So here's the problem that I have with most of these types of cases, where police don't follow proper procedure to capture a suspect. Let's say they went through normal procedures -- get a sketch artist to make a possibly inaccurate caricature of the suspect, and use that to make an arrest, and have the victim ID the suspect. This has a good chance of convicting the wrong person. First, if the sketch is inaccurate, the victim may have that image in there mind afterwards, which would influence picking out the suspect from a lineup.
Now, using the alternative procedure, in which the police are tracking down the victim's stolen phone (I'm assuming with the victim's blessing), there is a much higher chance of getting the right suspect.
So, how do you argue with someone that the police should use inferior (but legal) evidence to put the (possibly wrong) person away, instead of using more accurate (but 4'th amendment violating) evidence to get the right person? Now in cases where proper procedure always gives superior evidence, then it is easier to argue for that (such as standards for collecting DNA evidence to avoid contamination). But in other cases, it is possible that unauthorized methods can lead police away from an innocent person and toward the guilty one.
No, the police should just have filed for a search warrant to track the phone. They would have gotten it if your summary of the case is accurate.
If police are allowed to violate procedure and still get to prosecute, there's no incentive for them to ever follow proper procedure. The reason the Fourth Amendment exists is precisely because these lessons were already learned hundreds of years ago, but we seem to have forgotten that police who hold completely authority to determine what is and is not a reasonable search will inevitably abuse that power.
If the rightful owner of the phone consented, I don't see how the police could need a warrant unless it was necessary to win the cooperation of the carrier.
The 'rightful' owner of the property is a question determined by a court not the police. Thus the police cannot use assertions from the person who claims to own the property to search the contents of another persons property.
Which is the entire fucking point of having judges review the claims of police and potential victims of crime. If they took it to a judge a judge could make a determination of whether the search the police of trying to conduct is reasonable based on prima facie evidence and the dangers to society posed both by the alleged crime and the search.
That's why the police can't knock down every door in the city to search for a stolen phone whereas for a nuclear bomb that request might be granted. Of course the 'owner' of the phone is going to consent to everyone elses house in the city being searched.
We're not talking about the necessity of a warrant to enter and search a building for a phone, we're talking about whether a warrant is needed to electronically track the phone to get its GPS coordinates.
The particular method used by the cops in the article is indiscriminately broad, but with cooperation of the carriers the same can be accomplished without revealing the the location of any third party's handset. Likewise with even the slightest bit of cooperation from the carriers, the true owner of the handset can be identified by having the carrier verify whether the complainant is the person who holds the service contract for the phone. So clearly this process can be done without exposing any information other than GPS coordinates of the phone, and I don't see how that would require a warrant - it's information the carriers ought to be required to provide to the customer upon request, and them authenticating that information to law enforcement upon request by the customer doesn't infringe anyone's rights.
No one is saying that the police should use inferior techniques. Framing your position in such a manner reduces it to a straw man.
What is being stated is that some techniques are so powerful that they require oversight. This is nothing new. This goes back to the origins of our system of law. The oversight is provided by requiring police to obtain a warrant.
How it would it violate the 4th amendment to track the location of an individual's phone with their consent? If the location of the phone happens to be in another person's pocket, wouldn't that provide reasonable suspicion that a crime was committed, allowing the police to further investigate that individual?
I suppose the distinction is in how the police track the victim's phone.
If a phone is stolen in a mall do you think it's reasonable for police to setup checkpoints at all entrances and exits and body cavity search everyone who goes in and out with out judicial oversight based only on the assertions of the alleged victim?
Or do you think a search like that might warrant judicial oversight?
> I suppose the distinction is in how the police track the victim's phone.
If they're tracking it by scooping up all the cellphone traffic in an area, which they're alleged to have done here, then it triggers the privacy rights of the people who aren't involved and just happen to be in the area, and hence should be done with judicial oversight.
> So, how do you argue with someone that the police should use inferior (but legal) evidence to put the (possibly wrong) person away, instead of using more accurate (but 4'th amendment violating) evidence to get the right person?
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If the standard of the inferior evidence didn't exceed reasonable doubt, then the person shouldn't have been put away anyway. The evidence simply isn't strong enough. It might perhaps be strong enough to get a warrant for further information, but if we're arguing for the worst case then we'll assume it's not.
If the evidence is strong enough to place the person beyond a reasonable doubt, then the value of the extra information goes down dramatically.
There are situations where you just can't get sufficient evidence given the resources you can legally, ethically and practically use. At which point you have to choose: Do you lower your standard of evidence, weaken your liberties by allowing unethical or illegal practices, or let someone guilty go free?
Personally, I favour the latter option. But there are, at least, three different answers that someone might have - and if I had to argue with someone about police procedure then I'd be inclined to explore the options and the potential consequences of each.
It's very tough, because it's easy to say after the fact if anyone has been harmed. There's also the concept of turning into a police state, which is bad, while you can argue away an individual wiretap.
My 2 cents... Beating suspects is 100% bad. So is blackmailing. They destroy trust in the system.
Wiretapping is touchier. If it reduces the amount of false convictions, is it worth giving up some aggregate civil liberty?
Wiretapping without adequate oversight eventually destroys civil governance as it is just as effective a tool for social manipulation as it is for criminal evidence gathering.
I think this old proverb is appropriate here. What seems acceptable today can and will be used to persecute dissent. That is the nature of humans as we exist today.
Now, using the alternative procedure, in which the police are tracking down the victim's stolen phone (I'm assuming with the victim's blessing), there is a much higher chance of getting the right suspect.
So, how do you argue with someone that the police should use inferior (but legal) evidence to put the (possibly wrong) person away, instead of using more accurate (but 4'th amendment violating) evidence to get the right person? Now in cases where proper procedure always gives superior evidence, then it is easier to argue for that (such as standards for collecting DNA evidence to avoid contamination). But in other cases, it is possible that unauthorized methods can lead police away from an innocent person and toward the guilty one.