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If a person is driving on a public road and is in compliance with posted traffic laws and has a valid registration the police have no reasonable suspicion to stop that vehicle.

It is not against the law to drive on public roads at any hour of the night or day.

Chief, you better talk to a decent attorney unless you want to get sued.

Mathew Hopkins

* * *

Is Lookout Mountain is trying to set a precedent for law enforcement? I guess if not having that silly sticker on your vehicle is grounds for a field interview on the big hill then it would be no different than the CPD pulling a vehicle over under the same terms for scanning your plate and not having a city sticker.

Better yet, if youre driving in Hamilton County and your vehicle is not registered in Hamilton County it must be time for a field interview. Maybe even the THP and GSP could pull the same field interviews for out of state vehicles.

See where this is going? I agree with Mr. Hopkins, Chief Wells had better have some really good attorneys on standby.

Chris Morgan

See the article here:
Has Chief Wells Read The Fourth Amendment? - And Response - The Chattanoogan

You might have been under the impression that the U.S. Supreme Court resolved how the Fourth Amendment applies to cell phone location data in 2018, when it decidedCarpenter v. United States, a case concerning the warrantless seizure and search of cell phone records. (The Reporters Committee filed afriend-of-the-court briefinCarpenterto explain why location tracking also implicates First Amendment values, including reporter-source confidentiality.) If you want someones data, the justices concluded in that case, go get a warrant. So far, so simple. But developments sinceCarpenterhave made clear that settled law settles very little.

The Department of Homeland Security maintains, for instance, that the warrant requirement doesnt apply when the agency buys Americans location information from a data broker, according to amemorecently obtained by BuzzFeed News. Which, given whatsavailable for salethese days, makes for quite the constitutional loophole.

The Department argues that individuals have no reasonable expectation of privacy in location information provided to a third-party with a users consent. The consent in question, though, will often have been the users decision to click I agree on a mobile apps tiny and inscrutable terms of service. Given the Departments troubling misuse of its existing authorities tomonitorjournalists, these broad legal claims cant help but raise concerns about how those commercial datasets will be deployed.

Whos to say, meanwhile, that a warrant requirement is enough to prevent dragnet location monitoring? Thats the question presented by a string ofrecentcourtdecisionsinvolving geofence warrants. In each of these cases, rather than serve a court order that asked for location data corresponding to a known phone, police asked for the opposite for information on all of the devices that were in a particular location at a particular time. Of course, the results can expose sensitive interactions that have nothing to do with the crime police are investigating:a doctors visit, say, or a reporters interaction with a confidential source.

These warrants have drawn scrutiny from privacy advocates because, well, they dont really do the thing a warrant is expected to do: prevent the government from invading the privacy of individuals the government has no reason to suspect of a crime. For just that reason, organizations like the Electronic Frontier Foundationarguethese reverse warrants violate the Fourth Amendment. But magistrate judges have divided on the question, and no appeals court has weighed in. As a result, it remains unclear whether thisincreasingly popularlaw enforcement tool is legal.

As path-breaking as it might have been, then, whetherCarpenter can meaningfully protect location privacy along with all its associated constitutional values will turn on questions the justices have yet to answer.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

Originally posted here:
The next legal battle (or three) over location tracking - Reporters Committee for Freedom of the Press

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A few months back, I was pulled over by a Massachusetts state trooper on a Saturday night as I turned off the highway to get gas. It was around 10 pm and dark, and the stop was off an exit in a remote area, about 30 minutes outside Boston. The trooper approached the car cautiously, as if he assumed I might be dangerous. He took my license and registration and asked where I was coming from and headed to.1

I told the trooper that I had just left Yale University, where Im finishing my PhD, and was headed to Boston to visit friends. His energy seemed anxious. He asked if my car was a rental, as I noticed him shining a flashlight into the back seat.2

He ran my documents, came back, and said that he didnt want to make this into something its not or get my mind turning. But, he added, because of the way I switched lanes and got off the highway and since I-84 in Massachusetts is a drug trafficking route, he believed that I could have drugs in the car and asked to search it.3

