Law Enforcement Cannot Search Cell Phones Without Warrants

It is common knowledge that the law moves slow, much slower than technology. When it comes to technological advances, the law can barely keep up. One should be able to see why. Drafters of legislation, usually not keen on computer science and engineering, have a difficult time anticipating how new devices could impact the law.

For example, cell phones in the 1980's were bricks. Users could expect dropped calls and much attention. The ability to make calls without a landline was groundbreaking. But, cell phones did not serve any other function besides making calls. Many could not predict that cell phones would become min-computers. Smartphones are radically different from first generation cell phones; lawyers, judges, and legislators may have been the last to realize it.

Smartphones have impacted the law, and the Fourth Amendment. Messages, applications, and search history can assist law enforcement. Drug deals can be carried out by text message. Illegal transfer of stolen money can be done by mobile banking. Indeed, a murderer could develop ways to kill someone by searching on his or her cell phone. The vast majority of cell phone use is not criminal in nature. As such, it is important that privacy is protected. 

In June of 2014, the United States Supreme Court unanimously held that searching a cell phone incident to arrest requires a search warrant. Riley v. California was a strong rebuke of the government's position that law enforcement should be able to access digital data before it could be potentially destroyed.

Chief Justice John Roberts wrote, in part, that: "[t]he fact that technology now allows an individual to carry [the privacies of life] in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant."

In practice, law enforcement has been slow to apply Riley. One would be surprised how often police officers still search cell phones after a DUI, domestic violence, or misdemeanor arrest without a warrant. In these cases, there can be redress if inculpatory evidence is obtained.

Should law enforcement search a cell phone after an arrest without a warrant, a defense attorney may be able to prevail in suppressing the evidence. A 1538 motion to suppress should definitely be considered as an option by a defense attorney if there are possible Riley violations.

Smartphones are more than just phones, they are at the center of many people's lives. Although the Fourth Amendment didn't touch upon the legality of searching cell phones (the founding fathers were smart but not fortune tellers), we now know that it is the law of the land that cell phones cannot be searched without a warrant.

Utilizing a Penal Code section 1538, Motion to Suppress, in a DUI Case

Not all criminal cases go to trial. In fact, more often than not, a criminal case will be disposed of prior to a trial. Plea deals are common because they can be beneficial for both the defendant and the People.

But, there are also circumstances when a case can be dismissed prior to a trial. One common motion that can be brought during the pre-trial stages of a case is a Motion to Suppress. Penal Code section 1538 provides the right of an accused to challenge evidence that may have been obtained illegally. Typically if the evidence is suppressed -- like the blood results of a DUI stop -- the case must be dismissed because the evidence is dispositive to the case.

One example of when a Motion to Suppress could be successful is when an officer stops an accused for a traffic stop that was unlawful. An officer cannot stop an individual without sufficient probable cause, a legal standard provided by the Fourth Amendment. Thus, if an officer reports that he stopped an accused for violating the Vehicle Code, but there was no Vehicle Code violation, the accused may be able to prevail at a P.C. 1538 hearing.

A criminal defense attorney has the responsibility to perform an adequate investigation. Evidence obtained by an attorney could lead to a decision to file a Motion to Suppress. An investigation can include, but is not limited to: requesting discovery from the prosecution, subpoenaing documents, and looking at possible video surveillance. It is now common for officers to have dashboard cameras, and also cameras on their persons. A video could show that a traffic stop was unlawful.

Some of my clients have asked what a motion consists of. A motion is a request for the court to do something. The party "moves" the court to make an order. A motion is started (usually) by an opening brief. The attorney files a memorandum with points and authorities (cases in support of the motion). Then, the prosecution (again, usually) files an opposition brief, highlighting their position against the motion. This allows the court to familiarize itself with the law and facts of the particular case. After the briefing with physical documents, there is an evidentiary hearing where witnesses testify. The arresting officer most likely will testify as to the facts of the stop or arrest.

