Archive for the 'Criminal Law' CategoryPage 9 of 64

Police Need a Warrant to Search Your Cell Phone

In 1973, the U.S Supreme Court held that police do not need a warrant to look inside a pack of cigarettes found in the pocket of a man who had been arrested. This decision was decided for the safety of an officer and to prevent concealment or destruction of evidence.

police need a warrant to search cell phonesJump forty years later to 2014. In the case Riley v. California, the U.S Supreme Court unanimously ruled that the police need search warrants to search the cell phones of people they arrest. This decision was made to help define the Fourth Amendment, which affirms “the right of people to be secure in their persons, houses, papers, and effects from unreasonable searches and seizures” in absence of a warrant.

This decision determined that a person’s cell phone contains more information than a person’s house. A person therefore has a “reasonable expectation of privacy” for the contents in their phone and police should not be able to search an arrestee’s cell phone without voluntary consent or a valid search warrant.

The U.S Supreme Court’s ruling makes total sense in regards to today’s high technology and the arrival of the smartphone. Nine out of ten adults in America own a cell phone and an average person has 33 apps installed. These apps contain email, pictures, bank records, intimate conversations, medical data, and GPS information.

Although officers can generally search any container within an arrestee’s car, a cell phone bears little resemblance to traditional containers. Allowing the police to freely search a person’s cell phone without a warrant would be a significant invasion of privacy, which is excessive and unreasonable under the Fourth Amendment.

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Legal Analysis of Jay-Z’s 99 Problems

Jay-Z’s 99 Problems was a hugely popular song when it was released. Taking a close look at the lyrics, however, I can’t help but to notice all the legal errors that are present concerning the Fourth Amendment. What’s more concerning is how many people hold those misunderstandings, too. Hopefully this blog can clear things up.

Jay-Z 99 Problems“The year is ‘94 and in my trunk is raw. In my rearview mirror is the m*********ing law. I got two choices y’all, pull over the car or bounce on the double put the pedal to the floor. Now I ain’t trying to see no highway chase with jake. Plus, I got a few dollars, I can fight the case.”

Here, Jay-Z describes having drugs in a trunk and seeing a police cruiser attempting to pull him over. He then goes over his options: pull over, or speed away. Since he knows he can hire a lawyer, Jay-Z presumably knows the law well enough to know that running is never a good idea. A high-speed chase itself will give the officer an independent basis to arrest him and search his person, impound the vehicle, and search every inch of it as well. On the other hand, a traffic stop, at worst, leads to a potentially unlawful search, which any competent criminal defense attorney should be able to suppress.

“So I pull over to the side of the road. And I heard “Son, do you know what I’m stopping you for?” “Cause I’m young and I’m black and my hat’s real low? Do I look like a mind reader, sir, I don’t know. Am I under arrest or should I guess some more?”

So the driver wisely chose to pull over. By submitting to a show of police authority, the Fourth Amendment has officially been triggered. Next, the officer approaches his window, and asks him if he knows why he was pulled over. This is an important question we’ve all heard. Every stop needs to be predicated on reasonable suspicion, and every search on probable cause. If there isn’t any, the stop and search, respectively, are not valid. At this point, the driver should start taking mental notes, or, better yet, telling the officer he will be recording the conversation.

However, the driver doesn’t ask for any sort of cause, but just lists unfortunate stereotypes. When it comes to making traffic stops, the Supreme Court does not have a problem with profiling as a portion of the officer’s subjective determination, so long as it isn’t solely racial, and there are objective, specific and articulable reasons for the stop in the first place.

He does say and do some smart stuff. Saying “I don’t know” to an officer is always better than admitting guilt or trying to talk yourself out of something. Additionally, asking “am I under arrest” is maybe the most important question someone in his position can ask. If the officer were to tell Jay-Z’s driver he was not under arrest, yet looked around the car anyway, the search would be illegal unless the officer can demonstrate probable cause for the search itself. His next response to the officer, however, is not so smart.

“Well, you was doing fifty-five in a fifty-four. License and registration and step out of the car. Are you carrying a weapon on you, I know a lot of you are.” “I ain’t stepping outta s**t all my paper’s legit.”

Regardless of how minor the infraction is, the stop is lawful. Jay-Z’s driver was speeding. Thus, he cannot refuse to comply with a lawful command of a police officer who has lawfully detained him. Refusing to do so is essentially asking to be arrested.

Moreover, the officer may have had a lawful reason for asking him to step out of the car, such as a protective weapons search. This kind of search also applies to the vehicle itself, so if the officer has a specific reason to believe the vehicle has weapons, the officer can perform a protective search where weapons may be readily accessible.

