One of the main reasons the dismissal feels so good is that I am virtually certain that my client did not commit a crime in the first place.  She was previously married to and had children with one of the other people charged in the case.  Her ex-husband was connected to some properties where investigators located evidence of criminal activity.  There were only two ways that my client was involved in the overall case.  The first was that her ex-husband (or someone working with him) hid other evidence of criminal activity in her back yard that investigators located with a search warrant.  Second, investigators got a warrant for her bank records, and a search of her accounts showed that she had significant savings even though she worked a low-paying job.  My staff and I were able to go back and demonstrate that the accounts grew to these large balances because she saved like we are all supposed to do: a little bit at a time and never spending lots of money.  Even if the case had gone to trial, I feel confident we would have been able to convince the jury that the money was from her hard work and not from someone else’s criminal acts.

Another reason the dismissal feels good  is the way we won.  Early on, I realized that the investigators greatly overplayed their hands when applying for the search warrants at the home and for her bank accounts.  This is a highly complex area of the law, but after 37 years I have learned a thing or two, and my experience told me we had very good arguments.  After six days of hearings and hundreds of pages of briefing, we got the Judge to agree.  He ruled that the search warrants were “bad”, and that any evidence they obtained through those bad warrants was so tainted that the evidence could not be used in court. In technical terms, the Judge granted our Motion to Suppress. After these rulings, the prosecutor basically had no evidence left to use against my client!

Perhaps the best reason I feel good about this dismissal is that it demonstrates that the system does sometimes work properly.  The prosecutors believed they had enough evidence to show that my client was so close to criminal activity that she likely was part of it.  I was able to show their suspicions were untrue, and that they had gone too far in obtaining what little evidence they did have.  The Court heard the evidence and agreed.  I do feel bad that my client lost money and probably lots of sleep over this case, but in the end the right result was reached.

My clients and others sometimes do not realize that law enforcement officials are allowed to gather evidence in many other situations where they do not have a warrant, or any level of suspicion at all. For example, the law does not prevent a police officer from walking up to your front door, ringing the doorbell, and asking you some questions.  This is sometimes called a “police-citizen encounter”, and federal agents lovingly refer to this as a “knock and talk.”  Anyone foolish enough to talk to law enforcement in this situation needs to know full well that anything coming out of their mouth, as the old saying goes, “can and will be used against you in court.”  A Motion to Suppress will not help any Defendant in this context, if he or she voluntarily made statements (although there certainly are situations where the police at the front door make it seem as if the person is obligated to talk; that is a totally different matter).

Another way that federal law enforcement officials get evidence without a warrant is by using various administrative processes that result in an order that some person or company turn over information.  It usually works like this:  a company in an area regulated by some federal agency has an obligation to cooperate with that agency’s investigations.  The agency sends an order, directing the company to turn over a boatload of information.  If the company fails to do so, the agency can go to court to enforce the court order, and can make other bad things happen to the company.  Again, no search warrant, and no Motion to Suppress will help if the company or its officials are later charged with a crime.

Yet one more way that federal agents often come across incriminating evidence is through cooperating witnesses, or as some people call them, “snitches.”  Here is a very common scenario that was at the heart of a recent case I tried. My client and others operated a series of businesses.  They had a trusted employee who basically ran the office, and most importantly, handled all the IT operations for the upper-level managers. This IT person made a backup copy of my client’s computer hard drive as part of regular maintenance, but never told my client about this.   This person later got real mad and decided to leave.  Before leaving, he pulls a bunch of files off the mirror image from my client’s computer and puts them on a thumb drive he takes with him.  Later, he tells the feds, who then open up the thumb drive and start looking at the files, all without getting a warrant.  Usually, a “private search” like this is not covered by the Fourth Amendment.  However, when law enforcement then looks through privately obtained information, they take a chance if they exceed “the scope of the initial private search.”  We were able to demonstrate that my client never authorized the former employee to keep the mirror image, and certainly had no idea that the former employee later made copies which he dragged on to the thumb drive.  Bottom line, we were either going to get the evidence suppressed or force the prosecutors to give in.  They took the latter approach and the evidence could not be used.