A Motion to Suppress is a constitutional protection. It safeguards citizens from police abuses. There are other type of situations, as well, when a P.C. section 1538 may be appropriate. Law enforcement cannot exercise a warrant based on false information. Police cannot execute a warrant outside the constraints of the warrant. Facts should be scrutinized in every criminal case.

In conclusion, a defendant may not need to persuade a jury. There are pre-trial motions that can be potentially made, which could lead to a complete dismissal. It is important to contact an attorney should you be charged with a crime. We welcome your calls and questions. 

I Was Arrested for a DUI; Now What?

A California DUI carries some harsh penalties. Due to the nature of this offense -- it is a clear public safety concern, our state has elected to take a tough stance. But just like any other criminal charge, there are steps that an accused can take that will help him or her in the future.

THE DUI ARREST

When there is sufficient probable cause, law enforcement may investigate and arrest an individual for a DUI. While defense attorneys can later challenge probable cause, it is wise to be respectful when stopped for suspicion of a DUI.

You should be polite and cooperative with law enforcement. It does not mean that you should waive your rights, but it will not help to be combative during the stop. Cursing, yelling, and being rude will not make the officer go away. In fact, it will be mentioned in the police report.

However, you should not volunteer information. Exercise your right to remain silent. Miranda is the landmark case, which protects statements from being admitted into evidence if there has not been an affirmative warning, but Miranda warnings only have to be given after a formal arrest. Thus, law enforcement will always utilize your statements to assess guilt before a warning. Slurred words, admissions of guilt, and memory lapses can lead to problems down the road.

AFTER THE ARREST

If you have been arrested, you should exercise your right to an attorney. There is a reason that there is law school and a bar examination. Further, there is a reason why attorneys charged with a crime will almost always retain another attorney. It is difficult for someone, under an emotional state, to represent themselves.

More than that, retaining an attorney will mean that a professional can immediately begin to protect your rights. Experience and knowledge can go a long way in fighting a DUI charge.

Schedule your DMV suspension hearing, or have your attorney do it immediately. There are two aspects to a DUI, as discussed on my website. There is the actual criminal charge handled by the superior court, and the DMV aspect of the case. They are distinct and separate, although the court can impact what the DMV will do.

Within 10 days of the arrest, a hearing needs to be scheduled. A DMV suspension hearing is a great opportunity to explore probable cause, the officer's testimony, and other evidence that will be used against you. Do not sleep on your privileges with respect to licensing issues.

AFTER YOUR "OR" RELEASE

 Finally, after you have been arrested and released under your own recognizance, exercise your right to information. The web has become a treasure trove of free legal content, including my blog and website. You should become familiar with the criminal, and DMV, process. Further, you should research potential DUI attorneys. An accused should be aware of the charge against him or her, and the consequences of that charge.

Our office invites your questions. We have experience in DUI, and other criminal cases. Remember that time is of the essence, so do not procrastinate if you or a loved one has been charged with a DUI.


 

California Supreme Court Upholds the Use of Red Light Cameras

A red light camera ticket is a type of traffic infraction that can cost you money, time, and anxiety. In fact, with so much misinformation online, I have spoken with many confused callers. They were not happy with the non-legal blog's advice.

A red light camera ticket is enforced by way of technology, rather than an officer. While frustrating, it is still legal in some jurisdictions. Indeed, the California Supreme Court, on June 5, 2014, upheld the use of red light camera enforcement. This blog will touch upon the recent case, and other aspects of red light camera citations. 

IGNORING THE CITATION WILL POTENTIALLY COST YOU MORE

First, do not simply ignore the citation. Yes, I am aware of the information online from non-lawyers. It is not sound advice. The California Legislature enacted Vehicle Code section 21455.5 some time ago. This California law controls the requirements for how a jurisdiction may implement camera enforcement. Therefore, while some cities may have discontinued their programs, other have not. Culver City, Beverly Hills, West Hollywood, among others, have valid camera enforcement pursuant to the law.

Thus, if you ignore the citation and miss a mandatory court appearance, it is possible that you can be found guilty of a failure to appear violation. This will add significant, and unnecessary, fines to your citation. Unless you were active military, incarcerated, or receiving medical care, the court will most likely find you guilty.

