When a drive dies

Build Log:

I first built Nasira and put it into operation in early 2016. The initial build-out was a pair of 4TB WD Red drives. And based on an article I read at the time, I made a mental note to buy Seagate drives when purchasing the next pair of 4TB drives. That was in early March 2016.

On September 6, I got an alert from Nasira that one of those Seagate 4TB drives was showing errors and the drive was knocked offline. So that was about 5 1/2 years in service before a drive died.

So why am I writing about this? To go over what I should’ve been doing before the drive died to make the replacement process a little smoother, while discussing a few other things I’ve discovered or realized over the years I’ve had the NAS.

Drive inventory

This was the first mistake I made. Nasira is currently in a 4U chassis with 12 hot-swap drive bays. Now when you have that many drives, or just more than two, it’s a good idea to have a chart or spreadsheet saved off that looks somewhat like this:

BayNameDriveSerial No.
1da0WD Red 4TBWD-WCC4XXXXXXXX
2da1WD Red 4TB WD-WCC4XXXXXXXX
3da2WD Red 4TB WD-WCC4XXXXXXXX
4da3WD Red 4TB WD-WCC4XXXXXXXX

Noting the drive bay and connection name is important for immediate reference. That’ll prevent you from having to do what I did: shut down the NAS to pull drives to find the one to be replaced. Though shutting it down was a good idea anyway to mitigate the risk of another drive failure before I could get the dead one replaced.

Even if all your connections are in the same order as your drive bays – e.g. da0 is drive bay 1 – it’s still a good idea to do this. If you need to replace a drive, pulling up this chart and comparing it against the drive list in TrueNAS (or your NAS software of choice) should tell you at a glance which drive you need to replace.

Speaking of replacement drives…

Have drive replacements on hand

This was the second mistake I corrected. Well, in part.

In my instance, this isn’t nearly as crucial. Living in Kansas City, thankfully Micro Center has a nearby store where I readily picked up a replacement 4TB NAS drive. And I didn’t buy just one to replace the dead one. I bought two. The reason is twofold.

First, the Seagate 4TB drives were bought as a pair in the same order. This means they’re similar in age and probably from the same lot, so the chance of the second 4TB drive dying in the next couple months is substantially higher than for the WD Red 4TB drives. And having the second drive on hand also means that, when that happens, I already have the replacement on hand.

If you don’t live somewhere where you can just buy a new drive the same day, you should have replacements on hand. And even if you do, you should have drive replacements on hand just in case the place where you normally would be able to get ahold of one is out of stock the day you need it.

For mirrored pairs, ideally you should have at least 1 drive for each pair. If all your drives are the same capacity, then just keep a few spares on hand. If you have a setup like mine, with a mixture of drive capacities, try to keep one of each capacity on hand. For my setup, this would mean one each of 4TB, 6TB, 10TB, and 12TB.

For RAID-Zx configurations, the minimum you should keep on hand is the minimum number of drives you can safely lose based on your configuration. So if your drives are configured in a RAID-Z2 configuration (e.g. RAID-6), have at minimum 2 spares on hand for each Z2 you have. And the need to have this on hand is even more critical if all your drives are similar age or came from the same lot. Since once one drive dies, the likelihood of another going with it within a short period of time goes up exponentially.

Resilvering time

I said in my first article that rebuild time was the primary reason to go with mirrored pairs. When you lose a drive, obviously you want your array back online as fast as possible, if for nothing more than getting it online before another drive fails. Since the amount of time it takes to rebuild a dead drive will depend on the read and write speeds of all drives in the pool and the pool’s topology.

As SSDs come down in price more and more, they will displace HDDs in a NAS for this reason. (As of this writing, 4TB 2.5″ SSDs are about 380 USD, about the same price of a 10TB or 12TB HDD.)

With any RAID-Zx configuration, parity data needs to be recalculated and blocks need to be rebuilt from parity. This will slow down the resilver a lot simply due to the amount of data that must be read per block that will be written back out. More drives or more data = more time required.

With mirrored pairs, it’s just a straight copy. Read and write.

The 4TB drive I replaced is near full. The resilver took over 10 hours to copy about 3.59TiB of data. (For reference, TrueNAS reports 3.64 TiB as the drive capacity.) That works out to an average rebuild speed of about 102MiB per second, or about what could be expected for platter HDDs.

