Category Archives: Technology

Facebook Photos Admissible

Image result for facebook social media admissible evidence court

The 6th Circuit Federal Court of Appeals‘ recent court decision United States v. Farrad gives a very comprehensive analysis regarding the admissibility of Facebook records. In short, the  Court held that (1) photographs from a Facebook account were properly authenticated by evidence that the photos in question came from a Facebook account registered to the defendant and the photos appeared to show the defendant in his own apartment, and (2) The Facebook photographs were self-authenticating as a business record.

Washington’s evidence rules are either identical to, or extremely similar, to the federal rules discussed in the opinion.

BACKGROUND FACTS

After serving time in prison for a previous felony, Farrad was released from federal
custody in January 2013. Farrad came to the attention of local law enforcement sometime after June 10 of that same year, when various confidential informants and concerned citizens evidently reported observing Farrad to be in possession of one or more firearms while in Johnson City, Tennessee.

Some time later, a Officer Garrison of the Johnson City Police Department used an undercover account and sent Farrad a friend request on Facebook. After Farrad accepted the friend request, Garrison was able to see more of Farrad’s photos. One photo in particular caught his interest: a photo that showed what appeared to be three handguns sitting on a closed toilet lid in a bathroom. The photo was uploaded on October 7, 2013.

Garrison brought the photo to the attention of Johnson City police officer and FBI task
force officer Matthew Gryder, who applied on October 25, 2013, for a warrant to search Farrad’s Facebook’s records. A federal magistrate judge granted the warrant. The warrant allowed execution “on or before November 6, 2013,” and the return executed by federal law enforcement indicates that the warrant was “served electronically” on Facebook on November 1, 2013.

The resulting data yielded a series of additional photos that were central to this case: some show a person who looks like Farrad holding what appears to be a gun, while others show a closer-up version of a hand holding what appears to be a gun.

While none of the photos shows a calendar, date, or one-of-a-kind distinguishing feature, the person in the photos has relatively distinctive tattoos, and some of the photos show, as backdrop, the décor of the room in which they were taken. Facebook records revealed that the photos had been uploaded on October 11, 2013.

In September 2014, a federal grand jury charged Farrad with having, on or about October 11, 2013, knowingly possessed a firearm, namely, a Springfield, Model XD, .45 caliber, semiautomatic pistol.

On March 26, 2015, Farrad filed a pro se motion seeking an evidentiary hearing, dismissal of the indictment against him, and suppression of the Facebook photos on Fourth Amendment grounds. The magistrate judge assigned to Farrad’s case denied that motion on April 9, 2015, on the grounds that Farrad already had appointed counsel and the local rules prohibited a represented party from acting in his or her own behalf without an order of substitution. Farrad’s trial counsel did not renew Farrad’s motion.

The parties did, however, litigate the admission of the photos on evidentiary grounds.
The Government argued that the Facebook photos qualified as business records under Federal Rule of Evidence 803(6) and that they were, as such, self-authenticating under Federal Rule of Evidence 902(11).

In support of its assertion, the Government introduced a certification by a Facebook-authorized records custodian, who attested that the records provided by Facebook—including “search results for basic subscriber information, IP logs, messages, photos, and other content and records for Farrad’s Facebook identity were made and kept by the automated systems of Facebook in the course of regularly conducted activity as a regular practice of Facebook and made at or near the time the information was transmitted by the Facebook user.

In addition to disputing admissibility under Federal Rules of Evidence 401, 402, 403, 404, 405, and 406, Farrad’s trial counsel argued that the photos, despite the custodian’s affidavit having been “done correctly under the federal rules,” were “hearsay within hearsay” and did not “authenticate who took the pictures, when the pictures were taken, by whom, at what time. All that the custodian could attest to, trial counsel emphasized, was that at some point these pictures were uploaded to what was allegedly Farrad’s Facebook account, the custodian could not testify as to who took the photos, when they were taken, where they were taken.

On June 15, 2015, the district court concluded that it had found no indication of a lack of trustworthiness and that the photos qualified as business records under Rules 803(6) and 902(11). It also determined that the photos were relevant.

The jury found Farrad guilty. He appealed his case to the 6th Circuit Court of Appeals.

ISSUES

Farrad raises seven arguments on appeal: (1) that there was insufficient evidence
introduced at trial to support his conviction; (2) that the Facebook photos should not have been admitted into evidence; (3) that Officers Hinkle and Garrison should not have been permitted to testify as experts; (4) that the district court should have granted Farrad’s motion for a new trial; (5) that Farrad did not in fact qualify as an armed career criminal under the ACCA; (6) that finding him to be an armed career criminal at sentencing violated his Fifth and Sixth Amendment rights; and (7) that the district court should have excluded the Facebook photos on Fourth Amendment grounds.

In this blog post, we focus on the issue of whether the Facebook photos were admissible at trial.

COURT’S ANALYSIS & CONCLUSIONS

Admissibility of Photos

The Court reasoned that like other evidence, photographs must be authenticated prior to being admitted into evidence. To satisfy this requirement, under federal evidence rule (FRE) 901, the person seeking to admit the evidence (proponent) must produce evidence proving that the item is what the proponent claims it is. This authentication rule requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.

The Court further reasoned that under FRE 902, some items – like, apparently Facebook posts – are self-authenticating. In other words, they require no extrinsic evidence of authenticity in order to be admitted. This category of self-authenticating evidence includes “certified domestic records of a regularly conducted activity”—that is, a business “record that meets the requirements of Rule 803(6)(A)–(C), so long as properly certified by a custodian or other qualified person  and so long as the evidence is subject to challenge by  the opposing party.

