U.S. Supreme Court Unanimously Rules on Warrantless Cell Phone Searches

 

Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is [ ] simple— get a warrant.

Riley v. California, 573 U.S. ____ (2014).

Warrantless cell phone searches have been addressed a couple of times by TNLawyerLee (here and here).  But as of today, there is a new development out of the United States Supreme Court, significantly limiting warrantless police searches of cell phones: police generally cannot search a cell phone during an arrest without a warrant.  To read the USA Today article on Riley v. California, click here.  To read the full court opinion, click here.

_________________________________________________________________

The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee.  If you or someone you know need an attorney, please click herefor Mr. Lee’s contact information and contact him today for a free consultation.  Also, please feel free to visit Mr. Lee’s website,www.TNLawyerLee.com or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.

The information on this site is general information and should not be construed as legal advice. Every case is unique and you should consult with an attorney in your state about the specific details of your case. Nothing on this site or in correspondence with Nicholas Lee or his agents shall be construed as forming an attorney-client relationship and information you send prior to the forming of an attorney-client relationship may not be kept confidential. Neither this site nor correspondence with Nicholas Lee or his agents shall be construed as a promise nor as undertaking a duty regarding you or your case. Nicholas Lee and his agents are not retained as your legal counsel unless a valid written Representation Agreement is reached regarding your specific case.

Copyright © 2014. Nicholas W. Lee, Attorney at Law. All rights reserved. This site’s content may not be used without the prior written consent of Nicholas Lee.

Lasers – A New Way to Catch Drunk Drivers?

Image from http://www.huffingtonpost.com/2014/06/08/device-laser-alcohol-cars_n_5453696.html "An illustration of how two lasers involved in the study reflected off of mirrors to reveal the presence of alcohol vapors in a test car."

Image from http://www.huffingtonpost.com/2014/06/08/device-laser-alcohol-cars_n_5453696.html
“An illustration of how two lasers involved in the study reflected off of mirrors to reveal the presence of alcohol vapors in a test car.”

One of the greatest joys of writing this law blog is keeping up to date on current issues and developments in the law.  Today’s short post deals with an intriguing technological development that its developers hope will aid police in detecting individuals who are drinking and driving.

In Poland, scientists have developed a new “laser-based device that can detect alcohol vapor–like that exhaled by someone who’s been drinking–inside a car as it passes by,” reports Jacqueline Howard of The Huffington Post (to view the full article, click here).  While this device is not exactly close to being implemented in Tennessee, it is interesting to think for a second through some possibilities and ramifications of this device.

Of course, new technology aiding police in apprehending suspects is not a novel concept.  However, radar guns, breathalyzers, and any other system is susceptible to making mistakes.  The proposed laser device will have its own problems to work through, such as what if you are driving and your passenger is intoxicated (but you are not)? Just that simple hypothetical situation might draw into question the reasonableness of a stop based on such technology (if more than one person is present in the car).

To read more about this intriguing technological development, click here.

_________________________________________________________________

The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee.  If you or someone you know need an attorney, please click herefor Mr. Lee’s contact information and contact him today for a free consultation.  Also, please feel free to visit Mr. Lee’s website,www.TNLawyerLee.com or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.

The information on this site is general information and should not be construed as legal advice. Every case is unique and you should consult with an attorney in your state about the specific details of your case. Nothing on this site or in correspondence with Nicholas Lee or his agents shall be construed as forming an attorney-client relationship and information you send prior to the forming of an attorney-client relationship may not be kept confidential. Neither this site nor correspondence with Nicholas Lee or his agents shall be construed as a promise nor as undertaking a duty regarding you or your case. Nicholas Lee and his agents are not retained as your legal counsel unless a valid written Representation Agreement is reached regarding your specific case.

Copyright © 2014. Nicholas W. Lee, Attorney at Law. All rights reserved. This site’s content may not be used without the prior written consent of Nicholas Lee.

This Week in the Law – Cell Phones, Killing, and Criminal Pregnancies (oh my)

Image

Image from scotusblog.com.

