the evidence arising from it.

Parallel construction happens way less frequently than people think it does, since it requires that there be an actual parallel path to the evidence that would have been available at the time the evidence was improperly obtained. It's basically only upheld when evidence was collected improperly through one means (i.e., a confession without Miranda disclosure), but could have been collected properly through other means available at the time of the improper collection (i.e., if the contents of the confession would have been revealed by a standard CSI search).

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by tfha on Wednesday November 13, 2019 @05:41AM (#21522711)
> Parallel construction happens way less frequently than people think it does

This seems like a rather vague claim

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by gamblor956 on Wednesday November 13, 2019 @05:20PM (#21530302)
I used to be a public defender before I went into corporate and tax practice. Out of roughly 100,000 cases that went through the local PD office while I was there, fewer than 10 involved parallel construction.

Including the two neighboring counties, out of nearly 750,000 criminal cases during that time, only about 3 or 4 dozen involved parallel construction, and most of those were gang cases in which the parallel construction involved one of the gang members turning on his homies.

It's big news in local legal circles when the prosecution tries to use parallel construction to get evidence into the record because it happens so rarely.

It does happen more frequently at the federal level, but they also have significantly more resources to conduct investigations along parallel paths.

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by tfha on Saturday November 16, 2019 @01:55PM (#21554257)
Those are the cases where the parallel construction was caught, right? What about all the cases where parallel construction was used and successfully kept secret?
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by taurath on Tuesday November 12, 2019 @11:06PM (#21521091)
I don’t think you have to be mirandized to give a confession, no?
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by nkrisc on Wednesday November 13, 2019 @08:06AM (#21523566)
Not a lawyer nor intimately familiar with the subject, so until someone more knowledgeable chimes in and at risk of making a fool of myself:

I believe it depends on context. If you're in police custody and being questioned, you need to be read your Miranda rights. If the police show up to your door and you suddenly blurt out a confession, I don't think it matters.

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by gamblor956 on Wednesday November 13, 2019 @05:29PM (#21530393)
That's mostly correct, but it gets even more contextual: if you confess right when you greet the police, your confession is admissible.

However, once the police start asking questions, they have to show they had not created a "custodial" situation in which the suspect was not free to leave (or in this case, to close the door and tell the police to fuck off). In most states, the burden is on the defendant to show that a custodial situation was created; in some states, that is presumed and the police have to show that a custodial situation was not created.

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by gamblor956 on Wednesday November 13, 2019 @05:24PM (#21530339)
You do have to be Mirandized if the prosecution expects to use that confession--or any evidence derived from that confession (under the fruit of the poisonous tree doctrine)-in court.

For the record--I am former public defender. And I successfully used the failure to properly Mirandize a client successfully many times to block the prosecution from introducing evidence.

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by quickthrower2 on Wednesday November 13, 2019 @04:16AM (#21522321)
I think you would to use that in court - https://en.wikipedia.org/wiki/Miranda_v._Arizona - IANAL.
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by bureaucrat on Tuesday November 12, 2019 @04:48PM (#21518529)
Yes. If the magistrate fails to notice the illegal-ness of the evidence and gives the warrant, it is valid nonetheless.
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by velosol on Tuesday November 12, 2019 @06:27PM (#21519393)
If the illegal-ness later comes to light would a court consider evidence from the 'valid' warrant tainted? Always, sometimes?
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by waterheater on Wednesday November 13, 2019 @02:24AM (#21521802)
https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

In the specific case you're talking about, always.

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by aidenn0 on Tuesday November 12, 2019 @06:37PM (#21519462)
IANAL, but my understanding is that evidence obtained from an invalidated warrant is disallowed, unless the court finds that it was inevitable that the state would have discovered the evidence.
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by bureaucrat on Friday November 15, 2019 @06:48PM (#21549871)
Nope. If the government fooled the magistrate, it is disallowed. However if the magistrate has failed to decode the law correctly and issued an unlawful or unconstitutional warrant, the evidence obtained by the warrant can be used in court.
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by bdowling on Tuesday November 12, 2019 @06:18PM (#21519324)
> if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court.

This is not strictly correct. If law enforcement violates your rights via an illegal search, they cannot use that evidence against you. However, they may be able to use the evidence against others.

For example, suppose the police illegally search your house and find drugs and a list of customers. You may be able to exclude that evidence from being used against you but your customers may not be so lucky because it was not their 4th Amendment rights that were violated by the illegal search.

