from the just-do-it-whenever-doesn’t-seem-too-Constitutional dept
A robbery/kidnapping case allegedly implicating business owner and immigrant Evgeni Kopankov has resulted in the government losing the evidence it took it oh so long to obtain. And the government has only itself to blame for how this went down.
Kopankov was arrested in 2019 for his supposed involvement in a conspiracy to rob (and, if need be, kidnap) the targets of this robbery. The trial judge allowed Kopankov to be released on bail, citing several things that suggested Kopankov had been dragged into a criminal conspiracy by far more dangerous criminals, rather than being the violent reprobate the government portrayed him as.
The government’s own evidence and testimony appeared to be severely flawed as well, according to Kopankov’s lawyer. What was portrayed as criminal activity was often just Kopankov hoping to placate actual, extremely violent criminals he happened to encounter while trying to assist other new arrivals from his native land.
Maybe Kopankov isn’t actually innocent. Maybe he did help further criminal conspiracies. Maybe he did willingly consort with violent criminals who had recently immigrated to the United States.
At this point, it doesn’t matter. The government screwed up. It tried one thing and it took too long to accomplish. For failing to do its job competently, the government hoped the federal court would overlook the means and focus on the ends instead. This effort failed, as Orin Kerr reports for the Volokh Conspiracy in a post that plainly suggests the government should never be subjected to temporal limits on search warrants. (I am not kidding. Kerr insists warrants — if legally obtained — should be good for forever. Read it yourself.)
Kerr is a Fourth Amendment expert. But, in my opinion, he often forgets what warrants actually are: permission slips for the government to violate rights. That’s what they actually are. The Constitution forbids unreasonable searches. Cops invading anyone’s private residence (or cell phone contents, especially in light of the Riley decision) is a clear violation of rights. It’s only permissible because the system of checks and balances has determined the government has probable cause to perform an intrusive search in order to preserve public order, protect certain government interests, and engage in the business of law enforcement.
It’s still a rights violation, even if there’s a warrant. It’s just that the warrant pushes aside those rights to serve the government’s (hopefully justifiable) needs. Keep that in mind. When people like Kerr tell you no judge should impose restrictions on warrant service, that’s basically saying the government should be allowed to violate rights whether or not the check/balance (that being the judge signing off on the warrant) says it’s OK to do so past a certain point in time. That’s not a good argument to make. And the argument doesn’t get any better than that in Kerr’s post.
But enough about that. I am a fan and follower of Orin Kerr because he does actually think about these issues and routinely highlights interesting Fourth Amendment cases. He’s not always wrong. But he does tend to grant the government far more leeway than it deserves. And certainly more leeway than it has earned.
It hasn’t earned it here. The government decided only one method of obtaining evidence was acceptable: cracking Korpankov’s phone. The record shows no other attempt to obtain evidence (a search of Korpankov’s online accounts, compelled decryption, etc.) was ever attempted. The government handed the phone over to some phone cracking experts. The experts couldn’t do it. So the FBI hooked it up to a computer and began brute forcing it into submission.
The warrant the FBI secured granted it access to the phone’s contents. The FBI also agreed to review a forensic review of the mirrored phone within 120 days. The FBI did not argue with this stipulation when it was delivered to it by the judge.
It worked within the restraints imposed by the warrant… for a little while. Then it decided this part of the warrant no longer mattered.
Because Attachment C imposed a time limit for the government to “make a mirror image of the contents of the device,” in March 2021, the government requested an extension until June 20, 2021 to access the device. That extension, if granted, would have expired on June 20, 2021. But the “brute force” attack appears to have continuously operated from at least June 17, 2020, until the password was discovered on May 2, 2023.
The phone was seized from Kopankov on April 3, 2019. The FBI’s search didn’t begin in earnest until a year later (April 30, 2020). It requested one extension in March 2020. Then it just stopped talking to the court. It didn’t resume this conversation for three years. It was only after the passcode was cracked in April 2023 that the FBI deigned to approach the court, this time asking for permission to search the same phone it had obtained a warrant for back in 2020. Notably, this warrant request was only made because the FBI had finally cracked the phone and made a forensic copy of its contents. If it had not managed to crack the phone, chances are the FBI would still be trying. And still failing to ask the court for extensions to the warrant’s time limit.
