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Legal_Novice2016

Police Cellphones

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The police stake-out a house. They report that they avoid broadcasting on police band radio frequencies. There are no dispatch records fixing officer movements. Nothing to note their coming and goings at the scene. Their own timeline of events are intentionally veiled and nebulous, but time is an important factor in the case.

 

An arrest is made. Police then contact superiors to report in, asking what-to-do-next, using their own personal cell phones. Questioning of the suspect lasts for more-than-an-hour in an unmarked vehicle. All audio and video recording devices are turned off during the interrogation.

 

Police now say several things: there was no arrest - just a "brief" detention, which they are allowed to do, under Terry v. Ohio, (1968) 392 U.S. 1, 88 S.Ct. 1868; an alert was sent out to "pickup" the suspect - they were just following orders; a stop was made under Illinois' "community caretaking" provisions; plus, several other less clear reasonings.

 

The defense claims it was an arrest, miranda was given, property was confiscated.

 

Question: Police avoided using radios, avoided making records or recordings. Because these cell phone were used as part of their official duty - are those phones fair game for subpeona?

 

The police are resistant and intransigent, claiming a murky digital privacy exception. Their argument seems to be a situational constitutional principles - ignore the defendants rights - protect ours.

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Police say [it was] just a "brief" detention, which they are allowed to do, under Terry v. Ohio, (1968) 392 U.S. 1, 88 S.Ct. 1868

 

Not sure I've read this right, but check out:

 

People v. Contreras (2011) IL App (2d) 100930, 357 Ill.Dec. 239, 962 N.E.2d 1140

 

The court ruled that the Terry stop of defendant was improper and that defendant's statements to the police and other evidence were fruits of that improper stop. 

 

The court reasoned that either of two provisions was a potential [357 Ill.Dec. 243] [962 N.E.2d 1144] source of authority for the Terry stop of defendant: (1) section 107–4(a–3) of the Code (725 ILCS 5/107–4(a–3) (West 2008)), which allows law enforcement officers to make Terry stops and arrests in specified circumstances, and section 107–3 of the Code (725 ILCS 5/107–3 (West 2008)), which allows any person to make arrests for offenses other than ordinance violations.

 

Within section 107–4(a–3), it deemed section 107–4(a–3)(1) (725 ILCS 5/107–4(a–3)(1) (West 2008)) and section 107–4(a–3) (2) to be the only provisions that might authorize the officers' actions. Section 107–4(a–3)(1) allows arrests or Terry stops “if the officer is engaged in the investigation of an offense that occurred in the officer's primary jurisdiction and the temporary questioning is conducted or the arrest is made pursuant to that investigation.”

 

725 ILCS 5/107–4(a–3)(1) (West 2008). Section 107–4(a–3)(2) allows arrests or Terry stops “if the officer, while on duty as a peace officer, becomes personally aware of the immediate commission of a felony or misdemeanor violation of the laws of this State.” 725 ILCS 5/107–4(a–3)(2) (West 2008).

 

As to section 107–3, the court noted that Illinois courts have held that, when law enforcement officers have used police powers to garner the information needed to make an arrest, section 107–3 does not provide them authority to make the arrest. It ruled that the officers' use of a communications channel limited to the police was a use of police powers; section 107–3 therefore did not provide authority for the stop.

 

The State lost the suppression motion and filed a motion for reconsideration. It first argued that the police did not use police powers in making the stop. It asserted that defendant had failed to supply sufficient evidence that a citizen would not be able to monitor the police cell phone discussion. Further, it argued that a group of citizens could have conducted the same surveillance as the police.

 

The State lost the argument.

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Remember what the High Court said:

 

"Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans "the privacies of life," [...] The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought..."

 

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The police are resistant and intransigent, claiming a murky digital privacy exception. Their argument seems to be a situational constitutional principles - ignore the defendants rights - protect ours.

 

Are the police claiming, like "Tim Cook, told ABC News that it would be "bad for America" if his company complied with the FBI's demand and said he is prepared to take the fight to the Supreme Court."

 

Cell phone records seem to be all over the news. So, what is the States real argument?

 

http://news.findlaw.com/apnews/cb180324e59a437fb6ad33e59bb1f23a

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Does this concern your arrest that you wrote about in December?

 

I will benefit from the decisions made in this other matter when decided.

 

But, no, this issue does not directly involve facts under dispute in my case at this time.

 

Sorry, Jack for taking so long to reply to your question.

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The cell phone at issue in the Apple fight with the FBI was locked with a passcode.  The phone belonged to the county and was issued to the dead guy for work purposes.  FBI has permission from the county to obtain all the info on the phone so no search warrant was needed but the dead man put in a security code to protect his phone which was not on there at the time the phone was issued to him.  The county doesn't have that code either.  The iPhone 5 and 6 are both designed to wipe all the data from the phone if an incorrect password is entered after 9 tries.  This prevents the FBI from using their current technology for breaking into password protected databanks.  The FBI doesn't believe that Apple doesn't already have the technology and given that they said the same thing about the remote wipe and did, in fact, already have the program fully developed, it's kind of hard to completely by Apple's protestations.  Had the guy not died in the gunfight with police, the cops could have gotten permission from the county and/or a warrant for the contents and the guy would have had to just give them his pass code....

