The Fourth Amendment guarantees that every person shall be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This means government agents cannot enter your home or rifle through your stuff without a warrant, signed by a judge and based on probable cause. That right extends to the digital sphere: The Supreme Court ruled in 2018's Carpenter v. United States that the government must have a warrant to track people's movements through their cellphone data.

But governments are increasingly circumventing these protections by using taxpayer dollars to pay private companies to spy on citizens. Government agencies have found many creative and enterprising ways to skirt the Fourth Amendment.

Cellphones generate reams of information about us even when they're just in our pockets, including revealing our geographical locations—information that is then sold by third-party brokers. In 2017 and 2018, the IRS Criminal Investigation unit (IRS CI) purchased access to a commercial database containing geolocation data from millions of Americans' cellphones. A spokesman said IRS CI only used the data for "significant money-laundering, cyber, drug and organized-crime cases" and 
terminated the contract when it failed to yield any useful leads.

During the same time period, U.S. Immigration and Customs Enforcement (ICE) paid more than $1 million for access to cellphone geolocation databases in an attempt to detect undocumented immigrants entering the country. The Wall Street Journal reported that ICE had used this information to identify and arrest migrants.

In the midst of the COVID-19 pandemic, the Centers for Disease Control and Prevention spent $420,000 on location data in order to track "compliance" with "movement restrictions," such as curfews, as well as to "track patterns of those visiting K-12 schools."

The Defense Intelligence Agency (DIA) admitted in a January 2021 memo that it purchases "commercially available geolocation metadata aggregated from smartphones" and that it had searched the database for Americans' movement histories "five times in the past two-and-a-half years." The memo further stipulated that "DIA does not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially
available data for intelligence purposes."

Even in the physical world, governments have contracted out their spying. The Drug Enforcement Administration (DEA) spent millions of dollars paying employees at private companies and government agencies for personal information that would otherwise require a warrant. This included paying an administrator at a private parcel delivery service to search people's packages and send them to the DEA, and paying an Amtrak official for travel reservation information. In the latter case, the DEA already had an agreement in place under which Amtrak Police would provide that information for free, but the agency instead spent $850,000 over two decades paying somebody off.

It seems the only thing more enterprising than a government agent with a warrant is a government agent without one.

The post The Feds Are Skirting the Fourth Amendment by Buying Data appeared first on Reason.com.

The Fourth Amendment's protection against unreasonable searches and seizures extends to the length of a seizure, a federal court ruled last week, significantly restricting how long law enforcement can retain private property after an arrest.

"When the government seizes property incident to a lawful arrest, the Fourth Amendment requires that any continued possession of the property must be reasonable," wrote Judge Gregory Katsas of the U.S. Court of Appeals for the District of Columbia in a unanimous ruling.

Most courts of appeal to pass judgment on the issue—namely, the 1st, 2nd, 6th, 7th, and 11th circuits—have held that, once an item is seized, law enforcement can retain the item indefinitely without violating the Fourth Amendment. These precedents have allowed police to retain personal property without clear legal grounds, effectively stripping people of their property rights merely because they were arrested. The D.C. Court of Appeals' ruling complicates this general consensus.

Though law enforcement does not have to return property "instantaneously," Katsas wrote, the Fourth Amendment requires that any "continuing retention of seized property" be reasonable. So while police can use seized items for "legitimate law-enforcement purposes," such as for evidence at trial, and are permitted some delay for "matching a person with his effects," prolonged seizures serving no important function can implicate the Fourth Amendment, the court ruled.

Given that the D.C. court finds itself in the minority on the question, some say that the case may be primed for the Supreme Court if the District chooses to appeal. "This case has potential to make national precedent," Paul Belonick, a professor at the University of California, San Francisco law school, tells Reason. "The influential D.C. Circuit deliberately intensified a circuit split and put itself in the minority of circuits on the question, teeing it up cleanly for certiorari."

The plaintiffs each had their property seized by D.C.'s Metropolitan Police Department (MPD). Five of the plaintiffs were arrested during a Black Lives Matter protest in the Adams Morgan neighborhood of D.C. on August 13, 2020.

As they were arrested, MPD officers seized their phones and other items. Though the protesters did not face any charges and were, in Katsas' words, "quickly released," MPD retained their phones for around a year. Some of the plaintiffs had to wait over 14 months to get their property back.