The FBI conceded as much in its filings. It had failed to comply with the warrant’s limits. And it had deliberately failed to ask for time extensions — something it almost certainly would have been granted if it had been honest with the magistrate judge about the obstacles it was facing.
The FBI argued that the forensic copy made after the passcode was cracked was not a search. Instead, it claimed the attempt to access the phone’s contents — an effort stymied for three years — was the only search performed. And even if that wasn’t the search, the FBI should be granted good faith for [squints at court decision] deciding it didn’t need the court’s approval to exceed the original warrant’s time limit.
The government got a warrant. But it expired. The government concedes it violated Attachment C by mirroring the device after the time to do so expired. But it argues that mirroring was not a “search” and did not require a valid search warrant.
But even if we’re wrong, we’re still in the right, the FBI argues. Wrong. And wronger.
A small constitutional violation is no less a constitutional violation. Indeed, “two days before a new warrant is obtained” is just a creative way to say, “almost two years after the original warrant expired.” The government admits it did not search the phone pursuant to a valid warrant. The excuse that the examiner did not need a warrant because he had probable cause is wrong.
Still, the government persists. We may be wrong but that doesn’t mean we should lose the evidence we barely worked three long years to obtain. Wrong again. That it took the government three years to access a phone it obviously hoped to crack in less than three months doesn’t matter. The government can’t pull this shit in the physical world. It will not be allowed to pull this same shit just because it involves a device plugged into law enforcement tech.
The examiner effectively stood on Defendant’s doorstep and tried fitting different keys into his front door lock for years after the warrant expired. Then, when the door finally opened, the government entered the threshold and seized the information therein and reviewed some (but admittedly not all) of it. Now the government asks to excuse this unlawful entry because the government “had been hoping for the phone to be accessed for years.” (Dkt. No. 304 at 8.) Maybe so. But they only got a warrant after the illegal search yielded the information they hoped for.
True, a house is not a phone. And equally true, it’s unlikely a phone’s contents will change as much as a house’s contents during a three-year span, especially when controlled by the government. But there’s no guarantee the contents of either of these hypotheticals will be identical to the state the government first found them in. And it only encourages government abuse to allow the law enforcement to blow off warrant restrictions just because their initial search attempt was fruitless.
And because it would be damaging to rights and citizens to allow the government to ignore warrant stipulations, the court says the FBI investigators can’t avail themselves of the good faith exception.
The government knew it needed to obtain a warrant extension to comply with Attachment C. Indeed, it claims it did so once. But it failed to do so here. The government cites no declaration to support its statement that “the examiner. . . was relying on a search warrant signed by a magistrate judge.” Indeed, the examiner’s declaration does not even contain the word warrant. So, the government knew it needed a warrant. But it only sought one after the search had occurred.
That troubling omission justifies exclusion to deter such deliberate indifference to Fourth Amendment rights in the future. The government claims this situation is unlikely to reoccur. But the evidence is to the contrary. The government’s declarations describe “entire racks of phones” undergoing “brute force attacks for years.” So this not only can, but will happen again unless the government ensures it has a valid—and generally required—warrant to peer inside those phones.
All the FBI had to do was ask the court for more extensions. I’m sure the magistrate would have been understanding of the obstacles in front of the FBI’s (apparently sole) path. That it chose not to do the simple thing should be reason enough to deny it access to this evidence. That the FBI claims it was still trying to do things the right way, despite all evidence to the contrary, is reason enough to punish it for pretending doing nothing is the same as doing something.
Not placing time restraints on warrants encourages misconduct. When the government wants to bypass rights, it should be forced to do it as quickly as possible. Without these ex ante restraints (the ones Orin Kerr believes somehow violate the government’s rights, as if that were even a thing), law enforcement could swear out warrants and deploy them whenever officers felt they had the opportunity to obtain evidence unrelated to the particulars of the sworn affidavit. That it took the government three years to break into this phone may suck for the government, but that’s the way this is supposed to work. Breaching constitutional protections isn’t supposed to be easy. The government is expected to bear the weight of its intrusions and do so lawfully. The FBI failed here. And for once, a judge has the honesty to call bullshit.
Filed Under: 4th amendment, evgeni kopankov, evidence, fbi, phone cracking, search warrant
Source : https://www.techdirt.com/2023/05/25/judge-tosses-evidence-after-government-took-more-than-three-years-to-crack-a-suspects-phone/