Bewildered, I asked him how he had arrived at the conclusion that I was trafficking drugs after I said I had just left school to go to Boston and had merely pulled over to get gas. He responded that he didnt think I had actually exited to get gas, since my phones GPSwhich he looked at through the windowdidnt seem to show a destination on it, and added, I just hate being lied to. So I asked if I could reach for my wallet and show him my Yale ID to verify my story.4

The trooper seemed unmoved. He said my profession had nothing to do with his suspicion and asked, again, if he could search my car. I tried to control my response, but feeling confused, angry, and knowing he had no right to search the car without my consent, I said indignantly, No, you cant search my car.5Current Issue

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Without offering much of a response, he went back to his car, still holding my license and registration. I recorded a video explaining the situation to my mom and sisters and sent it to them. I let them know that, if anything happened, I loved them and that I was trying my best to navigate the situation. I was afraid for my life. Was he going to let me go, or would he make the situation worse?6

My mother and two sisters texted me back after seeing the video, afraid that if they called and I reached for my phone when it rang, it might cost me my life. They asked if I could share my location and told me to breathe. They were as worried as I was that the situation might escalate and that the video would be the last they would see of me.7

After some minutes, the officer came back with a written warning for speeding and an improper lane change. He told me to drive safely and sidestepped my question about what had led him to believe I had drugs in the car. After I asked him again, he haltingly said that there were many reasons for his suspicion and added, preemptively, that it wasnt a result of racial profiling, despite data showing the Massachusetts State Police troopers routinely do so. He left, and I drove off, shaken. I called my family to tell them I was OK.8

In memoriam: A photo of Philando Castile hangs on the gate of the governors residence in St. Paul, Minn. (Scott Takushi / Pioneer Press via AP)

In the months since my encounter with the troopermonths during which we witnessed the murders of George Floyd and Breonna Taylor as well as the resurgent movement challenging police violencethe memory of the experience has continued to shake and unnerve me, especially since I know it could happen again. In fact, Ive been pulled over twice since then. One stop was for allegedly parking too far from the curb; as the officer explained it, he ran my plates, saw I wasnt from the area, and pulled me over as I drove off to see what was going on. He proceeded to ask me questions that were almost as intrusive as the state troopers.9

Far from being unusual, these experiences are typical for many Black drivers in this country. All across the United States, Black people are pulled over at higher rates than other driversa phenomenon so pervasive, it has earned its own catch phrase: driving while Black. According to one recent study of 14 years of traffic stops in North Carolina, Black drivers were 95 percent more likely to be pulled over than white drivers. Another study, published this year by Stanfords Open Policing Project, found that Black drivers were about 20 percent more likely to be pulled over and that, once stopped, they were one and a half to two times as likely to be searched. Police frequently justify these searches by claiming they suspect the driver possesses drugs or weapons.10

Like many Black drivers, I experience a hollowing fear anytime Im stopped by police. My body tenses, its hard to breathe, and I genuinely wonder if Ill make it through the situation. When police approach slowly and cautiously, as if they think Im a potential threat, and ask for consent to search my car for drugs or weapons, those feelings intensify.11

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The fact that these invasive stops and searches are even possible is the result of a special automobile exception to the Fourth Amendment. The amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, which is another way of saying it protects our right to privacy against the unchecked power of the police. But under the automobile exception, first codified in 1925 and then expanded over the decades by successive Supreme Court rulings, drivers are considered to have a reduced expectation of privacy; the full protections of the amendment are weakened.12

The implications of this reduced expectation are many. But among the most far-reaching is the practice, affirmed by the Supreme Court in 1996 in Whren v. United States, by which drivers can be temporarily detainedthat is, stoppedby officers on the basis of a flimsy pretext, like a broken taillight, even if the officers real purpose is to look for evidence of criminal activity. The problem is these pretexts are an easy cover for rank bias and routine racism. Theyre a green light for racial profiling. And while some protections are supposed to remain in place to prevent the police from escalating these stops into fully arbitrary searches (officers, for instance, must obtain consent from a driver before searching a car, unless evidence is in plain view), its easy for the police to sidestep those protections.13