Hardware choices

But it’s with resilvering and scrub times that hardware choices in your NAS will make all the difference. Regardless of what HDDs you use, don’t expect more than about 100MB/s on average for read and write speeds. This means your performance differences will come down to how those drives are connected.

So rule #1 with a DIY NAS: avoid using the SATA connections on your mainboard. Instead just buy a SAS-to-SATA HBA controller and connect everything up to it. Your cabling will be cleaner as it replaces 4 individual SATA cables with 1 SAS to SATA cable.

And the processor onboard the controller card will also take some of the load off the CPU. This will mitigate the read penalty that comes with scrubbing and resilvering RAID-Zx pools. The read portion is more important for resilvering RAID-Zx pools more so than the write. Since the faster the system can read data in parallel from each drive in the pool, the faster it can calculate whatever it needs to write out to the drive being rebuilt.

It won’t be anywhere near what you could expect for mirrored pairs, but it’ll still give you the best resilver and scrub times.

And rule #2 is to use hot-swap bays and ensure your system is properly configured for them. If you’re using an HBA card, you should already be set on this. If you’re using your mainboard’s SATA connections (again, avoid doing this), you will need to go into your BIOS to ensure the hotswap is enabled for each port. This way you don’t need to shut down your NAS to replace a drive.

Tenant’s rights and social media

A lot of people know quite a bit about tenancy law, better known as “renter’s rights” or “tenant’s rights”, even though there’s also plenty of misinformation about it. Basically they are laws that limit how landlords can treat tenants. Prior to buying a house, I lived in four (4) apartments in three (3) States across 14 years. And I lived in one of those apartments for over 7 years. So I’ve got a pretty substantial renter history.

The landlord is the property owner. As the property owner, the landlord or property management company has certain rights over the property. But they sign away a lot of those rights when they enter into a lease with a tenant, even if the lease is silent on that. And in general all of a tenant’s rights that are common among all States can be boiled down to, simply, quiet enjoyment of the leased property free from unreasonable interference by the landlord.

For example, your landlord is allowed to keep a key to the house or apartment (and you must remit a key if you change the locks unless the lease explicitly states otherwise), but does not have general right of entry. Instead when a residence lease agreement is signed, the property owner transfers that right to the tenant.

In short the right of the tenants to the property they keep on and within the premises of the rented property abrogates the landlord’s rights to the property they are renting. And with some of those rights, e.g. general right to come and go as you please, they are transferred in whole cloth to the tenant.

Social media is analogous to an apartment complex in many ways.

The overall social media platform – e.g. YouTube, Facebook, Instagram, Twitter, etc. – is like the apartment complex property. Built by someone else, owned by someone else, and individuals are generally able to set up or close accounts as they please in a manner analogous to leasing property – though there is perceptively an unlimited amount of “vacancy” since your “apartment” is little more than a database table entry. The account does not give you any ownership claim in any part to the platform, just as a property lease does not give the tenant any ownership claim to the leased property.

And like with social media, tenants also have rules to which they are to abide. But the rules the landlord is allowed to put in place are limited by the tenant’s right to quiet enjoyment of the home. Any rules that infringe on that right are unenforceable, and any attempt to evict for violating such rules will be tossed out of Court.

And tenant’s rights also mean that any rules must be objective. There is no allowance for any subjectivity with regard to the rules, since any subjectivity could infringe on the tenant’s rights. This is obviously very, very different from social media where people have been banned even when a rule violation has not been demonstrated or alleged.

Which means the primary difference between social media and tenancy is what happens when you do break the rules. (Or even not.)

While eviction is the general remedy in such instance, landlords aren’t allowed to jump right at it. Just like people perceived to have been wronged in some way aren’t typically allowed to just jump right into a lawsuit. Instead the tenant must be given a chance to make right on the lease, to correct the rule or lease violation to a reasonable degree. For example, if you’re behind on your rent payment, you must be given a reasonable opportunity to catch up. The landlord can’t just knock on your door the day after rent is due and say “You didn’t pay your rent on time, so you gotta move out.”