There are a many ways that federal agents and prosecutors can obtain evidence.  Some methods make it difficult to “suppress” that evidence if there is a later criminal case.  Other times, we have better luck.  Either way, it requires a lot of work for the criminal defense lawyer.

First, let’s talk about the glacial rate of change in the legal field.  The law is old, slow, and develops incrementally.  Judges tend to be older, more thoughtful than the average citizen, and less likely to climb on board with the latest craze or fad.  Now, compare the slowly crawling legal field with technology.  As we all know, the IT world yields a new cell phone, device or application at least every year, and is encapsulated by Moore’s law (more or less accurately predicting the doubling of computing storage every 18 months).  Regular readers know I like to talk about how the creaky legal system deals with rapid developments from the world of technology.  The Carpenter case is a perfect example.

Law enforcement arrested some guys for knocking off Radio Shack stores in Detroit (as if this company or the place of my birth needed any more bad stuff happening to them).  One guy says that this group and 15 others had been doing this same thing throughout Michigan and Ohio.  The snitch gives the officers some cell phone numbers.  The Officers get some court rulings to get cell phone location records, using the Stored Communications Act (the SCA).  Now, here’s the important part.  The SCA does NOT require the same level of suspicion as is needed for a warrant.  Warrants require “probable cause” while orders under the SCA can be issued  if an agent has “reasonable grounds” for thinking that the cell phone records might be “relevant.”  So, agents got their SCA orders, then got the cell phone records, and voila, were able to prove that Carpenter’s phone was around the other guys at the same times as the various Radio Shack heists took place throughout the Midwest.  One two three, guilty, but wait, there’s more!

The majority of the Supreme Court last week said that getting cell phone location records is a “search” under the Fourth Amendment, and therefore generally requires a warrant based on probable cause.  The big change here seems to be that the majority of the Court now rejects the notion that we surrender our privacy just by signing up for cell phone service (or using Facebook or any other handy part of modern life that gathers boatloads of our private information).  Instead, the Court adopts a more nuanced and modern view that likely is what most of us want: a court system that lets law enforcement gather information of a crime while at the same time retaining some measure of personal privacy for the rest of us.

As I said earlier, there is a second lesson from this case.  Defending against a criminal charge is an art, for 10 good defense lawyers will take 10 different approaches.  Despite this rule, some things are constant in being a criminal defense lawyer.  The attorney needs to not only know the law, he or she needs to take a stand from time to time, even if the cards seem to be stacked against the client or the legal principle urged by the criminal defense lawyer.  At the time when Mr. Carpenter’s case was being tried, the legal decisions in this area were generally against the defense.  I salute Mr. Carpenter’s criminal defense lawyers who had the guts and foresight to raising this issue many years earlier at a point when it appeared they were fighting a lost cause. Bravo!

Westby is a bit more interesting, and salacious, than my aborted party that one Saturday eons ago.  First, there was someone named either “Peaches” or “Tasty” identified by some of the partiers as the person who told them about the shindig.  Also, when the cops arrived, some of the women were selling lap dances, some had money hanging out from their undergarments, and most shockingly, the officers smelled marijuana.  

Putting to the side that parties (the good ones anyway) get interrupted all the time when someone calls the police, the bigger issue is the extent of the Fourth Amendment’s probable cause requirement in similar circumstances. The police officers argue that the question is whether, in light of all the facts, the officers could have reasonably believed that the partygoers were trespassing. The police point out that the party was in an apparently vacant house, it was nighttime, when they entered they observed the scantily clothed women who were seemingly removing their garments in exchange for currency, everybody scattered like cockroaches when the cops arrived, there were marijuana smells everywhere, and the homeowner told police that they didn’t have permission to be there. The District of Columbia says that officers should not be required to determine exactly what a suspect knows before arresting him, for just about everybody professes innocence. The government and the officers say that if the lower court rulings are allowed to stand, it will “have a broad chilling effect on law enforcement officers when making on-the-scene credibility judgments, adversely affecting their everyday ability to do their jobs and protect the public.”

