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from the stay-in-your-own-lane,-g-men dept

The Second Circuit Court of Appeals has suggested -- not exactly ruled -- that backdoor searches of Section 702 collections targeting Americans (citizens and permanent residents) is a violation of the Fourth Amendment.

The case involves Agron Hasbajrami, a lawful permanent resident who was arrested in 2011 as he attempted to board a flight to Turkey. The government claimed Agron -- an Albanian immigrant -- was ultimately headed to Pakistan to join a terrorist organization.

Agron is somewhat of a unicorn. He's one of the few defendants that's actually been informed the evidence used against him was derived from NSA collections under Section 702. The DOJ is supposed to be proactive about this, but instead has chosen to emphasize parallel construction over transparency.

The evidence appears to have come from a backdoor search by the FBI. The FBI is allowed to access Section 702 collections, but domestic data and communications are supposed to be "minimized" to protect US persons swept up by the NSA. If the FBI performs backdoor searches to access Americans' communications that have been incidentally collected by the NSA foreign-facing surveillance programs, it should have to obtain a warrant. But that's not actually the case for a couple of reasons. First, very few defendants are ever informed of the true source of the evidence against them. Second, the secrecy shrouding the NSA's collections and the Intelligence Community's access prevents a lot of judicial examination in the few cases where evidence can actually be challenged.

The Second Circuit's ruling [PDF] kicks Hasbajrami's case back down to the lower court so it can reexamine the Fourth Amendment implications of warrantless backdoor searches. The Appeals Court has no problem with the NSA's collections, which putatively target foreigners. The court says these are lawful. Accessing collected communications from Americans via the NSA's collections, not so much.

The issue here isn't the collection itself or any inadvertent collection of US persons' communications. The problem is the querying of stored communications without a warrant when the target of the queries is a US person. The court doesn't say the FBI can't look at its own stored collections without a warrant to locate intelligence or evidence. Stuff it has already acquired is fair game, more or less. The court makes a physical analogy:

It is true the FBI does not need an additional warrant to go down to its evidence locker and look through a box of evidence it collected from a crime scene.

But that's where the analogy ends.

But lawful collection alone is not always enough to justify a future search.

Pointing to the Riley decision, the court notes that the lawful seizure of an arrestee's phone does not give law enforcement the right to perform a warrantless search of its contents.

Searching the FBI's own data stores tipped to it by the NSA isn't nearly as problematic as what the FBI appears to have done here: browsing the NSA's much larger collection without a warrant to find more communications originating from a US person. Say goodbye to any flattering "evidence locker" analogies.

If such a vast body of information [250 million emails as of 2011] is simply stored in a database, available for review by request from domestic law enforcement agencies solely on the speculative possibility that evidence of interest to agents investigating a particular individual might be found there, the program begins to look more like a dragnet, and less like an individual officer going to the evidence locker to check out a previously-acquired piece of evidence against some newfound insight.

And there's where the Fourth Amendment fits in:

To permit that information to be accessed indiscriminately, for domestic law enforcement purposes, without any reason to believe that the individual is involved in any criminal activity and or even that any information about that person is likely to be in the database, just to see if there is anything incriminating in any conversations that might happen to be there, would be at odds with the bedrock Fourth Amendment concept that law enforcement agents may not invade the privacy of individuals without some objective reason to believe that evidence of a crime will be found by a search.

The case returns to the lower court so it can consider the Fourth Amendment implications it chose to ignore when considering the defendant's motion to suppress evidence that is starting to look like it was acquired unconstitutionally.

If this results in suppression, this case is going to travel right back up the judicial ladder. There's no way the government is going to let its backdoor searches be subject to a warrant requirement. Warrants create paper trails, and the last thing the IC wants is more paperwork linking domestic surveillance to foreign-facing NSA collections. This isn't a win yet, but if the district court aligns itself with the Appeals Court's suggestions, it could be a game changer.

Filed Under: 2nd circuit, 4th amendment, agron hasbajrami, backdoor searches, evidence, fbi, nsa, parallel construction, section 702

Read the rest here:
Second Circuit Says Warrantless Backdoor Searches Of NSA Collections Might Violate The Fourth Amendment - Techdirt

Posted Thu, December 19th, 2019 9:13 am by Andrew Hamm

This week we highlight petitions pending before the Supreme Court that address, among other things, whether a motorists assertion of his Fourth Amendment right to refuse consent to a warrantless blood test may be used as evidence of guilt for the offense of driving under the influence, whether a levy that forces property owners to fund other individuals campaign donations implicates the First Amendments compelled-subsidy doctrine, and whether the government-debt exception to the Telephone Consumer Protection Act of 1991s automated-call restriction violates the First Amendment.

Thepetitions of the weekare below the jump:

Elster v. City of Seattle, Washington19-608Issues: (1) Whether a levy that forces property owners to fund other individuals campaign donations implicates the First Amendments compelled-subsidy doctrine; and (2) whether a compelled subsidy of speech should be examined under rational-basis review, as the decision below concluded, or whether a higher standard of review is appropriate.