If the landlord violates the lease or the tenant’s rights, the tenant is entitled to a “constructive eviction“. But again, just as the landlord must give the tenant reasonable opportunity to correct any breach, so too the tenant must give reasonable opportunity to the landlord. The tenant can’t just move out at the first sign of trouble and expect such to be without any kind of penalty. If the HVAC system malfunctions, for example, the tenant can’t just call up the landlord and say “Well the AC isn’t working, so we’re moving out,” unless that’s, say, the third time the AC has stopped working in a short period of time.

In general, though, the law very severely limits how landlords can interact with tenants. The landlord also has the “implied warranty of habitability” over the property, which is a common law requirement on the landlord that the property will be “habitable”, and empowers the tenant to withhold rent or vacate the premises (i.e. constructive eviction) if the landlord refuses to make needed repairs or corrective actions to ensure the property is habitable.

And “constructive eviction” aside, the tenant also has the right to vacate the premises early for any reason or none. This is typically called “abandonment” and the tenant is said to have “abandoned” the property if they do this. And the landlord cannot fight that. The landlord cannot go to Court and get an injunction barring a tenant from moving out. But if the tenant moves out early, the lease will specify some “remedy” (usually one or two month’s rent) to which the landlord is entitled unless the tenant is exercising a “constructive eviction”. If the lease is silent on that, the landlord is entitled to keep the entire security deposit plus demand reimbursement of any cost to get the property back into condition for renting out.

But, while the tenant generally has the right to vacate when they want, the landlord does not have the right to just kick tenants out whenever he/she pleases. The landlord can generally only attempt to evict a tenant for breach of contract and must have demonstrable cause for the eviction. But, as mentioned above, the landlord must give the tenant reasonable opportunity to correct any breach before trying to evict. And the landlord must give the tenant a reasonable amount of time to move out. (Typically 10 to 14 calendar days is what I’ve seen, but it can be as short as 7 calendar days.)

The tenant has the option of fighting that eviction, going to Court to get an order staying the eviction pending a hearing, or staying it for a period of time, while still occupying the property in question. This also means that if a tenant refuses to vacate at the end of the lease, and refuses to pay anything in addition for occupying the property, the landlord’s only option is getting a court order that can be enforced by local or county law enforcement.

There is a lot of protection in common and statutory law for tenants, since society typically doesn’t want to see people kicked out of their homes without very good reason. There is a significant power disparity in the tenant/landlord relationship in favor of the tenant. I know to a lot of tenants out there it doesn’t feel like that, but that’s also because a lot of people are not aware of how broad their rights generally are.

So why don’t we have the same protections with social media?

On social media, we generally have subjective “community guidelines” that are not evenly enforced, with accounts banned for a period of time or permanently for even the slightest violation with zero opportunity to correct.

If a landlord could do to tenants what social media companies can do with their members, there’d be no end to the protest. There is no “well they’re a private company so they can do what they want” when it comes to property management companies and landlords. But, yet, that argument is thrown around left and right when discussing social media.

Or, rather, it’s thrown around by individuals whenever someone that individual doesn’t like is banned by a social media platform – e.g. leftists when Trump was banned from Twitter.

Note that I’m not referring to individual posts being removed from the platform because they clearly violate the rules to which we all agree to be bound when using a platform – e.g. Chelsea Handler complaining about a topless photo being removed from Instagram in 2014. I’m talking about accounts being banned in whole cloth with no recourse or appeal (except perhaps in name only).

Tenants in rental properties have the chance to defend themselves against an eviction, before the Court if it must come to that. On social media, there is no opportunity to defend yourself against your account being banned. Decisions are unilateral and there is, again, no chance of raising a defense or appealing the ban.

Again, if landlords had the same power over their tenants that social media companies have over their members, there’d be no end to the protest. So we need to see the same kind of “tenants rights” protections for social media, with those protections including the principle of free speech.

It isn’t “white nationalism”

Article: “Caller blasts Iowa rep for requiring ‘White nationalist’ Pledge of Allegiance in schools

I have to wonder if, to the left, “white nationalism” is the only form of nationalism possible. The pledge of allegiance is nationalist. I’ve argued such very thoroughly here on this blog. But it isn’t “white nationalist”.

For one, the pledge was written by a professed socialist and Christian minister who preached about the “evils of capitalism” from the pulpit. In other words, the kind of person the left would now readily embrace. Look up Francis Bellamy if you don’t believe me.

