[pdonis]

> a judge still needs to issue a warrant for the police to actually go and look at the file

Only in the future. Maher's conviction, based on the warrantless search, still stands because the court found that the "good faith exception" applies--the court affirmed the District Court's finding that the police officers who conducted the warrantless search had a good faith belief that no warrant was required for the search.

[AcerbicZero]

I wonder what happened to fruit of the poisoned tree? Seems a lot more liberty oriented than "good faith exception" when police don't think they need a warrant (because police never seem to "think" they need a warrant).

[alphazard]

This exactly. Bad people have to go free in order to incentivize good behavior by cops.

You and I (as innocent people) are more likely to be affected by bad police behavior than the few bad people themselves and so we support the bad people going free.

[HideousKojima]

>You and I (as innocent people) are more likely to be affected by bad police behavior than the few bad people themselves and so we support the bad people going free.

I know anecdotes aren't data, but my only negative interactions with cops have basically been for traffic tickets. Meanwhile my negative interactions with criminals have been far more numerous, along with several second-order effects caused by their mere existence (like not going to certain neighborhoods at night because of high crime rates). I don't think there's ever been a neighborhood law abiding citizens had to avoid because of fear of cops.

Maybe I'm some kind of crazy outlier, but I'm pretty sure that most innocent people are the same.

[RHSeeger]

> I don't think there's ever been a neighborhood law abiding citizens had to avoid because of fear of cops.

I think there's a fair number of stories of POC be accosted by police officers because they were in a neighborhood they didn't "belong" in, so your statement is likely inaccurate.

[rendall]

The threat to innocent people posed by incompetent or tyrannical police is arguably much greater than by ordinary criminality.

In small towns across America, corrupt police departments hassle outsiders and issue minor citations as a way to generate revenue. If someone is found to have large amounts of cash for some reason, they often will confiscate it in a process called civil forefeiture. Many US police officers act with impunity because their misconduct will be protected by local prosecutors and judges. There absolutely are towns and neighborhoods good people should avoid because of the police.

[wbl]

Dan White shot the mayor and a supervisor in cold blood and confessed everything to the cops. They managed to stop him from spilling out his premeditation on tape by interrupting him as his confession was getting rolling and the DA failed to win the easiest conviction of his career. The cops then went on a spree of beating people gratuitously in the Castro.

Cops aren't there to enforce the law without fear or favor. They routinely engage in petty corruption and complain when they have to be professional when on duty.

[Workaccount2]

There is a reality distortion field in existence now because almost every police interaction is recorded (body cams are everywhere nowadays) and the ones that go bad are put on full blast across social media and the news, despite them being somewhere on the order of 1 in 1,000,000 encounters.

Seriously, if car accidents were reported like police accidents, we probably would have been forced by confused ideologues to ban automobiles 2 years ago.

[shadowgovt]

Given that they're over 100 deaths a day in the US (as of 2022), we probably should consider car accidents more than we do.

(But they pretty much do report on them consistently on local news... People won't stop driving because the social benefit is so large).

[sarlalian]

That’s called luck.

Personally I’m a cis white male, who’s been a mostly law abiding citizen, and I’ve had dozens of poor interactions with police throughout my life. Additionally I have a probably unusual number of family and friends who work in law enforcement. The stories I’ve heard about co-workers from them are absolutely terrifying. My father’s (retired police officer) advice when I became a teenager was “only call the police when what is about to happen is worse than going to jail.”

I deeply respect the difficulty of the profession and don’t believe that all or even most police are bad people, but there are way too many who have no business being in that profession.

[DrillShopper]

Honest question: are you white?

[wizzwizz4]

> Bad people have to go free in order to incentivize good behavior by cops.

And they will, next time, and everyone knows it. We don't need an actual example of a bad person going free if the potential is certain enough.

Unless, of course, you're trying to encourage good behaviour in the general case (rather than a codified list of specifics); but that's expecting police officers to be experts in right and wrong. As obvious as such things are to me, I'm aware that a lot of people struggle a lot more with these things. (Or, perhaps, struggle less: I spend a lot of time thinking about morality and ethics, more than is reasonable to expect a salaried worker to spend.)

