Warrant Requirement and Cell Phones

Jun 25, 2014 | Blog Post

The Supreme Court of the United States handed down an important and unanimous decision today that affects just about every American citizen in the modern age of mobile technology, holding in Riley v. California (the text of the decision is here) that a law enforcement officer must first obtain a search warrant before examining the contents of a suspect’s cell phone.  Justice Roberts, who wrote the decision, accurately stated that cell phones and mobile devices “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.”

Justice Roberts went on to state that “A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary…But those discoveries were likely to be few and far between. Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate…Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.”

In conclusion, the Court held that “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost. Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.”

I am not surprised by this decision, having had the opportunity to hear arguments on this very case as a judge for SUNY Buffalo Law School’s Wechstler Moot Court Competition earlier in the year.  I am struggling to think of another Supreme Court case from the past few years that will have such a far reaching effect on police-citizen interactions.

This and That Tuesday

Jan 28, 2014 | Blog Post

A few random thoughts kicking around on this extremely cold day:

• On days like this downtown workers like myself who park underneath the Hall of Justice in the Civic Center Parking Garage will almost certainly notice many, many homeless folks camped out in the garage, mostly on the lower level.  You may have heard that a decision was recently made by the agency who runs the garage to start (yet another) effort to expel these folks from the garage.  If these efforts have begun I have personally yet to have seen it – and so much the better.  On a day like this, exposure to such extreme low temperatures and wind chills can be fatal.  Never once have any of these people bothered me in the garage, and frankly I’d rather they be down there than dying in the streets.  Obviously some long-term strategies have to be explored to address the reasons why these folks are down there rather than in shelters with resources to address the underlying issues, but on a day like today, I say let them stay in the garage.

• I just discovered the other day that my former Aquinas and UB Law classmate Kyle Magee is hosting a podcast with (of all people) pro wrestling legend Jake “The Snake” Roberts.  Check them all out here – what an incredible project.  The content is about a whole heck of a lot more than pro wrestling – Jake has had his share of ups and downs in life.  However, he was recently named to the WWE Hall of Fame.

• Being the huge Red Sox fan that I am I certainly took notice yesterday when NESN, the TV network that airs Sox games, announced that Jerry Remy would be returning as color man for the 2014 season.  The reason that this announcement was significant is due to the fact that Remy had left the booth mid-season last year when his son was arrested for brutally murdering his girlfriend.  Remy’s return has generated opinions both in favor and against coming back under these circumstances.  The matter presents an interesting dilemma – what responsibility does a public figure have when a close relative is accused of a horrible crime?  Should such a person have to withdraw from public view?  I personally think Remy has every right in the world to make a living, and it’s worth remembering that he is not accused of a crime, his adult son is.

• Big Game on Sunday (I wouldn’t dare call it by its real name) prediction from Yours Truly: Denver 35, Seattle 27.  We will see if one Denver radio station’s vow not to play any Seattle music has any effect on the outcome.

Stay warm, everyone.

Acquittal to Finish Off 2013

Jan 15, 2014 | Blog Post

Pardon the scarcity of blog posts into the fall and early winter of 2013.  The end of the year has been an extremely active, busy and satisfying time here at the Office.  One of my new years resolutions is to post more information to the blog, and I really hope to live up to it in the coming year.

I did however want to share one success story before we turn the page to 2014.

I was able to secure a not guilty verdict after trial for a client charged with Criminal Contempt in the First Degree, which is a felony level offense that carried with it the possibility of state prison time.  The trial occurred in the unique setting of the Integrated Domestic Violence (IDV) part of Supreme Court, something that few clients have ever even heard of before they find themselves there.

The idea behind IDV is to consolidate criminal cases and family court actions into one court where the parties in each of the cases are the same.  So, for instance, in the recent case that I tried, my client was charged criminally with violating an order of protection (hence the criminal contempt charge, in that the client was accused of violating a court order) by having contact with the same person who the client was opposing in a family court custody and visitation action regarding a child that the parties had in common.  The theory is to make the proceedings more efficient by having them occur in one court simultaneously.  (Whether the theory actually matches up with how things go in real life I will leave for another day.)

In IDV you will find criminal cases from simple misdemeanors all the way up to violent felonies combined with family court cases like custody, visitation and family offense proceedings.  The program is about a decade old, and has had many judges presiding over it through the years, including Judges Alex Renzi, Daniel Doyle, Elma Bellini and Gail Donofrio of Supreme Court.  At present Judge John Gallagher of Family Court is assigned there.  The DA’s Office and Public Defender also staff IDV with attorneys specifically assigned there.  Oftentimes and depending on the circumstances there are also attorneys assigned by the Court to represent the children involved in the cases.  These attorneys (I am one of them) are specially trained as part of the Attorneys for the Child Program.

It takes a unique skill set to practice in IDV.  Obviously an attorney needs to know how to handle both criminal and family cases, but it goes a little deeper than that, in my opinion.  Whether for good or ill, there is a give and take and an interplay between how the criminal and family aspects of the cases proceed.  While in theory the criminal and family cases are supposed to proceed on parallel tracks, how cases are evaluated and screened, how negotiations proceed and how resolutions are crafted often bring the two cases together in attempts to reach “global” solutions.  Many times outside agencies like Child Protective Services and Probation are involved in the cases too.  As always, experience is the best teacher for attorneys in representing clients in a unique court like IDV.  Speaking for myself, I have been handling cases there going back to at least 2007.

Specifically as to this most recent trial, my client, thank goodness, was smart enough to take advantage of the recording capabilities of a cell phone, at the encounter was captured entirely on audio and partially on video so everyone could hear and (somewhat) see what happened.  It was clear, at least to me, that at no time did my client violate the terms of the order of protection as was alleged in the indictment, and the verdict reflected that.  There was some discussion prior to the trial about the admissibility of the recording, but relying on the great work of my investigator and my computer forensics expert we were able to take care of that potential issue.

I look forward to being able to report more positive results for clients just like this in 2014.  If you find yourself in a situation where you think I might be of assistance, I invite you to contact me right away.

Happy 2014, everyone.

(As always, past results do not guarantee future outcomes.)