I rather doubt the the partygoers will win, for the Court tends to protect officers who are on the scene and need to make split-second decisions.  However, the right to be free from an unreasonable arrest is substantial, and the next time, it could be one of the Justices getting down on a Saturday night when the law comes busting in.  I just hope Peaches is OK.

Carpenter v. United States is the latest case involving this confluence of our rights and the Digital Age. Mr. Carpenter was indicted for being involved with a series of armed robberies. One of his buddies gave the police a series of phone numbers that Carpenter had used.  The police then went to the cell phone providers, seeking lots of different kinds of information that can be dredged up involving how a device was used, where it was located, and other data that essentially provides a road map to the device-user’s life.  But, here’s why the case is in the Supreme Court:  the police did not get a search warrant from a judge, but instead they resorted to a federal law called the Stored Communications Act (the “SCA”), a 1986 law that allows phone companies to disclose records when the government provides them with “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation”. Under the SCA, a prosecutor can get around the need to show that there is probable cause to believe that a crime has been committed.  More and more every year, we see cases where the police regularly avoid search warrants, and instead get mountains of data from cell phone providers under the more lenient SCA. As a matter of fact, my law partner Carl and I did a case very similar to what happened in Carpenter, cell phone data obtained under the SCA that was going to be used against our client.

In Mr. Carpenter’s case, the police got several months’ worth of historical cell-site records, which indicate which cell towers a cellphone connected with while it was in use. All this data allowed investigators to show that, over a multi-month span, Carpenter’s cellphone connected with cell towers in the vicinity of the robberies. Carpenter was arrested, he was charged with the robberies, and his legal team argued that the records should be suppressed because the government had not obtained a warrant for them. The trial and appellate courts disagreed, so Mr. Carpenter was convicted and is serving a sentence of more than 100 years.  Some of you are saying to yourself, “so what, he got what he deserved.”

However, the bigger issue here is the legal mechanism used to deny Carpenter’s challenge to the SCA. The lower court judges said that the government was not required to obtain a warrant because Carpenter could not have expected that cellphone records maintained by his service provider would be kept private.  This is sometimes called the “third party” doctrine, and it goes like this: if you willingly give your information over to some other person or company, you have no right to complain about a governmental search in that you relinquished your right to keep the information private.  However, we all know that no one really wants to give up all of their privacy simply by signing up with AT&T, Verizon, Sprint, Amazon, Facebook or the like. So, Carpenter is a big deal, for the Supreme Court will decide whether the older cases using the “third party” rule are still good in an age when every one of us essentially gives huge quantities of private information over to some faceless corporation in return for using that entity’s services.

This is not the first time the Supreme Court has looked at this intersection of cellphone technology and the Fourth Amendment. Three years ago the Court said that the police need a warrant to search through the information in your cell phone if you get arrested. Chief Justice John Roberts explained that today’s phones are “based on technology nearly inconceivable just a few decades ago” and “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” In that case, the Court said that the police can sometimes still get and look through the information in a person’s cell phone.  However, the police need to do what the Framer’s of the Constitution told them to do: get a warrant.

In Carpenter’s case, prosecutors, argue that giving law-enforcement officials access to information about where a cellphone has been is not the same as allowing them to review the data inside the phone itself. But no matter what they decide, their ruling could shed significant new light on what limits the Fourth Amendment will impose on efforts by police to benefit from the significant technological advances in the 21st century.  I am looking forward to the arguments and the decision.

When I first heard about these anti-texting laws in Georgia, they made a lot of sense, especially since my then teenagers were just learning to drive when the law went into effect in 2008.  However, I wondered, how can an officer know if the motorist whose head is pointed down toward a cellphone is “engaging in a wireless communication” as opposed to looking at photos or his calendar?  The difference can be huge, especially if the reason the officer stopped the vehicle is for an alleged violation of the no-texting law, and the officer subsequently finds contraband.

