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Exciting New Police Technologies Used in Criminal Investigations

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Lately a whole slew of new technologies are being introduced for use by the police.  These new technological advancements are taking criminal investigation techniques the next level and beyond.  They can range from mere instrumental upgrades to sensory enhancements that would even make Tony Stark envious.

Some of these new criminal investigation tools are raising concerns for ordinary citizens, mostly in the area of privacy.  As we have seen with the introduction of technology in other areas of life (such as TSA body scans), the decent of the future upon us is not always welcomed by everyone.

Let’s take a look at some of the new police technology that is slowly making its way into criminal investigations:

Facial Recognition & Iris Scanning devices:  New facial recognition technology would allow police to take a snapshot of someone’s face in public from as far away as five feet.  They could then quickly scan the photo using a device that attaches to an iPhone, which compares the results to criminal databases.  The device can be also be used to scan a person’s iris for recognition purposes.

Some say that such “facial profiling” can lead to more accurate identifications and minimize practices like racial profiling.  However, many also feel that facial profiling is dangerous and the equivalent of nabbing someone’s fingerprints in public without their consent.

X-Ray Vans:  Unmarked vans containing powerful x-ray equipment have already been deployed in some jurisdictions.  The x-ray vans allow the police to peek inside of vehicles, houses, and other buildings.  The resulting x-ray images are comparable to those yielded by TSA airport body scans.  Recent reports state that the vans sometimes reveal illegal migrants being transported in trucks.

The x-ray equipment used in such vans has already been in use for several years now, mainly at checkpoints for trucks engaged in industrial commerce.  However, their use in residential neighborhoods for criminal investigation purposes is unsettling, not just in terms of privacy, but also because the vans emit x-ray radiations.

GPS Tracking Darts:  A new device allows police to shoot a small sticky dart containing a micro GPS tracker from the grill of their patrol car (Batman style) onto a suspect’s vehicle.  This allows both the patrol officer and the precinct to monitor the vehicle’s location from a distance, undetected.  Police report that it has been hugely successful in apprehending fleeing suspects and smugglers.

The police should have at least some level of reasonable suspicion before using the dart tracking system, which is called the “StarChase Pursuit Management System”.  The Supreme Court is set to issue a ruling sometime next year regarding the use of GPS tracking without a warrant.

Website Evidence:  Ok, so the monitoring of online internet data for criminal evidence purpose is not exactly “new” news.  We’re all familiar with what is now being called “Facebook” evidence- information gleaned from social network sites which contradict witness testimony.

However, the scope of websites that police, attorneys, and judges can scour for information is rapidly expanding, and other sites are now being hit up.  The boys in blue are growing fond of online sales sites such as eBay and Amazon, searching in particular for the sale of stolen goods, confiscated items, and illegal contraband (such as Michael Phelps’ bong).

These new technologies might actually help with police safety and efficiency, but they really do need to be used carefully.  For example, police still need to comply with warrant requirements where they are necessary.  And they still need to follow 4th Amendment rules regarding people’s reasonable expectations of privacy.

Early cases such as Katz vs. U.S. and Kyllo vs. U.S. laid the legal framework for the limits of high-tech police technology (which, back then, consisted of wiretaps and infrared thermal imaging).  One of the guiding legal principles in these cases is that warrantless police searches through high-tech means could be unconstitutional if such technology is not in use in the general public.

The reasoning is that if the public has access to such devices, then one does not really have a “reasonable expectation of privacy” from the devices, since anyone would be able to use them, not just the police.  For example, one reason why Facebook evidence is acceptable is because it is in use by the general public.  In contrast, police might need a warrant for devices that are less accessible to the public, such as the GPS darts.

This brings up a major, major point with these newer police technologies- in some case we actually don’t know whether they are “in use in the general public” or not.

