01-14-2025, 06:44 PM
The Device Warrant Was Patently Unconstitutional
I.
The Device Warrant was invalid because it lacked probable cause and was an unconstitutional general warrant. Moreover, in obtaining that warrant, the government intentionally omitted material facts that demonstrated that they lacked probable cause.
a. The Device Warrant Lacked Probable Cause
The Device Warrant lacked probable cause because it was based on the statement of an anonymous informant whose credibility was completely uncorroborated by subsequent investigation. Instead, the warrant affidavit rests on the fact that a threatening online post contained publicly available information-Daugherty's name, ham radio signal, and a photograph.
The Fourth Amendment to the United States Constitution protects the right of the people against unreasonable searches. Illinois adopted the same protections for its people in Article I, Section 6 of the Illinois Constitution. Evidence obtained as the result of an illegal search or seizure is inadmissible and must be suppressed. 725 ILCS 5/114-12(a)(2).
The Supreme Court of Illinois adopted the "totality of the circumstances" test to determine the sufficiency of probable cause to issue a warrant under the Illinois Constitution's Article I, Section 6. People v. Tisler, 103 Ill. 2d 226, 245 (1984). However, the court still employs the prongs of the Aguilar- Spinelli test as a useful tool in determining whether an informant's statement gives rise to probable cause. See id. This is consistent with the Supreme Court's decision in Gates which explained that "an informant's "veracity," "reliability" and "basis of knowledge" are all highly relevant... and "should be understood simply as closely intertwined issues that may usefully..." be used by courts to determine probable cause. Illinois v. Gates, 462 U.S. 213, 230 (1983). Aguilar-Spinelli requires a finding that: (1) the informant was reliable; and (2) that the informant had a sufficient basis of knowledge. See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v Texas, 378 U.S. 108 (1964).
The affidavit in this case fails both prongs of Aguilar-Spinelli. Although the affidavit explained that the FBI received a tip, it did not establish that the individual who made that tip was a known or reliable informant. Instead, it merely stated that the "FBI Springfield office received a tip..." that it was Todd E. Daugherty. Furthermore, it did not establish the individual's basis of knowledge that the post was made by Todd Daugherty as opposed to someone using his name and information to impersonate him. For example, it did not state that the tipster was a website administrator who had access to log files showing the user's connection to Todd Daugherty. Nor did it state the tipster was a friend or acquaintance who overheard him discussing the post. Therefore, neither prong of Aguilar-Spinnelli was met.
For similar reasons the Device Warrant fails the Gates "totality of circumstances" test. See Gates, 462 U.S. at 230. Neither probable cause nor reasonable suspicion can be based solely on an anonymous tip that merely provides the static details of a suspect's life along with an allegation of criminal conduct. See People v. Yarber, 279 Ill.App.3d 519, 529 (1996). This is true even when target has a prior criminal conviction. See id. at 523 (police confirmed Yarber's race, height, and weight through a criminal background check); see also United States v. Johnson, 427 F.3d 1053, 1057 (7th Cir. 2005).
In Florida v. J.L., an anonymous caller reported that a young black male was standing at a bus stop wearing a plaid shirt and carrying a gun. Florida v. J.L., 529 U.S. 266, 268 (2000). This anonymous tip was held to be insufficient even where police corroborated the location of the defendant and the type of clothing he was wearing. Id. at 272. This is because "[s]uch a tip...does not show that the tipster has knowledge of concealed criminal activity." Id. In Yarber, the fifth district extended that logic to a case where the anonymous tipster claimed that her best friends regularly bought cannabis from a man named Samuel Yarber and provided a physical description of Yarber, his address, and his place of employment. Yarber, 279 Ill.App.3d at 522. Police confirmed this information and stopped Yarber as he was leaving a train station. Id. at 521-522. However, the court found "reasonable and articulable suspicion requires more than corroboration of innocent details. Without verification of any other portion of the informant's tip, for all the police knew, Samuel Yarber was the victim of a malicious prank." Id. at 529. This holding is consistent with both federal and Illinois precedent. See e.g. United States v. Lopez, 907 F.3d 472, 482 (7th Cir. 2018) (when a tipster is unknown officers "must conduct and rely upon independent investigation to corroborate a tip before seizing a person."); People v. Lopez, 2018 IL App (1st) 153331 (App. Ct. 1st Dist. 2018) (insufficient corroboration of an anonymous tip).