“The question, then, is the central one: the authentication of the photos,” said the Court. “They appeared to show Farrad, his tattoos, and (perhaps most probatively) distinctive features of Farrad’s apartment, as confirmed by police investigation . . . The district court was correct to admit them.”

Fourth Amendment Suppression

After addressing the admissibility issue, the Court went on to reject Farrad’s claim that admitting the Facebook photos violated the Fourth Amendment. The Court reasoned that while a search made by a private entity acting at the direction of law enforcement agents must comport with the Fourth Amendment, Farrad has pointed to no authority or rationale to suggest that a date of execution similarly binds a third party’s certification of its records for evidentiary purposes. “This argument lacks merit,” said the Court.

“The bottom line in this case—that Farrad has been sentenced to serve 188 months in prison because the Government found Facebook photos of him with what appears to be a gun—may well raise a lay reader’s hackles. There are likewise aspects of Farrad’s trial and
conviction—the date issue, Officer Garrison’s testimony—that are at least debatably troubling from a legal perspective. Nevertheless, we are not empowered to grant relief based on arguments not made or where errors were harmless.”

With that, the Sixth Circuit affirmed Farrad’s conviction and sentencing.

My opinion? Today’s defense attorney must be proficient in the admissibility of social media evidence. And the answers are fairly straightforward. Although the general rule is that hearsay is not admissible, and that social media evidence is hearsay, some hearsay evidence is admissible under the business record exception. Clearly, anything and everything that social media outlets like Facebook produces – from profiles to posts – are business records, arguably.

This is a classic example telling us to watch what we post on Facebook and other social media. Information is private until its not.

Cell Site Location Information

Image result for cell site location information

In Carpenter v. United States, the United States Supreme Court held that the government generally needs a search warrant to collect troves of location data about the customers of cellphone companies.

BACKGROUND FACTS

In April 2011, police arrested four men suspected of committing a string of armed robberies at Radio Shack and T-Mobile stores in and around Detroit. One of the men confessed that the group had robbed nine different stores in Michigan and Ohio between December 2010 and March 2011, supported by a shifting ensemble of 15 other men who served as getaway drivers and lookouts. The robber who confessed to the crimes gave the FBI his own cellphone number and the numbers of other participants; the FBI then reviewed his call records to identify still more numbers that he had called around the time of the robberies.

In May and June 2011, the FBI applied for three federal court orders from magistrate judges to obtain “transactional records” from various wireless carriers for 16 different phone numbers. As part of those applications, the FBI recited that these records included “all subscriber information, toll records and call detail records including listed and unlisted numbers dialed or otherwise transmitted to and from [the] target telephones from December 1, 2010 to present,” as well as “cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls.”

The FBI also stated that these records would “provide evidence that Timothy Carpenter and other known and unknown individuals” had violated the Hobbs Act, 18 U.S.C. § 1951. The magistrates granted the applications pursuant to the Stored Communications Act, under which the government may require the disclosure of certain telecommunications records when “specific and articulable facts show that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”

The government later charged Carpenter with six counts of aiding and abetting robbery that affected interstate commerce, in violation of the Hobbs Act, and aiding and abetting the use or carriage of a firearm during a federal crime of violence. Before trial, Carpenter and Sanders moved to suppress the government’s cell-site evidence on Fourth Amendment grounds, arguing that the records could be seized only with a warrant supported by probable cause. The district court denied the motion.

At trial, seven accomplices testified that Carpenter organized most of the robberies and
often supplied the guns. They also testified that Carpenter and his half-brother Sanders had served as lookouts during the robberies. According to these witnesses, Carpenter typically waited in a stolen car across the street from the targeted store. At his signal, the robbers entered the store, brandished their guns, herded customers and employees to the back, and ordered the employees to fill the robbers’ bags with new smartphones. After each robbery, the team met nearby to dispose of the guns and getaway vehicle and to sell the stolen phones.

Also at trial, the Government admitted cell-site location information (CSLI) provided by Carpenter’s wireless carriers. The State’s expert witness created maps showing that Carpenter’s phone was within a half-mile to two miles of the location of each of the robberies around the time the robberies happened. Hess used MetroPCS call-detail records, for example, to show that Carpenter was within that proximity of a Detroit Radio Shack that was robbed around 10:35 a.m. on December 13, 2010. Specifically, MetroPCS records showed that at 10:24 a.m. Carpenter’s phone received a call that lasted about four minutes. At the start and end of the call, Carpenter’s phone drew its signal from MetroPCS tower 173, sectors 1 and 2, located southwest of the store and whose signals point northeast.

After the robbery, Carpenter placed an eight-minute call originating at tower 145, sector 3, located northeast of the store, its signal pointing southwest; when the call ended, Carpenter’s phone was receiving its signal from tower 164, sector 1, alongside Interstate 94, north of the Radio Shack. The expert witness provided similar analysis
concerning the locations of Carpenter’s phone at the time of a December 18, 2010 robbery in Detroit; a March 4, 2011 robbery in Warren, Ohio; and an April 5, 2011 robbery in Detroit. See Carpenter App’x at 12-15.

The jury convicted Carpenter on all of the Hobbs Act counts and convicted him on all but one of the gun counts. Carpenter’s convictions subjected him to four mandatory-minimum prison sentences of 25 years, each to be served consecutively, leaving him with a Sentencing Guidelines range of 1,395 to 1,428 months’ prison. The district court sentenced Carpenter to 1,395 months’ imprisonment. He appealed his convictions and sentences.

COURT’S ANALYSIS AND CONCLUSIONS

Justice Roberts delivered the majority opinion of the Supreme Court.