EVIDENTIARY AND CONSTITUTIONAL ARGUMENTS HAVE BEEN SPURNED

Second, the California Supreme Court has addressed some of the constitutional issues related to evidentiary foundation, authentication, hearsay, and confrontation. People v. Goldsmith (2014), S201443, recently decided, upheld the use of camera enforcement. The decision was a major victory for the red light camera programs. 

The arguments in that case were similar to some of those posted on the online blogs. The defendant in the Goldsmith case argued, one, that the photos, obtained from the red light camera, were not legally authenticated. In short, the defendant argued that the photo evidence could not be admitted against her because it was unreliable. The California Supreme Court disagreed.

With sufficient legal rationale, the Court explained that the photos were reliable, and notwithstanding the reliability, the evidence could be admitted "as provided by law." There is a statutory presumption that the photos are reliable. The trial court does not have to accept the photos as true, but it can admit it into evidence to be weighed against the defendant.

Two, the photos are not hearsay, according to the California Supreme Court. Section 1200 of the Evidence Code defines hearsay as, "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." The Court clarified that a camera could not be characterized as a "person," who has the capacity to make a statement. The law does not contemplate whether a machine can make a statement -- at least not yet.

Third, the confrontation clause is not invoked because a defendant cannot, and does not have the right, to cross-examine a camera. Machine-generated printouts are not within the bounds of Sixth Amendment protection.

WHAT SHOULD YOU DO?

I always advise consulting with a defense attorney. Although traffic infractions only involve a fine, not jail, it is best to consult with a lawyer for a few reasons. It can save you money. It can save you time. It can give you peace of mind.

Moreover, a red light camera ticket does not necessarily mean that you will be found guilty. The burden of proof in a traffic case is still "proof beyond a reasonable doubt." If the picture is unclear, or if there is an identity issue, the ticket can be dismissed. But, it is always wise to seek out the advice of a person with knowledge and experience. Our office invites you calls, and we remind you that nothing in this blog should be construed as legal advice. Watch out for the machines.

Medical Marijuana and Probable Cause Vehicle Searches

It’s well known that law enforcement officers generally need a warrant before they can search a suspect’s person or possessions and, subsequently, use whatever they find at a later trial. However, there are a number of exceptions to this general rule, so many in fact that some commentators have argued that there are more holes than coverage in the warrant requirement. One well known exception is the rule that allows officers to search a suspect’s vehicle with probable cause; this is known as the vehicle exception. This article isn’t long enough to discuss all the important details of the automobile exception, there’s a lot of nuance to the rule, but one aspect that has become increasingly important of late is the question of exactly what kinds of facts lead to probable cause for a search in the context of the legal possession of medical marijuana. As ever more states legalize some form of marijuana possession or use, figuring out just when the possession of marijuana triggers probable cause for a search is becoming increasingly difficult.

Understanding Probable Cause Searches (in brief)

Sticking with generalities, an officer has probable cause for a search where the facts and circumstances would lead a reasonable person to believe that there was a likelihood that the object to be searched contained contraband or evidence of a crime. In other words, there is probable cause for a search when officers can reasonably expect to find something illegal. So, in the case of a prospective automobile search, officers won’t need a warrant if, in the specific situation in question, there exists good reason to believe something illegal is in the car. Before marijuana was selectively legal in some states, it was an easy trigger for a probable cause search. Possession of marijuana or its implements was illegal and if an officer saw, or smelled, evidence of marijuana use or possession, a search was likely reasonable. The introduction of legal medical marijuana has muddied these waters.

Legal Possession?