While you’re at it, find pictures or video of the original pledge salute, also called the “Bellamy salute“. You’ll find it looks rather… familiar.

Bellamy salute 1915.jpg
By New-York tribune – New-York tribune (via LOC), Public Domain, Link

Plus Iowa’s attempt to require the pledge in public schools is going to fail. The Supreme Court has already ruled – in 1943 – that the First Amendment precludes any attempt by States to require students to recite it. The case to look for is West Virginia Board of Education v. Barnette, which overturned Minersville v. Gobitis, which initially upheld a law requiring the pledge to be recited – thankfully more logical heads ultimately prevailed.

Stop feeding the trolls

Given some reports I’ve seen recently, I’m really starting to wonder how intelligent the masses have become. Let’s take the recent reports of “body shaming” and headlines where certain people, most recently Jessie James Decker, post pictures of themselves to “silence the body shamers” or some crap like that.

I wonder how much longer it’ll take till these people realize that… you’re basically giving the “shamers” what they want! They’re largely trolling knowing that you’ll respond with pictures of a certain variety to “silence” them.

And Internet parlance has the phrase “don’t feed the trolls” for good reason. In this instance, it’s a matter of trolling a celeb or group about their body and seeing if they respond by… posting pictures of said body in revealing attire to “silence” the troll.

And people wonder why the apparent incidence of these forms of online “harassment” appears to be increasing.

Rent or Buy, revisited

I’ve owned my home for about two (2) years now. Prior to that, I rented for a little over 14 years straight. Lately I’ve been seeing a lot of memes show up on social media similar to this one:

If your mortgage payment will be less than your rent payment, that should be an easy sell to the bank. Right? Not so fast.

The property owner is responsible for pretty much everything. And you can’t call up the property owner whenever there is a problem if the property owner is you. You have to take care of it. It’s your problem, meaning it’s also your cost.

In the first year I owned my house, I had to replace the garbage disposal and dishwasher. Just the out-of-pocket for both was about $1,000 combined. And if I’d paid someone to install both rather than doing it myself, it easily would’ve been double that.

Over the 4th of July weekend preceding the date on this article, my air conditioner died. While waiting for a diagnostic and repair, I had to throw down another $1200 for window and portable A/C units to keep the house somewhat reasonable. Thankfully my nearby Home Depot was open on 4th of July so I could pick those up. (Update: The refrigerant line had a leak, and I decided to replace the entire A/C system for several reasons, in part due to the age of the condensor/compressor unit.)

I’m also re-insulating the attic since it appears that has been done… never. With exception to what was over the two smaller bedrooms, that is. Mostly. Old insulation called Balsam wool that has been up there since… the house was built. Something I wish the inspector pointed out in their report. But once all that’s replaced, the amount of electricity and natural gas it’ll take to keep my house reasonably climate controlled should be much lower than before.

And there was also the bathroom exhaust fan that needed replaced as well as part of the re-insulation. Which gave me a chance to correct one issue pointed out on the inspection report regarding there not being an exhaust duct while also being able to install a very quiet unit of my choice.

My house was originally built in 1951. And I anticipated that there would be some things needing fixed up and some things that were done either half-assed or not at all. And I was okay with that. Because part of the appeal of buying a house is being able to personalize it.

That isn’t something you have a lot of flexibility to do when you’re renting. (Or living in a neighborhood with an HOA.) What you see is basically what you get. And if anything breaks, you pretty much have to wait on your landlord to either fix it or call in someone to do that. But you ultimately aren’t paying for it directly. (By the way, the risk of needing to do that is one of the reasons your rent is higher than a mortgage payment.)

But what matters to the bank is whether you can afford to be a home owner. And I don’t mean just the mortgage payment and utilities. I mean… everything else like what I’ve mentioned above. Replacements, repairs, home maintenance, etc. It’s all on you.

That is why the closing costs are so important. It’s one of the tests the lender has on whether you can afford to be a homeowner. It’s a red flag (or a complete no-go depending on other factors) if you have to borrow money from someone else to make the closing costs. When I put down the earnest money via a Postal Money Order, my lender asked where that money came from – i.e. they wanted to see the receipt.

And easily the biggest test is how much money you currently have in savings when you apply for the mortgage.