To illustrate, the company that manufactured the x-ray vans mentioned above stated that they have already sold over 500 units.  However, the company isn’t fully disclosing who they sold them to.  Now that is both disappointing and a bit scary.  Not only does that make obscure the legal standards, to me that’s just plain dangerous.  We don’t know whether they sold them to police, to terrorist groups, or to some overly enthusiastic pranksters.

That being said, one thing is sure- these new police technologies need to be regulated much more tightly than they currently are.  To me it is absolutely unacceptable that such technology might fall into the hands of the wrong people.  Even worse though, is that the lack of clearer guidelines on police technology leaves the public in the dark with regards to their privacy rights.

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Procedural Safeguards Are Needed to Protect Society from Abusive Police Tasering

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Reports state that over the 4th of July weekend, celebrity Andrew Keegan was tasered by officers.  News of police tasering has been quite frequent over the past few years, with the most highly publicized incident being the death of Oscar Grant, where Grant’s death supposedly resulted from a cop reaching for his taser, and accidentally grabbing his gun and killing Grant.

What is interesting is that most reports, including the incident with Andrew Keegan, do not include necessary details as to why an individual was tasered, what his or her rights were, and whether or not police were justified in using a taser.

Officers usually use tasers on people who pose some sort of threat or harm to society, and are resilient to a police officer’s orders.  Tasers provide an electric shock to a person, causing one to lose control of his or her ability to control their nerve impulses.  Unfortunately, taser abuse  has become very common.  Many accidents have been reported where police have used tasers, despite there not being a deadly threat.  In other words, police have often misused their authority by using tasers in situations where it was not necessary.

Since taser laws are new to most states, most often police are reprimanded for negligence.  However, alongside being aware of taser laws, people need to understand the standard for evaluating police conduct.  Generally, the standard used to determine whether or not police officers are justified in using tasers is whether or not taser use was reasonable in the situation.  It is reasonable to use tasers when a person poses some sort of deathly threat to the officers, surrounding people, or society.  People therefore have a right to evaluate the situation and determine whether or not it was justified for the police to use tasers.

This lack in peoples’ understanding when tasers can be used, and what their rights are, have led to the increased amount of taser abuse over the years.  Perhaps then, the discussion regarding taser laws should focus on whether or not police should be given tasers in the first place.  After all, police do have guns that they may use if posed with some deathly threat.  The use of guns and tasers has the same standard of being used when facing some deathly threat.  With this in mind, do police then really need guns and tasers?

If tasers are an absolute for police officers to have, then some sort of procedural safeguard needs to be placed.  First of all, new police officers should not be given tasers right away.  After evaluating an officer’s conduct over about a year or so, tasers should then be given to them.  This way tasers become a protection weapon that officers need to earn via responsible conduct.

Alongside this requirement should be monthly workshops.  At these workshops, officers should be educated and reminded about using tasers responsibly, taser abuse laws, etc.  Such workshops will then serve as reminders for officers to be responsible when using tasers.  Furthermore, officers will become aware that abusing their tasers will result in severe consequences.

Such procedural safeguards are very important.  Not only will they ensure that officers use tasers responsibly, but also will restore society’s faith in the police force.  With all the negative publicity police tasering has received, many people have lost trust in the police’s ability to act responsibility and protect people.  Implementing such safeguards and procedural practices will kill two birds with one stone.  Police will frequently be reminded of the importance in using tasers responsibly, and society’s confidence in their police officers will be restored.

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Court Says No Right to Resist Cop’s Unlawful Home Entry

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Not in Indiana.

It’s generally accepted in the United States that a person has a right to physically resist unlawful entry into their home by someone else. This sometimes includes the use of lethal force, in cases where the lives or safety of the occupants.

However, what happens when a police officer mistakenly, but unlawfully, enters a home? Do the occupants have a right to resist in those cases? This is especially relevant when police have “no-knock” warrants, which allow them to enter without first announcing themselves. If they go to the wrong address, the occupant may well believe that he is the victim of a home invasion, and respond accordingly. This sometimes leads to tragic cases we occasionally hear reported in news, where a law-abiding homeowner is gunned down by police after they mistakenly serve a no-knock warrant at the wrong address, and the homeowner shoots at the police, thinking they’re common criminals.