In the meantime, the plaintiffs say that they were forced to replace their phones and lost access to the important information on the originals, including personal files, contacts, and passwords. "The plaintiffs have alleged that the seizures at issue, though lawful at their inception, later came to unreasonably interfere with their protected possessory interests in their own property," Katsas explained.

"MPD is aware of the ruling and will continue to work with our partners at the United States Attorney's Office to ensure that our members are trained appropriately to ensure compliance with recent rulings," a spokesperson for MPD tells Reason.

"Practically, this case is important because police have been exploiting a gap in the Fourth Amendment," Andrew Ferguson, a professor at American University's Washington College of Law, tells Reason. "In situations where there is a lawful arrest, but no prosecution, there are no clear rules on retaining personal property. In these cases, police have been confiscating phones to punish protestors."

Michael Perloff, the lead attorney for the plaintiffs, agreed that the D.C. Circuit's decision could set an important precedent going forward. "Nationally, we've seen litigants attempt to challenge similar practices only to fail because the court concluded that the Fourth Amendment does not limit the duration of a seizure," he tells Reason. "Moving forward, we are hopeful that the D.C. Circuit's opinion will lead courts to reconsider those rulings and, instead, enforce the Fourth Amendment as fully as the framers intended."

The post Police Cannot Seize Property Indefinitely After an Arrest, Federal Court Rules appeared first on Reason.com.

In Spartanburg County, South Carolina, on Interstate 85, police officers stop vehicles for traveling in the left lane while not actively passing, touching the white fog line, or following too closely. This annual crackdown is called Operation Rolling Thunder, and the police demand perfection.

Any infraction, no matter how minor, can lead to a roadside interrogation and warrantless search. However, a 21-month fight for transparency shows participating agencies play loose with South Carolina's Freedom of Information Act (FOIA), which requires the government to perform its business in an "open and public manner."

Motorists must follow state laws with exactness. But the people in charge of enforcement give themselves a pass.

Deny, Deny, Deny

The drawn-out FOIA dispute started on October 11, 2022, less than one week after a five-day blitz that produced nearly $1 million in cash seizures. Our public-interest law firm, the Institute for Justice, requested access to incident reports for all 144 vehicle searches that occurred during the joint operation involving 11 agencies: The Cherokee, Florence, Greenville, and Spartanburg County sheriff's offices; the Duncan, Gaffney, and Wellford police departments; the South Carolina Highway Patrol, Law Enforcement Division, and State Transport Police; and the U.S. Department of Homeland Security.

Our intent was simple. We wanted to check for constitutional violations, which can multiply in the rush to pull over and search as many vehicles as possible within a set time frame. South Carolina agencies have conducted the operation every year since 2006, yet no one has ever done a systematic audit.

Rather than comply with its FOIA obligation, Spartanburg County denied our request without citing any provision in the law. We tried again and then recruited the help of South Carolina resident and attorney Adrianne Turner, who filed a third request in 2023.

It took a lawsuit to finally pry the records loose. Turner filed the special action with outside representation.

Key Findings

The incident reports, released in batches from March through July 2024, show why Spartanburg County was eager to prevent anyone from obtaining them.

• Over 72 percent of vehicle searches during Operation Rolling Thunder in 2022 produced nothing illegal. Officers routinely treated innocent drivers like criminals.
• Carrying any amount of cash is legal, but officers treated currency as contraband. The records describe no single case in which officers found a large amount of cash and did not seize it. All money was presumed dirty.
• Officers pressured property owners to sign roadside abandonment forms, giving up claims to their cash on the spot.
• South Carolina residents mostly got a pass. Officers focused on vehicles with out-of-state plates, rental cars, and commercial buses. Over 83 percent of the criminal suspects identified during warrantless searches lived out of state. Nearly half were from Georgia.
• Black travelers were especially vulnerable. Nearly 74 percent of the suspects identified and 75 percent of the people arrested were black. This is more than triple the South Carolina black population of 25 percent.

Working in the Shadows

While these records shine a light on police conduct, still more secrets remain.

By policy, the Spartanburg County Sheriff's Office and partner agencies do not create incident reports for every search. They only document their "wins" when they find cash or contraband. They do not document their "losses" when they come up empty.

Thanks to this policy, Spartanburg County has no records for 102 of the 144 searches that occurred during Operation Rolling Thunder in 2022. Nowhere do officers describe how they gained probable cause to enter the vehicles where nothing was found. The police open and close investigations and then act like the searches never happened.

