> Unsurprisingly, however, the court found that in 2018, police could have relied on such a warrant in “good faith,” because geofence technology was novel, and police reached out to other agencies with more experience for guidance. This means that the evidence they obtained will not be suppressed in this case.
That the guy's case gets a right affirmed yet in his individual case it won't make a difference has to be a pretty bitter pill to swallow.
I am not a lawyer, but the language of the opinion [1] seems to indicate that the geofence itself is not admissible, but evidence obtained as a result of it is still admissible:
> On November 4, 2022, Smith filed a Motion to Suppress—
which the other Appellants joined—seeking to suppress all evidence derived
from the November 2018 geofence warrant which was used to identify them
as suspects.
They were identified as suspects, and further investigation produced more evidence, which formed the case. What they are saying is that the good faith exception prevents this from tainting all derived evidence in this case, which seems reasonable.
The good faith exception is an exception to the exclusionary rule, not to the admissibility of the evidence itself.
There was a warrant in this case. That type of warrant is now deficient and electronic data holders like Google with easily refute future attempts to get data with a clearly deficient warrant. Parallel construction typically means a warrant was not given on the first pass.
Without speaking of the general case, this specific legal precedent does prevent parallel construction for this particular source of data.
In order to obtain the data that law enforcement would have to "discover" through parallel construction, they need Google to cooperate and run the analysis to give them the required data. They can try to make this request through informal channels, but Google will say that they need a warrant. They can't make the request through formal channels because no judge will give them a warrant. So that's pretty much it.
So now we just have to rely on Google/Apple/cell-carriers to not hand over all the geofence data without a warrant. I'm sure the cops will be leaning _heavily_ on 3rd Party Doctrine next time they call up Google with their warrantless geofence data requests.
Interestingly, Google has recently started to shift their entire infrastructure for location tracking off their servers and onto users’ devices. Motivated in part by geofence warrants (and, in this commenter’s opinion, perhaps by anti-abortion laws in the US too).
It’s actually rather frustrating for me as I used to export and keep the GPS logs, for geotagging photos from a camera, which will need to be done per day now. Nonetheless, a smart move as they simply won’t hold this information anymore - even for those who opt-in to the feature.
While I'm in favor of restricting warrants in this way, it is important to realize that it will result in some crimes being unpunished, and potentially even deaths.
There is a cost to living in a free society that needs to be recognized, even though it is still a cost worth paying.
Parallel construction is this huge phantom menace on the internet but something that in real life occurs less frequently than a person being struck by lightning.
Law enforcement faces a very high burden to show that parallel construction would apply. (Not "could." Would.) This generally requires law enforcement to show that they were pursuing multiple parallel paths of investigation, and that basic investigatory work in one of the other paths of investigation would have legally led to the excluded evidence as a matter of course. To put it perspective how difficult this is, a former co-worker that is still with the public defender has seen the prosecutor succeed exactly once in 15 years in making a parallel construction argument.
The DEA is the only agency that successfully makes parallel construction arguments on a regular basis, and this is primarily because the DEA has the resources to actively pursue multiple parallel paths of investigation, and because in many cases the reason for using parallel construction is that key witnesses have a tendency to get murdered....
Well they need the warrant to get Google to give them the information in the first place, so they would not have the data to create the parallel construction.
I'm confused how parallel construction plays in here, nonsense adds another layer of confusion, but an attempt to help, tl;dr: the 5th Circuit has held that requesting a list of people/IPs/devices in a location is not permissible.
I'm just trying to guess a gap: engineers tend to see law as more iron, like code, and judge law based on inverse programming: if you can find some set of circumstances that creates a gap where the law isn't obeyed.
Ex. here, you might mean that this doesn't technically stop police from requesting geofenced data anyway, using it to get suspects, then not mentioning it at trial. Yes, technically, the police could ignore this, and request a warrant, then the judge could ignore it, then the tech companies could ignore it, the DA could collude with the police to hide that happened, and pretend they found the suspect a different way.
But it's impractical.
It's hard to spell out why, exactly, tl;dr: death penalty for your career if any of this is discovered by anyone, you can't do it by yourself, and these people are generally on the same team in our distanced analysis, people are tribal, and gov't attorneys/tech companies/judges/police can't rely on eachother's silence.
You're reading things into my comment that I never said. I'm not the same person you were previously replying to, in case that confused you.
> parallel construction ever happening has nothing to do with what we're talking about
I never said the two cases have anything to do with each other.
What I see is similarities between the two regarding your reasoning. That is, they both require the government agents doing something that you'd think would jeopardize their careers, and yet they're getting away with it all the time... because they actually do manage to successfully hide the practice from the courts when trial time comes.