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by quickthrower2 on Wednesday November 13, 2019 @04:18AM (#21522327)
Interesting, so there is an incentive to do an illegal search especially for drugs where you might find a higher up.
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by raincom on Tuesday November 12, 2019 @04:54PM (#21518588)
Besides "parallel construction", there is a third-party doctrine: https://en.wikipedia.org/wiki/Third-party_doctrine
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by lwf on Tuesday November 12, 2019 @10:49PM (#21521026)
Unless they claim to be acting in "Good faith", that is, didn't think at the time that the search was improper and it wasn't clearly settled law.

https://en.wikipedia.org/wiki/Carpenter_v._United_States#Sub...

You can win a Supreme Court case about a search being illegal, and still have that evidence be used to nail you on the original charge.

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by zxcvbn4038 on Wednesday November 13, 2019 @06:54AM (#21523093)
That’s not entirely true - I think the official term is creative reconstruction -and basically once they have evidence then they go back and document all of the things that, with perfect hindsight, would have caused reasonable suspicion so that obtaining the evidence then becomes justified. So John Doe has been caught transporting narcotics, and with perfect hindsight we know that John drives a much more expensive car then his his income allows, so that raised suspicion and justified searching the vehicle where the narcotics were found. That’s how it seems to work more or less.
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by rubyfan on Wednesday November 13, 2019 @07:20AM (#21523246)
You’re thinking of Parallel Construction

https://en.m.wikipedia.org/wiki/Parallel_construction

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by zxcvbn4038 on Wednesday November 13, 2019 @10:31AM (#21525206)
That’s it! Thank you
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by calibas on Tuesday November 12, 2019 @04:39PM (#21518450)
> surely I can’t impede law enforcement because they haven’t justified their authority to me

Unless you've broken the law (and certain special cases), they have no authority over you. Because of the nature of their jobs, which requires them to sometimes take away a person's freedom or life, they must be held to a much higher level of accountability than your average person.

You cite fear of harassment as a reason for not standing up to police, and to me that says something is deeply wrong with our current system.

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by gnopgnip on Tuesday November 12, 2019 @04:46PM (#21518507)
>Unless you've broken the law (and certain special cases), they have no authority over you.

This is not true at the border. They can seize your property, and delay you for what the law would say is temporary, but is long enough to be a major inconvenience.

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by JohnJEsq on Tuesday November 12, 2019 @05:00PM (#21518636)
The search of a phone is like a search of any other thing in US law. Generally, searches require a warrant which implicitly requires probable cause, but there are some well-defined exceptions to the warrant requirement, and the probable cause requirement. One of these exceptions is the border search exception. US Courts have previously said this exception is reasonable for various reasons, and is an exception to both the warrant and probable cause requirements. The court in this case says it is an exception only for routine searches, and called the digital searches non-routine which don't fall entirely within the existing exception. Rather the court says non-routine searches don't require a warrant but do require a reasonable suspicion, a standard still below probable cause. A reasonable suspicion requires only the officer to have a suspicion they can state a reason for. For example, a phone's lock screen with CP would satisfy reasonable suspicion.

> Would the suspicion have to be announced to me, when I’m asked to unlock my phone[?]

No. Officers don't have to disclose to you their reasons. It's helpful, but not constitutionally required.

>[W]ould it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone?

Not necessarily. In a criminal prosecution violations of the Fourth Amendment can be excluded by the court. The theory underlying the exclusion is that without the exclusion there would be nothing to stop cops from violating your Fourth Amendment rights. A criminal defendant must challenge the use of the evidence found, and the officer must give their reason when the judge is trying to determine whether to allow the testimony.

In the US, you can also sue the officers when they violate your rights and win money damages. That's what this case is. The officer as part of their defense must give their reasons to defend they didn't violate any constitutional rights.

>If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”?

Probably. Some courts may additionally require the officer to give a basis of why you fit that profile, or why someone who fits that profile reasonably is likely to carry illegal things. Typically just saying it matches a profile is sufficient.

Re:Court: Suspicionless Searches of Travelers’ Phones and La... by angry_octet on Wednesday November 13, 2019 @05:14AM (#21522587)
A lock screen is a reason for 'reasonable suspicion'? I'm not saying you're wrong, but it seems unreasonable. If I have a lock on my briefcase it isn't reasonable to suggest it's full of contraband.
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by reactor4 on Wednesday November 13, 2019 @05:54AM (#21522789)
“lock screen with CP”
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by angry_octet on Wednesday November 13, 2019 @08:42AM (#21523823)
What's 'CP'? Is that supposed to be PC (Probable Cause)? I still don't get it.
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by themaninthedark on Wednesday November 13, 2019 @11:08AM (#21525681)
They probably mean CP - child porn
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by JasonFruit on Wednesday November 13, 2019 @03:49PM (#21529381)
Who talks about child pornography enough to need an abbreviation?
Re:Court: Suspicionless Searches of Travelers’ Phones and La... by themaninthedark on Thursday November 14, 2019 @12:00PM (#21536999)
The internet? People like to abbreviate things.