Consider how the process often unfolds, quickly transforming from simple traffic stops into investigatory stops and searches. When police officers pull over a car, they are supposed to allow the driver to go on their way as soon as they are able to verify that the driver can operate the vehicle (and, all too often, as soon as the police give a ticket). But police are also allowed to ask off-topic questions to probe for potential criminal activity or ask the driver to get out of their car and wait in the patrol car while they run criminal records, all in the context of a simple traffic violation. If additional information arises that leads police to have reasonable suspicion of criminal activitya vague concept that is, once again, easily manipulated by bias and racisman officer can extend the stop and request consent to search for evidence. In some states, if officers smell marijuana, they can bypass asking for consent altogether, a potential problem since police have been known to lie about smelling marijuana in order to execute a search without a warrant or consent.14

The request for consent, which is supposed to be a safeguard against invasive or abusive searches, is another weak spot in the process. For consent searches to pass constitutional muster, they must be free of coercion. But police power, particularly in the context of the long legacy of police violence and corruption, is inherently coercive, especially for Black drivers. From Philando Castile, Sandra Bland, and Maurice Gordon to countless unknown Black drivers, routine traffic stops have too often turned into instances of police violence. This reality can make people consent, out of pure terror, to a search they would rather decline, if only to avoid further suspicion and escalation.15

In my case, that fear made me contemplate letting the officer search my car, even though I knew it would lead me to feel more violated and traumatized than I already was.16

Stopping stop-and-frisk: Activists fill New Yorks City Hall in 2013 as legislators vote to establish an inspector general to oversee the NYPD. (Spencer Platt / Getty Images)

The story of pretextual stops and consent searches is similar, in many ways, to the story of stop-and-frisk. In both instances, officers need to have only reasonable suspicion of criminal activity to begin an investigatory stop. And because of the vagueness of that reasonable suspicion standard, both practices have a racially disproportionate impact on Black and Latinx communities.17

Moreover, as with stop-and-frisk, the solution to the problem of consent searches is often framed as a simple matter of instituting reforms like community policing and procedural justice: If police can just be trained to behave in ways that are professional, neutral, and fair, people will feel better about police interactions, and encounters with them will be less likely to go awry. The limits of these efforts are perhaps best illustrated by Minneapolis, a city that implemented all the often touted progressive reforms, yet the police still murdered George Floyd.18

But there are solutions that are at once direct and powerful and are being embraced by a growing number of organizers and activists around the country.19

The first and perhaps most obvious of these is a judicial one and involves nothing less than challenging everything from the legality of the way stops and searches are conducted to the legal foundations on which they stand. Such cases can be brought in federal or state courts. What is essential is that they should challenge existing precedent at every turn, as Matthew Segal, legal director of the ACLU of Massachusetts, wrote in The Guardian several years back.20

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One precedent that must be challenged is the one that allows for pretextual stops in the first place. There are various ways to argue against them, but one critical tool is the equal protection clause of the 14th Amendment. This clause prohibits discrimination on the basis of race and other categories. In the case of consent searches, there is clear evidence in cities and states throughout the country that Black drivers are targeted for stops and searches at disproportionate rates. A strong case can be made that pretextual stops are being carried out in an unconstitutional manner and that this way of conducting them, if not the fact of the stops themselves, must be addressed.21

Next, consent searches must be challenged. An argument can be made that, in the context of police violence and alongside the fact that police are not always required to let individuals know they have the right to refuse a search, many consent searches are not truly free of coercion and thus are not constitutional. The dream in bringing such a case is that a judge would rule against the use of consent searches altogether. But a more realistic outcome might be that officers would be required to state that individuals are free to refuse the search, similar to the way police are required to read people their Miranda rights before interrogating them while in custody.22

Versions of both of these approaches were used successfully in New York City in Floyd et al. v. City of New York, which famously forced the city to rein in its stop-and-frisk program. In that case, the Center for Constitutional Rights argued that the New York Police Department violated the Fourth and 14th Amendment rights of thousands of Black and Latinx New Yorkers through a pattern and practice of racial profiling and unconstitutional stops. Judge Shira Scheindlin agreed, concluding in a 2013 decision, The Citys highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting the right people is racially discriminatory and therefore violates the United States Constitution.23