If just reading "parallel construction" is inducing a knee-jerk reaction from you, look at other examples of perjury and how many careers ended over them. Here [1] is one article I'll quote for you: A former San Francisco Police commissioner [said] "One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. [...] It is the routine way of doing business in courtrooms everywhere in America." ... Justice [...] of the State Supreme Court in Brooklyn condemned a widespread culture of lying and corruption in the department’s drug enforcement units: “I thought I was not naïve [...] but even this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed.”
If you're going to claim the "engineers" here are "lazy" or otherwise ignorant about the robustness of the US legal system, you'll need to do more to enlighten them than wave your hands around saying "it's hard to spell out why it's impractical" with vague game-theoretical explanations. Because to a lot of folks here, this kind of stuff is clearly still happening, regardless of what you believe about the difficulty of distributed coordination or the explanatory power of game theory.
Intent is the key to the good faith exception here.
If you intend to kick down a door to find evidence of wrongdoing, anything you find is inadmissible. But if you kick down a door because someone on the other side is screaming for help, evidence of other wrongdoing that you find is admissible still.
Here, they are saying that they had good reason to believe they could operate in the way that they did, so while the geofence evidence itself isn't able to be used, other evidence derived from that work is still usable. But going forwards, no one can use the geofence technique in good faith.
Bear in mind that physical cash is somehow able to be charged with crimes, thus enabling police theft via civil asset forfeiture. Even when the police had no reason to suspect there was any cash on people in the first place.
So it doesn't seem like much of a step to "the evidence was screaming to us from inside, begging to be found". It's about the same level of nonsense. ;)
Civil asset forfeiture is problematic and has been abused but it's completely separate from criminal evidence rules. The physical cash is never charged with a crime. Instead the government files a civil (not criminal) case alleging that the cash is the result of criminal activity. The burden of proof then is much lower than in a criminal trial, and often the plaintiff wins a default judgement.
And intent is notoriously hard to prove. As long as there isn't an email saying "fuck the laws break it down" good luck proving the cops were the bad guy and every judge will side with them all day long. "Ope, another clerical error, Joe Admin Assistant screwed it up, we were just following orders."
This isn't true, nor is it how the US courts work. Prosecutors have to prove that their evidence is admissible and it can definitely be challenged easily by the defence. The police need to prove probable cause to enter in cases like this.
If “I thought they had a gun” is a free pass for cops to murder why won’t cops simply say “I thought I heard a cry for help” when they kick a door down without a warrant?
Not even a good analogy when it comes to technology. Standing close to the door could be considered illegal and even if you had the legal right to entire anything you would find could be inadmissible.
No, the analogy is breaking a rule in "good faith". It's absurd. Regular citizens can't do that. Ignorance of the law or "good intentions" isn't a defense for a normal person.
> Good faith provides an exception to the Fourth Amendment exclusionary rule barring the use at trial of evidence obtained pursuant to an unlawful search and seizure. If officers had reasonable, good faith belief that they were acting according to legal authority, such as by relying on a search warrant that is later found to have been legally defective, the illegally seized evidence is admissible under this exception.
> That the guy's case gets a right affirmed yet in his individual case it won't make a difference has to be a pretty bitter pill to swallow.
Big Jean-Marc Bosman energy, who essentially changed the face of football (soccer) forever in the 90's because his club didn't want to let him leave, but he didn't play anymore all the trials.
That's why I love the law's ability to consider context: the structure protects what is right over the pedantic, here, letting a violent criminal skate 6 years later because of new thinking.
What utter nonsense on behalf of the courts. The "good faith" defense is irrelevant to the finding that a fundamental right was violated, and to deny the original defendant relief like this is just absurd.
It's more complicated than that. All they really did was suspend the "fruit of the poison tree" doctrine.
The evidence gathered by the now ruled unconstitutional methods is not allowed to be used but the evidence gathered afterwards is still admissable where it normally would not be.
In this case, they can't use the geofence data of their locations as evidence but, after they used that to identify suspects, they can use all evidence gathered afterwards where that would normally not be allowed.
Exactly. The fundamental assumption of the Bill of Rights is that governments do not operate in good faith. If they did, there would be no need to spell out how the government is not allowed to abuse you.
This is a way for the courts not to get bad press. For the defendant at the time this is a terrible ending. For everyone else it's still nice. From a court's perspective this is a good compromise.
No it isn't. This is one of those cases where by tweaking things as such the Judiciary has shown that it cannot be trusted to keep the Executive in line. Again.
The Courts are coming out of this looking even worse than they have been.
If this was about discrimination of race, as a rights violation, it is clear that good faith is irrelevant. Rights supercede good faith and the presumption or previous decisions are improper.
That the guy's case gets a right affirmed yet in his individual case it won't make a difference has to be a pretty bitter pill to swallow.