The risk with the lender is whether you can continue to afford being a homeowner, or will you fall behind if something with the house goes south? Or will you put off repairing what went south, provided you get it repaired at all, so you don’t fall behind on the mortgage? Falling behind on the mortgage and potentially sacrificing the value of the home to any kind of disrepair are risks to the lender. That is why lenders require adequate homeowner’s insurance.

The bank doesn’t really care what your current rent payment is versus where they calculate your mortgage payment since that doesn’t answer those questions. But your credit rating and how much you have in savings does answer those questions in one direction or another.

Since writing a mortgage is about more than whether you’re a good or bad lending risk. It’s also about whether you’ll be a good or bad homeowner.

Don’t pursue a fleeing perp

Article: “Father shoots intoxicated man that was allegedly spying on his daughter and touching himself outside her window

I’m a little mixed about this. Now before any of you think I’m about to defend a peeping tom, sit down, calm down, and hear me out.

Thankfully despite the headline making it sound otherwise, the father didn’t just shoot the bastard on sight. That would’ve gotten the father rightly arrested, and the castle doctrine or any other claim to self defense wouldn’t have helped him since you still have to first establish that the person is a threat and articulate why. Existing on someone else’s property uninvited isn’t enough.

Instead the father tried to detain the guy, later identified as 44 year-old Jorge Ramos, so they could call police. And they were absolutely in the right there. (Side question: why wasn’t the wife getting pictures of the guy using her cell phone?)

Where the parents went wrong was when the perp left his property. You don’t have much leeway to pursue a fleeing perp, and it often is not in your best interest to do so. Being a licensed CCW won’t help you. Your CCW is NOT a badge. It does not confer any new powers you did not otherwise already have under the law.

And it doesn’t matter what you allege they did. Certain allegations don’t suddenly make it okay for you to pursue someone. Though way too many people think that certain allegations mean the suspect loses their rights entirely, and that mentality needs to end.

Once they leave your property, your ability under the law to pursue them is severely diminished. Doesn’t matter the perp just went across the street. Once he left the property, he is no longer considered any kind of threat or active perpetrator unless it can be demonstrated otherwise.

This means, in short, the best thing that you can do in this situation is… more or less nothing more than they were already going to do. Call the police, relay a description of the perp and what they were doing, along with pointing out where they went. If you took pictures of the perp, hand those over as well along with anything the perp may have left behind.

Legalities aside, again, pursuing a fleeing perp is often NOT in your best interest. Especially since, in the above situation, both parents left their 10 year-old daughter alone. That isn’t really an age where she can aptly defend herself against an adult perpetrator.

So the parents’ desire to pursue the perp may have left their daughter worse off because, quite simply, she was no longer foremost in their mind. They couldn’t know if the perp they pursued was the only one around. They presumed such, and pursued with that in mind over letting him go and calling it in.

And their desire to pursue the perp set the stage for tragedy after Ramos managed to wrestle the gun away from the wife and the husband was forced to shoot him. A person needlessly shot because the parents were being careless in how they responded to a situation.

Again, don’t pursue a fleeing suspect unless you are a police officer. Instead see to yours and your family’s safety first. And call it in and let the police deal with it. After all, that’s their job, not yours.

On Bill Cosby

As I write this, the hot ticket news headline is Bill Cosby’s indictment being vacated by the Pennsylvania Supreme Court. And a lot of people are naturally upset. As is typical in these scenarios, though, there are plenty of people seemingly willing to act like rights either don’t exist or can just be tossed aside when they feel they should be.

First, let’s discuss the facts and details.

It is not in dispute that Bill Cosby actually drugged and sexually assaulted several women. Cosby confessed to such under deposition. A deposition that was then used against him in a criminal trial, completely going against the verbal promise of a district attorney’s office that they would not prosecute him. Basically a verbal grant of immunity a future prosecutor would then renege. That was the primary issue here.

To bring charges against someone, a prosecutor needs evidence. And without Cosby’s explicit confession, the prosecutors didn’t have anything.

With a civil suit pending and evidence for a criminal trial virtually non-existent, then-Montgomery County District Attorney Bruce Castor made a verbal promise to Cosby that he would not seek criminal charges. Acting on that promise, Cosby then openly confessed, completely jettisoning his protections against self-incrimination. The civil suit was settled out of Court and Cosby went on to live his life.