[refulgentis]

I think its okay that we expect cops to be good _after_ the rule exists, rather than set the bad guys free to (checks notes) incentivize cops to take our new rule super seriously.

[everforward]

It would seem that the inverse would need to apply in order for the justice system to have any semblance of impartiality. That is that we now have to let both of them off the hook, since neither had been specifically informed they weren’t allowed to do the thing beforehand.

That is why many people think this should be tossed out. Ignorance that an action was a crime is almost never an acceptable defense, so it should not be an acceptable offense either.

[refulgentis]

> we now have to let both of them off the hook, since neither had been specifically informed they weren’t allowed to do the thing beforehand.

I'm not trying to be funny, or aggressive, or passive aggressive, seriously: there's two entities in the discussion, the cops, and the person with a photograph with a hash matching child porn. I'm phrasing that as passively as possible because I want to avoid the tarpit of looking like I'm appealing to emotion:

Do you mean the hash-possessor weren't specifically informed it was illegal to possess said hash?

> It would seem that the inverse would need to apply in order for the justice system to have any semblance of impartiality...That is why many people think this should be tossed out.

Of course, I could be missing something here because I'm making a hash of parsing the first bit. But, no, if the cops in good faith make a mistake, there's centuries of jurisprudence behind not letting people go free for it, not novel with this case.

[everforward]

> Do you mean the hash-possessor weren't specifically informed it was illegal to possess said hash?

This is literally the doctrine behind the good faith argument and qualified immunity. If they have not been informed that this specific act, done in this specific way is not allowed then it is largely permissible.

A stupid but equivalent defense from the possessor would be “it’s in Googles possession, not mine, so I had a good faith belief that I did not possess the files”. It’s clearly wrong based on case law, but I wouldn’t expect the average person to have a great grasp of how possession works legally (nor would I claim to be an expert on it).

This is effectively what the good faith doctrine establishes for police, even though they really ought to at least have an inkling given that the law is an integral part of their jobs. As long as they can claim to be sufficiently stupid, it is permissible. That is not extended to the defense, for whom stupidity is never a defense.

> But, no, if the cops in good faith make a mistake, there's centuries of jurisprudence behind not letting people go free for it, not novel with this case.

Acting in good faith would be getting a warrant regardless, because the issue is not that time-sensitive and there are clear ambiguities here. They acted brashly under the assumption that if they were wrong, they could claim stupidity. It encourages the police to push the boundaries of legal behavior, because they still get to keep the evidence even if they are wrong and have committed an illegal search.

It is, yet again, rules for thee but not for me. Frankly, with the asymmetry of responsibility and experience with laws, the police should need to clear a MUCH higher bar to come within throwing distance of “good faith”.

[_Algernon_]

The 4th amendment was written in 1791

[GuB-42]

The 4th amendment is about unreasonable searches and seizures, it is also about "persons, houses, papers, and effects", that is, not files stored in someone else's computer.

The police here considered that a hash match was a reasonable enough condition to conduct a search, and that Google's TOS allowed it. They were wrong, but it is not obvious that they were by just reading the 4th amendment, and the situation is rather new, so it is reasonable to assume that the police acted in good faith.

[thanksgiving]

If I have documents in a locked briefcase in a hotel room, does the police get to read and copy them with the hotel operator's permission while I am in the shower? Assume that the locked briefcase is not particularly tamper proof. Anyone with decent lock picking skills can open one.

[salawat]

The type of person who cannot draw a line of semantic equivalence between papers and files on a computer, is uniquely devoted to entertaining a level of obtuseness it is hard to seriously entertain. On par with people who think that "Arms" in the second amendment must only apply to muskets, cannons and such, and nothing after.

Tell me. When you put a bunch of papers in a folder, then put them in a cabinet, arguably under some semblance of organization in order to make later retrieval easier, what are you doing?

Filing.