For years, there has been an intense debate over what right a person has to physically resist unlawful actions by law enforcement officers acting in their official capacity. The arguments on both sides are pretty straightforward. Proponents of the right argue that this country was founded on, among other things, the right to be secure in one’s home against everyone, including the government, and that the burden should be on police officers to ensure that they are at the right address before entering a home, and should announce their presence. They assert that a homeowner can’t be expected to determine, in a second or two, that the people bursting into his or her home are police officers, and he or she should be able to exercise his right to self-defense, which would clearly apply in a home invasion by anyone else.

On the other hand, opponents argue that such a right would simply encourage violent confrontations between citizens and police, and a police officer acting in the good faith, but mistaken, belief that he is being fired upon by a criminal has a right to defend himself, as well. Furthermore, they argue that the average person is in no position to determine whether the conduct of a police officer is legal, in most situations, and that cases of citizens acting in self-defense against unlawful police action should be judged after the fact, on a case-by-case basis.

Recently, the Indiana Supreme Court weighed in (PDF) on the issue. The case involved police officers responding to a domestic disturbance. When they arrived at the home in question, one of the residents told them not to come in, and began yelling at them. He then shoved one of the officers against a wall, and was subdued with a stun gun. He was tried and convicted of disorderly conduct, and battery on a police officer.

His attorney submitted jury instructions to the judge that mentioned a right to resist an unlawful entry or arrest by police officers. The judge refused to use these instructions, and made no mention of such a right when instructing the jury.

He appealed his conviction based on that jury instruction, and it went to the Indiana Supreme Court. The Court ruled that allowing a blanket right to physically resist unlawful police action would simply increase the risk of violent confrontations, the risk of injury to both the arrestee, and the arresting officer, and would be highly unlikely to actually prevent an unlawful arrest.

Honestly, I’m conflicted about this decision. The right to resist unlawful police conduct has been part of our common-law tradition for hundreds of years, and arguably serves as a very important check against abuses of government power. However, it started hundreds of years ago, long before dedicated, organized police forces were commonplace, and there were no trained, professional law enforcement officers. This means that day-to-day law enforcement activities were usually undertaken by members of the local community, and abuses of power might be more common. Furthermore, firearms were far less common than they are now, so a violent confrontation was far less likely to result in the death of one or both parties.

Also, other remedies, including criminal prosecution of police officers, suppression of unlawfully-obtained evidence, and civil rights lawsuits are now available.

Of course, if a police officer is clearly engaged in unlawful activity, and threatening to hurt or kill a person for no reason, nobody would, or should, blame that person for acting in self-defense, and a court should judge their actions accordingly.

However, whether or not you agree with this decision, one thing is certain: the reaction of some people to it has been unacceptable. In Indiana, some police officers, as well as justices of the State Supreme Court, are receiving death threats in response to this decision. This is never an acceptable response to a decision that you don’t like.

It’s perfectly understandable that this decision is going to create some controversy. Even though times have changed a lot since the old-school common law reigned supreme, it’s still an important part of our legal and cultural tradition. That does not mean, however, that threatening judicial officers who made a decision that you don’t like is the way to go. If anything, it simply gives more ammunition to their decision.

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California’s Anti-Piracy Bill Would Allow Warrantless Searches

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As a native Californian, I generally take pride in the fact that I’m a resident of a state that typically is on the cutting edge in the areas of legal reform and civil rights advocacy.  The laws and proposed legislation here generally slant towards the liberal and common sense, such as last year’s Proposition 19, which although it failed to pass, was the first proposed law that would have made marijuana legal for recreational use.  California is a state rooted in progressiveness; that’s why it’s so shocking when I see proposed laws like this one originating from the Golden State.

