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558 points mikece | 24 comments | | HN request time: 0.75s | source | bottom
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duxup ◴[] No.45029937[source]
>Michael Carson became the focus of a theft investigation involving money allegedly taken from a neighbor’s safe.

>Authorities secured a warrant to search his phone, but the document placed no boundaries on what could be examined.

>It permitted access to all data on the device, including messages, photos, contacts, and documents, without any restriction based on time period or relevance. Investigators collected over a thousand pages of information, much of it unrelated to the accusation.

Yeah that's pretty absurd.

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1. sidewndr46 ◴[] No.45030529[source]
What's more absurd is that a warrant could ever establish such a restriction. If the suspect had a file named "Not evidence of me stealing my neighbor's safe" and "Definitely not a video of me practicing how to break open a safe" would it be fair to assume the warrant doesn't allow access to it?
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2. SamoyedFurFluff ◴[] No.45030548[source]
I mean, at minimum I doubt anything on his phone is relevant from a year, two years ago.
replies(1): >>45032155 #
3. CamperBob2 ◴[] No.45030683[source]
What's more absurd is that a warrant could ever establish such a restriction.

Absurd or not, it's what the Fourth Amendment requires, at least in spirit. The warrant must specify the scope of the search in advance ("...and particularly describing the place to be searched, and the persons or things to be seized.")

Police work is not supposed to be easy. When police work is easy, that's basically the definition of a police state.

4. lesuorac ◴[] No.45030701[source]
If the warrant doesn't have a restrictions on it then it's a "General Warrant" and that was a major complaint of the founders of the USA.

They really didn't like it when cops showed up and took their furniture (think filing cabinet) because "it might contain evidence of sedition".

5. pcaharrier ◴[] No.45030787[source]
>If the suspect had a file named "Not evidence of me stealing my neighbor's safe" and "Definitely not a video of me practicing how to break open a safe" would it be fair to assume the warrant doesn't allow access to it?

No, this is silly. That's not how search warrants ever work. The Fourth Amendment imposes no such "only search where labeled" requirement. It does, however, mean that police can only search areas where they are likely to find evidence of the commission of the crime that is alleged in the affidavit. For example, if the crime is theft of a full-size refrigerator and police have probable cause to believe that the stolen refrigerator is located at the residence of the accused, they can go into his house and look for the refrigerator anywhere that a refrigerator could be. That does not, however, given them the right to go rifling through his file cabinet or his underwear drawer, unless they have specific, articulable facts (i.e., not just a hunch) that there is probable cause that some other evidence of the commission of that crime will be found in such places.

What does that look like when searching a suspect's cell phone? Obviously every case is going to be different, but the point is that warrants cannot be utterly boundless. Such "general warrants" are one of the reasons the American colonists listed as a grievance against King George in the Declaration of Independence and today issuing such warrants would be considered prosecutable malfeasance in office. if police want to use search warrants as evidence-gathering tools they have to follow the law or convince the legislature to change it.

EDIT: Actually, consider this as an example.

California Penal Code § 653m says the following (subsection b): "Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business."

So let's say jilted boyfriend decides to ring up his ex-girlfriend a couple dozen times in the wee hours of the morning, but he uses something to block his caller ID. In that case, there might be evidence on his phone that he dialed the girlfriend's phone number when she claims the harassing phone calls came in. So can the police search his phone for evidence that he called her number? Absolutely. Can they look through everything on his phone (pictures, notes, settings, etc.)? Absolutely not.

replies(1): >>45031856 #
6. ratelimitsteve ◴[] No.45031342[source]
I think you could reasonably restrict a warrant by last time a file was created or accessed, at least. If those files with those names were created months before or after the incident, for example.

Warrants establish such restrictions all the time. The classic example is what's called the sugar bowl doctrine. In a nutshell: if you're looking for stolen televisions you can't look in the sugar bowl. If, to torture the metaphor further, you see car keys peaking out of the top of the sugar bowl you can apply for a further warrant. In the case of forensically investigating a phone, you would just keep the forensically-sound copy of the phone's data while you waited for a judge's permission to poke around in that folder.

replies(1): >>45031867 #
7. lovich ◴[] No.45031513[source]
The warrant is giving special, temporary powers to the police.

How do you think a warrant couldn’t establish such restrictions when it’s already loosening existing restrictions on the police?