Scheindlins decision was a landmark legal victory for Black and Latinx New Yorkers, but it was also limited. While her ruling forced New York to reform how it approached stop-and-frisk, dramatically reducing its use across the city, it nonetheless allowed the practice to continue under the pretext that it could be done in a constitutional way. To this day, racial disparities persist, highlighting one of the challenges of relying on legal solutions: Although essential, they can also be slow-moving and onerous. And at a time when so many of our courts, including the nations highest, have been stacked with conservative appointees, the judicial system seems an increasingly unfriendly place to seek redress.24Related Articles

These are among the reasons that activists and advocates have begun to explore a range of city- and state-level policy changes to mitigate and occasionally even end the scourge of pretextual stops and consent searches. In Texas, for example, Democratic legislators are planning to introduce a package of criminal justice measures that includes banning pretextual stops. Virginia recently passed legislation prohibiting police from stopping drivers for such minor infractions as broken taillights or brake lights, tinted windows, and loud exhaust systems. Meanwhile, some localities, such as Durham, N.C., have shifted from allowing verbal consent for searches to requiring written consent as a way to try to curb manipulation and coercion.25

But even with these necessary interventions, organizersparticularly those working toward police abolition and a complete reimagining of public safetyhave begun to argue that there is a need to go further, to experiment with alternatives to the way we deal with traffic concerns. They have begun pressing for police to be removed from the area of traffic safety altogether.26

Today one of the most reliable functions of traffic stops is to provide revenue for cities and states. Another is to serve as a basis for fishing for more serious crimes. But imagine if alternatives were created to address concerns about traffic safety (which remains an undeniable problem) through a public health framework centered on safe driving education and outreach, as opposed to police stops and tickets?27

This vision might have appeared implausible just a few months ago, but it has been gaining momentum in both New York City and Los Angeles, where activists have begun waging campaigns to remove police officers from traffic oversight and replace them with Department of Transportation workers, among others. In Berkeley, Calif., in July the City Council approved a plan to remove police from traffic stops and instead use unarmed city workers to respond to traffic safety matters.28

We now know that the only way to ensure police violence doesnt occur is to avert encounters of drivers with officers. If someone does need to be stopped for a matter related to traffic safety, that stop can be made by someone who handles the situation with a public health approach, not by someone with a gun and the license to kill with impunity. The roads might be a lot safer, and many fewer people would have to experience the fear or reality of police violence. People shouldnt have to fear that they will lose their life over a taillight.29

The rest is here:
'I Experience a Hollowing Fear Any Time I'm Stopped by Police' - The Nation

We're taking it back a few decades to the 1980s to kick offthe second in this series of posts. (In the interest of fulldisclosure, only one of us (guess who) was around during the 80s,and he was many moons away from practicing law.) Computers werearound but weren't ubiquitous in offices until late in thedecade. Chances are, if a federal agent popped into a company'soffice in 1988 with a warrant to search its files, she'd betasked with collecting and combing through hundreds of thousands ofpages of documents, both typed and handwritten, shoved into boxesand desks and filing cabinets. Imagine, then, that the agent entersthe office of a corporate bigwig and finds a locked safe. Once thesafe is opened, she finds two folders inside: one marked"Work" and one marked "Personal." Assuming thatthe search warrant is appropriately circumscribed to only companyinformation and is supported by probable cause, the agents likelyhave the authority to search the "Work" folder but notnecessarily the "Personal" one.

The twist, though, is that before our agent can even get to thefolders, she has to open the safeand that's not an easything to do. Can the government require the company to open thesafe so the agent can search the folder containing work papers?Even if opening the safe would implicate the employee who opens itin a crime? After the Supreme Court's decision in Braswellv. United States, 487 U.S. 99 (1988), the answer isyessort of. Braswell tells us that corporationshave no Fifth Amendment privilege against self-incrimination, andthe corporation can be required to designate a custodian to producethose records on the corporation's behalf.