Cisco Systems Inc. v. SRI International Inc.19-619Issue:Whether patent claims that recite only the abstract idea of collecting and analyzing data are patent-ineligible under35 U.S.C. 101andAlice Corp. Pty. Ltd. v. CLS Bank International.

Bell v. Pennsylvania19-622Issue:Whether a motorists assertion of his Fourth Amendment right to refuse consent to a warrantless blood test may be used as evidence of guilt for the offense of driving under the influence.

Barr v. American Association of Political Consultants Inc.19-631Issue:Whether the government-debt exception to the Telephone Consumer Protection Act of 1991s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.

Arizona v. Nunez-Diaz19-645Issues: (1) Whether the respondent, Hector Sebastion Nunez-Diaz, is categorically barred from establishing prejudice underStrickland v. Washingtonfor aPadilla v. Kentucky/Lee v. United Statesclaim because, as an unauthorized alien, he is without any legal right to remain in the United States; and (2) whether the Arizona Supreme Court erred in findingStricklandprejudice, where inter alia there was no evidence that the respondent had a viable defense either to the criminal charges or deportation.

Posted in Elster v. City of Seattle, Washington, Cisco Systems Inc. v. SRI Int'l Inc., Bell v. Pennsylvania, Barr v. American Association of Political Consultants Inc., Arizona v. Nunez-Diaz, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week, SCOTUSblog (Dec. 19, 2019, 9:13 AM), https://www.scotusblog.com/2019/12/petitions-of-the-week-74/

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Petitions of the week - SCOTUSblog

ANDERSON A man suspected of trying to sell look-alike substances at Hoosier Park Racing & Casino has had his drug-related conviction reversed, based on a claim of violation of the Fourth Amendment, which protects against unreasonable search and seizure.

In the 2015 case, Michael D. Johnson was patted down by a gaming enforcement agent at Hoosier Park in Anderson, according to The Indiana Lawyer.

A small amount of white powder was found on Johnson, but subsequent testing revealed the white powder was not a drug. It contained a chemical possibly deriving from baking soda.

Johnson was arrested and later charged with dealing in a look-alike substance. He moved to suppress the evidence obtained during the pat-down search, but the Madison County Circuit Court denied the motion. Johnson then objected at trial to the admission of the evidence found in his pocket, but the trial court determined the officer had completed a search incident to arrest when he removed the item from Johnsons pocket.

The Indiana Lawyer reported that the search stemmed from a man telling a security guard that someone had approached him and asked if he wanted to buy white girl, a slang term for the drug cocaine.

Johnsons description and interaction with the man was confirmed on surveillance footage prior to the gaming enforcement officer bringing Johnson into an interview room to conduct the pat-down search.

Indiana Court of Appeals found insufficient evidence to dispel Johnsons claim of a Fourth Amendment violation.

Original post:
Conviction reversed for phony drug sale at Hoosier Park - Newsandtribune

A man suspected of trying to sell look-alike substances at an Indiana casino has had his drug-related conviction reversed, with the Indiana Court of Appeals finding insufficient evidence to dispel a claim of a Fourth Amendment violation.

The case of Michael D. Johnson v. State of Indiana, 19A-CR-975, began in November 2015, when Brett Eversole was at the Hoosier Park Casino in Anderson. According to a report he gave to a security guard, a black man in a white hat had approached Eversole and asked if he wanted to buy a white girl, meaning cocaine.

The report made its way to gaming enforcement agent Zach Wilkinson, who confirmed the interaction based on surveillance footage that did not have audio. Wilkinson then found Michael Johnson, a black man wearing a white hat, and brought him into an interview room.

Once in the room, Wilkinson told Johnson he would need a pat down, which led Wilkinson to remove what felt like a ball of drugs from the suspects pocket. Johnson was handcuffed and read his Miranda rights, but subsequent testing revealed the white powder was not a drug. Instead, it contained a chemical possibly deriving from baking soda.

Thus, Johnson was charged with dealing in a look-a-like substance. He moved to suppress the evidence obtained during the pat-down search, but the Madison Circuit Court denied the motion. Johnson then objected at trial to the admission of the evidence found in his pocket, but the trial court determined Wilkinson had completed a search incident to arrest when he removed the item from Johnsons pocket.

Johnson was then convicted on a Level 5 felony charge and sentenced to four years, with three years suspended to probation. But the Indiana Court of Appeals reversed his conviction Thursday, finding the state failed to prove the search of Johnsons pocket was constitutional under the Fourth Amendment.

Johnson does not argue that Wilkinson lacked a reasonable suspicion of criminal activity and he does not challenge the decision to perform a pat-down search, Judge L. Mark Bailey wrote. But the encounter did not end with a pat-down.

The agent may have been conducting a carefully limited search of outer clothing to detect weapons when he discerned characteristics consistent with contraband, notwithstanding the fabric barrier. Or Agent Wilkinson, having received information of an attempted sale of contraband, may have reached into Johnsons pocket and examined the item before concluding it was likely contraband, Bailey continued. In the first scenario, Agent Wilkinson would arguably have, without exceeding the scope of a Terry pat-down for weapons, developed probable cause for an arrest. In the second scenario, Agent Wilkinson would have conducted the search before having probable cause for an arrest and thus the seizure did not take place in a search incident to arrest.