As loyal readers already know, this legal blog often focuses on contemporary legal issues.  Accordingly, the Friday Afternoon Reads (what I have come to call my weekly posts as they are posted on, well, Friday afternoons when most people’s levels of motivation are not exactly at their highest) often highlight a significant legal development from the past week.  However, this past week has been especially busy and so any post doing it justice will have to discuss at least three things.

First up is the issue of warrantless cell phone searches.  As you might recall, one of this blog’s first posts was about when police can search your cell phone without a warrant (click here to view).  Fast forwarding to this past Tuesday, the United States Supreme Court heard arguments in Riley v. California and United States v. Wurie as to when searches of cell phones should be permissible.  If you would like to learn more about these cases, click here to read the reporting from scotusblog.com or click here to read the reporting from the New York Times.  The legal scholars among you will definitely be watching to see where the Supreme Court comes down on these cases.

As a side note, even back in 2012 when the article “Cell Phone Searches” was posted, it was already apparent that pass-code protecting your phone was a good idea.

Next up from this week in the law is the topic of killing, more specifically the execution of an Oklahoma man, also this past Tuesday.  If you need a quick refresher on the status of the death penalty in the United States, click here to read “Florida and the Death Penalty in 2014.”  In short, many citizens oppose the death penalty as being immoral and/or an overly cruel punishment, and those people must be up in arms after the execution of Clayton Lockett this week.  Mr. Lockett was “accidentally killed” in the middle of the state’s efforts to execute him.  I will skip over the gruesome details, but suffice it here to say that Mr. Lockett suffered.  A lot.  Click here to read the reporting on Mr. Lockett’s execution from Slate.com.

And the final topic for this week in the law is what was referred to in this post’s title as “criminal pregnancies.”  As some of you might know, the Tennessee Legislature passed into law a statute making it a criminal offense punishable by up to 11 months and 29 days in jail in certain situations were women use certain drugs while pregnant.  Proponents of this measure seemed primarily driven by a desire to protect unborn children, while opponents seemed primarily driven by the belief that women facing addiction issues will be less likely to come forward for help when they could be convicted.  Click here if you would like to read more on this topic from thinkprogress.org.

_________________________________________________________________

The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee.  If you or someone you know need an attorney, please click herefor Mr. Lee’s contact information and contact him today for a free consultation.  Also, please feel free to visit Mr. Lee’s website,www.TNLawyerLee.com or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.

The information on this site is general information and should not be construed as legal advice. Every case is unique and you should consult with an attorney in your state about the specific details of your case. Nothing on this site or in correspondence with Nicholas Lee or his agents shall be construed as forming an attorney-client relationship and information you send prior to the forming of an attorney-client relationship may not be kept confidential. Neither this site nor correspondence with Nicholas Lee or his agents shall be construed as a promise nor as undertaking a duty regarding you or your case. Nicholas Lee and his agents are not retained as your legal counsel unless a valid written Representation Agreement is reached regarding your specific case.

Copyright © 2014. Nicholas W. Lee, Attorney at Law. All rights reserved. This site’s content may not be used without the prior written consent of Nicholas Lee.

Red Light Cameras: Making Streets Safer or Unconstitutional Money Machines?

Picture getting home from work one day, running out to check the mail, and finding that you have a ticket waiting for you in the mail.  The ticket alleges that you have broken a traffic ordinance and must pay a fine or show up for court.  You don’t know what this ticket is talking about, so you do a little research and find out that a traffic camera recorded you driving a month ago where you slowed down at an intersection (but did not stop) and then you made a right turn on red.  A camera  sent you a ticket?  

Citizens across the nation find themselves in situations like these on a daily basis.  According to the Governors Highway Safety Association (“GHSA”), “12 states, the District of Columbia, and the U.S. Virgin Islands have speed cameras currently operating in at least one location” and “24 states, the District of Columbia, and the U.S. Virgin islands have red light cameras operating in at least one location.”  (See http://www.ghsa.org/html/stateinfo/laws/auto_enforce.html).  The GHSA lists a number of different legal consequences that might apply in different states, including in Tennessee where points won’t be added to your driving record, but you can be accessed a fine of $50 per violation.