It turns out I was not the only person pondering whether a traffic stop in this context would be legal.  In the case of United States v. Paniagua-Garcia, the Defendant was prosecuted for a large quantity of heroin located after his vehicle was stopped and searched.  However, here is why he was stopped:

As we see so often, whether we win or lose, the best description of what a case is really all about comes from the judges who disagree, or as we lawyers call it, “the dissent.”  Judge Beverly Martin described the case this way:

In this case, the government got 67 days of cell site location data disclosing Quartavious Davis’s location every time he made or received a call on his cell phone. It got all this without obtaining a warrant. During that time, Mr. Davis made or received 5,803 phone calls, so the prosecution had 11,606 data points about Mr. Davis’s location. We are asked to decide whether the government’s actions violated Mr. Davis’s Fourth Amendment rights. The majority says our analysis is dictated by the third-party doctrine, a rule the Supreme Court developed almost forty years ago in the context of bank records and telephone numbers. But such an expansive application of the third-party doctrine would allow the government warrantless access not only to where we are at any given time, but also to whom we send e-mails, our search-engine histories, our online dating and shopping records, and by logical extension, our entire online personas.

Just about all of the judges noted that in the past several years there has been a ground swell of rulings in which older decisions are being cast aside in the context of new technologies.  Rulings from 20 years ago where prosecutors regularly got judges to permit ever larger incursions into personal privacy are now being reconsidered, mostly because cell phone and other technologies permit amazing entry into our personal lives with a few touches of a button or a screen.  The storm caused when Edward Snowden revealed that our government has been keeping warehouses of our cell and internet traffic has also effected this debate.  Despite these changes, the majority in today’s case falls back on the old rationales.  They say that Mr. Davis (and by extension, the rest of us) do not have an expectation of privacy in the data transmitted between our phones and the cell towers that connect those phones to our friends, loved ones, social media sites and the internet.  Furthermore, the judges in the majority distinguish the recent Supreme Court cases that disallowed warrantless GPS trackers or warrantless cell phone searches.  Finally, they say that if some crazy Americans (meaning all of us) want to assure that our government does not unnecessarily snoop into our lives, we should gather our pitchforks and storm Congress to make changes to the SCA.

I applaud the lawyers on both sides, for representing their clients in this fascinating and fast-changing landscape where the 18th Century language embedded into the Fourth Amendment runs headlong into the iPhone 6 and similar devices.  I just wish judges were a little more brave sometimes and willing to see what is obvious to the rest of us: the world is changing at a rapid pace and the legal system should be tired of always bringing up the rear.  Stay tuned, this set of issues is far from over.

This is just the latest in a series of cases in which the majority of the Supreme Court have reinvigorated the need to protect personal freedom from unwarranted police intrusion.  These cases have renewed the recognition that courts need to protect against “unreasonable searches and seizures.”   As is now well-known, the Supreme Court held last year that the police now need a warrant in order to inspect the cellphone of an arrested person.  Two years ago the court held that police need a warrant before they can let a drug-sniffing dog wander around the outside of a person’s home.  A few years ago, they also issued a unanimous decision that mandated a warrant from a Judge before the police can install a GPS tracker on a person’s automobile.

Yesterday’s case tightens up the rules that the cops need to follow when using drug-sniffing dogs during a traffic stop.  In essence, the Supreme Court held that such procedures become unlawful if the cop holds the driver at the side of the road solely to conduct the search. “We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures,” Justice Ruth Bader Ginsburg wrote for the majority. “A seizure for a traffic violation justifies a police investigation of that violation,” Justice Ginsburg wrote. While the court has allowed police to take certain actions in a traffic stop that go beyond its narrow purpose, such as requiring motorists to exit their vehicles, those have been closely tied to officer safety or other practical needs, she said.

The case was something we see a lot in our practice.  An officer stopped the driver for straying out of his lane.  It took the officer 22 minutes to perform the license check and other normal actions associated with such a stop.  The cop then gave a warning to the driver, and asked for permission to search.  The driver, wisely, declined, so the officer proceeded to let his dog sniff around, and when the dog “alerted” the officer searched and found a bad of drugs.  The Federal Magistrate Judge agreed that the officer merely had a “large lunch” as the reason he wanted to search this particular car, but the lower courts said the search was nevertheless OK.  Yesterday’s case sent the matter back to the lower courts to determine if anything else would have justified keeping the motorist at roadside, and if not, the Defendant will likely win the case.