I know it may sound bogus, but as long as the stop is lawful, the officer can order Jay-Z’s driver (and any passengers) to step out of the car, and arrest him for refusing to do so. Moreover, depending on the circumstances, the officer may also be justified in patting down Jay-Z’s driver and performing a limited weapons search of the car.

“Well do you mind if I look around the car a little bit?” “Well, my glove compartment’s locked, so is the trunk, and the back. I know my rights so you’re gonna need a warrant for that.” “Aren’t you sharp as a tack, you some type of lawyer or something, somebody important or something?” “Nah I ain’t pass the bar but I know a little bit, enough that you won’t illegally search my s**t.”

Luckily, it seems as though the officer in this song doesn’t know criminal procedure very well either, and no one is arrested. So, ignoring the trouble Jay-Z’s driver already could have got himself into by refusing to comply with a lawful order, his response to an officer asking to look around the car is spot on. As a general rule, never consent to search. Consenting to search obliterates challenging a search as lacking probable cause. This is not being rude or uncooperative, it is simply exercising your Fourth Amendment right. Jay-Z’s driver does just that. However, he expresses it poorly.

What his response does express well is a fundamental misunderstanding about the law. Put simply, locking your glovebox, trunk, and back doors will NOT require the police to get a warrant before searching them. In fact, pursuant to the Supreme Court case California v. Acevedo, there is essentially no warrant requirement for automobiles or their compartments. All the police need is probable cause that evidence of a crime will be found within. There are a few hypothetical situations where a warrant may still be required, but for our purposes—and Jay-Z’s—the warrant requirement is completely irrelevant.

“We’ll see how smart you are when the K-9s come.”

This line presents an interesting dilemma. The Supreme Court has held dog sniffs of automobiles are not a search. Therefore, if Jay-Z’s driver was pulled over by a K-9 unit, and the dog was immediately on hand, walked around the car and alerted officers to the “raw” in the trunk, he’d be sunk.

However, here the officer says “when the K-9s” come. Well, here is another situation where the officer doesn’t seem to know the law very well. Police officers cannot detain someone longer than necessary to facilitate a dog sniff. So, if he pulled Jay-Z’s driver over for speeding, he could only lawfully detain him long enough to get his identification, run his license, and process a ticket. Anything further would be an illegal detention, or would require an independent basis justifying detaining the suspect longer. Here, the cop doesn’t seem to have a leg to stand on. Even if the K-9 sniff uncovered all the drugs in the trunk, they’d be suppressible.

Jay-Z then ends with the hook. Of all the 99 problems his driver has, knowledge of his legal rights seems to be one, too. But, that’s admittedly not very catchy.

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Violent Facebook Posts: Threats or Protected Speech?

Everyone has bad days, and everyone has different ways of dealing with them. Some people go to bars, some go the gym, some go shopping… Soon, the Supreme Court will decide whether violently venting frustrations on Facebook will be classified as true, criminal threats, or a protected way to decompress.

anthony elonis facebook violence2010 was a rough year for Anthony Elonis. His wife moved out and he lost his job. In response to these events, he took to Facebook. His posts were often written as lyrics or mimicking the comedic styling of others, and were specific and violent in theme. As a result, his wife called the authorities, and a court issued a protective order.

Unsurprisingly, he responded with violent lyrical threats referencing his wife, the judge, the sheriff’s office, and even elementary schools. Eventually, the FBI became involved. After a visit by two agents, guess how Elonis responded?

Direct references to killing one of the agents in another lyrically styled Facebook post.

When Is a Threat a Threat?

This case presents a few complicated legal questions. At the core, the Supreme Court should be clarifying when a threat really is a threat. According to Virginia v. Black, one of the flagship cases for true threats, the speaker need not actually intend to follow through with the threat. Indeed, the lack of First Amendment protection over true threats is to protect people from fear of the possibility of violence.

This offers little clarity on when words lose protection and become criminal in nature. In fact, courts across the country seem to pick and choose, on a case-by-case basis, whose intent and perception matter when applying a standard. Some look towards the subjective intent of the speaker, where others look towards whether the reasonable person receiving the message would feel threatened. Even where courts settle on a “reasonable” standard, they struggle to apply a consistent standard of reasonableness—for instance, is it the reasonable listener, or the reasonable speaker?

Why Does This Matter?

The first question many may ask is “why does this matter?” In today’s day and age, where communication can happen nearly instantaneously, the lack of clarity of when the First Amendment applies is troubling.