Does anyone else spot a clear Fourth Amendment violation, too?  You should, because if democratic Sen. Alex Padilla has his way the police will soon be authorized to raid compact disc and DVD manufacturing plants without being required to get a warrant or even give any notice to the owners or occupants in the plant.  Under SB 550, cops would be allowed to check to see if the discs being pressed by these manufacturers contain the proper identification marks as required by law.

The impetus behind the proposed legislation is to curb music and movie piracy.  And as you have probably all already guessed, the Recording Industry Association of America is behind the law one hundred percent.  They and Sen. Padilla cite that the new law would help to stamp out the growing losses suffered by the music and film industries, losses that they attribute to illegally made discs containing pirated content.  This is because discs pressed at professional manufacturing plants are different from those that you burn on your computer because the process for the former ensures greater fidelity and less artifacts in sound and video.  Essentially, people who buy the ill-made goods get a professional quality product, but at a fraction of the legitimate version’s price.

Now there’s no doubt that piracy is slowly killing these creative industries.  In 2005, research groups estimate that these industries took a hit to the tune of $3.6 billion due to music and movie pirates.  Padilla states that the Latino music industry has suffered the most from the sale of illegally manufactured CDs.

However, before I jump into the constitutional issues with this new law, it’s important to first address the fact that people are apparently still buying CDs and DVDs.  Who knew, right?  The RIAA states that they seized over 800,000 pirated CDs in 2010 alone, which is surprising considering that movies and films are easily downloadable for free to anyone who know where to look.  And for those who don’t, finding out how isn’t necessarily rocket science.

Anyway, back to the case at point.  SB 550 seems to come in complete and direct conflict with the Fourth Amendment which protects against illegal searches and seizures.  The law is very clear in this area.

Actually strike that, the law is still pretty ambiguous in the sense that Fourth Amendment protections are challenged and invoked on a daily basis.  Don’t believe me?  Pick up the crime section in a newspaper or better yet, watch “The Wire,” it’s the closest thing to a criminal law class at home.

Anyway, what I should have said is that in this particular instance, the notion of police being allowed to enter private property unannounced and then search through the property of another and seizing anything that is found to be in violation of the law is clearly a practice that has been ruled unconstitutional by the US Supreme Court.  The Fourth Amendment in this circumstance cannot be clearer.  The police cannot enter your property whether you are a private citizen or a business without probable cause and a warrant.  The US Supreme Court made this clear in Illinois v. Gates.

If you took a look at that link, the instant case clearly violates Gates.  Police are required to have probable cause and a warrant to enter premises and seize property.  State legislators can’t get around this rule because it’s one that is required by the US Constitution.  The only way it could ever change is if Congress amended the Constitution, and we all know that’s next to impossible.  That’s why it seems so funny that the RIAA and Sen. Padilla think they can get away with this.  Even if the bill is somehow passed into law, you can bet that there’s going to be a civil rights group or some individual ready to challenge SB 550′s constitutionality.

And they’ll win, too.

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Yet Another Reason to Secure Your Wi-Fi Network: Child Porn Charges

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By now we all know that privacy and the internet mix just about as well as water and BP.  Previously we have blogged about privacy concerns and technology, specifically how police need a warrant to search e-mails.  But did you know that you could get accused for internet activity that you didn’t even do, or weren’t even aware of?

That’s exactly what happened in a recent New York case regarding unsecured wi-fi internet connections and privacy rights.

In Buffalo, New York, police raided the house of a man because they suspected he was downloading child pornography.  After viewing the man’s wi-fi internet activity, they believed that he might be responsible for the downloads, which were traceable to the user screen name “Doldrum”.

It turns out he wasn’t “Doldrum” at all- after further investigation, the police discovered that Doldrum was actually a neighbor who had been mooching download time off of the man’s unsecured wireless wi-fi.  In this case, the man was found to be innocent.  However, the police stated that the unfortunate situation might have been avoided if he had protected his internet connection with a password (which of course he didn’t).

