Sunday, March 16, 2014

Technology moves faster than the law

Lost my trial last week.  I wasn't particularly surprised by the verdict, but of course, I was disappointed.  As always.  Losing sucks, even if it isn't a surprise.  But, it was good to get back into the courtroom to do a trial, since it's been over a year since I've done a jury trial and my last trial (just in front of the judge) was in September of last year.  So, it's been awhile, which made it nice to get back in there and do another trial again.  Can't let my trial skillz get all rusty and out of use. 

In other news, there's some interesting stuff going on in the legal world recently.  The most interesting one, which I'm a bit late to comment on, is that SCOTUS agreed in January to hear two cases regarding the police's ability to search through a cellphone without a warrant when they arrest a suspect.  One case, Riley v. California, involves a smartphone; the other case deals with a flip phone and I think is probably less important in the grand scheme of things than the Riley case, since flip phones will likely not be around for too much longer, but smartphones and/or similar technology will be in the hands of more Americans as we move forward. 

So, let's discuss this case, searches incident to arrests, and why the decision that SCOTUS makes in this case is going to be extremely important for every citizen in the nation. 

To start, as we have discussed in the past, all searches require either a warrant or an exception to the warrant requirement in order to be lawful searches.  One of the exceptions to the warrant requirement is what's called a search incident to arrest.  Basically, what this search allows is wen an officer places a suspect under arrest, the officer is permitted to search the person and his/her items on her and/or within the immediate "grab area" of the person.  The purpose of allowing this type of warrantless search is to 1) ensure officer safety, in case the arrested person has a weapon on them or nearby them that could be used to injure or kill officers and 2) to prevent the destruction of evidence. 

For quite some time after the Court carved out this exception, it was used to basically just go crazy with a search.  If you were arrested while driving a car, the cops were permitted to search the entire car (minus the trunk, since that wasn't considered to be within the person's "grab area," as most trunks require a person to get out of the car to access them or would be too far away for someone to be able to actually reach them from the driver's seat).  So, it was a free-for-all to rummage through the car's interior.  Which sucked for defendants and defense attorneys, because we got nothing to argue against when they search the car's interior after arresting our defendants.  SIGH. 

But, then, SCOTUS clarified that the search incident to arrest exception wasn't actually meant to be a free-for-all; that wasn't what they were meaning to do when they created the exception; and it was a bit more nuanced than simply arrest = search entire car interior.  The case, Arizona v. Gant, refined the search incident to arrest exception to allow for searches of a car's interior after arresting a person when 1) it's reasonable that the person could actually access the car's interior during the time of the search (which essentially ended the police practice of placing the defendant in the back of the squad car and then searching the car, as was previously allowed, since a handcuffed defendant in the back of the squad couldn't access his/her car anymore) or 2) the car contains or may contain evidence of the crime for which the suspect was arrested.  

So, yay!! No more automatic car searches simply because the person was arrested! 

However, the police still can search a suspect's person and the items on the person--search inside pockets, purses, wallets, etc. Those searches would still deal with the 2 reasons for allowing a search--protecting officer safety and preventing the destruction of evidence. 

So, enter Technology, by way of smartphones.  Suddenly a huge number of Americans are carrying around a tiny computer that has all of their personal information readily accessible.  Information on who you talk to, who has been trying to contact you, the contents of your text conversations with other people, your emails--oftentimes, both your work emails and your personal emails; your bank account and/or other financial accounts; your web searches; your Facebook/Twitter/social media accounts; etc, etc, etc.  All in your pocket/purse and all readily available at the touch of a few buttons. 

As always, the law is slow to catch up with technology, and the smartphones that so many of us carry all the time were characterized by some courts/prosecutors/law enforcement as "containers" that can be searched, just the same as your purse, wallet, etc.  

Defense attorneys and libertarians everywhere lost their collective minds at this.  Allowing the government to have access to that volume of personal, private information without a warrant?!?! The Founding Fathers would have a stroke if they were still alive and able to have a stroke. 

For comparison purposes, if police officers want to access a person's phone records, contents of their conversations, email or social media or other information a person could conceivably access through a smartphone, they need a warrant signed by a judge.  The government can't just look at that sort of private information because they want to--they need to have a warrant to do it.  (Well, in theory--of course, now we all know that apparently the government can and does spy on all our personal info without getting a warrant, but the Constitution says they shouldn't be able to do that. Hey there, NSA!!).  So, the normal procedure to obtain that sort of information is to get a warrant. 

But, suddenly, because technology has now enabled us to carry our "papers and affects" with us electronically, the government has used the search incident to arrest exception as a way of accessing that information without getting a warrant.  Loophole, FTW!! 

If SCOTUS isn't a complete failure, it will rule that searching a cell phone's contents is not within the scope of a lawful search incident to arrest, especially because there's no reason that police can't get a warrant.  

