TEXAS: APD Pot-Hunters Are Data-Mining at AE


Are you using 'too much' energy? Inquiring drug cops want to know.



BY JORDAN SMITH



Click here to see one of dozens of e-mails between APD's Jeff Haynes
and AE's Mark Coffey regarding their pot-grower hunt:
http://www.austinchronicle.com/media/content/561535/jeffemail.pdf


According to federal prosecutors, local Drug Enforcement
Administration agents, and at least one Austin Police Department
detective, for nearly three years Austin resident Travis Colby was
involved in a "conspiracy" to grow and sell large quantities of
marijuana cultivated inside several Austin properties he owns. Colby
denies any involvement in the alleged operation – instead, he says, it
was a former business partner and others who'd rented property from
him who were apparently cultivating. The available court documents in
fact contain little to suggest that Colby was involved in or even
aware of any marijuana-growing operations.

However, the court records do reflect – and city utility documents
appear to confirm – that the manner in which Austin police developed a
case against Colby, and against at least three other persons, was
questionable and possibly based on an illegal search. Colby's lawyer,
David Dudley, argues that APD Detective Jeff Haynes used
energy-consumption information from thousands of Austin Energy
customers – without those customers' knowledge or consent – in an
effort to find and focus upon AE customers who, in Haynes' opinion,
regularly consume more kilowatt-hours than he believed "typical" for
the size of their residence. In other words, rather than developing an
investigation and then accessing a discrete and particular set of
energy-consumption data in order to verify other evidence that
suggests a growing operation might be under way inside a particular
house, Haynes was working with AE, and in particular with business
process analyst Mark Coffey, to troll through thousands of records
from across Austin in an effort to find energy-consumption "targets"
to pursue.

AE officials insist their cooperation with APD is required of the city
utility – pursuant to a 1994 ruling from the Texas attorney general's
office and supported by federal legal precedent. Dudley believes the
revelation is "really quite shocking." What has happened in Austin, he
says, runs counter to a national trend to tighten security policies
regarding customer utility information. (For The Austin Chronicle's
Kill-a-Watt Challenge, by contrast, AE required each participant to
fill out an online form giving AE explicit permission to access and
review their account information. Not so for the APD.) Evidence Dudley
has uncovered "seems to indicate not only [that police were given]
their own password" to access AE's customer database but also "that AE
is acting almost as a law enforcement agency [helping] to facilitate
law enforcement search warrants."

According to Austin Energy spokesman Ed Clark, there isn't anything
illegal or improper in the way the AE data has been used by APD. "Yes,
it's legal," he says, "because we wouldn't do something that's
illegal." He notes that federal courts have ruled that even where
utility data is the "initial impetus" for an investigation, there is
no invasion of an individual's privacy. UT Law professor George Dix
says that under exist­ing law, when third parties (such as AE)
maintain customer records, such as utility account information,
consumers do not generally retain "any privacy interest" in the
information.

However, he said, the question of whether such data by itself is
enough to support probable cause for a search warrant is an entirely
different matter.

Fishing for Pot

The Chronicle has obtained e-mails between Coffey and Haynes, along
with several lists of AE customer data that Haynes apparently used to
fish for potential pot-growing operations. In combination with court
documents related to Colby's case, the records paint a disturbing
picture of how APD has been conducting at least some of its marijuana
investigations – and how the information was used, at least in Colby's
case, to develop probable cause for a search. The documents also
reflect an APD officer clearly pleased with the success of his
data-mining operation and simultaneously wary that his methods might
be inadvertently revealed. "So far ... the results you generated ...
have been VERY promising. ... Looks like at least 2 more good targets
for us," Haynes wrote in an April 19, 2006, e-mail to Coffey (whom he
addresses as "Markimus Maximus" – or, in other e-mails, as "da man").
"Thanks again for your help. ... I am going to be writing a little
memorandum trying to get you some recognition ... so don't be
surprised when your boss says something. ... Gonna try to keep it low
key (since we really can't afford direct publicity) but it should at
least be a little feather in your cap."