This leaves government watchdogs in the dark—by design. They cannot inspect public records that do not exist. Victims cannot cite them in litigation. And police supervisors cannot review them when evaluating job performance.

Even if body camera video exists, there is no paper trail. This lack of recordkeeping undercuts the intent of FOIA. Agencies dodge accountability by simply not summarizing their embarrassing or potentially unconstitutional conduct.

The rigged system is rife with abuse. Available records show that officers routinely order drivers to exit their vehicles and sit in the front seat of a patrol car. If people show signs of "labored breathing," "nervousness," or being "visibly shaken," the police count this toward probable cause.

Officers overlook that anxiety is normal when trapped in a police cruiser without permission to leave. Even people who value their Fourth Amendment right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" can break under pressure and consent to a search.

If travelers refuse, officers can bring K9 units to the scene for open-air sniffs. Having no drugs in the vehicle does not always help. False positives occurred during Operation Rolling Thunder, but the lack of recordkeeping makes a complete audit impossible.

Intimidation, harassment, and misjudgment are easily hidden. The police tell travelers: "If you have nothing to hide, you should let us search." But when the roles are reversed and the public asks questions, agencies suddenly want to remain silent.

The post Operation Rolling Thunder: The Shocking Truth Behind Spartanburg's Traffic Stops appeared first on Reason.com.

A man has filed a lawsuit against the town of Sturgeon, Missouri, a little more than a week after a police officer shot and killed his small, blind, and deaf dog.

In a federal lawsuit filed in the U.S. District Court for the Western District of Missouri, Nicholas Hunter alleges that Officer Myron Woodson and the city of Sturgeon violated his Fourth Amendment rights when Woodson killed Teddy, his 13-pound blind and deaf Shih Tzu, shortly after finding the dog wandering in a neighbor's yard on May 19.

"Woodson's warrantless seizure of Teddy was unnecessary, callous, and egregious as it was unwarranted by law and violative of Plaintiff Hunter's most fundamental and guaranteed of constitutional rights," Hunter's lawsuit says. "At no time during the encounter between Teddy and Defendant Woodson did Teddy show any aggression towards Defendant Woodson. Teddy never barked, growled, or even moved towards Defendant Woodson. Instead, the small, blind and deaf dog simply kept trying to walk away, oblivious to the danger that Defendant Woodson posed to him."

The shooting has outraged the town's residents, especially after body camera footage obtained by a local news outlet contradicted the officer and city officials' narrative of events. The mayor of Sturgeon resigned last Saturday evening after defending the shooting for several days, and Woodson has been placed on leave.

The shooting, though, is only an egregious example of a phenomenon that is so common that it has its own tag on Reason's website: "puppycide." No one knows exactly how many dogs police shoot around the country, but every year there are more cases of wanton killings that, besides terrorizing owners, generate huge lawsuits, viral outrage, and in rare instances result in officers being fired, such as the case of an Arkansas officer who casually killed a nine-pound dog.

The incident in Sturgeon started when Teddy dug under Hunter's backyard fence while Hunter was out at dinner and escaped, leaving its collar behind in the process. A neighbor called a county dispatch center to report that the dog had wandered into their yard and to get help finding its owner. According to Hunter's lawsuit, the caller responded, "No, not at all," when asked if the dog was aggressive.

The town of Sturgeon's official Facebook page actually posted an alert on May 19 about the missing dog, along with photos of Teddy: "Do you know this doggie? Joint communications has been notified. The doggie seems in need of medical attention."

Medical attention was not what the doggie received. Woodson arrived on the scene, and a few minutes later he shot Teddy twice.

In the meantime, Hunter had been called and told about the Facebook post. He was on his way to pick up Teddy, but arrived too late.

A day later, the city of Sturgeon posted on Facebook about the incident, defending Woodson's decision: "Based on the behavior exhibited by the dog, believing the dog to be severely injured or infected with rabies, and as the officer feared being bitten and being infected with rabies, the SPD officer felt that his only option was to put the animal down," Sturgeon wrote. "It was later learned that the animal's behavior was because the animal was blind. Unfortunately, the animal's lack of a collar or tags influenced the SPD Officer's decision to put the animal down due to his belief that the animal was injured, sick and abandoned."

Both Hunter and the neighbor filed complaints with the city. "I cannot stress enough that this animal was in no way a threat to others," the neighbor, whose complaint was obtained by local news outlet ABC 17, wrote. "Woodson discharged his firearm multiple times in a residential area without a threat presenting itself, without warning."

