Supreme Court: Warrant Required for Cell Phones; Police Respond

In Riley v. California, the Supreme Court found unanimously that when a person is arrested a cellphone may not be searched without a warrant.  In response, officers nationwide (Los Angeles to New York, and even in Houston) officials met to discuss Wednesday’s unanimous ruling that prohibits law enforcement from searching an arrestee’s cellphone without a warrant unless a person’s safety or life may be in danger.

In Houston, we are surprisingly ahead of the curve.  Prosecutors treat cellphones as personal property with privacy rights (in most courts) and officers are told not to cell phonesearch phones without permission, or a search warrant.

Two cases really underlay this Supreme Court Case: Riley & Wurie.

A little background, Riley was stopped by police for driving expired number tags. The officer subsequently found that Riley also had a suspended driver’s license. After impounding the car, guns were found hidden under the car’s hood. When cops searched the cell phone, they found a connection between Riley and a street gang and photographs of Riley standing in front of a car that was involved in a shooting a few weeks earlier. Riley was convicted of attempted murder and sentenced with a 15 years to life sentence.

Wurie was picked up in a routine surveillance where the arresting officer thought that a drug sale was taking place. Wurie had two cell phones that were searched and this led to a location and photos. The search of the location, an apartment, yielded crack cocaine, weapons and drug paraphernalia. Wurie was convicted of distributing drugs. The search of the apartment was covered by an appropriate warrant. Wurie got 262 months in prison but appealed that the information improperly taken from his cell phones should have been suppressed.

Some argue that there are a host of problems embedded in the decision, including the danger to society of releasing criminals from jail.  The Court did not say that cellphones cannot be searched. What the Court said is that you need a warrant, in most (but not all) cases before a phone can be searched.  The argument goes further that for certain categories of crime, murder, terrorism, kidnapping, rape –the Court needs to revisit its decision. When serious threats are involved, law enforcement should not have to wait for a warrant.

True – Justice Alito warns against “using the blunt instrument of the Fourth Amendment” in deciding these matters and points out that the Supreme Court “is poorly positioned to understand and evaluate” these matters -BUT warrantless searches are only upheld for exigent circumstances in most instances, otherwise they can be used as a method of oppression.
The truth is that the Supreme Court’s decision in these cases leads to greater protection of our privacy rights.  It is a proud day to be part of the criminal justice system – proud day to be an attorney!

Have the police searched your person or belongings without and you were arrested?

Did the police search you without a warrant?

If you’ve been accused of any offense following a search warrant or a warrantless search, contact attorney Tristan LeGrande IMMEDIATELY by calling 281-684-3500.

http://www.legrandelaw.com

Supreme Court to weigh Facebook Threats & Free Speech

The Supreme Court will decide if, when considering free speech rights of people who use threatening language on Facebook posts and other electronic media, you must also look at the intent of the person posting the threatening language.

In Pennsylvania Anthony Elois has served nearly four years in federal prison for violent posts directed toward his estranged wife, as well as facebook threatslaw enforcement officials and even former co-workers.

He claims says he never meant to carry out any threats., but that he was depressed.  He further explains that he made the online posts in the form of rap lyrics as a way of venting his frustration after his wife left him.

The real issue: objective intent vs. subjective intent.

SCOTUS will consider whether conviction of threatening another person under federal law “requires proof of the defendant’s subjective intent to threaten.”

At his trial, the jury was instructed to use an objective standard, and could find Elonis guilty if an objective person could consider his posts to be threatening.

In the appeal to the Supreme Court Elonis argues for use of a subjective standard, considering whether Elonis meant the messages to be understood as threats.

The argument for using a subjective standard seems applicable because of the type of communication involved here.  Online postings are impersonal, and can very often be misinterpreted.  How many times have you posted something and people took it the wrong way?  Further, comments intended for a smaller audience can be viewed by others unfamiliar with the context and interpret the statements differently than was intended.

POTUS weighed in, claiming a subjective threat would undermine the purpose of the federal law prohibiting threats.

Let’s look at the Supreme Courts history in similar situations – the court has previously cautioned that laws prohibiting threats must not infringe on constitutionally protected speech. Examples include “political hyperbole” or “sharp attacks” that are not all-out-threats.

Arrested for Assault?

Charged with making threats?

If you’ve been accused of a criminal offense involving assault or with making threats of violence contact attorney Tristan LeGrande by calling 281-684-3500.

Supreme Court tightens law on “Straw Purchasers” of firearms

If you have purchased a firearm you may have seen the signs: “Don’t lie for the other guy” warning those purchasing firearms for someone else buying a firearm for someone that is not allowed to own one (Eg., Convicted Felons) you can end up in jail.  However, the supreme court attenuated the law a little in the case of Abramski v. United States.  What seems odd from this opinion is that The majority holds that even if both the “straw” purchaser and the intended recipient are eligible to purchase and possess a firearm, it still can be an illegal straw transaction.