In a September 2006 search warrant, seeking access to Colby's home,
Haynes explains he "initiated" his investigation into the pot-growing
operation he alleges Colby is a part of by "checking the city of
Austin computerized utility records" for a particular address in
Austin – an address not connected to Colby. Once Haynes acquired the
utility information, he checked Travis Co. Appraisal District records
to determine the square footage of the residence (a duplex) at issue.
Cross checking the utility information with the tax information,
Haynes wrote that he "immediately observed that for structures of
their size the electrical consumption was disproportionate (very high)
for normal residential usage. Your affiant knows from experience and
training this to be typical of a residence where marijuana is being
grown indoors due to the high intensity lights, fans, and pumps used
in the process." According to Haynes, he could make this assumptive
leap because he has "significant experience analyzing computerized
electrical consumption data" that he has "utilized ... in the
successful investigation of numerous marijuana cultivation
operations." Haynes subsequently ran other checks to see who
previously held a utility account at the suspect address – noting that
when at least one other person lived there, the consumption had also
been "significantly higher" than he believed likely for a home of
about 1,000 square feet. Haynes then apparently checked other
properties where the individuals held, or previously held, accounts,
comparing that information against home size; Haynes then checked to
see who actually owned several of the other properties in question,
which is where he found Colby's name.

Aside from the utility data, however, there doesn't appear to be much
substance to the Haynes investigation – he notes seeing several people
acting "suspiciously" outside a Drive-Thru Postal location, though,
notably, he never sees anything illegal take place. Still, the
information compiled in Haynes' affidavit was apparently enough to
convince former Travis Co. Judge Jon Wisser that there was sufficient
probable cause to search five properties, including Colby's home. At
one of Colby's rental properties, police seized 20.2 pounds of pot and
equipment for cultivation. Notably, police found no contraband at
Colby's residence, although they did seize his gun collection (police
allege the guns were used to protect the illegal pot-growing
operation). Now, the feds have taken on the case, charging Colby as a
conspirator in his tenants' growing operation – and they're invoking
federal seizure laws in an attempt to take possession of each of
Colby's properties.

Aside from the mined utility "evidence," there is little of substance
to suggest that a growing operation would be found, Dudley notes. In
other words, he argues it is unlikely Wisser would have found probable
cause to search the properties at all without the information culled
from the AE database.

In a short statement released by APD last week, officials said that
the department "complies with all state and federal laws in regard to
investigative measures. The people of Austin expect no less. To
safeguard the effectiveness of those measures and the success of its
investigations, APD does not discuss specifics," the statement
continues. "However, every case must go through the legal process
where all tactics are reviewed. APD is confident that the measures it
utilizes follows the law."

Trolling the Data

Moreover, according to a series of e-mails between APD Detective
Haynes and AE analyst Coffey, it appears that mining utility
information for thousands of customers has been used as a key to
ferreting out possible lawbreakers based solely on raw consumption
data. For example, on April 4, Haynes asks Coffey to run a search for
"anyone [using] over 4,000 [kilowatt hours per month] over the last
few months or so," which he says might provide a "broader range" of
possible suspects. In another e-mail, Haynes tells Coffey to take his
time generating information because he was "still working a few cases
from the last batch you gave me." Besides, he notes, his suspects will
"still be growing next month." It is unclear how many fishing
expeditions Haynes and Coffey have embarked upon since APD signed the
utility database use and confidentiality agreement in 2002, but since
March 2006, it appears Haynes has received at least four batches of
utility user data – including at least two batches with information on
thousands of utility customers from all over Austin. One such search
provided APD with 44 printed pages of account-holder information for
about 2,000 customers living in 38 city ZIP codes. "And they said City
entities couldn't work together???" Haynes wrote in one e-mail to
Coffey. "Ha ha."