While Elonis’ method of therapy unfortunately struck fear into others, his case matters because it will be setting a new benchmark. While the current Black standard has been more of a grey area, it has likely kept courts cautious in how to treat speech. Now, a line will be drawn. Too strict of a standard, and free speech suffers; too loose, and the freedom to not feel threatened by violence does.

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” These famous words of Justice William Brennan succinctly define how we generally view speech in this country. Even though the sentiment comes from a time when flag burning and taking to the street to express anger was more common than logging onto social media to do so, hopefully the court will keep it in mind when deciding how to treat online speech.

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Supreme Court: It’s Illegal to Purchase a Gun on Behalf of Another Lawful Gun Owner

It’s hard being a middleman, especially if the federal government prosecutes the middleman for a legal transaction. Bruce Abramski, a former police officer, discovered this the hard way when he was misidentified as a bank robber. Although state prosecutors eventually dropped the investigation, federal prosecutors discovered a gun purchase receipt during a search of Abramski’s home. The receipt showed that Bruce had purchased a Glock 19 handgun for $400 on behalf of his uncle, Angel Alvarez.

bruce abramski gun purchase caseBruce had checked “yes” to a background check question asking if he was the “actual transferee/buyer” when he was purchasing the gun. Bruce then signed the form, acknowledging that it is a federal crime to make false statements about “any fact material to the lawfulness of the sale.” Lower courts dealt with the issue that Angel Alvarez was also a legal gun owner, casting doubt on whether the misstatement was legally relevant. The Supreme Court addressed the question of whether Congress intended to regulate third person gun purchases. In a 5-4 decision, the Court voted against Bruce, affirming his five year prison sentence.

Courts Should Not Fix Laws

As Justice Scalia said in his dissent, “The Court makes it a federal crime for one lawful gun owner to buy a gun for another lawful gun owner.” The majority of the Court does so because it sees a loophole that they feel should be closed. The law Bruce was prosecuted under makes it illegal for a person to make a material misstatement about the person’s attempted acquisition of a gun from a licensed dealer. The majority treated Bruce as an agent for his uncle, making the uncle the “person” who purchased the gun.

However, the background question, “Are you the actual transferee/buyer?” could be read as asking whether the person answering the question is the person paying for the gun, NOT whether the person purchasing the gun is an agent for another man or woman. Justice Scalia provided a perfect example: “So if I give my son $10 and tell him to pick up milk and eggs at the store, no English speaker would say the store ‘sells’ the milk and eggs to me.” Answering the question this way does not interfere with Congress’s attempt to keep guns from “felons, fugitives, illegal drug-users and the mentally ill” because the actual gun owner is neither a felon nor mentally ill.

The fear is that if “agents” are allowed to purchase guns, then a felon could hire a delivery man to purchase the gun without having to go through a background check. That does seem like a clever workaround, but the law also requires there be a paper trail when a gun is transferred to another. Since Bruce had a receipt for the police to find, it’s clear that the law already has a method of tracking third person gun purchases.

Federal Overreach

Gun control proponents see this case as a victory. It is sad that any case involving firearms automatically devolves into an argument over the role of the Second Amendment. Gun control advocates might see this ruling as a win, but I see a man who is imprisoned without cause. When courts give federal laws more teeth than originally intended, we all lose.

Gun Control and Mental Illness

Following the recent shooting and stabbing rampage at the University of California, Santa Barbara, the controversial subject of gun control is again being widely debated.

elliot rodger gun violence and mental illnessProponents of stricter gun control laws argue that if guns were less accessible, fewer people would be able to obtain them, resulting in less gun violence. However, tougher gun laws don’t always necessarily translate into less gun violence. For example, there is much gun violence in the District of Columbia, which has strict gun laws.

According to some studies, there are many other variables besides lax gun laws that contribute to increases in gun violence. One study found that the strongest indicators of gun violence are: the number of college graduates in a community, the number of working class residents, the presence of weapons in local high schools, and poverty.

The recent shooting at the UC Santa Barbara highlights another important factor: mental illness. Elliot Rodger, who was committed the six killings, was most likely suffering from some form of mental illness. His actions and statements leading up to the killing spree have been described as “pre-psychosis.”

Under federal law, individuals with mental illnesses are not allowed to possess guns. It is unlawful to sell a firearm to anyone who has been committed to a mental institution. Most states uphold similar laws.

In response to the UC Santa Barbara incident, it has been proposed that these laws should be expanded so that that friends and family members can request gun violence restraining orders. This type of law might have helped to stop Elliot Rodger, who was clearly showing signs of mental illness and the potential for violence.

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