The entire desktop metaphor, (the basis around which most computer UI is based), was chosen in part specifically for it's compatibility with non-digital processes at the time of software and the personal computer's fruition. Files on a disk, are in a literal sense, your papers. They are stored in directories(lists of things and where to find them, a.k.a. folders), areanged under the abstractive auspices of a "file system", and at times "archived" for convenient storage or transport. Gee. Same verbage as what you do with papers... In fact, your papers have nothing to do with dead trees except as an accident of it being the first prevalent medium for persistent info storage. Your papers covers the set of information through which you conduct your business with the outside world.

Those packets of paper are files. Those collections of 0's and 1s on a disk are files. Files are papers. Papers are protected. The involvement of a computer in the chain suddenly nullifying the essence of what point was being made by the Founders is as worthy of ridicule as thinking they went to war with their colonial parent state only because of a tax spiff. Or the civil war being only about slavery. It's evidence of a worldview most tragically impoverished; either by accident (which while regrettable, is at least amenable to remedy), or intention to push a state of affairs; to which one can only shake one's head and push on with their own life, and hope that maybe there are enough like minded individuals out there to counterbalance the individual's in questions aspirations.

Already spent more cycles on this than I should have, good day.

[mobb_solo]

And one thing we learn as we've been hanging around in Time long enough to recognize larger cycles, is the world changes, people dont. Even as we change the world.

[banku_brougham]

That rule has been around for quite a while, and looks worse for wear now

[refulgentis]

> That rule has been around for quite a while

The rule established in this case is new, hence TFA, and all the time the lawyers and judge wasted on it :)

If I may suggest where wires are getting crossed:

You are sort of assuming it's like a logic gate: if 4th amendment violation, bad evidence, criminal must go free. So when you say "the rule", you mean "the 4th amendment", not the actual ruling.

That's not how it works, because that simple ultimatum also has edge cases. So we built up this whole system around nominating juries and judges, and paying lawyers, over centuries, to argue out complicated things like weighing intentionality.

[whoknew1122]

The cited ruling answers your question

The court ruled that at the time, when the State Police opened the file, they had no reason to believe that a warrant was required. While the search was later ruled unconstitutional, no court had ruled it was unconstitutional *at the time of the search*. One of the cornerstones of American jurisprudence is that you cannot go back in time and overrule decisions based on contemporary jurisprudence.

From the opinion: 'the exception can also apply where officers “committed a constitutional violation” by acting without a warrant under circumstances that “they did not reasonably know, at the time, [were] unconstitutional.”'

If you're interested, the discussion of a good faith exemption (and why fruit of the poison tree doesn't apply here) begins at page 40 of the doc.

[krageon]

As someone not from the US the fact that "uwu we didn't know" is an adequate defense for the police to do something illegal is really weird. Is there some crucial context I'm missing?

[whoknew1122]

It dates back to the constitutional ban on "ex post facto" laws. Meaning, the government can't retroactively make something illegal. Which is a good thing, IMO.

So, for example, it's illegal at the federal level to manufacture machine guns (and I'm not going to get into a gun debate or nuances as to what defines a machine gun--it's just an example). But a machine gun is legal as long as it was manufactured before the ban went into place. Because the government can't say "hey, destroy that thing that was legal to manufacture, purchase, and own when it was manufactured."

This concept is extrapolated here to say "The cops didn't do anything illegal at the time. We have determined this is illegal behavior now, but we can't use that to overturn police decisions that were made when the behavior wasn't illegal. In the future, cops won't be able to do this."

[chipsa]

The government has totally said “destroy the thing that we said was legal to manufacture, purchase, and own when it was manufactured.” That was the entire point of the bump stock ban, which attempted to reclassify an item that they had previously said was not a machine gun into a machinegun, and therefore illegal to own (and was always illegal to own, so they weren’t going to compensate people for them either).

More strictly, machine guns aren’t banned by the federal government, but rather you have to have paid a tax to own it, and they’ve banned paying the tax for gun made after X date. If they decide to ban the ownership, grandfathering is not guaranteed.

[michaelt]

> Because the government can't say "hey, destroy that thing that was legal to manufacture, purchase, and own when it was manufactured."