Preliminarily, the Court held that the Government’s acquisition of Carpenter’s cell-site records was a Fourth Amendment search. It reasoned that Fourth Amendment protects not only property interests but certain expectations of privacy as well.

“Thus, when an individual seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause,” said the Court.

“Tracking a person’s past movements through CSLI partakes of many of the qualities of GPS monitoring considered in Jones—it is detailed, encyclopedic, and effortlessly compiled.”

The Court further reasoned that cell phone location information is not truly “shared” as the term is normally understood. “First, cell phones and the services they provide are such a pervasive and insistent part of daily life, that carrying one is indispensable to participation in modern society,” said the Court. “Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the user’s part beyond powering up.”

Finally, the Court reasoned that the Government did not obtain a warrant supported by probable cause before acquiring Carpenter’s cell-site records. It acquired those records pursuant to a court order under the Stored Communications Act, which required the Government to show reasonable grounds for believing that the records were relevant and material to an ongoing investigation. “That showing falls well short of the probable cause required for a warrant,” said the Court. “Consequently, an order issued under §2703(d) is not a permissible mechanism for accessing historical cell-site records. Not all orders compelling the production of documents will require a showing of probable cause.”

Justice Ginsberg, Breyer, Sotomayor, and Kagan joined. Justice Kennedy filed a dissenting opinion, in which Justice Thomas and Alito joined. Justice Gorsuch also filed a dissenting opinion.

It’s imperative to hire competent defense counsel willing to argue motions to suppress information that the Government creatively – and sometimes illegally – obtains. Please contact my office if you, a friend or family member are arrested for crimes involving searches of cell phones and/or cell phone records.

Outrageous Police Misconduct

Image result for police officer creates fake profile

In State v. Solomon, the WA Court of Appeals held that the trial court properly dismissed a charge of attempted rape of a child for outrageous police misconduct, where an officer, posing as a fictional 14-year-old girl sent the defendant nearly 100 messages laden with graphic, sexualized language and innuendo and persistently solicited the defendant to engage in a sexual encounter with the fictional minor, notwithstanding that he had rejected her solicitations seven times over the court of four days.

BACKGROUND FACTS

In this matter, a law enforcement officer anonymously published an advertisement on an online Craigslist classifieds platform reserved for those over the age of 18 and indicated that she was “a young female” seeking an individual interested in a casual sexual encounter. The defendant Mr. Solomon responded to the advertisement. Thereafter, the police officer assumed the guise of a fictional 14-year-old girl and sent Solomon nearly 100 messages laden with graphic, sexualized language and innuendo and persistently solicited him to engage in a sexual encounter with the fictional minor, notwithstanding that he had rejected her solicitations seven times over the course of four days.

Mr. Solomon was charged with one count of communication with a minor for immoral purposes, one count of commercial sex abuse of a minor, and one count of attempted rape of a child in the third degree.

Before trial, Solomon moved to dismiss the charges against him, arguing that the State had engaged in outrageous governmental misconduct in violation of his due process right to fundamental fairness.

The trial court herein found that the actions of the law enforcement officer constituted outrageous misconduct in violation of Solomon’s right to due process and dismissed the charges against him. The State appealed.

ISSUE

Whether the trial court abused its discretion in dismissing the case due to outrageous conduct of the investigating law enforcement officer.

COURT’S ANALYSIS & CONCLUSIONS

As precedent, the Court of Appeals applied the State v. Lively “totality of the circumstances evaluation,” which identifies five factors to be considered by a trial court deciding issues of whether law enforcement engaged outrageous conduct: (1) whether the police conduct instigated a crime or merely infiltrated ongoing criminal activity, (2) whether the defendant’s reluctance to commit a crime was overcome by pleas of sympathy, promises of
excessive profits, or persistent solicitation, (3) whether the government controls the criminal activity or simply allows for the criminal activity to occur (4) whether the police motive was to prevent crime or protect the public, and (5) whether the government conduct itself amounted to criminal activity or conduct repugnant to a sense of justice.

Here, the Court of Appeals agreed with the trial court’s analysis that Solomon’s reluctance to commit the crime was manifested by his repeated—seven times—attempts to discontinue the conversation. Furthermore, the Court of Appeals agreed that the State had engaged in persistent solicitation of Solomon, given that the detective continued to solicit Mr. Solomon each of the seven times that he sought to withdraw and, in addition, sent the majority of the over 200 messages exchanged between the two parties.

Additionally, the Court of Appeals agreed with the trial court that the investigating law enforcement detective controlled the criminal conduct both by initiating the interaction between her and Solomon and by stringing him along over the course of the four days of exchanges.

“In this way, the court determined that the detective’s use of graphic and highly sexualized language amounted to a manipulation of Solomon that was repugnant to a sense of justice.”

“In ruling to dismiss the charges, the trial court did not adopt a view that no reasonable judge would take,” said the Court of Appeals. “Given the court’s finding that law enforcement had initiated and controlled the criminal activity, persistently solicited Solomon to commit the crimes so initiated, and acted in a manner (through the use of
language and otherwise) repugnant to the trial judge’s view of the community’s
sense of justice, the trial court’s determination was tenable.

“Accordingly, the trial court did not abuse its discretion by ordering that the charges against Solomon be dismissed. There was no error.”

With that, the Court of Appeals affirmed the dismissal of Mr. Solomon’s charges.

Please contact my office if you, a friend or loved one face criminal charges which are stemmed by questionably actions of law enforcement officers. It’s extremely important to hire competent defense counsel who willing to argue compelling motions to dismiss similar to defense counsel’s motion in this case.