Advocates for the use of traffic cameras provide such arguments that the traffic cameras make our streets safer and it is like having extra officers on the streets.  Opponents argue that traffic cameras might actually increase accidents, are just money machines to raise funds for the government, and/or are downright unconstitutional. And these differences of opinion have given rise to legal actions across the nation.

One such instance arises out of California in the case of Howard Herships v. California.  As reported by Dennis Romero of LA Weekly, Herships received a number of traffic camera tickets and has argued that they are unconstitutional as they violate the U.S. Constitution‘s Confrontation Clause (namely, his right to confront his accuser) (click here to read Dennis Romero’s article).  At Herships’s trial, a police officer was allowed to testify as to the authenticity of the traffic camera pictures and videos, even though the officer did not personally observe Herships breaking a law (see http://www.scribd.com/doc/214945429/Howard-Herships-Red-Light-Camera-Cert-Petition-Filed-Copy).  The problem, worded colorfully by Dennis Romero, is “how can you [confront your accuser] if your accuser is a camera?”  Now Herships is asking the U.S. Supreme Court to hear his case.

Each year the U.S. Supreme Court turns down hundreds of cases seeking an audience with the Justices, as is their right.  As of now, the Supreme Court has not decided whether to hear Herships’s case and may decline to do so.  But traffic cameras are a part of daily life across the nation, a part that many citizens would like to see go away.

_________________________________________________________________

The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee.  If you or someone you know need an attorney, please click herefor Mr. Lee’s contact information and contact him today for a free consultation.  Also, please feel free to visit Mr. Lee’s website,www.TNLawyerLee.com or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.

The information on this site is general information and should not be construed as legal advice. Every case is unique and you should consult with an attorney in your state about the specific details of your case. Nothing on this site or in correspondence with Nicholas Lee or his agents shall be construed as forming an attorney-client relationship and information you send prior to the forming of an attorney-client relationship may not be kept confidential. Neither this site nor correspondence with Nicholas Lee or his agents shall be construed as a promise nor as undertaking a duty regarding you or your case. Nicholas Lee and his agents are not retained as your legal counsel unless a valid written Representation Agreement is reached regarding your specific case.

Copyright © 2014. Nicholas W. Lee, Attorney at Law. All rights reserved. This site’s content may not be used without the prior written consent of Nicholas Lee.

 

“Do you Recognize the Citizen Accused?” – On Eyewitnesses and a Developing Technology

Image

Vinny Gambini, from the movie My Cousin Vinny, in court testing the reliability of a witness’s eyewitness testimony.

The main purpose of this post is to highlight something that many readers might be unaware of, the questionable reliability of eyewitness testimony.  Then we will conclude with a little nugget of something innovative and new, a developing technology that hopefully will not repeat (or make worse) the mistake of our blind trust in eyewitness testimony (pun intended, sorry).

It has been a long-held concern among many in the legal field that eye-witness testimony, often deemed conclusive by juries, is also among the LEAST reliable types of testimony.  According to The Innocence Project, “[e]yewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in nearly 75% of convictions overturned through DNA testing” (see http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php, accessed at 3:22 p.m., E.S.T., on 03/28/2014).  Indeed, one need only do a quick Google search to find an avalanche of posts about the unreliability of eyewitness testimony, such as “Why Science Tells Us Not to Rely on Eyewitness Accounts,” “How Reliable is Eyewitness Testimony?,” and “Eyewitness Testimony.”

Well now a new technology seems to be arising where one can “Create 3D-Printed Mugshots Solely from DNA” (see “We Can Create 3D-Printed Mugshots Solely from DNA“).