In my opinion this decision ignores the purpose of the legislation – to prevent criminals from acquiring guns.  However, the court disagreed, cash-for-gunsseeming to say that the real purpose was to be able to account for who are the actual purchasers and holders of specific firearms.

In a 5-4 opinion, the court held that the law applied to a Virginia man who bought a gun with the intention of transferring it to his uncle in Pennsylvania — even though the uncle is not prohibited from owning firearms.

The debate centers around federal gun laws intended to prevent sham buyers from obtaining guns for the sole purpose of giving them to someone else. The laws were part of Congress’ effort to make sure firearms did not get into the hands of unlawful recipients.

Defendant Abramski bought a Glock 19 handgun in Virginia in 2009 and later transferred it to his uncle in Pennsylvania. Abramski, a former police officer, assured the Virginia dealer he was the “actual buyer” of the weapon even though he had already offered to buy the gun for his uncle using his expired police identification to get a discount.

During the transaction, Abramski answered “yes” on a federal form asking “Are you the actual transferee buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you.”

Abramski purchased the gun three days after his uncle had written him a check for $400 with “Glock 19 handgun” written in the memo line.

Justice Kagan spoke for the majority, espousing that the federal government’s elaborate system of background checks and record-keeping requirements help law enforcement investigate crimes by tracing guns to their buyers. “Those provisions would mean little if a would-be gun buyer could evade them by simply getting another person to buy the gun and fill out the paperwork.”

In dissent, Justice Scalia said the language of the law does not support making it a crime for one lawful gun owner to buy a gun for another. Expectedly, Scalia was joined by the court’s other conservatives — Chief Justice Roberts and Justices Clarence Thomas and Samuel Alito.

Abramski is being too honest where he doesn’t need to be, and too dishonest where it is most important to be honest!  How could this problem have been avoided?  He should have said he was buying the gun for another person that could have lawfully owned it…wait…would they have allowed that transaction to occur?

SCOTUS: Anonymous 911 caller is reasonable suspicion for DWI

Yet another blow was dealt by the Supreme Court on our civil liberties and our 4th amendment rights on April 22 when the Supreme Court held that California Highway Patrol officers had reasonable suspicion of DWI, and therefore were justified in conducting an investigative traffic stop where the only basis for the stop was that the vehicle matched a description of a vehicle that an anonymous 911 caller had reported had run her off the road.  Once the stop was conducted, officers smelled Marijuana, searched the truck and found 30lbs of marijuana.traffic-stop-1

So how exactly has this case (Prado Navarette v. California) eroded our 4th amendment rights?

A brief summation of your 4th amendment rights in this context may be instructive (I urge any of my colleagues seeing need for additions or alterations to this summation to weigh in).

The Fourth amendment permits investigative stops when a police officer, taking into account a totality of the circumstances, has a specific and objective basis for suspecting the person stopped has engaged in or is about to engage in criminal activity.  See United States v. Cortez, 449 U.S. 441.  The court has determined in numerous cases that anonymous tips lack the veracity to be relied upon to substantiate reasonable suspicion.  However if there are sufficient indicia of reliability, the court has held that it is enough.

Somehow the court found that an anonymous caller, with a vehicle description was good enough.  This is despite the fact that when the Defendants vehicle was actually being followed by the police, they committed no traffic offenses and provided no additional reasonable suspicion for the officers to believe, by their own observations, that the person could be driving while intoxicated.  The court reasons that this does not dispel the reasonable suspicion for the DWI – what, because all sloshed drivers can drive perfectly when they know the police are following them?  If that were true, I would have a lot fewer clients.

And what else did the court hang its hat on that gave this anonymous caller sufficient indicia of reliability for the call to be the sole basis for the reasonable suspicion for the investigative stop of the defendant?  The fact that the vehicle of the given description was found close to where it was reported it had been.

That’s it.  You can call 911 and give an anonymous tip, state the vehicles description and license plate number and the vehicle will be stopped.

The implications of this are frightening.  Got a grudge against a former spouse that likes to go to the  bars?  Just phone it in some Saturday night, you don’t even have to give your name, just provide the plate number and what local speakeasy your former spouse likes to frequent and presto–you can get them stopped!

Let’s not forget the police officers…should a rouge officer decide he needs to pull over a vehicle and search it without those pesky constitutional requirements, all he has to do is get himself a burner phone and call in a location, vehicle description and license plate number…anonymously…and presto again, he has orchestrated a rouse to pull over anyone he so desires without any justification whatsoever.

View the full supreme court opinion here:

 PRADO NAVARETTE ET AL. v. CALIFORNIA