Silver Platter Doctrine

Image result for silver platter doctrine

In State v. Martinez, the WA Court of Appeals held that the defendant’s computer hard drive which Texas police seized in Texas pursuant to a search warrant was lawfully searched by the Washington State Patrol without a Washington search warrant under the silver platter doctrine.

BACKGROUND FACTS

Carlos Martinez began working at the Monroe Police Department in 1989. He worked in several capacities, including as a Drug Abuse Resistance Education (D.A.R.E.) program instructor. While working as a D.A.R.E. instructor, Martinez met A.K., who was in fifth grade at the time.

Beginning in 2001 or 2002, when A.K. was 13 or 14 years old, she began baby-sitting Martinez’s two young children.  A.K. also came to the Martinezes’ house when she was not baby-sitting. She would sometimes show up unannounced. She would help Martinez with chores and do her schoolwork at the house. At the time, Martinez was married to his then-wife Julie West.

Apparently, Martinez began touching A.K. in a sexual manner when she was 14. He also set up a video camera in the bathroom and digitally recorded her when she used the facilities.

Ms. West went on vacation. During that time, A.K. stayed at the family home. When Ms. West returned from vacation, she discovered a love note from A.K. to Martinez. She also discovered a video recording that Martinez had made of A.K. getting out of the shower and stored on the family computer. West confronted Martinez about the recording. He said he wanted to see if A.K. had cut herself on the kitchen knife as she had claimed. West claimed that when she asked Martinez why he still had the recording on the computer, he responded that it was “nice to look at.”

Not long after this, A.K. and her family moved from Monroe to Eastern Washington. Martinez and A.K. kept in touch. Martinez claims that in February 2007 they began a consensual sexual relationship when A.K. was 18 years old. In fall 2009, the Army recalled Martinez to active duty and stationed him in San Antonio, Texas. A.K. moved to Texas to be with him. They lived together for a short time.

After their relationship deteriorated in October or November 2011, Martinez gave A.K. the video recordings that he made of her in his bathroom in 2004. A.K. testified that Martinez told her he wanted to watch the tapes one last time and masturbate to them. She claimed he asked her to touch him as well. A short time later, A.K. contacted the Texas police to turn over the tapes. She also told the Texas police that she began an intimate relationship with Martinez some time before she was 16. Later, she contacted WSP.

The Texas police obtained a warrant to search Martinez’s home and seize his laptop computer and digital media storage devices. Then, a grand jury was convened in Texas to consider a possession of child pornography charge. But the grand jury refused to indict, returning a “no bill.” The case was dismissed. Texas police made a mirror image of Martinez’s computer hard drive and, at WSP’s request, sent it to WSP. Without obtaining a separate warrant, WSP searched this mirror image hard drive. Texas police also sent WSP two actual laptop computers and hard drives seized from Martinez. After obtaining a warrant, WSP searched those items.

The State initially charged Martinez with two counts of voyeurism, two counts of child molestation, one count of rape of a child in the third degree, and one count of possession of depictions of a minor engaged in sexually explicit conduct. Later, the State dismissed the molestation and rape charges. It tried Martinez on only one count of voyeurism and one count of possession of depictions of a minor engaged in sexually explicit conduct.

The jury found Martinez guilty on both counts. Because the voyeurism charge occurred outside the statute of limitations, the trial court dismissed that count and convicted him on only the possession count.

ISSUES

The Court of Appeals accepted review on the issues of (1) whether the warrantless search of Martinez’s computer hard drive was lawful when Texas police – and not WA law enforcement – searched the computer, and (2) whether spousal privilege applies to suppress the testimony of his ex-wife at trial.

SHORT ANSWER

The Court of Appeals held that (1) the silver platter doctrine allowed the Washington State Patrol to later examine the hard drive without a warrant, and (2) because Martinez acted
as a guardian to the victim, the spousal privilege does not apply here.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.  If a government action intrudes upon an individual’s “reasonable expectation of privacy,” a search occurs under the Fourth Amendment. Furthermore, the Washington Constitution provides greater protection of a person’s privacy rights than does the Fourth Amendment. Article 1, section 7 of the Washington Constitution focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.

Silver Platter Doctrine

Under the Silver Platter Doctrine, however, evidence lawfully obtained under the laws of another jurisdiction is admissible in Washington courts even if the manner the evidence was obtained would violate Washington law. Evidence is admissible under this doctrine when (1) the foreign jurisdiction lawfully obtained evidence and (2) the forum state’s officers did not act as agents or cooperate or assist the foreign jurisdiction.

“Martinez does not dispute that Texas lawfully obtained the hard drive,” reasoned the Court of Appeals. “And he does not challenge the trial court’s findings that Washington State Patrol (WSP) had no involvement in obtaining or serving the Texas warrant and that Texas police did not act as agents of WSP when they obtained or served the warrant.” Thus, under the silver platter doctrine, the evidence was admissible.

Next, the Court of Appeals rejected Martinez’ arguments that the silver platter doctrine does not apply here because the Texas officers did not conduct any search that would be unlawful in Washington. “The doctrine requires that the State show only two things: (1) the search was lawful in Texas and (2) the Washington officers did not act as agents for Texas or cooperate or assist Texas in any way,” said the Court. “Because the State proved this, the doctrine applies.”

Search Warrant

Next, Martinez argued that the warrant issued in Washington allowing the WSP to search his laptop computers and hard drives was overbroad. In response, the Court of Appeals reasoned that the Fourth Amendment provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Furthermore, the search warrant particularity requirement helps prevent general searches, the seizure of objects on the mistaken assumption that they fall within the issuing magistrate’s authorization, and the issuance of warrants on loose, vague, or doubtful bases of fact.

