MRR Law Enforcement Blog
By: Tami Zupkow Hannon, Esq.
Few things will unify Americans more than stories of terrorist attacks, especially alleged terrorist attacks on American soil. The need for, and call to, investigate those claims is undeniable. In doing just that, the FBI came into possession of the iPhone of a suspected terrorist responsible for the San Bernardino shootings last year. In accordance with the Fourth Amendment, the FBI obtained a search warrant to search the contents on the phone for additional information regarding the attacks or other potential attacks. Warrant safely in hand, the FBI now faces yet another problem – accessing that data. Unlike a house where a door can be breached or entered, the iPhone is locked and encrypted. The FBI has but 10 guesses for the 4 digit PIN number (about 10,000 possible combinations) before the phone will wipe the drive, taking all possible information with it.
Enter the lawsuit. The FBI filed suit in federal court in California to compel Apple to assist it with unlocking the iPhone. The FBI won the initial battle, with the Magistrate ordering Apple to create software that would bypass or disable the self-destruct security, enable the FBI to submit passcodes to the phone for testing against the real password (effectively “guessing” the password) and erasing any added delay between attempts at the passcode. Importantly, Apple was not ordered to directly unlock the phone, but rather to make it possible for the FBI to try to unlock it without jeopardizing the contents of the phone. Apple is resisting on the basis that to create such a device would be to allow Pandora out of her box. Once the software is created, it cannot be uncreated and could be used again in future cases. Further, the creation of such software would prove to the world that it is possible to create a program to bypass the iPhone’s security features, something that can potentially encourage the less civic minded. Due to Apple’s refusal to comply with the Court’s order, the FBI filed a Motion to Compel.
The FBI has pursued its claims against Apple using a 1789 law known as the “All Writs Act.” The Act gives a court authority to order a third party to provide non-burdensome technical assistance to aid in the execution of a valid warrant. There are two main questions at issue. The first is whether the assistance is “non-burdensome” as Apple has to actually create the programming being sought. The FBI responds that Apple is in the business of writing iPhone software such that the burden should be minimal to write this particular software. The second is whether Apple is so far removed from the underlying investigation that it cannot be brought in against its will. Both the FBI and Apple argue the same facts to support their claims – Apple is responsible for the creation and distribution of the phone. The FBI asserts that Apple designed the phone such that it is indispensable in creating the code and assisting in unlocking the phone. Apple claims the limited role of designing and distributing the phone removes it from the ultimate end usage by the consumer.
There is also a potential issue under the Fourth Amendment. While the FBI possesses a valid search warrant, the search must be done in a “reasonable” manner. Apple questions whether drafting it to write code that does not currently exist to evade security measures that it put into place is a “reasonable” execution of the warrant.
What is really at issue here? Apple has designed its phones to be fortresses. The latest iPhone 8 is designed to be fully encrypted such that the phone itself cannot even read the data stored in it unless a valid password is entered. This level of encryption makes it impossible for Apple to respond to warrants by law enforcement to extract data from a phone or user. While Apple complies with law enforcement subpoenas, there has long been tension between Apple and law enforcement due to Apple’s storage policies and the limited amount of data that it makes available for law enforcement to subpoena. This case has been selected as the test case to start developing the law to challenge Apple’s security policies. If Apple wins, law enforcement may find itself handicapped in investigations moving forward as it may encourage other companies to take similar stances, resulting in making it more difficult or impossible to follow up on some leads or obtain needed evidence. If the FBI wins, it begins laying the groundwork for circumstances where a company may have “too much” security on its phones, resulting in capping the level of security an electronic device can have built in. The end result? Only time will tell.
For questions or more information on “The Right to Investigate Versus The Right to Privacy – The Apple vs. FBI Debate,” contact:
By: Curtis M. Graham, Esq.
Nowadays it is not uncommon to look up into the sky and see a drone flying overhead. Everyone seems to have one. The rise (pun intended) of unmanned aerial vehicles (“UAVs”) presents interesting questions for law enforcement officials across the country. Some are responding to criminal complaints, as was the case when a University of Kentucky student was charged with second degree wanton endangerment after flying his drone into Commonwealth Stadium prior to a football game last fall. Others are utilizing UAVs to conduct their own search and rescues.
The Somerset Police Department in Kentucky is believed to be the first police department in Kentucky to use an UAV. The Department has received training from the Federal Aviation Administration (FAA) and has created policies and procedures governing the device’s operation. One Department official commented that they are required to notify air traffic controllers at least 30 minutes before any flight and that they cannot fly higher than 400 feet above ground level. Additionally, officials must maintain visual contact with the drone at all times while it is in flight and all pilots must be FAA certified.
But the law is unsettled, and the Kentucky legislature will soon hear House Bill 22 which could prohibit the use of evidence obtained by drones in criminal trials. Additionally, law enforcement agencies using drones would be required to use the drone “in a manner to collect data only on the target and minimize data collection on individuals, homes, or areas other than the target.” The proposed title for the law is the Citizens’ Freedom from Unwarranted Surveillance Act.