Fast forward to today, where 80s musicthankfullyisstill alive and well. Like our 1980s example, if a company findsitself ensnared in an investigation, federal agents may well showup one day with a warrant to search for company files in anemployee's smartphone. And just like they could with thecompany safe, if those devices are password protected, you canimagine that, invoking Braswell, the government could seekto compel the company's custodian to unlock the phone so theagents can do the searching, without running afoul of the FifthAmendment.

But what if the only person who can unlock the device is theemployee himself? For many employees who use their personal cellphones for work under a BYOD policy, that may very well be thecase. Does the employee have a Fifth Amendment right to refuse tounlock the device, even in response to a subpoena for thecorporation's records? It turns out that the answer isn'tall that clear, and may depend on which state or jurisdictionyou're in. Although corporate employees have no Fifth Amendmentright to refuse to produce corporate records in their possession,they can invoke their Fifth Amendment right to testify againstthemselves. If the act of providing a personal passcode tounlock his phone is testimonial in nature, then the employee maywell be able to assert his Fifth Amendment right to refuse.See, e.g., SEC v. Huang, No. 15-269, 205WL5611644 (E.D. Pa. Sept. 23, 2015) (holding that because personalpasscodes to a smartphone were not corporate records and weretestimonial in nature, the SEC could not compel disclosure of thosepasswords). But if unlocking his phone is not testimonialin nature, then the employee could be compelled to enter hispassword. As we discussed in our previous blog post in thisseries, the courts are currently divided aboutwhether individuals have a Fifth Amendment right to refuse tounlock their phones at the government's behest. If the Indiana Supreme Court's view prevails, theFifth Amendment can prevent the government from compelling theemployee to unlock his smartphonebut if the Massachusetts Supreme Court's viewprevails, it does not.

An employee's decision to "take Five" in thesecircumstances can have significant ramifications for his employer.Among other things, good faith cooperation with a governmentinvestigation often goes a long way in mitigating acorporation's liability for any potential wrongdoing. Byrefusing to unlock his phone, an employee can undercut thecompany's effort to cooperate. And in some circumstances, itcan lead to an adverse inference of wrongdoing against thecorporation in civil proceedings. See, e.g., Libuttiv. United States, 107 F.3d 110 (2d Cir. 1997). For thesereasons, employers may decide to implement workplace policiesrequiring employees to cooperate with corporate investigations byunlocking their cellphones when asked, at the risk of puttingemployees in a tough situation: cooperate and possibly incriminateyourself, or invoke your Fifth Amendment rights and possibly loseyour job. If an employer chooses to go this route, it should keepin mind that it may have statutory obligations (under theCalifornia Consumer Privacy Act, for example, see 11 CCR 999.305(f)) to notify employees that the company maydisclose their personal information to law enforcementi.e.,by compelling employees to unlock their phones when asked. Thiscould soften the blow of the employer's policy, but it mightnot assuage an employee's fear of having to choose between hisjob and his Fifth Amendment rights.

***

In addition to its implications for corporate investigations,employers may have another reason to care about the split betweenthe courts regarding compelled decryption. In jurisdictions wherelaw enforcement officers currently can compel individualsto unlock their mobile devices, employers might be wonderingwhether and how any confidential business information present onthe device might be protected from disclosure during aninvestigation into the employee's individualwrongdoing. As anyone with a smartphone (i.e., almost everyone) iswell aware, separating personal from work files on the device isoften not as easy as labeling folders in a safe "Work"and "Personal." Downloaded files are commingled into asingle "downloads" folder, personal and work calls allappear in the same log, and your email is likely a singleapplication on your phone containing both your personal and workmailboxes.