ABC 17 also obtained Woodson's body camera footage, which showed that Teddy was never aggressive and didn't bark or growl. Woodson tried to lasso Teddy with a catch pole—a common tool used in animal control—but the dog simply shook its head free of the rope and trotted away. After fumbling the catch pole several times, Woodson drew his gun and killed Teddy. ABC 17 reported that Woodson's entire encounter with Teddy, from exiting his car to putting two bullets in the animal, lasted three minutes and six seconds.

After body camera footage was released, Sturgeon doubled down.

"The City believes that the officer acted within his authority based on the information available to him at the time to protect against possible injury to citizens from what appeared to be an injured, sick, and abandoned dog," Sturgeon posted in a follow-up Facebook post.

Of course, it would have been embarrassing to admit the real reason that the officer resorted to using his gun: He was unable to snare a blind, deaf dog and was too poorly trained to come up with a solution besides shooting a harmless animal.

But police habitually lie about the behavior of dogs that they shoot. Dogs are almost always described in incident reports as snarling, aggressive, or lunging, and because department policies typically allow police to shoot dogs when they feel afraid for their safety, these shootings are almost always deemed justified.

For example, last year in Missouri a police officer shot a family's dog and dumped it in a ditch. Similar to Hunter's case, the dog had gotten loose during a storm, and a neighbor called to report it missing. In another case last year, Detroit cops killed a woman's dog and dumped its body in a trash can. An Arkansas woman also filed a lawsuit after a cop accidentally shot her while trying to kill her Pomeranian—a toy breed that resembles a Koosh ball with legs.

This is the sort of behavior that's flagged as sociopathic when committed by anyone who's not represented by a police union.

And it's the sort of behavior that can cost a small town like Sturgeon quite a lot of money, as city officials are surely fretting now. After Sturgeon's mayor resigned last Friday, the acting mayor posted on Sturgeon's Facebook account: "Like you we were just as appalled by what we saw. The actions of the Officer involved are not the values and beliefs of the residents of Sturgeon or the board of Alderman. Currently I have made calls to the Boone County Sheriff to meet and discuss an investigation."

The city of Sturgeon did not immediately respond to a request for comment.

The post A Missouri Police Officer Shot a Blind and Deaf Dog. Now He's Being Sued. appeared first on Reason.com.

Police and sheriff's departments across Florida spent thousands of dollars sending officers to training conferences that have been banned in nine other states after being accused of promoting unconstitutional tactics and glorifying violence.

Reason obtained invoices through public records requests showing that a dozen of Florida's largest law enforcement agencies spent $31,377 on training seminars hosted by Street Cop Training, a New Jersey-based company, between 2020 and 2023.

The company has been under intense scrutiny since the New Jersey Office of the State Comptroller issued a scathing report in December detailing a 2021 Street Cop Training conference in Atlantic City where instructors made discriminatory and unprofessional remarks. At the conference, one instructor flashed a picture of a monkey when talking about an elderly black man, and the founder of the company said that refusing to consent to a police search was justification for prolonging an investigation. Since then, New Jersey has ordered retraining for all officers who attended Street Cop conferences, and the company has declared bankruptcy.

The Florida invoices shed light on Street Cop's foothold in one of the most populous states. Despite the turbulent times for the company, it is soldiering on in the Sunshine State. As Florida Today's John Torres noted in a recent op-ed, Orlando is hosting the 2024 Street Cop Conference this week.

Not only that, but Brevard County Sheriff Wayne Ivey is a speaker at the conference.

Torres noted with disdain that taxpayers were footing the bill to send officers to these conferences.

"Locally, at least one Melbourne officer is attending the training with the department paying for it," Torres wrote. "Palm Bay and Cocoa have none and the Brevard County Sheriff's Department did not respond to my inquiry about how many deputies were attending. The Florida Department of Law Enforcement could not tell me how many officers were attending."

It would probably not surprise Torres to learn that the Brevard County Sheriff's Office spent the most out of any agency that has so far responded to Reason's records requests. Street Cop invoices to the agency total $7,825 between 2020 and 2023.

The next biggest spender was the Osceola County Sheriff's Office with $7,085, followed by the Seminole County Sheriff's Department at $6,604.

Six Florida Highway Patrol officers attended Street Cop training seminars during that time period, according to records.

