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Maggie Crane at KMOV News 4 reports:

The Madison County State’s Attorney says the searches will be used in major crimes but that police can also search your phone if you’re arrested.

Cell phone texts and photos don’t die, they hide.  Even a factory reset doesn’t mean the data disappears forever.  But it has slowed down justice, until now.

“When you’re talking even a month delay, you can lose critical time in investigations,” Madison County State’s Attorney Tom Gibbons said.  “What this does is cuts that out.”

It’s called Cellebrite.  It’s a brand new tool for police to pull out any information accused criminals might have hiding in their phones.  Gibbons says it’s crucial when a child is in danger or police come across a drug overdose.  These days, he says a lot of the critical information lives on cell phones.

“In the time that is most critical—immediately after that happens—law enforcement needs to be able to track down where those drugs came from and find out how we get back to the dealer to try to hold that person accountable,” Gibbons said.

Instead of waiting sometimes months for the state crime lab to extract the information, Cellebrite allows police to do it immediately, right at the scene of a crime.  And it doesn’t cost you a dime.

It’s the bad guys who are paying for it.  Money seized and forfeited from crimes is buying the new technology for all of Madison County law enforcement.  So far, the Madison County Sheriff’s Department and the Alton Police Department have Cellebrites.

It’s not just that the Madison County law enforcement are getting their Cellebrite surveillance funding from forfeiture dollars. Alert readers might remember that Madison County is well known for its overaggressive law enforcement, as Star Trek fan Terrance Huff found out when he was illegally searched last Decemeber:

Writing in the Huffington Post, journalist Radley Balko describes Madison County as a “forfeiture corridor“:

Asset forfeiture is the process by which law enforcement agencies can take possession of property suspected of being tied to illegal activity. Under these laws, the property itself is presumed to be guilty of criminal activity. Once the property has been seized, it’s up to the owner to prove he obtained the property legitimately.

In about 80 percent of civil asset forfeiture cases, the property owner is never charged with a crime. And in Illinois — like many states — the law enforcement agency that makes the seizure gets to keep the cash or the proceeds of the forfeiture auction (in Illinois, the prosecutor’s office gets 10-12 percent).

Critics say civil asset forfeiture is rife with poor incentives, and violates the Fifth Amendment’s protection against seizure of property without due process of law. Police can seize a car, cash, even a home on the flimsiest of evidence.

Madison County, Ill., where Huff was pulled over, is bisected by I-70 just outside of St. Louis. Interstates are a particularly rich ground for forfeiture. Law enforcement officials say that’s because interstates are ideal for drug running.

Critics say it’s because police can target out-of-state drivers, who are more likely than local residents to accept a police officer’s baseless accusations and turn over their property, rather than refuse and face arrest, multiple returns to the state for court dates and thousands of dollars in legal expenses. Sometimes winning the property back can exceed the actual value of the property.

In other words, Madison County’s forfeiture racket allows its law enforcement agencies to fund ever more aggressive policing tactics in the hunt for more revenue. Indeed, the Cellebrite technology allows law enforcement the power to leverage illegal highway stops and false arrests into witch hunts through personal notes, records, and documents that can provide law enforcement with information about property to seize. Indeed, as the Seventh Circuit Court of Appeals has noted:

A modern cell phone is in one aspect a diary writ large. Even when used primarily for business it is quite likely to contain, or provide ready access to, a vast body of personal data. The potential invasion of privacy in a search of a cell phone is greater than in a search of a “container” in a conventional sense even when the conventional container is a purse that contains an address book (itself a container) and photos. Judges are becoming aware that a computer (and remember that a modern cell phone is a computer) is not just another purse or address book. USA v. Abel Flores-Lopez, No. 10-3803 (7th Cir., Feb. 2, 2012)

The Institute for Justice grades Illinois’s forfeiture law a D, noting:

Illinois has burdensome civil forfeiture laws for property owners, and these laws provide the bulk of forfeiture proceeds to law enforcement.  The state need only show probable cause to forfeit your property.  If you believe your property has been wrongly seized, you bear the burden of proving your innocence.

Moreover, law enforcement keeps 90 percent the proceeds for any sales of seized property, which creates a strong incentive for law enforcement to police for profit.  Despite these broad laws, there is no requirement in Illinois that law enforcement account for forfeited currency and property, so we know little about its use under state law.  We do know law enforcement in Illinois takes great advantage of federal equitable sharing, receiving back nearly $88 million from 2000 to 2008.

Constitutional scholar Ilya Somin provides further warning:

In other words, DAFPA authorizes the government to take away the valuable property of completely innocent people for over six months at a time, without giving the owner any opportunity to contest the seizure whatsoever. The 187 day time limit applies to any personal property worth less than $20,000, which includes most cars. And, even after an asset forfeiture action is filed, many more months might pass before any court actually hears the case. In this case, the three cars were held by the police for over a year.

Laws like DAFPA pose a serious danger to the property rights of innocent people caught up in the War on Drugs. In many jurisdictions, police departments are allowed to auction off property seized in drug investigations and keep the profits, giving them a clear incentive to seize cars first and ask questions later. Moreover, many of the people whose cars are seized are poor or minorities. They often lack the political power necessary to persuade police to release their property without judicial intervention.

Clearly, the time has come to consider the abolition of civil forfeiture entirely, for the protection of the American rights to property, due process, and the equal protection of law.

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