Actually that's a totally normal way for bans to work.

If a state decides to ban a book from school libraries, the libraries don't get to keep the books on the shelves because they already had it.

The ban on ex post facto laws merely means that, if a ban on a given book is passed today a librarian can't be punished for having it on the shelves yesterday.

Grandfathering in exceptions is just politics - make a bitter pill easier to swallow for the people most impacted; delay the costs of any remediation; deal with historical/museum pieces; and simplify enforcement.

[Nevermark]

> If a state decides to ban a book from school libraries, the libraries don't get to keep the books on the shelves because they already had it.

That isn’t comparable.

Comparable is a ban on printing that book. Which would not be a ban on existing already printed copies. It would only be a ban on new copies.

[Suppafly]

>It dates back to the constitutional ban on "ex post facto" laws.

Not really, that's not now constitutionality works with respect to the government. Ex post facto is when the government wants to act against you, not when you want the government to behave. They use new decisions regarding constitutionality to undo previous decisions all the time, they just don't want to in this specific case and are using the "well they would have been able to get a warrant anyway if they had known they'd needed one" to justify it.

[Izkata]

It wasn't illegal (unconstitutional) at the time they did it, which is different from not knowing. They would have had to see the future to know.

Also keep in mind "illegal" and "unconstitutional" are different levels - "illegal" deals with specific laws, "unconstitutional" deals with violating a person's rights. Laws can be declared unconstitutional and repealed.

[whoknew1122]

Laws can also be unconstitutional and remain a law--the law just can't be enforced. For example, in the state of Texas sodomy is still technically illegal, just the law is unenforceable. But if the Supreme Court overrules previous court decisions and says anti-sodomy laws are constitutional, the Texas law immediately becomes enforceable again.

The law is super complicated.

[stronglikedan]

I don't know. I feel that if something is declared "unconstitutional" today, then it was always unconstitutional (from inception of or amendment to the constitution). Unlike "illegal" in which laws can come and go, so something that is illegal today can be legal tomorrow. And just like "ignorance is no excuse for breaking a law", I don't thing ignorance should be an excuse for doing something unconstitutional.

[thinkingtoilet]

Just another way cops can be terrible at their job and get away with it. If only citizens could use the Chappelle defense, "I'm sorry officer, I didn't know I couldn't do that".

[whoknew1122]

Let's be clear. This guy had CSAM and was caught using digital forensics. The cops would've been able to secure the search warrant at the time had they been required to do so.

This isn't some innocent person who is spending time in prison because of a legal technicality.

[thinkingtoilet]

I understand but this is literally how rights are eroded away. It's all good when it's the worst people on the planet, but very quickly it's abused against every one else. Once these rights go away, they don't come back.

[Dylan16807]

The systemic downsides of police overreach happen whether or not a particular person was guilty. In general, throwing out the evidence is an effective way to fight back against overreach. I'm not worried about this guy, I'm worried about everyone else.

The idea that they would have been able to get a warrant limits the damage, but it's still iffy.

[dsubburam]

The opinion says at the time the warrantless search occurred, one appellate court had already held "that no warrant was required in those circumstances" (p 42). Only a year after the search occurred, did another appellate court rule the other way.

This is the main argument that the search met the good faith exception to the exclusionary rule (i.e. the rule that says you have to exclude evidence improperly obtained). This exception is supported in the opinion (at p41) with several citations including United States v. Ganias, 824 F.3d 199, 221–22 (2d Cir. 2016)

[CGamesPlay]

IANAL, but as I understood, this exception is specifically about cases where precedence is established. This same trick or others substantially like it won't work in the future, but because it was not a "known trick", the conviction still stands.

[K0balt]

Not only that, prior to the search another court had ruled that no warrant was required. The new ruling overrides the old one, but the search was in good faith.

[K0balt]

Prior to the search. A lower court had ruled that no warrant was required. The search was in good faith. The new ruling overturns the earlier ruling, but before, it had been ruled legal to do this kind of warrantless search.

[singleshot_]

Davis v. U.S. 564 U.S. 229