Image

Reported in the article is that the technique is already being attempted to find a lead for a crime in Pennsylvania, but learning of this developing technology immediately raises many thoughts and questions in this author’s mind.  Aside from how amazing it is that we might could conceivably have this technology now or in the near future, worries arise as to how reliable it will be.  Will it repeat the horrible wrongful convictions that have resulted from eyewitness testimony and will it be used together with eyewitness testimony so that one may make the other more credible?  Or might this potential technology prove useless and die out?  Something many of you probably find interesting, and that some of you might follow with curiosity.

___________________________________________________________________

The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee.  If you or someone you know need an attorney, please click herefor Mr. Lee’s contact information and contact him today for a free consultation.  Also, please feel free to visit Mr. Lee’s website,www.TNLawyerLee.com or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.

The information on this site is general information and should not be construed as legal advice. Every case is unique and you should consult with an attorney in your state about the specific details of your case. Nothing on this site or in correspondence with Nicholas Lee or his agents shall be construed as forming an attorney-client relationship and information you send prior to the forming of an attorney-client relationship may not be kept confidential. Neither this site nor correspondence with Nicholas Lee or his agents shall be construed as a promise nor as undertaking a duty regarding you or your case. Nicholas Lee and his agents are not retained as your legal counsel unless a valid written Representation Agreement is reached regarding your specific case.

Copyright © 2014. Nicholas W. Lee, Attorney at Law. All rights reserved. This site’s content may not be used without the prior written consent of Nicholas Lee.

Cell Phone Searches – Can Police Search Your Phone Without a Warrant?

To what extent can the police search your phone without a warrant?

Earlier this year, the Federal Court of Appeals for the 7th Circuit ruled that police can conduct certain searches upon your phone without a warrant in the case of United States v. Flores-Lopez (click here to view the free Google Scholar copy of the Court’s opinion in that case).

In Flores-Lopez, the defendant was taken into custody and the police conducted a brief search of the defendant’s cell phone.  In the legal field such a search is known as a “search incident to arrest.”  The purpose of this search was to determine what the cell phone’s number was to aid later in obtaining records from the defendant’s phone company.

In Tennessee, as in many states across the country, the issue of whether and to what degree a cell phone can be searched without a warrant is a hot-topic of debate among lawyers.  In Flores-Lopez, the defense argued that the search of the defendant’s cell phone was “unreasonable because [it was] not conducted pursuant to a warrant.”  Many of my readers might already know what a “warrant” is, but suffice it here to say that a warrant is a judicial document authorizing a search.  Warrants are often required for a search due to our constitutional right as citizens against unreasonable searches and seizures (pursuant to the 4th Amendment of the United States Constitution).

However, the Court in Flores-Lopez sided with the government in stating that a warrantless search such as in this case (searching the phone incident to an arrest to determine the cell phone’s number) was a minimally invasive search incident to arrest and was thus permissible.  The Court went a step further and stated that more intrusive/extensive searches into a cell phone would also be constitutional, though it hinted that there were limits to what searches police could conduct incident to an arrest without a warrant.  The limits were not laid out in the case of Flores-Lopez – rather, the Court stated that it was a question “for another day.”

An additional note of interest is that the Court mentioned phones that were passcode protected, but did not state whether materials that were passcode protected on a phone could be searched incident to arrest.  However, it seems that the Court might have considered a warrantless search on a passcode protected phone to be more intrusive – although the issue is not settled, it might be ruled in a future case that searching a passcode protected phone is too intrusive of a search to be conducted without a warrant.

The take-aways from this post are these: (1) if you are arrested, it is unclear to what extent the police can search your phone without a warrant, but the Court in Flores-Lopez ruled that your phone can be searched; and (2) it is not guaranteed that passcode protecting your phone will protect you from warrantless searches, but it might be the case that passcode protecting your phone might protect it from warrantless searches.

As a post-script, allow me to reassure my readers that the purpose of posts such as these is to enlighten my readers as to their rights and the state of the law, even if they are not guilty of any crimes.  Passcode protecting your phone might not only help safeguard your legal rights, but has non-legal benefits as well (such as preventing friends or strangers from accessing your phone).  However, with that said, the number of scenarios in which it might be legally beneficial for somebody not guilty of a crime to safeguard their rights are conceivably endless.  Long-story-short, it is probably a good idea to passcode your phone if you have not done so already.