Until 2015 when a new District Attorney, Kevin Steele, filed criminal charges just days before the statute of limitations ran out after Cosby’s deposition had been unsealed by the Court. The trial consisted of little more than verbal testimony by alleged victims with Cosby’s deposition being used against him, and he was then convicted and sentenced to three to ten years in jail.

That Cosby relied on Castor’s promise to not prosecute became the central premise. Did Castor, in effect, grant Cosby immunity? And the Pennsylvania Supreme Court answered that question in the affirmative. That Cosby took his statements as a promise and gave up his Fifth Amendment protection by effectively confessing to his accusations is what led to the outcome today.

Had Castor’s original promise been kept, Cosby would never have faced a criminal trial.

When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness. For these reasons, Cosby’s convictions and judgment of sentence are vacated, and he is discharged

The decision here was proper. Castor’s decision, even if not in writing, was binding on the Montgomery County District Attorney’s office and forever barred them from bringing any charges relevant to or supported by Cosby’s testimony. And it was binding because Cosby acted on his good faith belief he was being granted criminal immunity in exchange for his deposition.

That Steele then decided, several years later, to file criminal charges and use against Cosby a civil deposition obtainable only because Castor granted him immunity was improper and a violation of Cosby’s Fifth Amendment rights.

Recognizing that, the Pennsylvania Supreme Court quashed the indictment entirely, vacating his conviction, and ordering him released.

And it’s both surprising and not how many people seem to not realize WHY the Pennsylvania Supreme Court ruled the way they did. This outcome isn’t a “miscarriage of justice”, but the correction of one. A significant violation of Cosby’s Fifth Amendment rights led to his prosecution, so says the Court. And if you’re going to act like that doesn’t matter because… rape, then why the fuck should I defend your rights?

Either rights are defended unconditionally for EVERYONE or NO ONE. There is no middle ground here.

Sidestepping the Fourth Amendment

In the State of Washington back in 1989, a young woman named Amanda Stavik was abducted raped, and murdered. Her body was discovered several days later. A surprising crime for the rural area where it occurred.

The case sat unsolved for nearly two decades until police were to make a break in the case, leading to the arrest and eventual conviction of Timothy Bass in 2019. During the trial was an evidentiary suppression hearing regarding DNA collected from a discarded cup and soda can.

It is long-settled law that anything discarded in trash in a dumpster or trash receptacle outside a home or place of business is fair game to police, and the Fourth Amendment is no protection. But the cup and soda can were collected from a trash can inside Bass’s place of employment. And not by law enforcement, but by his boss, Kim Wagner.

Hence the suppression hearing.

In 2009, Detective Kevin Bowhay reopened the investigation into Stavik’s murder. Timothy Bass was identified as a suspect, and in 2013 he requested that Bass voluntarily provide a DNA sample, to which Bass refused, demanding a warrant. (Note to you, dear Reader: never voluntarily provide anything to law enforcement.) Without the DNA sample positively linking Bass to Stavik, and no other physical evidence to link Bass to Stavik’s murder, Bass remained free from arrest.

Bowhay turned his attention to Bass’s employer: Franz Bakery. Bass worked as a truck driver for them, and Bowhay reached out Bass’s manager, Kim Wagner, with the intent of swabbing vehicles for any DNA. At that time, Bowhay did not tell Wagner they were specifically investigating Timothy Bass. Wagner said the detective would need to reach out to their corporate office, who did refuse to consent.

In May 2017 is when Wagner learned Bowhay was specifically after Bass when Bowhay asked Wagner for Bass’s delivery route with the intent of surveilling him, hoping for Bass to discard something with his DNA on it. He then informed Wagner that Bass did not discard anything.

Wagner then informed Bowhay that she would collect something from the employee break room. Bowhay’s response was simply “okay”, following up with the all-important words that he was not asking her to do anything. Why are those words important? We’ll get to that in a moment. Wagner was able to collect the aforementioned soda can and cup, turned it over to investigators who were able to recover DNA from it, which was a positive match for the DNA collected from Stavik’s body in 1989.