“When a search warrant authorizes a search for materials protected by the First Amendment, a greater degree of particularity is required, and we employ a more stringent test,” said the Court. “While the First Amendment presumptively protects obscene books and films, it does not protect child pornography involving actual minors.” Also, the Court of Appeals raised and dismissed Martinez’ arguments that the warrant was invalid for other reasons as well.

Spousal Privilege

The Court of Appeals addressed Martinez’ arguments that the trial court mistakenly admitted the testimony of his ex-wife regarding a conversation she shared with Mr. Martinez’ video of A.K. as being “nice to look at.” The Court reasoned that generally, a current or former spouse cannot be examined about confidential communications made during the marriage without the consent of the other spouse. It also explained that the marital privilege rule tries to encourage the free interchange of confidences between husband and wife that are necessary for mutual understanding and trust. “But in some situations the policies that underlie the right to invoke a testimonial privilege are outweighed by the suppression of truth that may result,” said the Court. “Thus, this spousal privilege does not apply in a criminal proceeding for a crime committed against a child for whom the spouse is a parent or guardian.”

The Court reasoned that here, West merely repeated statements by Martinez and did not comment about her belief in Martinez’s guilt. “We agree that these facts are sufficient for the jury to conclude that Martinez kept the recording for the purpose of sexual stimulation and that West’s testimony that Martinez said the recording was ‘nice to look at’ could not have materially affected the outcome of the trial,” said the Court.

Finally, the Court of Appeals raised and dismissed Martinez’ arguments that there was prosecutorial misconduct and ineffective assistance of counsel. “The Prosecutor’s general references were unlikely to have affected the jury’s verdict in light of the other incriminating evidence,” said the Court. Furthermore, Martinez does not show that his counsel’s failure to object to the Prosecutor’s case presentation was unreasonable and/or was not strategic.

With that, the Court of Appeals upheld Martinez’ conviction and sentence.

DOL Shared Info With ICE

Image result for DOL immigrant drivers licenses

According to reporters Shapiro and Davila, the Seattle Times first reported the agency’s practice Thursday, revealing that DOL was handing over personal information to federal authorities 20 to 30 times a month. The policy was surprising to many, given that Washington is among a minority of states to allow undocumented immigrants to get driver’s licenses.

 In another major shift announced in a news release Monday, DOL said it would use emergency rule-making to end its practice of collecting “information that isn’t mandated and could be misused,” specifically information on license applications about where a person was born.

The release did not say whether the application would continue to note the IDs a person used to obtain a license. Those IDs could include a foreign passport or other documents that might signal someone does not have legal status.

The agency also has accepted the resignation of Deputy Director Jeff DeVere. DeVere oversaw compliance with an executive order that Gov. Jay Inslee signed last year, designed to prevent state employees from helping federal officials enforce immigration laws — an attempt to thwart President Donald Trump’s approach to immigration enforcement.

Until questioned by The Seattle Times last week, Inslee’s office didn’t know the extent of DOL’s cooperation with the feds, according to his spokeswoman, Jaime Smith.

The response to the licensing department’s policy of cooperating with ICE was swift and furious. The governor ordered DOL to direct future requests from federal immigration officers to his general counsel. State lawmakers pledged to file a bill to ensure the practice was stopped.

Monday’s announcement from the department included an apology, and made clear that the offices of the governor and Attorney General Bob Ferguson had a hand in the changes.

“We support the Executive Order, but failed to meet the Governor’s intent regarding the protection of this type of information,” DOL Director Pat Kohler said in the news release. “We are sorry that our work did not align with our state’s values.”

She went on to say DOL “did not clearly communicate” the information federal law enforcement was requesting nor seek clarification with the governor’s office and the Legislature about how to handle those requests.

The agency also announced it would review its processes and computer systems with the governor’s and attorney general’s offices; hire a community liaison to ensure DOL practices “meet the needs of all Washington residents”; start a new hotline to answer questions about the issue; and educate agency staff on all policy and procedural changes and the governor’s executive order.

“The recent revelations about our state Department of Licensing’s failure to safeguard certain information from federal immigration officials has shaken and angered many communities” Inslee said in statement Monday. “It has angered me. I understand what’s at stake in getting this right, and the ramifications of what it means when we get it wrong,” the governor said. “I expect every employee in every one of my state agencies to understand this as well.”

Driverless Cars for Crime?

Image result for driverless cars crime

Informative article by Tim Johnson of McClatchy DC Bureau reports that driverless cars could potentially be used by criminals, hackers and terrorists who want to employ them for mayhem and criminal purposes.

“Self-driving cars may enable new crimes that we can’t even imagine today,” said Patrick Lin, director of the Ethics + Emerging Sciences Group at California Polytechnic University.

Johnson reports that the manufacture of self-driving cars is already underway among major automakers and Silicon Valley tech giants, and a handful of current models allow limited hands-free driving and even park themselves. Before long, experts say, totally autonomous vehicles will hit the roads, starting with taxis and fleet delivery vehicles.

The clearly visible potential danger, Lin and others say, focuses on vulnerability to hackers who could turn driverless autos into vehicles for mayhem if not into weapons themselves.

CAN ELECTRONIC CARS BE “TAMPER-PROOF?”

Lots of questions remain over whether the electronic systems of self-driving vehicles can be made tamperproof, and if humans aboard will be able to override if systems go haywire.

Some engineers say glitches are common and adoption is likely to be gradual.

“Most people don’t understand how easy it is to hack into a driverless car, and then basically steer it off course,” said Dr. Mary Cummings, a former Navy fighter pilot who heads the Humans and Autonomy Laboratory at Duke University’s Pratt School of Engineering.

Cummings said she views hackers as a greater threat than criminals or terrorists when it comes to autonomous vehicles.