This is where the Fourth Amendment and company policies come in.Like the Fifth Amendment considerations underlying compelleddecryption, Fourth Amendment law is rapidly developing as to whatfolders, applications, and files government agents can search onelectronic devices under any given search warrant. In our next blogpost, we'll talk about these developments and provide ourthoughts on what policies employers might put into place to protecttheir confidential business data while we await clear guidance fromthe courts on whether law enforcement officers can compelindividuals to unlock their smartphones, and about which files,folders, and applications they can search once they gain access toa device.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

Link:
BYOD Policies And Criminal Investigations: What Happens To Company Information And Employees When Law Enforcement Seeks Access To Personal Devices...

NBA player Sterling Brown has reached a $750,000 proposed settlement with the City of Milwaukee stemming from a 2018 altercation with the citys police where he was tased, tackled, and stepped on by officers.

The Milwaukee Bucks player brought a civil rights lawsuit in federal court claiming Milwaukee police used excessive force in violation of the Fourth Amendment, according to a letter from the City of Milwaukees Office of the City Attorney to Milwaukees Common Council.

In addition to the $750,000, the proposed settlement features a joint statement from the City of Milwaukee that acknowledges a constitutional violation and a vow to make changes to the police forces operating procedures. Council members must approve the proposal for it to move forward.

On January 26, 2018, Brown was tased by police and wrestled to the ground by several officers after an officer said he had parked across two handicapped spots at a drugstore. He was never charged with a crime.

Bodycam footage reviewed by CNN shows a Milwaukee police officer stepping on Browns ankle during his arrest, while others mock Brown and any potential civil rights complaint he might make.

The Milwaukee Bucks issued a statement on Monday supporting Browns commitment to use the horrifying abuse and injustice as a catalyst to make change in the community.

We are pleased that Sterlings lawsuit has been mutually resolved and that theres been an important commitment by the City of Milwaukee and its Police Department to make changes to the MPDs standard operating procedures. No one should ever have to go through the horrifying abuse and injustice that Sterling experienced, the statement said. We commend Sterling for his courageous response to this terrible situation by repeatedly sharing his story and working tirelessly with countless local groups and organizations to help make change in our community. And we also commend the Citys leadership for its commitment to implement these important changes to better Milwaukee.

When asked for a comment, the Milwaukee Police Department told CNN it does not have a formal statement as this is ongoing litigation.

The lawsuit filed on behalf of Brown in 2018 states the altercation began as he exited a drugstore on January 26 and found an officer identified in the lawsuit as Officer Joseph Grams outside his car, which was parked across two handicapped parking spots.

Grams allegedly asked Brown, who was 22 at the time, for his license before telling him to back up and shoving him. Brown responded by telling the officer not to touch him several times.

Several officers responded after Grams called for backup, according to the lawsuit and bodycam video released in the case.

After three cars are seen arriving on scene, the officer walks up to them and says he only wanted one extra patrol. He also tells one of his colleagues that Brown was getting in his face, the video shows.

At least one car leaves and others stay before multiple officers gather around Brown to ask him questions. At one point, an officer yells at Brown to take his hands out of his pockets, and Brown says he has stuff in his pocket.

Other officers grab the athlete and pull him to the ground, before he is tased.

According to the lawsuit, in addition to discriminating against Brown because hes Black and violating his rights by treating a parking violation as a criminal offense, officers also failed to read Brown his Miranda rights.

Additionally, some of the officers turned off their bodycams during certain parts of the confrontation, the suit said.

The lawsuit alleged, among other things, unlawful arrest, excessive use of force and violation of the 14th Amendments Equal Protection Clause. It also accused the officers of collaborating to conceal their actions.

The Milwaukee Police Association initially defended the officers who arrested Brown in 2018, calling use of force a necessary component of policing and slamming city leaders for failing to defend the officers.

But after the bodycam footage was released to the public, the union softened its tone and said it welcomed appropriate review and oversight of the matter.

Following the incident, two sergeants were suspended without pay for 10 and 15 days, respectively for failing to be a role model for professional police service.

One other officer was also suspended for two days for failing to treat a member of the public with courtesy and professionalism. Eight others were scheduled to receive remedial training in professional communications, officials said in 2018.

Read more here:
NBA player Sterling Brown agrees to $750000 settlement with the City of Milwaukee after 2018 incident where he was tased by police - KESQ