On a much broader note, the Buffalo case does raise some very relevant issues regarding wi-fi usage and citizen’s privacy rights.  That is, do the police have the right to obtain information from unsecured wi-fi internet activities?  If you are using a neighbor’s unsecured internet connection (which is completely commonplace nowadays), who is responsible for activities such as illegal downloads?  As this case illustrates, it can initially be difficult to tell who is responsible for what when it comes to openly shared and unsecured wireless wi-fi connections.

Just a quick refresher on our privacy rights:  according to the U.S. Constitution, we all have the 4th Amendment right to be free from illegal searches in places and things in which we have a “reasonable expectation of privacy”.  If a reasonable expectation of privacy exists, then police must first obtain a warrant to conduct a search.

So the question now becomes, when using someone else’s unsecured wi-fi connection, do we have a reasonable expectation of privacy?

Regarding the use of unsecured wi-fi internet connections, courts have held that we have little to no expectation of privacy.  What?  Is that surprising?  In a 2010 Oregon case, U.S. vs. Ahrndt, defendant John Henry Ahrndt was also found guilty for downloading child pornography using his neighbor’s unsecured network  (case summary here; click here for a nice analysis of the case).  Ahrndt unsuccessfully tried to argue that his privacy rights were violated when the police rummaged through his internet activity.

The court in Ahrndt compared unsecured wi-fi connections to cell phone conversations.  There the court stated that cell phone users have almost no reasonable expectation of privacy because cell phone calls can easily be intercepted.

Similarly, an even lesser degree of privacy expectation exists for wi-fi connections not secured by a password.  Not only are unsecured wireless wi-fi networks easily intercepted, they seem to almost invite outside users to use the network.  It’s as if the words “unsecured network” translate into, “go ahead, feel free to use me”.

The court in the Ahrndt case also commented on other data such as shared iTunes files (Ahrndt had saved the files using iTunes).  Using some pretty colorful descriptions, the court stated that “when a person shares files on iTunes over an unsecured wireless network, it is like leaving one’s documents in a box marked `take a look’”.  So, we don’t really have a reasonable expectation of privacy in using any unsecured wi-fi, and especially not in shared files.  Duh.

Now, some might argue that the average person would reasonably expect that their internet activity is private.  It has been pointed out that securing your wi-fi with a password is not exactly all that easy.  Although wireless routers come with instructions on how to password-secure your connection, for some reason many people can’t actually figure out those instructions.  Many are not even aware that you can protect your wi-fi with a password.

That’s a compelling argument, but I don’t think it would survive as a defense in court if the police come at you with evidence of illegal internet activity.  And that’s exactly what happened in both the Buffalo case and the Ahrndt case.  Neither of the responsible culprits had any privacy expectations when they downloaded child pornography using another person’s unsecured connection- and that’s why the police were able to nab them.

So the moral of the story is- well, a few points:

1)      Please do password-protect your wireless wi-fi.  While you might not be doing dirt on your connection, one of your neighbors or a person sitting in a car near your home might be- and you just might get caught up in the blindfolded, long-armed sweep of Lady Justice as she does her thing.

2)      Stop committing heinous internet crimes (I’m talking to your neighbor, not you of course).

3)      To the wireless router providers out there like Comcast, etc., please do something about your password instructions that are printed in a manual.  Very few people actually read instruction manuals anymore, because people don’t read anymore (Steve Jobs would agree with that).  I’ll bet that if you simply provide a video walkthrough of how to password-protect, and then broadcast it on any one of your 80,000 T.V. channels or post it on YouTube, everyone would know how to do it.

Until next time, let’s all remember: e-mail privacy rights > unsecured wireless wi-fi privacy rights (unless you are sending illegal e-mails using your neighbor’s wi-fi).

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