A couple of years ago, I was talking in private with a friend who is also a judge.  I predicted that issues concerning personal liberty will change because the relatively elderly Justices on the Supreme Court were becoming more attuned to modern technology, and could see first-hand how the handy device they keep in their pockets or purses could be used to investigate anyone.  Justices also are not blind in that they see the wholesale stopping of people on roadsides, at airports and other locations so that law enforcement can search the person in some way or another.  I told my friend that when the Justices begin to see how such law enforcement tactics can affect them personally, the trajectory of Supreme Court rulings likely would change.  I am not a savant, by any means, but it appears that my prediction is coming closer to being accurate.

In 2004, the Defendant supposedly got a then 14-year old to have sex. Remember, this was 2004, a veritable lifetime ago in the world of cellphones and communication technology. Seven long years later, the young person was by then 21, and decided to tell the police about his encounter with the Defendant back in 2004. The young person said that back in 2004 he and the Defendant had phone calls and exchanged text messages using the Defendant’s phone. Now, here’s the important part: the police knew that the Defendant, like just about everybody else, had changed cellphones in the intervening seven years.

The police applied for a search warrant, asking permission to seize and then look through the Defendant’s current cellphone. But they conveniently forgot to tell the Judge that the phone the Defendant carried every day was not the phone he used seven years ago back in 2004. The judge issued the warrant, they found evidence of further crimes, and that evidence was used to convict the Defendant, who got a mere 40 years in prison.

The Defendant’s lawyer did what we do in lots of cases: filing a motion to suppress the search of the cell phone. The lawyer pointed out that the police never told the judge that the cell phone was not the same one used seven years earlier, that the victim never said that sexually explicit conversations took place on that phone by call or text, and that in any event there was little chance that someone carrying a cell phone seven years later would be keeping evidence of a sexual liaison that happened so long ago.

The Court of Appeals rejected these arguments, with a series of fairly shocking rulings. First, they said it made no difference that the search was not for the same phone used seven years ago, because all that was needed was a connection between the current phone and the Defendant. In other words, if someone tells the police that you did something a decade ago, your current phone (or computer or tablet, or social media page) is fair game for a government search. Second, the appellate court resorted to the “good faith” excuse, which basically says we won’t blame the police even though they broke the law in conducting a search and seizure.

Readers know that I regularly blather on about how the Fourth Amendment, which was written in the Eighteenth Century, is being applied in a modern world that the creators of our Constitution likely did not foresee. However, I have a hunch that the folks who created this protection against government over-reaching would not think that an allegation of an old crime would permit the police to scour through a modern cell phone, with its treasure trove of personal information. This ruling is unfortunate.

The facts in Fernandez are a little different than the case from Georgia. Mr. Fernandez shared his apartment with his wife. When the police came to the door, he refused them the right to enter, although she said it was OK. The police arrested Fernandez for other reasons, and later returned after he was in custody and asks his wife again if they could look in the apartment. She again consented, and they entered, searched, and found incriminating evidence.

Mr. Fernandez contended that his absence after he was carted off should not matter since it occurred only because the police had taken him away. There was language in the earlier Georgia case suggesting that consent by one occupant might not be sufficient if “there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” However, the Supreme Court got around this language saying they were referring to situations where it was not objectively reasonable for the police to remove the objecting resident. Because it was OK for the cops to take Fernandez away for other reasons, he was in the same position as an occupant absent for any other reason.

Fernandez also argued that the objection he made when the police first came to the door remained effective until he changed his mind and withdrew it. The Supreme Court ruled that this is inconsistent with the Georgia case in at least two important ways. First, it cannot be squared with the “widely shared social expectations” or “customary social usage” upon which the earlier ruling was based. Additionally, the rule proposed by Mr. Fernandez would create practical complications by adopting a “formalis[tic]” rule requiring that the scope of an objection’s duration and the procedures necessary to register a continuing objection be defined.

We sort of expect this ruling, but will continue to vigorously argue to protect our client’s rights in situations when the police enter and search without a warrant.