“There’s no way I’d put my kid in a driverless car right now,” Cummings said.

THE FBI’s CONCERNS

Johnson reports that the FBI, in an unclassified report obtained by The Guardian in 2014, voiced concerned about how “game changing” autonomous cars may become for criminals, hackers and terrorists, turning the vehicles into more potentially lethal weapons than they are today. An FBI spokesperson did not immediately respond to a query about the impact of autonomous cars on law enforcement.

“The FBI is already worried about robo-getaway drivers, which frees up a suspect to shoot back,” Lin said. “Criminals might be able to make a better escape, if a road full of self-driving cars will always move out of the way when you threaten a collision.”

Criminals might commandeer self-driving vehicles and trap passengers inside until they pay a ransom, Lin said, or use camera-equipped models to case robbery locations over longer periods since the cars don’t need to eat or sleep. They can ditch accomplice drivers, who often have loose lips, as they conduct crimes.

Society still has to decide how much invasive technology it will permit in self-driving cars in the name of safety, experts said. Should they contain sensors to detect explosives or narcotics to halt terrorism and crime? Cameras to record what happens inside the vehicles?

“If law enforcement pulls over an empty self-driving car that’s carrying contraband, they can likely track down the user,” Lin said. “Cars aren’t as disposable as burner phones.”

HACKERS & TERRORISTS

Johnson reports that fears that hackers or terrorists could commandeer vehicles captivate the common imagination, fueled by Hollywood. Last year’s hit “The Fate of the Furious,” which tallied $1.1 billion in box office earnings, portrayed elite hackers guiding hundreds of cars speeding down New York’s Seventh Avenue, turning them into battering rams.

A less cinematic scenario, experts say, is that terrorists might use only one or two autonomous vehicles in an attack, perhaps blocking a tunnel leading into a metropolis to divert attention from a pending attack elsewhere in the city.

Terrorists might seek to program autonomous vehicles to carry out attacks far in the future, with explosives or as a weapon to plow into crowds.

“Can I instruct a car to do something a year in advance? What if I’ve been dead for most of that year?” asked Martin C. Libicki, an information technology and national security expert.

Such fears tend to eclipse consideration of how self-driving vehicles are bound to lead to a steady, dramatic drop in traffic fatalities. In 2016, 37,461 people died in traffic accidents.

“All of these things are evaluated through a political filter. Nobody writes headlines about the person who didn’t die in an auto accident. Everybody will write headlines about the person who died because of a self-driving car,” Libicki said.

The vast majority of fatalities are caused by drivers who are distracted, drunk, not wearing seat belts, sleepy or otherwise not paying full attention.

“Ninety-four percent of all crashes have an element of human error. We’re talking about enormously significant numbers,” said David Strickland, counsel for the Self-Driving Coalition for Safer Streets, a group representing companies like Ford, Uber, Lyft and Volvo developing autonomous vehicles.

“This is going to sound cold hearted,” began Arthur Rizer, director of criminal justice at R Street Institute, a conservative think tank in Washington, but the terrorist danger from autonomous vehicles “is minute compared to the lives that we will save just from reducing traffic accidents.”

Rizer said police departments across the country might face a drop in income as traffic fines and tickets decrease. Self-driving vehicles will be programmed to obey traffic laws. Traffic tickets cost drivers an average of $150.

“Revenue will plummet. Also, court revenues will plummet because courts make a lot of their money off of fees,” said Rizer, a former police officer and Justice Department prosecutor. Rizer said reducing the focus of police on traffic violations will certainly be part of a changing landscape for police forces brought about by autonomous vehicles. But he said police, too, will be freed somewhat from traffic patrols.

Yet to be seen is whether law enforcement will be empowered with remote “kill switches” for officers to use if they deem a self-driving vehicle to be operating suspiciously.

Lin concurred that as resources shift, police tactics will also need to shift.

“The police will no longer have a pretext for stopping a car if the vehicle never speeds, never drives recklessly, and so on,” Lin said. “Resources for highway patrols could be shifted to more targeted operations, if fewer traffic cops are needed.”

Prosecutors Use Body Camera Evidence

Image result for police body camera evidence

Interesting feature from  a correspondent for NPR who covers law enforcement and privacy issues. In this feature, he discusses how police body cameras are becoming key tools for prosecutors.

This year, police body cameras made the transition from experimental tech to standard equipment. Sales exploded after the 2014 Ferguson protests as police departments scrambled to refute claims of abuse. Now the cameras have become routine, but they’re not making a significant dent in the number of people shot and killed by police.

In this feauture from Weekend Edition Sunday, Kaste described how body cameras have become a standard piece of equipment for the criminal justice system.

“Prosecutors now use them far more often than – for police accountability, prosecutors are using it to make cases against defendants, against members of the public who are charged with crimes,” said Kaste. He also described how a survey last year conducted by George Mason University showed that prosecutors were far more likely to have used video to prosecute a member of the public than to use the video to prosecute a police officer.

“What we have really is technology that quickly became sort of required for prosecution in general,” said Mr. Kaste. “Juries now expect it, and the police in the field kind of feel the pressure to get video of themselves finding evidence.”

Kaste answered questions on whether citizens can use body camera video to support their own claims of police abuse.

“There’s no national standard on that, and that’s becoming more and more of a bone of contention,” he said. “In a lot of places, it’s considered a public record and you can request it. But a lot of cases, you don’t get to see the video because the case is under investigation, and that kind of puts it in limbo. Or, in places like California, Police departments have cited officer privacy. They kind of almost view it as a personnel record or something, and it takes a lot to get the video out,” said Mr. Kaste.