To compile this report, Reason filed 28 public records requests to the largest police departments and sheriff's offices in Florida. Nine agencies said they had no responsive records. Seven requests are still pending, including from populous jurisdictions such as Broward and Orange County.

Street Cop Training was founded in 2012 by Dennis Benigno, a former New Jersey police officer. It runs training conferences for thousands of police officers around the country, but flew under the radar until New Jersey Comptroller Kevin Walsh's December report. The report documented dozens upon dozens of lewd and discriminatory remarks by instructors and comments glorifying violence.

More concerning than the constant middle-school jokes about penis size, though, were the substance of the presentations. For example, Benigno and other instructors at the Atlantic City conference insisted that refusing to consent to a search of one's vehicle—a constitutional right under the Fourth Amendment—was suspicious and should be used as justification for prolonging a search or detention.

The comptroller investigation found that there was "an entire section of Benigno's training during the Conference dedicated to an 'I Do Not Consent Game,' during which Benigno shows a montage of people refusing consent in an attempt to illustrate that a motorist's refusal to consent is a suspicious factor that justifies further prolonging an investigative detention."

The comptroller's office found that multiple instructors told officers to use a "reasonable suspicion" checklist to decide whether to find a reason to pull someone over or extend a traffic stop. The checklist included a long list of vague and contradictory behavior, including the driver not looking at a police car when passing, looking too long at a police car when passing, wearing a hat, removing a hat when an officer approaches, looking back at their vehicle, leaning against their vehicle, smoking, stretching or yawning, and licking their lips.

"Because none of these factors are more consistent with guilt than innocence, a stop based on a combination of those factors alone—without some additional factor that suggests criminality—would be unconstitutional," the New Jersey Comptroller's Office concluded.

Benigno also mocked people who record the police during traffic stops, saying that person was about to "get pepper sprayed, fucking tased, windows broken out, motherfucker." Recording the police is a First Amendment right.

One Street Cop instructor in Louisiana livestreamed himself shooting at a fleeing vehicle and later bragged about it at the Atlantic City conference. "Run from me, somewhere along the chase becomes, pow, pow, pow, pow, pow, pow, pow," he said. The deputy has since been charged with illegal discharge of a firearm and obstruction of justice.

The report found that at least New Jersey spent at least $75,000 in public funds sending officers to the Atlantic City conference.

Benigno said in the wake of the report that he was tightening professional standards for the conferences and making other changes, but he denied that the company promoted unconstitutional tactics.

In a lengthy statement to Florida news outlet WESH last week, Benigno said in part: "The context of the Fourth Amendment training at the October conference and the implications that the training was unconstitutional is completely baseless. Officers in attendance have already completed police academy and understand the context in which the training is provided."

Not all of the public records identify which seminars officers attended, but at least some of them involved traffic stops and interdiction. One officer from the Tallahassee Police Department attended a 2021 Street Cop Training class titled "identifying criminal vehicles and occupants," and a Duval County Sheriff's deputy attended "interdiction mastermind."

The Volusia Sheriff's Office paid for five deputies to attend seminars that included "unmasking facial expressions" and "body language for law enforcement."

The ability to reliably detect lies or guilt by reading facial expressions and body language has never been replicated in controlled studies. It's pseudo-science, but it has nevertheless remained popular among law enforcement because it gives officers a wide-ranging and often contradictory list of cues to confirm their suspicions. (Walsh's report also notes that "some other controversial factors [on the checklist] are observing 'micro-expressions' as taught through free online videos and assessing 'blink rate.'")

The controversy over Street Cop Training has led some Florida sheriff's offices to distance themselves from the company.

A spokesperson for the Seminole County Sheriff's Office says none of its members will be presenting or attending this year. The Volusia County Sheriff also told local media that he wouldn't be sending deputies to the conference.

Meanwhile, Brevard County Sheriff Wayne Ivey remains a staunch defender of the company.

"This is all a bunch of crap," Ivey said of Walsh's report. 

Ivey was a paid consultant at a Street Cop conference last year in Nashville.

The post Florida Police Departments Spent Thousands on Training Seminars Banned in 9 States appeared first on Reason.com.

In 2021, Whittier, California, police arrested Victor Manuel Martinez Wario on an outstanding warrant related to a 2012 child molestation conviction. The only problem? Police had arrested the wrong person. However, despite Wario frequently telling police he didn't have any warrants out for his arrest, they didn't bother to check—leaving Wario imprisoned for five days. 