Kentucky is not the only state confronting these issues. According to the National Conference of State Legislatures, 45 states considered at least 156 bills relating to drones in 2015. Needless to say the law in this area is rapidly changing, and it is important for law enforcement officials to stay current on the state of the laws governing drone use.
For questions or more information on “Drones and Law Enforcement – The Future is Now,” contact:
Curtis M. Graham – MRR Lexington
By: Christina L. Vessels, Esq.
Last October, the Office of the Inspector General for the New York Police Department published a Report entitled “Police Use of Force in New York City: Findings and Recommendations on NYPD’s Policies and Practices.” The Report focuses on five aspects of use of force within the NYPD: (1) trends; (2) reporting; (3) de-escalation; (4) training; and (5) discipline.
There are several significant findings in this 62-page Report. Perhaps most notable is the Report’s conclusion that “NYPD’s current use-of-force policy is vague and imprecise, providing little guidance to individual officers on what actions constitute force.” The OIG’s recommendation is for NYPD to adopt a more precise use-of-force Patrol Guide procedure that includes greater clarity on what is meant by “force,” “excessive force,” and “deadly force.”
The Report also states that NYPD’s current procedure for documenting and reporting force incidents needs improvement. There is currently no centralized, uniform use-of-force reporting mechanism, and there are problems with the way officers are describing incidents of force after they occur. NYPD officers often fail to use sufficiently descriptive language that properly captures the specifics of an encounter. The Report suggests the creation of a new reporting form in which officers articulate the type, nature, and seriousness of resistance exhibited by the citizen that preceded and necessitated the use of force. Officers are also urged to reference whether other officers used force and the timing of the use of force.
These are just some highlights. You can find the Report in its entirety here: http://www.nyc.gov/html/oignypd/assets/downloads/pdf/oig_nypd_use_of_force_report_-_oct_1_2015.pdf
If an independent agency were to closely examine your Department’s use-of-force policy, what conclusions would it draw? How can your policy be improved?
For questions or more information on “Use of Force Policies and Procedures: Lessons from the Big Apple,” contact:
Christina L. Vessels – MRR Lexington
By: Kyle B. Melling, Esq.
In Chimel v. California, 295 U.S. 752 (1969) the United States Supreme Court held that under the Fourth Amendment arresting officers may search a suspect who is under arrest as well as the area in the suspect’s immediate control for purposes of officer safety and to protect against the destruction of evidence. This search was limited to areas in which a suspect might gain possession of a weapon or destructible evidence. In 1973, the Supreme Court clarified that arresting officers were even permitted to open a crumpled pack of cigarettes found in a suspect’s pocket, as part of a “search incident to arrest.” U.S. v. Robinson 414 U.S. 218, (1973).
At the time of the Robinson decision, the physical objects in the area immediately surrounding a suspect were much different than they are today. In 1973, this area may have included the contents of a wallet, notes that an arrestee had in his or her pocket, or, as in the case of Robinson, a cigarette packet holding heroin capsules. Today however, arrestees may possess personal cell phones, laptop computers, tablets, and other electronic storage devices that contain a wealth of information in which a suspect may have a privacy interest. The Chimel decision and its progeny did not provide specific guidance about whether arresting officers may access the data on these electronic storage devices.
The United States Supreme Court recently addressed this issue in Riley v. California, 134 S.Ct. 2473 (2014). The Court held that digital information on a cell phone may not be searched without a warrant, absent exigent circumstances. In the opinion, Chief Justice John Roberts noted that the decision in Robinson was “based on technology nearly inconceivable just a few decades ago.”
Accordingly, since Robinson, the clearly established law still permits the arresting officers to examine the physical device to determine whether the phone is disguised as a weapon, and they may power the cell phone down or remove its battery to prevent remote deletion of data. However, arresting officers may not, absent exigent circumstances, access the data on the cell phone without a warrant.
The Supreme Court did recognize that case-specific exceptions may still justify a warrantless search of a cell phone, but only in a very limited sense. Specifically, the Court cited examples of instances of child abduction or potential bomb threats.
In light of the Court’s decision in Riley, unless there are exigent circumstances, officers that want to search the data from an arrestee’s cell phone must first obtain a search warrant. Failure to do so violates the Fourth Amendment and would also likely strip an officer of qualified immunity, subjecting the officer to liability under 42 U.S.C. §1983.
For questions or more information on “The Search of Cell Phones Incident to Arrest,” contact:
Kyle B. Melling – MRR Cleveland
When can a law enforcement officer be held responsible for an innocent person’s injuries sustained in an accident involving the high speed pursuit of a fleeing suspect? Given the dangerous nature of their jobs, officers have extra freedom in how they operate their vehicles when in pursuit of a suspect. Officers have a duty to apprehend suspects, and if fleeing suspects are not apprehended, they create danger for the public. Conversely, high speed pursuits pose a danger to motorists on the road at the time of the pursuit. Ohio law currently gives deference to officers in this situation. Under the law, an officer’s conduct only causes an innocent bystander’s injuries sustained in an accident involving a fleeing suspect when that officer’s conduct is “extreme or outrageous.”