The Yarber decision is controlling here. Here, Daugherty was linked to the account posting the threat by an anonymous tipster. The affidavit did not establish that the tipster was known to police or in any way reliable. To the contrary, they utilized a computer network designed by the U.S. Naval Research Laboratory to ensure they could not be traced. Although police confirmed that the user posting the threat used Daugherty's name, likeness and call sign, this was all publicly available static information. As the court pointed out in Yarber, "[w]ithout verification of any other portion of the informant's tip, for all the police knew, [Todd Daugherty] was the victim of a malicious prank." Yarber, 279 Ill.App.3d at at 529. The questionable value of the publicly available information in linking him to the account was further diminished by the affidavit's references to the fact that Daugherty told police he did not post on the site and was being "set up" by someone who was trying to have his ham radio license suspended by the FCC. The other information in the affidavit was merely gratuitous information about Daugherty's past conviction, for an unrelated threat on law enforcement and does nothing to establish a reliable link between him and the threatening post.
There are many ways in which an online post can be linked to a suspect. First, and by far the most common first step in any investigation is to connect someone through an IP address. To be sure, using an IP address to establish probable cause is not without problems. See e.g. Aaron Mackey et. Al. Unreliable Informants: IP Addresses, Digital Tips and Police Raids, pg. 6 (September 2016). However, courts have almost universally held that IP addresses are sufficient to establish probable cause to search the residence they are connected to. See e.g. United States v. Featherly, 846 F.3d 237, 240 (7th Cir. 2017); United States v. Vosburgh, 602 F.3d 512, 526-27 (3d Cir. 2010) (collecting cases from the Fifth, Sixth, Eighth, Ninth, and Tenth Circuits); United States v. Thomas, No. 5:12-CR-37 (CR), 2013 WL 6000484, at *24 (D.Vt. Nov. 8, 2013), aff'd, 788 F.3d 345 (2d Cir.2015); United States v. Perez, 484 F.3d 735, 740 (5th Cir. 2007); United States v. Morel, 922 F.3d 1 (1st Cir. 2019). Here, police obtained the Device Warrant before engaging in this critical first step. Police can also link people to online accounts through circumstantial evidence, however, that evidence must not consist solely of a few pieces of publicly available information. See e.g. United States v. Vayner, 769 F.3d 125 (2d Cir. 2014). In Vayner, the Second Circuit, while acknowledging that, "[t]he bar for authentication of evidence is not particularly high," held that a social media profile was not properly authenticated. Id. There the government introduced a printout of a "VK" profile (described as the Russian equivalent of Facebook) that a special agent printed off the internet the day of his testimony. Id. The Second Circuit overturned the Eastern District Court, finding that although "information about [the defendant] appeared on the VK page: his name, photograph, and some details about his life consistent with [the cooperating witness'] testimony about him... there was no evidence that [the defendant] himself had created the page or was responsible for its contents." Id. at 132. "Other than the page itself, moreover, no evidence in the record suggested that [the defendant] even had a VK profile page, much less that the page in question was that page. Nor was there any evidence that identity verification is necessary to create such a page with VK, which might also have helped render more than speculative the conclusion that the page in question belonged to [the defendant]." Id. at 133. The court hinted that the government's witness had both the motive and ability to create the page himself.
Specifically, the court stated, "all the information contained on the VK page allegedly tying the page to [the defendant] was also known by [the cooperating witness] and likely others, some of whom may have had reasons to create a profile page falsely attributed to the defendant." Id. at 132. Here, similarly, while the post had Daugherty's name, call sign, and photograph, all that information was publicly available. A simple check of the website logs could (and in fact later did) confirm whether there was a possibility that someone else was behind the post-especially given the statement by Daugherty that he was being set up. Similarly, while probable cause, like authentication, is not a high bar; it does impose some requirements of due diligence on the part of the government before they obtain a warrant to conduct a search of every electronic device in someone's home. Simply restating information posted on a website, like www.hateandflame.com, and asserting they were done by someone who denies posting them is not enough. This is especially true where the affidavit contains no information about what credentials an individual must supply in order to access the website, what the policies on impersonating others are, or how they are enforced.
Because the Device Warrant relied on an uncorroborated tip by an anonymous informant and static, publicly available information, it was not supported by probable cause and must be suppressed.