While getting city entities to work together might be an admirable
goal, Dudley maintains that the APD's use of utility records to
establish possible leads on marijuana growers appears to be a
violation of the Fourth Amendment's protection against unlawful search
and seizure. Importantly, he argues that in Colby's case, Haynes
improperly relied on the utility data to form "opinions that various
properties may be housing marijuana cultivation facilities due to the
supposed abnormally high power usage of their occupants" – opinions
that he transformed into the basis for probable cause to search
Colby's home.

In a motion seeking to suppress the results of the APD searches of
property owned by Colby, he writes that the utility information APD
used provided police with a window into the private lives of numerous
utility customers. Colby's case is quite similar to a 2001 U.S.
Supreme Court case, U.S. v. Kyllo, Dudley argues, in which the court
held that police use of a thermal-imaging device aimed at a private
home "to detect relative amounts of heat within the home" (in an
effort to determine whether Danny Lee Kyllo was growing marijuana
there) was a violation of the Fourth Amendment. "In the home ... all
details are intimate details, because the entire area is held safe
from prying government eyes," Justice Antonin Scalia wrote for the
court – and that includes "the detail of how warm – or even how
relatively warm Kyllo was heating his residence." During a suppression
hearing last month, Dudley says, one AE employee conceded that
electricity consumption information can offer a window into a person's
private life. It can reveal "when someone is home or not, when someone
showers or goes to bed," Dudley says. "There are all sorts of personal
things you can find out about somebody. The bottom line is that
[utility use alone can reveal] a lot [of] very personal, intimate things."

Dudley also argues that Haynes misled the court by claiming to be an
expert in analyzing utility usage. Haynes' claim that energy
consumption is directly related to the square footage of a given
structure is tenuous at best, Dudley argues. Yet Haynes' opinions
about "typical" consumption formed the "basis of his probable cause
statement" seeking permission to search Colby's residence. In a
memorandum filed with the court, Dudley cites the conclusion of a
defense expert, Buzz Thielemann, an energy consultant from Oregon who
previously worked with law enforcement during his tenure with Pacific
Power and Light, that "power usage differences between properties of a
similar size are, in and of themselves, far more likely to be
attributable to innocent factors – such as one house having electrical
heating while another uses gas – than to [indoor] marijuana
cultivation." (Assistant U.S. Attorney Douglas Gardner argues, oddly,
that Haynes never purported to be an "expert" and that regardless,
Colby lacks "standing" to contest a search of at least one of the
properties – the property where marijuana was actually found – because
Colby was merely the property's owner and not the current resident.
Yet the feds are using the evidence obtained from that search in order
to charge Colby as a party to the pot-growing enterprise.) In all,
Dudley argues that the manner in which APD used AE information in
general, and in Colby's case in particular, is "disturbing." The
"totality of the way this was conducted – culling, randomly, blocks
and blocks of residential [properties] to look at electrical
consumption data," he says, constitutes a "series of invasions of
privacy."

Whether Dudley's argument will prevail in federal court is uncertain.
His argument that the culling of AE customer records is as invasive as
using a thermal-imaging device, as in Kyllo, may not be compelling (at
least not under the current but arguably outmoded interpretation of
the Fourth Amendment). UT Law professor Dix believes that Dudley will
have a hard time tying the release of utility data to the facts of
Kyllo; nonetheless, Dix says the Supremes' rulings in this area may be
shortsighted. While the court may say that a person can't reasonably
believe that his utility records are private, the real question is
whether that is something that a "reasonable person" would expect. In
other words, Dix says, the "basic question is how you decide that
schmucks like me" wouldn't object to the disclosure of that data.
Under current precedent, he says, Dud­ley and Colby are facing an
"uphill fight."

At press time, federal District Judge Lee Yeakel had not yet ruled on
the motion to suppress evidence; Colby's trial is currently set to
begin Jan. 14.

Click here for a sample of the information AE provided to APD:
http://www.austinchronicle.com/media/content/561535/aeaccountscans.pdf


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