That said, the Ohio Supreme Court has accepted jurisdiction over a case, Argabrite v. Neer, 2015-Ohio-125, 26 N.E.3d 879 (2nd Dist.), calling the current law into question. The innocent bystander plaintiff has argued that an officer involved in a high speed pursuit should be able to be considered the cause of an accident, and subsequently held liable for a bystander’s injuries, even when an officer’s conduct is not “extreme or outrageous”. The plaintiff argued that protection from liability should come solely from R.C. 2744.03(A)(6)(b), which provides immunity to an officer for a bystander’s injuries so long as the officer does not act willfully, wantonly, maliciously, in bad faith, or recklessly.
Argabrite involves the high speed pursuit of a burglary suspect, who, while being pursued by officers, swerved into traffic and crashed headfirst into the plaintiff. The plaintiff sued the officers involved for personal injuries resulting from the crash. The trial court dismissed the claim, finding that while the officers’ conduct was reckless, it did not cause the accident because the officers’ conduct was not “extreme or outrageous”. The Court of Appeals affirmed the trial court’s decision.
Having accepted the injured driver’s appeal, the Ohio Supreme Court is now tasked with deciding whether the extreme or outrageous standard for causation is still appropriate. Plaintiff has argued that the law, by requiring extreme or outrageous conduct of officers to establish causation, has essentially abrogated the Ohio legislature’s determination in R.C. 2744.03 that the conduct required for liability is wanton and reckless conduct. Plaintiff argued that if the legislature wanted a different standard for officers pursuing suspects in high speed pursuits, it would have expressly created the exception. Plaintiff has also argued that if the extreme or outrageous standard remains, officers will essentially have free rein when pursuing fleeing suspects in their vehicles.
Conversely, the officers argued that they are not the insurers of fleeing suspects’ behavior, and as such, should not be responsible for a suspect’s actions absent extreme or outrageous conduct. The officers argued that it is the reckless conduct of a fleeing suspect, and not the conduct of an officer, that causes a plaintiff’s injuries. As such, an officer’s conduct should not be considered the cause of the injuries unless the officer did something extreme or outrageous. The officers also argued that removal of the extreme or outrageous standard will all but guarantee a suspect’s freedom so long as the suspect operates his/her vehicle in a manner so reckless that an officer will not be able pursue without risking personal liability.
As of right now, a decision is tentatively expected around late 2016 to early 2017. Argabrite is a case that should be monitored by all police departments throughout Ohio. If the Ohio Supreme Court rules in plaintiff’s favor, it will necessitate a thorough review of each department’s policy regarding the high speed pursuit of suspects, as it could result in more officers being held responsible for the reckless conduct of fleeing suspects.
By: Curtis M. Graham, Esq.
There is no question that social networking websites have changed the way we live and connect. These sites have also presented opportunities and challenges for law enforcement departments around the country. From community outreach to criminal investigations, it is clear that law enforcement officials have a valuable new tool at their disposal. However, it is critical that they understand how to properly use these sites and avoid common pitfalls.
A recent survey found that Facebook is the most fruitful social network for law enforcement, followed by YouTube. The various social media outlets can be searched when law enforcement officials suspect that a particular individual may be openly boasting about criminal activity or posting incriminating photographs or videos online. Officials may also receive tips through their department’s home page which can then be followed up on. If there is an urgent situation (such as a credible threat of violence), officials may file an emergency request with the site to access information. However, many sites have their own legal teams to review requests and the standard for having such a request granted is very high.
The creation of a sound internal policy is the first step toward using social media to an agency’s benefit. Drafting this policy will require consideration of a number of issues, the most important being compliance with applicable laws and regulations. The logical starting point is the Fourth Amendment, which provides that every person has the right to be free from “unreasonable searches and seizures” of their “persons, houses, papers, and effects.” Officials should be mindful that the degree of Fourth Amendment protection is almost entirely dependent upon the location from which information is seized, the method of its collection and the type of information obtained. Another source of guidance is 28 CFR Part 23, which is a standard for law enforcement agencies that operate federally funded, multijurisdictional criminal intelligence systems. The purpose behind the regulation is to protect individuals’ privacy and constitutional rights during the collection, storage and dissemination of criminal intelligence information.
Each social networking website features its own unique characteristics; this means a one-size-fits-all approach to drafting a policy should be avoided. However, it is always a good idea to be educated about privacy settings and terms-of-service requirements that seem to apply across all platforms. As just one example, photographs that are posted on public, unrestricted profile pages are treated differently than information on pages viewable only by “friends” of the user when it comes to privacy expectations.
With the abundance of information now available online, law enforcement agencies must take steps to ensure that they are following the law when they gather and act on that information. A thorough social media policy can go a long way in achieving that goal.
For questions or more information on “Getting Social – How Law Enforcement Can (And Should) Be Using Social Media,” contact:
Curtis M. Graham – MRR Lexington