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On the other hand, I side with Apple in the dispute with the FBI. I believe that allowing strong protection of our devices against any intrusion, including the government, is the best security for our data. I don’t buy the assurances of the government that they can have back door access to devices and not open the door for the same access to devices by criminals. If it is true that Apple does not presently have any program already created that would readily unlock this phone then a court should not have the power to force Apple to spend the resources necessary to create one.

 

Ultimately I think this is an issue that Congress really needs to decide with appropriate legislation. I’ve been urging my representatives to resist the urge to cave to law enforcement and national security desires for all kinds of access to our data. I don’t trust the government with easy access to my data.

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More fun thru encryption, found elsewhere on FindLaw:

 

Top 7 Things Lawyers Need to Know About Encryption

 

By Casey C. Sullivan, Esq. on March 2, 2016 12:00 PM

 

Here's our roundup of FindLaw's best encryption-related Technologist posts. It's much of what you need to know about encryption, in just a few posts.

 

https://blogs.findlaw.com/technologist/2016/03/top-7-things-lawyers-need-to-know-about-encryption.html

 

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The police stake-out a house. They report that they avoid broadcasting on police band radio frequencies. There are no dispatch records fixing officer movements. Nothing to note their coming and goings at the scene. Their own timeline of events are intentionally veiled and nebulous, but time is an important factor in the case...

 

The police are resistant and intransigent, claiming a murky digital privacy exception. Their argument seems to be a situational constitutional principles - ignore the defendants rights - protect [the police].

 

Police have now testified that they avoided use of police band radio dispatch as claimed in their reports. Dispatch records are now claimed "lost". Most of those officers testifying claimed to have used their personal cell phone to coordinate the stake-out and unwarranted arrest, though some claim they "don't remember" or that it "could have been by radio" that they communicated.

 

Subpeonas were returned stating that no information was found. That the cell phone records were not retained.

 

Here's the problem: At first, the State made a varied argument that these cellphones were personal; some privacy concern. Now, the State simply claims to have no records at all. Why make the first argument if there were no records to begin with? Hasn't the news of various government agencies recording and storing phone records for years proven that these records are available somehow and in some way?

 

This has turned from a claim that "you can't have them" to a claim that "we don't have them".

 

Could the next step be to subpeona the police officers directly for their cell phone numbers, their carriers used and then the cell phone carriers themselves? Is there another step that I am missing?

 

Note: The reason these records are so vital is, there are discrepancies in the police reports as to time, several hours difference (in some police reports). This amount of slop-time could justify a limited Terry Stop on the one-hand or point to an extended detention which is unwarranted on another.

 

Another hearing is scheduled.

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Your topic really seems to be in the news.

 

Seen elsewhere on FindLaw:

 

Geo-Tracking: Should Phone Location Info Require a Warrant?
By Ephrat Livni, Esq. on March 7, 2016 12:04 PM
 

It's the American way to expect privacy.

 

The Fourth Amendment to the Constitution guarantees that no warrant shall issue without a detailed description of the person, place, or thing to be searched and probable cause. We expect law enforcement to follow rules that balance our right to privacy with the police's need for information to track down criminals.

 

But the balance shifts constantly as new technologies are created. Now privacy is threatened electronically, and while the FBI fights Apple over phone encryption, lawmakers are debating warrantless geo-tracking. It sounds fancy but basically the question is whether police should need a warrant to get location info from cell phone towers.

 

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I fail to see what this discussion of cell phone encryption has to do with this post. As I understand the issue, the alleged perp wants the time chain for calls purportedly made from the officers' cell phones. It would seem this could be satisfied by a limited disclosure of the information during a limited time frame. The phone numbers could be redacted or designations such as "officer 1's phone." Also, only calls between the officers involved would have to be disclosed.

However, I note that the officers testified that they don't remember if they conversed by cell or radio. So, showing the absence of calls during the specific time frame may not be competent evidence of the lack of communication.

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I fail to see what this discussion of cell phone encryption has to do with this post.

 

You're right RetiredinVA, my badd!

 

I got caught up with the previous posts:

 

"I don't trust them either.  All my data is double encrypted on top of the phone lock protection." - LegalwriterOne

 

"On the other hand, I side with Apple in the dispute with the FBI." - Tax_Counsel

 

"The cell phone at issue in the Apple fight with the FBI was locked with a passcode." - LegalwriterOne

 

Let's get back to helping Novice.

 

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Novice-

 

Just have your attorney subpeona the cell phone records!