I.
The Device Warrant was invalid because it lacked probable cause and was an unconstitutional general warrant. Moreover, in obtaining that warrant, the government intentionally omitted material facts that demonstrated that they lacked probable cause.
a. The Device Warrant Lacked Probable Cause
The Device Warrant lacked probable cause because it was based on the statement of an anonymous informant whose credibility was completely uncorroborated by subsequent investigation. Instead, the warrant affidavit rests on the fact that a threatening online post contained publicly available information-Daugherty's name, ham radio signal, and a photograph.
The Fourth Amendment to the United States Constitution protects the right of the people against unreasonable searches. Illinois adopted the same protections for its people in Article I, Section 6 of the Illinois Constitution. Evidence obtained as the result of an illegal search or seizure is inadmissible and must be suppressed. 725 ILCS 5/114-12(a)(2).
The Supreme Court of Illinois adopted the "totality of the circumstances" test to determine the sufficiency of probable cause to issue a warrant under the Illinois Constitution's Article I, Section 6. People v. Tisler, 103 Ill. 2d 226, 245 (1984). However, the court still employs the prongs of the Aguilar- Spinelli test as a useful tool in determining whether an informant's statement gives rise to probable cause. See id. This is consistent with the Supreme Court's decision in Gates which explained that "an informant's "veracity," "reliability" and "basis of knowledge" are all highly relevant... and "should be understood simply as closely intertwined issues that may usefully..." be used by courts to determine probable cause. Illinois v. Gates, 462 U.S. 213, 230 (1983). Aguilar-Spinelli requires a finding that: (1) the informant was reliable; and (2) that the informant had a sufficient basis of knowledge. See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v Texas, 378 U.S. 108 (1964).
The affidavit in this case fails both prongs of Aguilar-Spinelli. Although the affidavit explained that the FBI received a tip, it did not establish that the individual who made that tip was a known or reliable informant. Instead, it merely stated that the "FBI Springfield office received a tip..." that it was Todd E. Daugherty. Furthermore, it did not establish the individual's basis of knowledge that the post was made by Todd Daugherty as opposed to someone using his name and information to impersonate him. For example, it did not state that the tipster was a website administrator who had access to log files showing the user's connection to Todd Daugherty. Nor did it state the tipster was a friend or acquaintance who overheard him discussing the post. Therefore, neither prong of Aguilar-Spinnelli was met.
For similar reasons the Device Warrant fails the Gates "totality of circumstances" test. See Gates, 462 U.S. at 230. Neither probable cause nor reasonable suspicion can be based solely on an anonymous tip that merely provides the static details of a suspect's life along with an allegation of criminal conduct. See People v. Yarber, 279 Ill.App.3d 519, 529 (1996). This is true even when target has a prior criminal conviction. See id. at 523 (police confirmed Yarber's race, height, and weight through a criminal background check); see also United States v. Johnson, 427 F.3d 1053, 1057 (7th Cir. 2005).
In Florida v. J.L., an anonymous caller reported that a young black male was standing at a bus stop wearing a plaid shirt and carrying a gun. Florida v. J.L., 529 U.S. 266, 268 (2000). This anonymous tip was held to be insufficient even where police corroborated the location of the defendant and the type of clothing he was wearing. Id. at 272. This is because "[s]uch a tip...does not show that the tipster has knowledge of concealed criminal activity." Id. In Yarber, the fifth district extended that logic to a case where the anonymous tipster claimed that her best friends regularly bought cannabis from a man named Samuel Yarber and provided a physical description of Yarber, his address, and his place of employment. Yarber, 279 Ill.App.3d at 522. Police confirmed this information and stopped Yarber as he was leaving a train station. Id. at 521-522. However, the court found "reasonable and articulable suspicion requires more than corroboration of innocent details. Without verification of any other portion of the informant's tip, for all the police knew, Samuel Yarber was the victim of a malicious prank." Id. at 529. This holding is consistent with both federal and Illinois precedent. See e.g. United States v. Lopez, 907 F.3d 472, 482 (7th Cir. 2018) (when a tipster is unknown officers "must conduct and rely upon independent investigation to corroborate a tip before seizing a person."); People v. Lopez, 2018 IL App (1st) 153331 (App. Ct. 1st Dist. 2018) (insufficient corroboration of an anonymous tip).