Now, Wario is suing, claiming that police negligence amounted to a violation of his Fourth Amendment rights against unreasonable search and seizure. The officer's actions caused Wario to suffer "emotional and mental trauma," according to the suit. "He also missed time at work, and was unable to provide care to his disabled fiancée."

In March 2021, Wario was pulled over by several Whittier police officers for a minor traffic violation. During the stop, police mistakenly found that he had an active warrant out for his arrest. Even though Wario denied that he had any active warrants, he was still arrested and booked into a nearby jail.

According to the lawsuit, during the booking process, police told Wario that the warrant originated from Wario's failure to register as a sex offender and "check in with the probation department" after a 2012 conviction for child molestation. Wario again "adamantly told them that they had the wrong person," the complaint reads. But, again, no one decided to double-check that the police had arrested the correct person.

Two days later, Wario was transferred to another jail. This time, "he was assigned special housing for custodies with child molestation cases, given a specially colored jumpsuit indicating his status as a sex offender, and a wristband was placed on his wrist also showing that his case involved child molestation," the suit reads. "Because of his perceived status as a convicted child molester, Mr. Wario was in serious jeopardy of being attacked by fellow inmates."

That day, he was taken to be arraigned. During a brief discussion with his attorney, he again insisted that he was the wrong person. However, when the attorney relayed this to Judge Mary Lou Villar, she set a $30,000 bail and refused to release Wario.  

"She ordered a fingerprints expert to appear in court the following week to take his fingerprints and verify his identity," the suit reads. 

However, the following day, someone finally took basic measures to check Wario's claims. According to the suit, "the Deputy District Attorney assigned to the case obtained the booking photo of the actual defendant in the case and determined that it was not Mr. Wario."

It took another day for Wario to be released—five days after his arrest.

On Tuesday, Wario filed a lawsuit against the Whittier Police Department, claiming that his false arrest was a violation of his Fourth Amendment rights, arguing that police had no reasonable basis for arresting and jailing him.

"No reasonable conclusion could be drawn that such an arrest and confinement was reasonable," his suit reads. "No objective facts readily available and known to Defendants could have reasonably led them to conclude that Plaintiff was a fugitive from justice stemming from a 2012 child molestation case."

The post California Cops Locked an Innocent Man in a Sex Offender Unit for 3 Days appeared first on Reason.com.

As we keep more and more personal data on our phones, iPhone and Android devices now have some of the most advanced encryption technology in existence to keep that information safe from prying eyes. The easiest way around that, of course, is for someone to gain access to your phone.

This week, a federal court decided that police officers can make you unlock your phone, even by physically forcing you to press your thumb against it.

In November 2021, Jeremy Payne was pulled over by two California Highway Patrol (CHP) officers over his car's window tinting. When asked, Payne admitted that he was on parole, which the officers confirmed. After finding Payne's cellphone in the car, officers unlocked it by forcibly pressing his thumb against it as he sat handcuffed. (The officers claimed in their arrest report that Payne "reluctantly unlocked the cell phone" when asked, which Payne disputed; the government later accepted in court "that defendant's thumbprint was compelled.")

The officers searched through Payne's camera roll and found a video taken the same day, which appeared to show "several bags of blue pills (suspected to be fentanyl)." After checking the phone's map and finding what they suspected to be a home address, the officers drove there and used Payne's keys to enter and search the residence. Inside, they  found and seized more than 800 pills.

Payne was indicted for possession with intent to distribute fentanyl and cocaine.

In a motion to suppress, Payne's attorneys argued that by forcing him to unlock his phone, the officers "compelled a testimonial communication," violating both the Fourth Amendment's protection against unreasonable search and seizure and the Fifth Amendment's guarantee against self-incrimination. Even though the provisions of his parole required him to surrender any electronic devices and passcodes, "failure to comply could result in 'arrest pending further investigation' or confiscation of the device pending investigation," not the use of force to make him open the phone.

The district court denied the motion to suppress, and Payne pleaded guilty. In November 2022, he was sentenced to 12 years in prison. Notably, Payne had only served three years for the crime for which he was on parole—assault with a deadly weapon on a peace officer.

Payne appealed the denial of the motion to suppress. This week, in an opinion authored by Judge Richard Tallman, the U.S. Court of Appeals for the 9th Circuit ruled against Payne.