With that evidence, Bass was arrested, tried, and convicted of Stavik’s murder. Bass appealed his conviction, saying the motion to suppress the DNA evidence should have been granted. And the Court of Appeals for the State of Washington, Division I, recently affirmed the denial of the motion and, in turn, affirmed the conviction.1State of Washington v. Timothy Bass, Case No. 80156-2

* * * * *

One very important principle of law in the United States boils down to simply that a government agent cannot request or command a private citizen to do that which the agent is not authorized to do under the law. When it comes to the Fourth Amendment and the protection against a warrant-less search, this means simply that law enforcement cannot request a private citizen collect evidence they cannot otherwise obtain without a warrant or probable cause.

The question at hand with the case against Timothy Bass, however, is whether the Fourth Amendment protects you when a private citizen hands over that evidence of their own volition. Generally the answer is No.

But also at issue in Timothy Bass’s case are two details I feel are very important and, I feel, should’ve resulted in the DNA evidence being suppressed. First, Bowhay informed Kim Wagner, Bass’s boss, that he was not able to collect any discarded items along Bass’s delivery route after also informing Wagner that he was looking to collect DNA. Without that information, I argue that Wagner would never have volunteered to collect any discarded items from the employee break room.

Second, but of lesser importance, was Bowhay informing Wagner that Bass was being investigated as a suspect in Amanda Stavik’s murder.

Now the Court of Appeals determined that being tipped off to the investigation and what specifically Bowhay was looking for was not enough to make Wagner an “agent” of the government under the Washington Constitution. And my question is simply: why not?

Why is it enough for the sworn officer to say “I’m not going to direct you to do that” knowing the officer is about to receive that which the officer cannot obtain via warrant with probable cause? The police should not have been able to accept that evidence in the first place. Wagner completely sidestepped the detective’s efforts in finding DNA evidence. Wagner knew what Bowhay was after because he told her. Even if he didn’t direct her to get the evidence for him, and explicitly said he was not going to direct her, that he informed her of what he was looking for should be enough to get the evidence suppressed under the Fourth Amendment.

The detective shouldn’t be able to escape the Fourth Amendment by merely saying something along the lines of “I’m not going to tell you to do that”. The detective should have told her to NOT get it in the first place, and should’ve turned away the soda can and cup when it was given to them. A detective should not be able to tell what evidence they seek to someone with access to that evidence and then get around the Fourth Amendment by saying “I’m not going to tell you to do that” when the person they told says they’ll get them that evidence.

Detective Bowhay I feel knew that Wagner would get the evidence for him, and that is why he told Wagner what he was after, and told her that he was not able to obtain it himself.

And that he told Wagner what he was after, knowing she had access to what he needed, should be enough to get the evidence Wagner provided suppressed under the Fourth Amendment.

References[+]

Failures of logic

DarkViperAU (“DVAU” or “Matt” herein) is a GTA-V speedrunner. (Twitch, YouTube) For over the last year, he’s been attempting to finish a start-to-finish no-damage run, using a mod to enforce certain requirements: 1 hit point to ensure any damage is fatal, and disabling Trevor’s power which reduces or eliminates the chance of damage from any hit. And he’s publicly streamed his attempts to make it easy to “clip” the stream where needed to examine why he was killed in a particular circumstance.

In May 2021, though, another GTA-V player going by UnNameD posted video of him succeeding at a feat that Matt has been attempting for so long.

Naturally skepticism abounded with plenty of attempts to poke holes in the video that was posted, with responses to those attempts by GTA-V experts also coming about. A lot of the responses, however, also amounted to dismissal without due consideration. A lot of critics were dismissed as merely “DarkViper fanboys” or some analog thereto, basically acting like no legitimate criticism is even possible if you liked or followed DVAU’s attempt.

And there are plenty of people who readily latched onto this run as legitimate purely because they, for some reason, do not like Matt.

And all around there has been a massive failure of logic that I will go into here.

Prior to posting his video segments to YouTube, UnNameD was an unknown in the GTA-V gaming communities. He, in short, “came out of nowhere”.

Matt has repeatedly demonstrated that a no-damage run requires a lot of skill along with some luck. No one really knew what UnNameD’s skill was in GTA-V. So when he posted his no-damage run, skepticism and criticism should not only have been expected, but welcomed.