The Yarber decision is controlling here. Here, Daugherty was linked to the account posting the threat by an anonymous tipster. The affidavit did not establish that the tipster was known to police or in any way reliable. To the contrary, they utilized a computer network designed by the U.S. Naval Research Laboratory to ensure they could not be traced. Although police confirmed that the user posting the threat used Daugherty's name, likeness and call sign, this was all publicly available static information. As the court pointed out in Yarber, "[w]ithout verification of any other portion of the informant's tip, for all the police knew, [Todd Daugherty] was the victim of a malicious prank." Yarber, 279 Ill.App.3d at at 529. The questionable value of the publicly available information in linking him to the account was further diminished by the affidavit's references to the fact that Daugherty told police he did not post on the site and was being "set up" by someone who was trying to have his ham radio license suspended by the FCC. The other information in the affidavit was merely gratuitous information about Daugherty's past conviction, for an unrelated threat on law enforcement and does nothing to establish a reliable link between him and the threatening post.
There are many ways in which an online post can be linked to a suspect. First, and by far the most common first step in any investigation is to connect someone through an IP address. To be sure, using an IP address to establish probable cause is not without problems. See e.g. Aaron Mackey et. Al. Unreliable Informants: IP Addresses, Digital Tips and Police Raids, pg. 6 (September 2016). However, courts have almost universally held that IP addresses are sufficient to establish probable cause to search the residence they are connected to. See e.g. United States v. Featherly, 846 F.3d 237, 240 (7th Cir. 2017); United States v. Vosburgh, 602 F.3d 512, 526-27 (3d Cir. 2010) (collecting cases from the Fifth, Sixth, Eighth, Ninth, and Tenth Circuits); United States v. Thomas, No. 5:12-CR-37 (CR), 2013 WL 6000484, at *24 (D.Vt. Nov. 8, 2013), aff'd, 788 F.3d 345 (2d Cir.2015); United States v. Perez, 484 F.3d 735, 740 (5th Cir. 2007); United States v. Morel, 922 F.3d 1 (1st Cir. 2019). Here, police obtained the Device Warrant before engaging in this critical first step. Police can also link people to online accounts through circumstantial evidence, however, that evidence must not consist solely of a few pieces of publicly available information. See e.g. United States v. Vayner, 769 F.3d 125 (2d Cir. 2014). In Vayner, the Second Circuit, while acknowledging that, "[t]he bar for authentication of evidence is not particularly high," held that a social media profile was not properly authenticated. Id. There the government introduced a printout of a "VK" profile (described as the Russian equivalent of Facebook) that a special agent printed off the internet the day of his testimony. Id. The Second Circuit overturned the Eastern District Court, finding that although "information about [the defendant] appeared on the VK page: his name, photograph, and some details about his life consistent with [the cooperating witness'] testimony about him... there was no evidence that [the defendant] himself had created the page or was responsible for its contents." Id. at 132. "Other than the page itself, moreover, no evidence in the record suggested that [the defendant] even had a VK profile page, much less that the page in question was that page. Nor was there any evidence that identity verification is necessary to create such a page with VK, which might also have helped render more than speculative the conclusion that the page in question belonged to [the defendant]." Id. at 133. The court hinted that the government's witness had both the motive and ability to create the page himself.
Specifically, the court stated, "all the information contained on the VK page allegedly tying the page to [the defendant] was also known by [the cooperating witness] and likely others, some of whom may have had reasons to create a profile page falsely attributed to the defendant." Id. at 132. Here, similarly, while the post had Daugherty's name, call sign, and photograph, all that information was publicly available. A simple check of the website logs could (and in fact later did) confirm whether there was a possibility that someone else was behind the post-especially given the statement by Daugherty that he was being set up. Similarly, while probable cause, like authentication, is not a high bar; it does impose some requirements of due diligence on the part of the government before they obtain a warrant to conduct a search of every electronic device in someone's home. Simply restating information posted on a website, like www.hateandflame.com, and asserting they were done by someone who denies posting them is not enough. This is especially true where the affidavit contains no information about what credentials an individual must supply in order to access the website, what the policies on impersonating others are, or how they are enforced.
Because the Device Warrant relied on an uncorroborated tip by an anonymous informant and static, publicly available information, it was not supported by probable cause and must be suppressed.