” . . . it’s gotten to the point where at least one academic I talked to this year said we should rethink the whole system and start giving the video to a third party to control, not to the police department.”

My opinion? Ultimately body-worn cameras (BWC’s) are a good thing. They provide non-objective evidence of what really happened instead of forcing us to rely on people’s stories. However, I agree with Mr. Kaste in his argument that obtaining the video is oftentimes difficult. It makes no sense that BWC evidence is released by the very same police departments that it’s made to scrutinize. This is the fox guarding the hen house. Consequently, attorneys must be incredibly careful, diligent and consistent on arguing public disclosure requests and motions to obtain pretrial discovery of this evidence.

Contact my office if you, a friend or family member faces criminal charges involving BWC evidence. Although it might work in a defendant’s favor, the evidence can be suppressed if it’s unfairly prejudicial against defendants under the rules of evidence.

 

Domestic Violence & Cell Phone Privacy

Image result for washington privacy act

In State v. Smith, the WA Supreme Court held that the accidental recording of a domestic violence confrontation between the defendant and his wife was admissible at trial and did not violate the defendant’s rights under the Washington Privacy Act.

BACKGROUND FACTS

John Garrett Smith and Sheryl Smith were married in 2011. On the evening of June 2, 2013, the Smiths engaged in an argument at their home that turned violent. During the incident, Mr. Smith used the home’s landline cordless phone to dial his cell phone in an attempt to locate the cell phone. The cell phone’s voice mail system recorded the incident because Mr. Smith left the landline open during his attempt to find his cell phone. This voice mail contained sounds of a woman screaming, a male claiming the woman brought the assault on herself, more screams from the female and name calling by the male.

Mr. Smith punched and strangled Mrs. Smith to the point of unconsciousness and then left their home. When Mrs. Smith regained consciousness, her eyes were black and swollen shut, her face was swollen and bleeding, and she had difficulty breathing.’ Mrs. Smith was hospitalized for several days due to the severity of her injuries, which included a facial fracture and a concussion. For months after the assault, she suffered severe head pain, double vision, nausea, and vertigo.

The State charged Mr. Smith with attempted first degree murder, attempted second degree murder, first degree assault, and second degree assault for the incident.

The Motion to Suppress & Trial

Prior to trial, Mr. Smith filed a motion to suppress the audio recording found on his cell phone that captured part of the incident, including him threatening to kill his wife. Mr. Smith argued that Ms. Williams had unlawfully intercepted the recording pursuant to the Washington Privacy Act, when she listened to the voice message left on his phone. The trial court denied the motion to suppress, ruling that Ms. Williams’s conduct did not constitute an interception. The court also ruled that Washington’s Privacy Act, which prohibits the recording of private conversations without consent, did not apply because the information was accidentally recorded.

The case proceeded to a bench trial. The trial court found Mr. Smith guilty of attempted second degree murder, second degree assault, and the related special allegations of domestic violence, but acquitted him of the remaining counts and the aggravator. Mr. Smith was sentenced to a standard range sentence of 144 months.

The Appeal

He appealed, and his appellate argument focused on the trial court’s denial of the motion to suppress. Smith continued to assert that the recording was unlawfully admitted because Ms. Williams had unlawfully intercepted it.

The Court of Appeals reversed Mr. Smith’s conviction for attempted second degree murder, holding that the trial court erred in denying the motion to suppress the recording of the incident because (1) the recording was of a “private conversation” and (2) Mr. Smith had unlawfully recorded the “private conversation,” despite the fact that the recording was made inadvertently. The Court of Appeals rejected Mr. Smith’s assertion that Ms. Williams had unlawfully intercepted the conversation, and decided the case on a different issue, that is, whether Mr. Smith’s actions violated the privacy act. The State sought review on the issue of how the privacy act is to be properly applied in this case.

ISSUE

Whether the voice mail recording is admissible in Mr. Smith’s criminal prosecution.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court  reverse the Court of Appeals and reinstated Mr. Smith’s attempted second degree murder conviction.

The Court reasoned that accidental, inadvertent recording on a cell phone voice mail of a domestic violence assault did not contain a “conversation” within the meaning of the privacy act, where the recorded verbal exchange consisted mostly of sounds of a woman screaming, a male claiming the woman brought the assault on herself, more screams from the female, name calling by the male, and the man stating he will kill the woman when she told him to get away. Furthermore, the owner of the cell phone was deemed to have consented to the voice mail recording due to his familiarity with that function.

The lead opinion was authored by Justice Madsen and signed by Justices Wiggins, Johnson and Owens. Justice González concurred in the result on the grounds that the defendant cannot invade his own privacy and cannot object about a recording he made being used against himself. Justice Gordon McCloud authored a separate concurring opinion, which was signed by Justices Stephens, Yu, and Fairhurst, in which she stated that the verbal exchange on the recording constitutes a “private” conversation which was solely admissible pursuant to statute.

“Revenge Porn” Outlawed by the Feds?

Image result for revenge porn

Excellent article by Brian Murphy and Andrea Drusch of mcclatchydc.com discusses how congressional lawmakers are pushing to make “revenge porn” or “sextortion” a federal crime.

Tuesday, Sens. Richard Burr, R-N.C., Kamala Harris, D-Calif., and Amy Klobuchar, D-Minn., said they’d sponsor the new legislation to make “revenge porn” a federal crime by passing a bill very similar to a bill introduced last year by Rep. Jackie Speier, D-Calif. Speier introduced the bill in the House again Tuesday.

According to the article, Rep. Joe Barton, a Texas Republican who is sponsoring the bill, said he shared a sexually explicit video and text messages with a woman he was seeing after he separated from his second wife. An image from that video of a naked Barton, now 68, appeared on the internet last week, becoming the talk of his hometown and spurring debate over criminal intent.