Searches "incident to arrest" are an accepted part of Fourth Amendment precedent. Further, Tallman wrote that as a parolee, Payne has "a significantly diminished expectation of privacy," and even though the conditions of his parole did not require him to "provide a biometric identifier," the distinction was insufficient to support throwing out the search altogether.

But Tallman went a step further in the Fifth Amendment analysis: "We hold that the compelled use of Payne's thumb to unlock his phone (which he had already identified
for the officers) required no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking," he wrote. "The act itself merely provided CHP with access to a source of potential information."

From a practical standpoint, this is chilling. First of all, the Supreme Court ruled in 2016 that police needed a warrant before drawing a suspect's blood.

And one can argue that fingerprinting a suspect as they're arrested is part and parcel with establishing their identity. Nearly half of U.S. states require people to identify themselves to police if asked.

But forcibly gaining access to someone's phone provides more than just their identity—it's a window into their entire lives. Even cursory access to someone's phone can turn up travel history, banking information, and call and text logs—a treasure trove of potentially incriminating information, all of which would otherwise require a warrant.

When they drafted the Fourth Amendment, the Founders drew on the history of "writs of assistance," general warrants used by British authorities in the American colonies that allowed government agents to enter homes at will and look for anything disallowed. As a result, the Fourth Amendment requires search warrants based on probable cause and signed by a judge.

Tallman does note the peculiar circumstances of the case: "Our opinion should not be read to extend to all instances where a biometric is used to unlock an electronic device." But, he adds, "the outcome…may have been different had [the officer] required Payne to independently select the finger that he placed on the phone" instead of forcibly mashing Payne's thumb into it himself.

The post Appeals Court Rules That Cops Can Physically Make You Unlock Your Phone appeared first on Reason.com.

Every year, thousands of New York City families are subjected to invasive home searches as part of child abuse and neglect investigations. While less than 7 percent of these investigations lead the agency to file claims of abuse or neglect, a new lawsuit alleges that the city's Administration for Children's Services (ACS) workers often make misleading—or outright false—threats to coerce parents to allow ACS to conduct warrantless searches of their homes.

According to the lawsuit, which was filed on Tuesday, ACS employs a widespread policy of coercing families under investigation to allow case workers into their homes. ACS workers allegedly often tell families that they "must" or "have to" let them search their homes, insist that they do not need a warrant for the search, and even threaten to take noncompliant parents' children away. 

Even though ACS workers are technically legally required to obtain a warrant to search homes, the agency very rarely seeks them. According to the suit, of the almost 53,000 investigations conducted by ACS in 2023, it only sought 222 court orders to search families' homes.

"Even assuming ACS completed only one home search during each investigation (it typically conducts several), ACS sought court orders for just 0.4% of home entries," the suit states. "This means over 99.5% of home searches that ACS conducts are 'presumptively unreasonable' under the Fourth Amendment."

Once inside a family's home, the suit claims that ACS workers engage in incredibly invasive tactics, looking "inside medicine cabinets, under beds, in closets and dresser drawers, in the refrigerator, and in cupboards." Even more troubling, strip searches of children are common, with workers demanding that children lift up their shirts or pull down their pants. Over the course of an investigation—the average length is 60 days—families are typically subjected to these searches more than once.

The agency itself seems self-aware about the impact of these coercive techniques. According to one 2020 report by the National Innovation Service, ACS policy "incentivizes [staff] to be invasive and not tell parents their rights." The report noted how "the experience of an investigation, even when an allegation is ultimately determined to be unfounded, too often traumatizes parents and children."

Further, agency leadership has also acknowledged that many reports of child abuse and neglect are completely unfounded, as individuals are allowed to make anonymous reports. A 2023 letter from the New York City Bar went so far as to state that a "significant percentage of" child abuse hotline callers "make false reports, for the purpose of harassment."

In all, the suit argues that ACS' policy of using coercive tactics to enter families' homes without a warrant constitutes a violation of their Fourth Amendment rights, arguing that the agency's "failure to adequately train or supervise ACS caseworkers regarding the protection of parents' Fourth Amendment rights" has directly led ACS workers to use manipulative, false tactics to persuade families to allow them to "conduct warrantless, non-exigent searches of Plaintiffs' and class members' homes."

The post NYC Child Protection Agency Uses 'Coercive Tactics' To Bully Parents Into Allowing Warrantless Searches appeared first on Reason.com.