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8. sidewndr46 ◴[] No.45031856[source]
Using a refrigerator analogy here is absolutely absurd. It's a large physical object. I can store more copies of Wikipedia on my phone than I can ever store in a refrigerator
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9. sidewndr46 ◴[] No.45031867[source]
I guess we should all just run that bash one liner to update the last modified time stamp to 1970 then, so we won't be subject to a search
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10. sidewndr46 ◴[] No.45031902[source]
You're not providing examples of any actual restrictions that can be put on a warrant. Is the judge going to give the officers byte offsets to look at on a block device?
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11. lovich ◴[] No.45031954{3}[source]
The warrant is literally removing restrictions from the police. I don’t know why I would need any examples for someone to be able to understand why that would mechanically mean that the warrant could be written in a way that is not carte Blanche for the police.
12. ratelimitsteve ◴[] No.45032107{3}[source]
and then the forensic analyst would note that and hold a forensically-sound copy while a new warrant was issued, because every file's MAC data being set to 0 would provide articulable suspicion that evidence cannot be filtered by date. So now the search has expanded to include your entire device and, given your history of attempting to tamper with evidence, the entirety of any other seized device as well. Congratulations?
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13. pcaharrier ◴[] No.45032155[source]
This a good point too. Information can become "stale" to the point that it's no longer enough to support a search warrant or a conviction. One example of such a holding here (though the defendant lost the motion to suppress on other grounds): https://www.courtlistener.com/opinion/3002057/united-states-...
14. sidewndr46 ◴[] No.45032421{4}[source]
Which would mean there are no restrictions on what they can search at that point? Right?

You also seem to be operating from a standpoint that because I am subject to a search, there exists evidence of me committing a crime. That's a pretty slippery slope from where I'm standing.

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15. Ukv ◴[] No.45032440{3}[source]
Something like "call logs and text messages sent between 22nd and 26th of August" would be common, to my understanding.
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16. sidewndr46 ◴[] No.45032807{4}[source]
Well that's a funny thing, because what is a text message? Does it include RCS? Does it include WhatsApp? What about Telegram?

I made a text file and emailed it to my boss a few weeks back, is that a "text" ?

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17. Ukv ◴[] No.45033088{5}[source]
That there are fuzzy boundaries is not a blocker for a field that is largely built on drawing lines on fuzzy boundaries - a judge can make the determination if necessary.

My answer would be: yes "text messages" includes RCS as well as SMS, but not whatsapp/telegram/an email attachment, and that the warrant should've been more specific if it wanted the latter - but ask your lawyer if you're uncertain what's being requested.

18. Ukv ◴[] No.45033320{3}[source]
The refrigerator is presumably an example to illustrate the general point, that scope is limited to where there's reason to believe there is likely evidence.

If a suspect is alleged to have been on the phone with an accomplice while committing a crime then a warrant for call logs during that time period would be appropriate, but not just open-ended trawling through all the suspect's devices for potential clues, is my understanding.

19. kstrauser ◴[] No.45033711{5}[source]
In my albeit limited experience around lawyers and the legal system in general, judges are not amused by clever wordplay. Sometimes they'll entertain specific challenges to specific wordings, but in general the plain, obvious definition of something is the one they'll go with.

A text message is something in Messages.app or the Google equivalent. It may include a message in Signal or WhatsApp, but I suspect they'd want to see some case precedence supporting that. It almost certainly isn't a screenshot in their photos app, or a message written in text in the notes app, or Aretha Franklin spelling out R-E-S-P-E-C-T in the music app.

It's a message in the phone's commonly used messaging app. Anything much beyond that is likely to earn a scolding from an unimpressed judge.

20. chowells ◴[] No.45034202{5}[source]
The law is not computer code, and this is a feature. Playing word games does not get you out of your legal responsibilities. Was it a text communication in the specified time frame? Then it really doesn't matter what protocol and encodings were used.
21. maxerickson ◴[] No.45038595{3}[source]
It doesn't restrict their eyes, it restricts their use of the information.
22. ratelimitsteve ◴[] No.45040071{5}[source]
I'm operating from the assumption that there would be evidence that the phone was tampered with, and it's a reasonable assumption because your premise explicitly states that you'd be altering MAC data. Whether there's evidence of a crime doesn't actually enter into it, once there is evidence that the warrant restrictions are being exploited to hide something there's articulable suspicion that the entire device is a valid place to look for evidence. Whether that search actually finds anything is irrelevant to the discussion entirely.
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23. sidewndr46 ◴[] No.45040964{6}[source]
You used the phrase "given your history of attempting to tamper with evidence". If I have a history of tampering with evidence, then I implicitly committed a crime of some kind. One cannot tamper with evidence without a crime.
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24. ratelimitsteve ◴[] No.45044172{7}[source]
oh well then yeah I think we can assume that you committed the crime that you said you committed in the original comment and also that the evidence you explicitly said would be there would be there.