UnNameD has made an extraordinary claim. And, as Carl Sagan once said, extraordinary claims require extraordinary evidence. And video capture is also not infallible as evidence. Just look to one of the many cheating scandals in any speedrunning community for evidence on that.

And speaking of cheating, it is not unreasonable to accuse someone in UnNameD’s position – again, relative unknown, seemingly lesser skilled player – of cheating to accomplish such a great feat as a no-damage run in GTA-V. Indeed such accusations should be expected because cheating by lesser-known or unknown players who seem to accomplish a great feat “out of nowhere” is not without precedent.

And even cheating by established and known players of particular games is also not without precedent. The recent controversies involving Trackmania and Minecraft speedrunner Dream show this.

And another on this mark that readily comes to mind is Goose. (YouTube channel here) He is a well-established speedrunner for the N64 games Goldeneye 007 and Perfect Dark. He has cheated (video splicing, if I recall correctly) and publicly admitted to it. But he managed to redeem himself and establish himself on the leaderboards, including setting world records on some stages, by completing legitimate runs and doing whatever was demanded to establish that his world record accomplishments are legitimate.

Matt has shown through his public attempts the likelihood a no-damage run can be accomplished on a random GTA-V playthrough is exceedingly low. It takes practice and planning. So out of the gate, the likelihood that UnNameD’s run is legitimate is extraordinarily low given his apparent lack of history.

Meaning the likelihood UnNameD did cheat to accomplish his no-damage run is not zero. Showing screenshots of his GTA-V folder does not eliminate that likelihood as well since we cannot know if the folder he showed is the folder out of which he actually ran GTA-V for his run. Add to it the fact that filesystem dates and times can be modified quite trivially via Powershell (which is installed by default on all Windows 10 machines), so we can’t know if the screenshots were made before the run, or after the run when the filesystem timestamps had been modified.

And it’s the response to the cheating allegations that has demonstrated the massive failure of logic. Many of UnNameD’s supporters have equated the cheating allegations to “guilty until proven innocent”. That isn’t what’s happening here.

To say it is means we should accept UnNameD’s run as legitimate merely because he claims it to be rather than through his defenses to the contrary, or that his run should be deemed legitimate merely because someone raised a claim of cheating. The burden falls on UnNameD to defend his run against claims that it is not legitimate, answering the criticisms and controversies instead of they or their supporters dismissing it outright. This includes doing what they can to defang any cheating allegations as best as is reasonable.

One can say that no person should make a baseless claim of “cheating”. Baseless claims, though, are not automatically illegitimate. Again, though, cheating by players unknown to the larger gaming communities in which they are participating is not without precedent. And in my perception, based on my exposure to speedrunning and gaming controversies, it is equally likely that UnNameD did cheat as it is that they did not.

The fact UnNameD is an unknown to the GTA-V gaming communities works against them and all-but-guaranteed they’d be accused of cheating.

But why do I say that accusing them of cheating is not “guilty until proven innocent”? Simply because the burden of proof has always been on UnNameD to prove the run is legitimate. Cheating is merely one counter-claim of many that can be levied against the run. Someone who merely says “you cheated” should be dismissed without much thought. But someone who says “here’s why I think you cheated” should have their points addressed and not dismissed.

An allegation of cheating is a claim of illegitimacy against the run. But that allegation of cheating is not the equivalent of “guilty until proven innocent” as many have claimed because the burden of proof has always been on UnNameD to defend the run and prove it to be legitimate.

Firearm liability “insurance”

It’s a general rule of common or statutory law that insurance does not cover intentional actions. Yet, time and again, we see proposals for “gun liability insurance”. The recent call for it is from San Jose’s mayor:

And that way we can ensure that victims are compensated where there’s an insurable event. And of course, insurance companies will help us make gun possession safer.

Firearm homicides and assaults with deadly weapons are, typically, intentional actions. Which means the events the San Jose mayor envisions would be “insurable” aren’t. They are excluded by common or statutory law or State regulation. California specifically denies liability insurance coverage for intentional actions:

An insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured’s agents or others.

California Insurance Code §533

So this makes the San Jose mayor’s attempt to require such moot. Since California’s Insurance Code cannot allow for such. And where a municipal ordinance conflicts with State laws or regulations, the latter controls.

And, again, virtually every other State has a similar law or regulation.