 

Like the emails of presidential candidate Hillary Clinton, as found elsewhere on FindLaw:

 

There are currently at least 38 lawsuits, including one filed by The Associated Press, seeking records related to Clinton's service as secretary of state from 2009 to 2013. On Tuesday, Judicial Watch filed a discovery motion in one of those cases seeking to question eight former State Department staffers under oath, including Mills and Reid. The judge overseeing the case indicated last month he was strongly considering allowing lawyers from the group to question Clinton's former aides.

 

"These documents show that Hillary Clinton knew her BlackBerry wasn't secure," Tom Fitton, the president of Judicial Watch, said Wednesday. "The FBI and prosecutors ought to be very interested in these new materials."

 

Emails: Clinton sought secure smartphone, rebuffed by NSA

http://news.findlaw.com/apnews/407058ad68654414b07b36149087b5eb

 

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What in the world does Hillary Clinton's email server have to do with the issues in this thread?

Absolutely nothing.  The OP says the cops used there personal cell phones rather than department radios to coordinate in his case and he wants to get their cell phone records.   He doesn't seem to recognize that they wouldn't be of any help since they were talking with each other, not texting....all he'd get is a log showing the time and length of the call to which numbers.  It's such a stretch, I don't see any court ordering them to provide him with that. 

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Absolutely nothing.  The OP says the cops used their personal cell phones rather than department radios to coordinate in his case and he wants to get their cell phone records.   He doesn't seem to recognize that they wouldn't be of any help since they were talking with each other, not texting... all he'd get is a log showing the time and length of the call to which numbers. 

It's such a stretch, I don't see any court ordering them to provide him with that. 

 

The cell phone records (logs) will establish time and who the police coordinated the arrest with.

 

In recent testimony, officers testified that it took minutes-to-several hours for police to arrest and transport the prisoner. GPS will establish location, time on the scene and transport time. There was a wide difference in their testimony.

 

In Terry v. Ohio, (1968) 392 U.S. 1, 88 S.Ct. 1868, it allows for a brief detention. Many hours, could be argued as not all that "brief".

 

Who the police contacted on their cellphones is also important. The highest ranking officer on the scene was once sued by the prisoner and it could be argued that the arrest was retaliatory and meritless.

 

The subpeonas have come back that the DA has no cell phone records. But, now there is testimony of all the officers involved in the arrest and use of their personal phones at the time.

 

Subpeonas for phone numbers and carrier info can now be obtained. 

 

This thread has nothing to do with Hillary Clinton!

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You're not going to get GPS records for the cell phones. That is not recorded by the phone company.

Trying to figure out what the length of detention has to do with guilt or innocence. Terry allows for a brief stop upon suspicion. If a stake out shows probability a crime has been committed it is not a Terry stop.

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Trying to figure out what the length of detention has to do with guilt or innocence. Terry allows for a brief stop upon suspicion. If a stake out shows probability a crime has been committed it is not a Terry stop.

 

Thank you, for everyone bearing with our questions. You have all been very helpful and it is appreciated.

 

We agree, it is not a Terry stop.

 

Not every encounter between the police and a private citizen results in a seizure. Luedemann, 222 Ill. 2d at 544. "Courts have divided police-citizen encounters into three tiers: (1) arrests, which must be supported by probable cause; (2) brief investigative detentions, or 'Terry stops,' which must be supported by a reasonable, articulable suspicion of criminal activity; and (3) [consensual] encounters that involve no coercion or detention and thus do not implicate fourth amendment interests." Id. In addition, the "community caretaking function," which refers to a capacity in which the police act when they are performing some task unrelated to the investigation of crime, is distinct from the consensual encounter and can also be invoked to validate a search or seizure as reasonable under the fourth amendment. Id. at 545, 548.

 

The police and state are trying to carve out a hybrid-form of police encounter similiar to a investigative detention, but much longer. They are claiming a little bit of all three of the above examples: that the unarmed defendant walked up to them (consensual), that the stake-out had not been "set up" (arrest) and that the eight police drew their guns for their own protection, and that the Terry stop was "brief", only lasted for hours (which turned into days).

 

It is agreed that there was no probable cause hearing as per Gerstein: a defendant arrested without a warrant has the right to a probable cause hearing as a prerequisite to an extended restraint on liberty. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54, 65. The Supreme Court has held that a judicial determination of probable cause within 48 hours of arrest generally passes constitutional muster. County of Riverside v. McLaughlin, 500 U.S. 44, 56, 63, 111 S.Ct. 1661 1670, 114 L.Ed.2d 49. When a probable cause determination is not made within 48 hours of arrest, the defendant no longer has the burden to show unreasonable delay. The burden shifts to the State to show the existence of an emergency or other extraordinary circumstance.

 

It is hoped that the cell phone records will show and pinpoint a highly coordinated stakeout, where after an unsanctioned arrest, officers are now attempted to put the genie back in the bottle and are claiming a variety of conflicting facts.

 

The probable cause hearing has now commenced more than a year later.

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