In the first case, one of Ronald Timmann’s neighbors noticed a bullet hole in her apartment wall, and the hole indicated that it was caused by a weapon that likely was discharged from inside Timman’s adjacent apartment. After the police were unsuccessful in trying to locate and talk with Timman, they decided about 39 hours later to enter his apartment. Inside they found weapons that were used to prosecute him for criminal violations. His attorneys argued that the warrantless entry into the apartment was illegal. Prosecutors pointed to the “emergency aid” exception, by which in certain situations the police are allowed to enter locations without a warrant in order to assist a person who might be in danger. Here, the appellate court decided that the situation the officers confronted wasn’t an urgent emergency. “The officers here did not receive an emergency report regarding an ongoing disturbance, but rather a service call regarding what appeared to be a bullet hole, which circumstances known to the officers indicated had been made at least 39 hours prior to when the officers made entry.” The first office on the scene “…did not encounter a tumultuous scene, nor were the officers met with chaos when they returned to the building the next day. The officers observed no violent behavior, nor did they see or hear evidence that a fight had taken place or that anyone had been hurt…” As a result, the Court held that the entry and discovery of the guns and certain statements made by Timman could not be used against him.

The second case involved a drug investigation in which law enforcement secretly installed GPS monitors on Erick Smith’s vehicles. The officers did so without a search warrant. The GPS devices led to additional information, and ultimately a “stash house”. After the police found drugs in the house they arrested Smith. Later, the U.S. Supreme Court ruled that such warrantless GPS monitoring is illegal, as I discussed in an earlier post. In other words, the GPS monitoring devices were installed on Smith’s vehicles BEFORE the Supreme Court ruled that this practice was unconstitutional. In Smith’s case, the Eleventh Circuit noted some 30-year old cases holding that installing earlier versions of monitoring devices made it reasonable for the police in good faith to think they were acting appropriately in not getting a warrant before putting the GPS monitors on the suspect’s vehicle.

Again, we try to keep up with these rulings, mostly to see if they can help present or future clients. I predict we have not heard the last of these GPS cases.

The police suspected Walter Fernandez of being involved in a stabbing. They went to his building and heard screaming from in and near his apartment. His girlfriend answered the door, and appeared to be bloody and bruised. Mr. Fernandez, who was inside, told the police “Get out. I know my rights. You can’t come in.” Despite not being allowed to enter, the cops took Fernandez into custody on suspicion of domestic violence . About an hour later, the police returned and obtained the girlfriend’s consent to search the apartment. You guessed it, they found evidence used to later convict Fernanzed of the stabbing crime.

Back to Georgia v. Randolph, which specifically held that a “physically present” co-tenant can block police entry over a co-tenant’s consent. The question facing the Justices on the Supreme Court is whether the logic of the Randolph case should be extended to allow a physically present co-tenant’s objection to continue to control even after the objector has been lawfully removed by the police.

Based on reports in the press and on the internet, it seems that a majority of the Justices were clearly troubled by extending Randolph to these facts. A few even talked about reversing Randolph. We will follow this case closely, as it could impact some of the matters we work on. Many times we are confronted with search and seizure issues in our federal cases, and the matters we handle in state court.

Recall that this case involved Alonzo King, who was arrested in Maryland for menacing a crowd with a gun. Under Maryland law, the police extracted a DNA swab which was later sent to and made a part of a national database. Sometime later still, King’s DNA was matched to a rape investigation from six years earlier. The Maryland Supreme Court threw out King’s conviction because the DNA was extracted without a warrant nor was there any individualized suspicion that justified taking the DNA sample. On Monday, the U.S. Supreme Court reversed the Maryland judges, and instead compared the process of taking DNA with other activities during the criminal booking process such as photographing and fingerprinting suspects when they are booked.

Justice Anthony Kennedy, writing for the five members in the majority of the court, noted that while taking a DNA sample is a search, the Fourth Amendment bars unreasonable searches. Kennedy said that a “gentle” swabbing of the cheek is not unreasonable. Nor, he said, is it unreasonable to use DNA to ascertain whether the arrestee has a criminal history that would make him a flight risk or a risk to the public if released on bail. Because Maryland’s law was restricted to warrantless DNA extraction only when a person is arrested for a “serious” crime, and because the law bars any collection or use of DNA to detect private genetic information, the majority found that DNA collection is a legitimate booking procedure.