Barton apologized last week for the leaked video, saying he should have used better judgment. He also suggested he’d been the victim of the crime of revenge porn, which is illegal under Texas’s law, but not federal law.

Barton sent the video to a woman who he saw over the span of several years. In a recorded phone conversation that the woman gave to the Washington Post, Barton asked her not to use the video to hurt his career. She said she had no intention of doing so, but the video surfaced last week from an anonymous Twitter account.

Barton took the incident to the U.S. Capitol Police, but said last week he’d heard no word that an investigation had been opened.

According to Murphy and Drusch’s article, thirty-eight states and D.C. have laws against distributing “revenge porn.” The new federal legislation would make it “unlawful to knowingly distribute a private, visual depiction of an individual’s intimate parts or of an individual engaging in sexually explicit conduct, with reckless disregard for the individual’s lack of consent to the distribution, and for other purposes.”

Murphy and Drusch wrote that North Carolina passed legislation outlawing “revenge porn” in 2015 and updated the provision in 2017. The state law makes it illegal to post nude photos online without the consent of the victim.

The FBI defines “sextortion” as “when someone threatens to distribute your private and sensitive material if you don’t provide them images of a sexual nature, sexual favors, or money.”

In short, the proposed federal legislation would establish federal criminal liability for people who share private, explicit images without consent. In order to prosecute someone under the proposed law, officials would have to prove the defendant was aware of a substantial risk that the victim expected the image would remain private and that sharing could cause harm to the victim.

“Perpetrators of exploitation who seek to humiliate and shame their victims must be held accountable,” said Harris, the former attorney general of California who prosecuted operators of “revenge porn” sites. “It is long past time for the federal government to take action to give law enforcement the tools they need to crack down on these crimes.”

The bill provides up to five years in prison and/or unspecified fines.

My opinion? Washington State has already outlawed “revenge porn” as a Class C Felony under the “Disclosing Intimate Images” statute RCW 9A.86.010. Other states have also followed suit. It appears the feds are simply catching up.

Immediately contact my office if you, a friend or family member face criminal charges for distributing suggestive content online. It’s imperative to find a competent criminal defense attorney who can possibly suppress the evidence and/or convince prosecutors and judges to reduce or dismiss these egregious charges.

The Eyes Never Lie

Image result for The eyes expose our lies. Now AI is noticing.

Interesting article by reporter Matt McFarland of CNN describes new artificial intelligence (AI) which detects deception by tracking dilations in the pupils in our eyes.

A Utah-based company called Converus has developed technology called EyeDetect. It’s gaining popularity as a more affordable, less biased version of a polygraph exam, which has long been the gold standard for detecting lies.

EyeDetect relies on an algorithm that weighs a variety of factors. The key indicators are if a person’s eyes dilates while reading a question, and how fast they read questions. Our pupils dilate when we’re deceptive because lying takes more mental energy. The eyes allow in more light and information to help our brains with their added workload. This evolved as a survival instinct, according to David Raskin, a retired University of Utah professor, who worked on the team that developed the science behind EyeDetect.

According to McFarland, EyeDetect, which launched in 2014, is used today in 34 countries as part of job interviews and corporate investigations. Latin American banks, for example, use the technology to determine if their tellers can be trusted. Research has shown the accuracy rates of EyeDetect and polygraph are similar, both nearing 90%.

A person taking an EyeDetect exam sits at a desk and answers true-or-false questions on a tablet. An infrared camera tracks eye movement, blinking and pupil dilation. After 30 minutes, an algorithm scores their deceptiveness on a scale from zero to 100.

According to McFarland, some local U.S. law enforcement departments and private investigators have started using EyeDetect.

“The eyes are the window of the soul,” said Juan Becerra, an investigator at Panther Security and Investigations. He used to work with polygraphs at the FBI and now uses EyeDetect. “This is something that’s revolutionary and that’s going to change the entire deception detection field.”

Converus and the Utah scientists say the U.S. federal government has been slow to embrace the technology. The U.S. House of Representatives passed a bill this summer lifting the polygraph requirement for U.S. Customs and Border Patrol applicants to address staffing shortages. Advocates for the bill have said flaws in polygraphs have made it more difficult to fill open positions.

Apparently, a deceptive person will generally take longer to answer questions on a test, as they’re being careful. But on the specific questions they’re lying on, they will respond faster.

Raskin and the other Utah professors — a group of leading polygraph researchers who gravitated toward optical tests for deception — said there are several advantages to sensing lies through the human eyes. Polygraph exam results can be biased because humans administer and score the tests. EyeDetect removes the human element.

Ken Roberts, a deputy sheriff in the Dona Ana County Sheriff Department in Las Cruces, New Mexico, has switched from administering polygraphs to EyeDetect exams for pre-employment screenings. Roberts still sees some uses for polygraphs, such as interviewing a suspect in a homicide case, when tailored follow-up questions are necessary.

My opinion? Although interesting, this new technology could be viewed as a more technologically advanced version of junk science.

The general rule in Washington is that polygraph testimony is inadmissible unless it is agreed by both parties. This is because the accuracy (i.e., validity) of polygraph testing has long been controversial. An underlying problem is theoretical: there is no evidence that any pattern of physiological reactions is unique to deception. An honest person may be nervous when answering truthfully and a dishonest person may be non-anxious.

However, even if the test isn’t used in court, it can still be used by police during questioning. If that happens to you, make sure to have an experienced criminal lawyer present to make sure there’s no funny business such as leading questions and/or unscrupulous interrogation tactics.