______________________________________________________________________

The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee.  If you or someone you know need an attorney, please click here for Mr. Lee’s contact information and contact him today for a free consultation.  Also, please feel free to visit Mr. Lee’s website, www.TNLawyerLee.com or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.

The information on this site is general information and should not be construed as legal advice. Every case is unique and you should consult with an attorney in your state about the specific details of your case. Nothing on this site or in correspondence with Nicholas Lee or his agents shall be construed as forming an attorney-client relationship and information you send prior to the forming of an attorney-client relationship may not be kept confidential. Neither this site nor correspondence with Nicholas Lee or his agents shall be construed as a promise nor as undertaking a duty regarding you or your case. Nicholas Lee and his agents are not retained as your legal counsel unless a valid written Representation Agreement is reached regarding your specific case.

Copyright © 2012. Nicholas W. Lee, Attorney at Law. All rights reserved. This site’s content may not be used without the prior written consent of Nicholas Lee.

Social Networking – could your posts get you into trouble?

Take a moment to think – how many social networking sites do you belong to?  How many of them have you posted pictures to, or perhaps little quips about what you have done that day?  How many share this information with the public and maybe even share your contact information with the public as well?

Too many people mindlessly post things to their social networking sites, but the hard truth is that what you post might get you into trouble.  It is far from unheard of for a criminal defendant or someone who is a party to a lawsuit to have their case hurt by something somebody found online.  Consequences are not limited to the legal realm either – how many of your posts are accessible to your boss and people you work with?  How many pictures of you are available to complete strangers?  And, not to unduly scare my readers, but how many of you have children that you either post about online or who already have their own social networking accounts?

Technology has evolved a tremendous amount in the last century, in the last decade, even just in the past year.  And your online presence might come back to haunt you if you are not careful.  Just one more development in technology is that anything you post online, or anything that you save to your computer’s hard-drive, might remain there forever.  What does this mean?  Anything that you do on a computer or online might remain imbedded in your computer forever – it is possible that, years from now, a computer specialist could recover from your computer’s hard-drive some sort of evidence that might hurt you.

In response to these threats, a trend among young professionals is to “professionalize” their social networking sites, to set privacy settings so only the people they want to see their profiles should be able to see their profiles.  Even then, many of these young (relatively tech-savvy) professionals take this a step further to make sure that even if somebody did gain access to their social networking accounts, that access would not come back to hurt them.  Steps often include hiding private information (such as contact information or the identity of family members), removing pictures that portray the person with alcohol (or in any situation that is less than professional), and generally removing their connection to anything that they would not feel comfortable with their mom (or grandmother) seeing.

Whether it is to avoid legal complications, complications at work, or complications altogether, being aware of what you post online might save you from stress in your life.  The decision of whether to professionalize your social networking sites is your own, but I am happy to say that you are among an informed group of people who are at least now aware of the potential problems of your internet posts.

______________________________________________________________________

The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee.  If you or someone you know need an attorney, please click here for Mr. Lee’s contact information and contact him today for a free consultation.  Also, please feel free to visit Mr. Lee’s website, www.TNLawyerLee.com or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.

The information on this site is general information and should not be construed as legal advice. Every case is unique and you should consult with an attorney in your state about the specific details of your case. Nothing on this site or in correspondence with Nicholas Lee or his agents shall be construed as forming an attorney-client relationship and information you send prior to the forming of an attorney-client relationship may not be kept confidential. Neither this site nor correspondence with Nicholas Lee or his agents shall be construed as a promise nor as undertaking a duty regarding you or your case. Nicholas Lee and his agents are not retained as your legal counsel unless a valid written Representation Agreement is reached regarding your specific case.

Copyright © 2012. Nicholas W. Lee, Attorney at Law. All rights reserved. This site’s content may not be used without the prior written consent of Nicholas Lee.