In dissent, Justice Scalia, a staunch conservative, issued a rare oral dissent from the bench. He said the court has never held that the government can conduct general suspicionless searches of anyone it arrests, and by doing so in this opinion, the court, he said, casts aside “a bedrock rule of Fourth Amendment law.” “Make no mistake about it,” he warned. “Because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.”

This is a classic example of a “slippery slope”, or the “camel with his nose in the tent.” in other words, once a process begins, it is very difficult, if not impossible, to stop it. I tend to agree with Justice Scalia that this is just the beginning of the creation of a national database where all of our DNA will be held, compared, used and possibly mis-used. This case reminds me why all criminal defense lawyers need to fight ceaselessly for the rights of our client, for when they can do such things to “criminals”, it is only a short step before they doe these things to the rest of us.

Another of these rulings came out the other day, and was issued by the United States Court of Appeals for the First Circuit. That case held that when the police arrest a person, they generally cannot look through the person’s cell phone unless they first get a warrant. The First Circuit case applies to federal criminal matters that arise in Maine, New Hampshire, Massachusetts and Puerto Rico. An earlier ruling by the Seventh Circuit (which is governing authority in federal cases in Illinois, indiana and Wisconsin) came to a different result, holding that no warrant is needed. Look to see this issue going up the the United States Supreme Court at some point in the not too distant future.

In the First Circuit case, the police had probable cause to arrest the Defendant for being involved in a suspected drug deal. They then got his phone out of his pocket, and by pushing a couple of buttons, they then got information as to his home address. They went to the residence, put officers inside to make sure his wife did not destroy anything, and then got a warrant to search the house. In the house they found lots of drugs and a weapon, leading to the Defendant’s ultimate 22-year prison sentence. He appealed, arguing that the search of his phone was illegal, and that illegality led to the identification of his house and search there. The First Circuit agreed and reversed his conviction.

The Fourth Amendment says that there shall not be any search unless based on probable cause and after a judge has issued a warrant. We all know that this rule is riddled with holes like Swiss cheese. One such hole is the “search incident to arrest” exception to the Fourth Amendment. This rule says that potential danger to the police and the need to look for evidence before it can be destroyed are reasons why law enforcement officials are permitted to engage in a warrantless search of the arrested person, his belongings and anything he has near him. The cases say that the cops can look through wallets, purses, and the like, but cannot get into boxes or vehicles that are some distance away from the arrested person.

Enter the modern cell phone, which is no bigger than wallets and purses, and oftentimes much smaller. However, more and more courts are recognizing that size ain’t everything, for as we all know, our cell phones are often repositories of extraordinary amounts of information, much of which is highly confidential and personal. The prosecutors in the First Circuit case argued that a cell phone is no bigger than a wallet, and the same search rules should therefore apply. However, the First Circuit noted that the “eighty-five percent of Americans who own cell phones and who use the devices to do much more than make phone calls” would probably be surprised to know that their government equated these technological marvels with a wallet. The First Circuit instead recognized that cell phones are actually compact computers, with vast storage capability, and that most folks keep an array of private information on these devices. As a result, the court said that the wallet analogy does not work. If the police want to look through the cell phone of an arrested person, they need to get a warrant.

Now, a caveat. The First Circuit sits in Boston, where the Marathon bombing still is causing shockwaves throughout the community. The First Circuit therefore noted that its ruling did not apply to “exigent circumstances” cases, which are situations in which an emergency situation requires immediate law enforcement action with no need to first get a warrant from a judge. “We assume that the exigent circumstances exception would allow the police to conduct an immediate, warrantless search of a cell phone’s data where they have probable cause to believe that the phone contains evidence of a crime, as well as a compelling need to act quickly that makes it impracticable for them to obtain a warrant — for example, where the phone is believed to contain evidence necessary to locate a kidnapped child or to investigate a bombing plot or incident.”

This is an important case. We will keep track of further developments, so we can use this and other recent cases to help clients we represent.