Backing up here for a moment--in general, most of the exceptions to the warrant requirement have been created because it's impractical to get a warrant under the circumstances.  For example, "hot pursuit" is an exception--if police are actively chasing a fleeing suspect and they enter a home without a warrant to continue chasing the suspect, that entry into the home is an exception. Police don't exactly have time while mid-chase to draft a warrant and present it to a judge.  Same for almost all the other warrant exceptions.  Usually they are based on the premise that police don't have the time to get a warrant and it would be impractical to expect them to do so. 

So, with the search incident to arrest exception, if a suspect has been arrested and has access to a hidden weapon, there's not time to get a warrant written up and presented to the judge for review before searching the suspect. While the cop is drafting the warrant, the suspect can just shank the officer with his hidden weapon.  Same for destruction of evidence--while the cop is busy trying to get a warrant, the suspect can ditch or destroy the evidence.  So, the time it would take to get a warrant is one of the big reasons for most of the exceptions to the warrant requirement. 

Which brings me back to my point--SCOTUS should rule that searching a cell phone's contents is beyond the scope of a search incident to arrest, especially because there's no reason that police can't get a warrant.  When police are conducting a search incident to arrest, they can seize the evidence (the cell phone) and maintain it in their custody and control.  That prevents the destruction of evidence that may be on the phone, since the suspect would no longer have access to the phone.  IF the police have reason to believe that the phone may contain evidence of a crime, then they can present a warrant establishing probable cause to allow a search of the cell phone's contents.  If they do not have probable cause to believe the phone contains evidence of a crime, then they don't get to access all the personal and private information on that phone.  

Once the phone is seized--once the suspect no longer has access to it--there is no longer a potential threat to the officers nor is there any way that the suspect can destroy the evidence.  (And for those of you who are thinking that they can just have someone remotely wipe the phone, police are hip to that trick and they have a specialized bag that they can put cell phones/computers/etc. in and it prevents it from being wiped, so still not a good enough argument to say it should be within the scope of a search incident to arrest). 

Allowing the government to have that much access to a person's private information without first establishing probable cause and having it reviewed by a neutral magistrate is terrifying.  The whole purpose of the 4th Amendment is to keep the government out of your private life unless and until they have probable cause to be permitted to access it.  And the purposes for permitted a search incident to arrest are not served by allowing a warrantless search of a cell phone.  It simply should not be considered to be within the scope of that exception.  It's a ridiculous overreach of the reasons for the exception. 

If police can get a warrant, then they should get a warrant.  It's as simple as that.  And many court decisions regarding searches and seizures reach that very conclusion.  Warrantless search are automatically considered unreasonable unless the State can show that an exception applies.  Those exceptions are all very limited and the basic premise behind almost all of them is that it's impractical, given the situation, for police to get a warrant.  That is not the case with cell phones taken from a person who has been arrested.  Police can just pop that bad boy into the evidence locker and then go get a warrant when they have time.  The suspect can't reach it anymore, so there's no reason to not get a warrant. 

The problem is that it requires the police to work.  And lately, there seems to be a tremendous push by many law enforcement groups and prosecutors (note that I did not say ALL, but MANY--some law enforcement groups and prosecutors are still on board with the whole idea of following the Constitution and those guys are cool) to allow police to be able to obtain evidence as quickly and as easily as possible.  It's too much work to expect them to get warrants, it's too much work to ask them to follow the Constitution, it's too much work and will cost too much in the way of money and manpower to do all those pesky requirements, so can we please just not? 

Everyone complains all the time about how inefficient and unproductive the government is--whether it's in regards to Congress passing legislation or in regards to allowing police to quickly and easily obtain information they want.  The thing we forget, being 200+ years removed from the tyranny that spurred the American Revolution, is that the Founding Fathers wanted government to be inefficient and unproductive.  They wanted the government to jump through hoops and have to do a lot of work before actually being able to accomplish what it was trying to do.  That was done purposely, to prevent the government from being able to swiftly trample on the rights of people and to prevent it from becoming tyrannical.  So, yes, the warrant requirement is a pain in the ass sometimes--it would be waaaaay easier and waaaaay faster to just let police dig through a suspect's personal information on his/her cell phone.  But that it's faster and easier does not make it right.  In fact, it would be counter to the whole idea of the 4th Amendment to allow a search or seizure because it's "faster" or "easier."  

So, SCOTUS should rule that the search incident to arrest exception does not cover cell phones.  Seize the cell phone all you want--that meets the purposes of the search incident to arrest exception by denying the suspect access to the phone and preventing them from using it to conceal a weapon or to destroy evidence.  But, searching the contents of the phone is well beyond the scope of the search incident to arrest exception and shouldn't be allowed.  

At least, that's what I think.  We'll see what SCOTUS thinks.  My guess is that Ginsberg, Sotomayer, Kagan, Breyer, & Scalia will think it's outside of the scope of a search incident to arrest; Thomas will agree but for some other reasons that are different from the majority; Roberts & Alito will disagree and think it's fine; and Kennedy will think who the fuck knows what because he's Kennedy and completely unpredictable. 


  1. Has SCOTUS made a decision yet??

    1. Nope. I don't think it's been argued yet, just that the court has agreed to hear the case.

  2. Jackie6:46 AM

    Have any recommendations for helpful electronic discovery tools?