Here, the state failed to prove that Wilkinson had probable cause, Bailey said, writing that the evidence does not dispel concern that the ball of powder retrieved from Johnsons pocket was obtained in violation of his Fourth Amendment right to be free from an unlawful search and seizure.

Though Johnsons conviction was reversed under the Fourth Amendment, in a footnote, Bailey said Johnson also referenced Article 1, Section 11 of the Indiana Constitution. But because he did not develop a corresponding argument, his argument that the search violated the Indiana Constitution was waived.

More here:
Conviction reversed for would-be drug sale at casino - Indiana Lawyer

PEARL RIVER, N.Y., Dec. 19, 2019 (GLOBE NEWSWIRE) -- Hudson Technologies, Inc. (HDSN) today announced that it has entered into a new revolving credit facility with Wells Fargo Bank, National Association, which provides up to $60 million in borrowing capacity from time to time, subject to a borrowing base. In conjunction with entry into the Wells Fargo credit facility, the Company repaid in full its revolving loans from PNC Bank, National Association and the revolving credit facility with PNC Bank was terminated. Furthermore, on December 19, 2019 Hudson entered into a Waiver and Fourth Amendment to its Term Loan Credit and Security Agreement (the Fourth Amendment).

Kevin Zugibe, Chairman and CEO of Hudson Technologies, stated, We are pleased to have entered into a new revolving credit facility as well as to have successfully amended our existing term loan facility. We appreciate the support of our new and existing lending partners and the patience of our shareholders as we finalized these agreements and we look forward to driving improved operating performance as we enter 2020.

The Fourth Amendment waived financial covenant defaults at June 30, 2019 and September 30, 2019 and amended the Term Loan Credit and Security Agreement to reset the maximum total leverage ratio financial covenant through December 31, 2021; reset the minimum liquidity requirement; and added a minimum LTM adjusted EBITDA covenant.

Additional details regarding the new revolving credit facility, the Fourth Amendment to the term loan facility, and related matters, will be provided in a Form 8-K to be filed with the Securities and Exchange Commission.

About Hudson Technologies

Hudson Technologies, Inc. is a leading provider of innovative and sustainable solutions for optimizing performance and enhancing reliability of commercial and industrial chiller plants and refrigeration systems. Hudson's proprietary RefrigerantSide Services increase operating efficiency, provide energy and cost savings, reduce greenhouse gas emissions and the plants carbon footprint while enhancing system life and reliability of operations at the same time. RefrigerantSide Services can be performed at a customer's site as an integral part of an effective scheduled maintenance program or in response to emergencies. Hudson also offers SMARTenergy OPS, which is a cloud-based Managed Software as a Service for continuous monitoring, Fault Detection and Diagnostics and real-time optimization of chilled water plants. In addition, the Company sells refrigerants and provides traditional reclamation services for commercial and industrial air conditioning and refrigeration uses. For further information on Hudson, please visit the Company's web site at http://www.hudsontech.com.

Safe Harbor Statement under the Private Securities Litigation Reform Act of 1995

Statements contained herein which are not historical facts constitute forward-looking statements. These include statements regarding managements intentions, plans, beliefs, expectations or forecasts for the future including, without limitation, Hudsons expectations with respect to the benefits, costs and other anticipated financial impacts of the ARI transaction; future financial and operating results of the Company; the Companys ability to remain in compliance with the financial covenants in its credit agreements; and the Companys plans, objectives, expectations and intentions with respect to future operations and services. Such forward-looking statements involve a number of known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements of the Company to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. Such factors include, but are not limited to, changes in the laws and regulations affecting the industry, changes in the demand and price for refrigerants (including unfavorable market conditions adversely affecting the demand for, and the price of, refrigerants), the Company's ability to source refrigerants, regulatory and economic factors, seasonality, competition, litigation, the nature of supplier or customer arrangements that become available to the Company in the future, adverse weather conditions, possible technological obsolescence of existing products and services, possible reduction in the carrying value of long-lived assets, estimates of the useful life of its assets, potential environmental liability, customer concentration, the ability to obtain financing, any delays or interruptions in bringing products and services to market, the timely availability of any requisite permits and authorizations from governmental entities and third parties as well as factors relating to doing business outside the United States, including changes in the laws, regulations, policies, and political, financial and economic conditions, including inflation, interest and currency exchange rates, of countries in which the Company may seek to conduct business, the Companys ability to successfully integrate ARIs operations and any assets it acquires from other third parties into its operations, and other risks detailed in the Company's 10-K for the year ended December 31, 2018 and other subsequent filings with the Securities and Exchange Commission. Examples of such risks and uncertainties specific to the ARI transaction include, but are not limited to, the possibility that the expected benefits will not be realized, or will not be realized within the expected time period. The words "believe", "expect", "anticipate", "may", "plan", "should" and similar expressions identify forward-looking statements. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date the statement was made.

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Hudson Technologies Enters Into New Revolving Credit Facility and Announces Definitive Amendments to Existing Term Loan Credit Facility - Yahoo...