The Florida Supreme Court issued what could be a very important decision last week, Smallwood v. Florida. In that case, a police officer arrested Mr. Smallwood for an armed robbery that happened the previous day. The robber had taken currency from a local store. After the arrest, the police officer opened up Smallwood’s smartphone, looking through his pictures. Like too many foolish criminals, Mr. Smallwood had apparently taken pictures so he could brag about his crime, photos that showed the gun, the money, and his girlfriend all in proximity to the loot. The defense attorney argued that Mr. Smallwood, like all of us, had an expectation of privacy in the contents of his cell phone, and that a search without a warrant was therefore unreasonable and illegal. The trial court and intermediate appellate judges sided with the prosecution, ruling that the older Supreme Court cases on searches incident to an arrest justified the officer’s actions. One of these older cases was issued in 1973, United States v. Robinson. In that case, the U.S. Supreme Court said it was OK for the arresting officer to look through a package of cigarettes in the Defendant’s pocket after the arrest, a peek which led to the discovery of heroin.

Last week the Florida Supreme Court reversed the lower courts, holding that the police cannot plow through an arrested person’s cell phone without a warrant. “Thus, we agree and conclude that the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices. Consistent with this conclusion, we hold that the decision of the United States Supreme Court in Robinson, which governed the search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone.”

Modern technology is wonderful. I can have a videophone call with my son when we are on opposite sides of the world. However, this same wonderful technology allows the government to learn the most intimate details of our lives once our cell phones, computers and online accounts are accessed. I salute the Florida Supreme Court for protecting individual rights, while still acknowledging that the police can get such private information, they simply need to do what the authors of our Constitution told them to do: GET A WARRANT!

In Davis, the defendant was a passenger in a routine traffic stop in Alabama. He gave the police officers a false name. When asked to exit the vehicle, Davis removed his jacket and left it in the car, then was taken toward a group of bystanders. The bystanders provided his real name, leading to Davis’s arrest for giving a false name. In the search incident to his arrest, the officers found a gun in the jacket, which was still in the car. Davis was convicted of possession of a firearm and sentenced to more than 18 years.

As we explained in this post, the Supreme Court decided Arizona v. Gant in April 2009. The Court held that police are authorized “to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” unless some evidence related to the crime of arrest may be in the vehicle. This decision rendered the search in Davis unconstitutional.

In applying Gant to searches predating the decision, the Ninth and Tenth Circuits disagreed on whether the exclusionary rule must be applied to searches now rendered unconstitutional. The Eleventh Circuit joined the Tenth in holding that the good faith exception prevented exclusion of evidence from such searches. The Fifth Circuit has held similarly prior to Gant, but the Seventh Circuit was skeptical.

We hope the Supreme Court protects defendants’ constitutional rights and reverses the Eleventh Circuit’s decision.

The Eleventh Circuit’s opinion in Davis is available here.

The petition for certiorari is available here.

The brief in opposition is available here.

The police chased a suspected drug dealer into a hallway where he could have entered one of two doors. A strong smell of marijuana came from one of the doors. The officers knocked on that door and announced their presence, after which they heard sounds consistent with destruction of evidence. They then broke open the door, discovering drugs and the unfortunate Mr. King inside.

Our Constitution says that it is unreasonable to conduct a search and seizure unless a judicial officer has issued a warrant. Over the years, the courts have created so many exceptions to the warrant requirement that it looks more like Swiss cheese than a rule to protect privacy. The “exigent circumstances” exception means that the police get to break down doors without a warrant if there is some immediate need to act, for example when persons inside are destroying evidence, someone inside needs immediate help, or there is an immediate danger to the police coming from inside the residence. However, over the years the police have gotten smart and often create the exigent circumstance that lets them get around the warrant requirement. The courts have reacted to these situations in a variety of ways.

In Kentucky v. King the State lost in the lower courts when the Kentucky Supreme Court said that the officers should have reasonably anticipated that their knocking would goad those inside into making noise similar to destroying evidence, thus creating the very exigency that authorized the officers to enter without a warrant. The State explained in its Petition for a Writ of Certiorari that there are at least five different tests being applied by the various lower courts when dealing with similar situations.

We look forward to seeing how the U.S. Supreme Court rules, which likely will not occur until next year. The opinion below and briefs supporting and opposing the petition for certiorari are available here.