Under most medical marijuana statutes, only a small quantity of the substance is actually legal; carry too much, and your medical card won’t prevent prosecution. Under these circumstances, if an officer detects evidence of the use or possession of marijuana, does this still trigger probable cause for a search? Like any good legal question, the answer is; it depends. One court recently thought it did, but let’s take a close look at the facts to see if we can understand why. In People v. Waxler, a California court of appeals ruled that presentation to an officer of a valid medical marijuana card did not destroy probable cause for an in-progress search of a suspect’s vehicle. In Waxler, the suspect was sitting in his vehicle in a parking lot when he was approached by officer Griffin. Officer Griffin smelled burnt marijuana and saw a used marijuana pipe on the seat next to the suspect. On this, the officer conducted a search of the vehicle and discovered stronger illegal drugs. At some point during the encounter, but apparently after the search had begun, Waxler presented officer Griffin with a valid medical marijuana card. The officer acknowledged the card but proceeded with the investigation and arrest. At trial, Waxler challenged the search, which is what turned up the other illegal drugs, by claiming that because he had a valid medical marijuana card the officer had no grounds for the vehicle search in the first place.

Verifying Legal Possession

Unfortunately for Waxler, the Court of Appeals disagreed; reasoning that even though Waxler’s medical marijuana card entitled him to possession of some marijuana, the officer still had grounds to conduct a search in order to determine if Waxler was in possession of more marijuana than his card allowed. The court based part of its decision on the fact that under the applicable law, possession of a valid medical marijuana card was not a bar to search or arrest, but merely a valid defense at trial. In other words, apparently the court felt that officer Griffin was well within his authority to arrest Waxler despite the medical marijuana card and that Waxler could have used the card as a defense at trial but not as a bar against search or arrest.

Distinguishing Waxler

Two things stick out about this case. The first is that Waxler apparently first presented the card to officer Griffin after the search had already begun. In other words, officer Griffin probably had clear probable cause to start the search because possession of marijuana is generally illegal in California; absent a medical marijuana card. It’s unclear if the court would have ruled the same way if Waxler had been thoughtful enough to present his card to officer Griffin right at the beginning of the encounter rather than halfway through the search. The second point of interest in this case is the fact that only validly prescribed marijuana, in limited quantities, is currently legal in California. Were marijuana legal for recreational use by the general public, it’s uncertain whether officer Griffin would still have had probable cause to search for the meth that he ultimately turned up. Prosecutors might still argue that use of marijuana suggests the possibility of other drug use or possession, and they might be right, but at some point this line of reasoning must break down. For example, does use or possession of vodka suggest use or possession of other, less legal, drugs? Who knows? Ultimately, under the vehicle exception to the warrant requirement, the totality of the facts must be considered.

As ever more states move to legalize some form of marijuana use or possession, it seems likely that the use or possession of, at least small amounts, of marijuana will become increasingly commonplace. At least to the point where such use or possession will no longer provide officers with probable cause to conduct a larger search absent some other factors.

Automatic License Plate Recognition (ALPR)

You are being tracked

In a report released last week, the ACLU describes in chilling detail the rapidly expanding law enforcement use of automatic license plate recognition (ALPR) systems nationwide. Originally designed to automatically scan surrounding vehicle plates for comparison against a “hot list” of wanted vehicles – such as those reported stolen or owned by a person for whom an arrest warrant was outstanding – ALPR devices have now become a seemingly indispensable investigative tool. While law enforcement use of emerging technologies is not in itself a problematic practice, how those tools are used can be of great concern.

How it works

While the underlying algorithms that make ALPR possible can be highly complex, the basic technological principles are fairly straight forward. Essentially the technology involves a camera, a computer, and a piece of software designed to “read” any vehicle license plates picked up by the camera. Mounted on police cruisers or road fixtures such as overpasses or street lights, sets of connected cameras can effectively scan the license plates of every vehicle within range.

While one or two such systems pose relatively little threat to everyday privacy, hundreds of such cameras are now active all over LA County and are being used by the LAPD, the LA County Sheriff, and the California Highway patrol. Together, the accumulated data from all these sources (all of which is shared between departments and even the Federal government through a backend server system known as BOSS) can be mined by law enforcement and the results used to paint a picture of the movements of any citizen who drives on public roads – going back months or even years into the past.

ALPR grows up

Originally developed in England as an offshoot of the massive public surveillance camera system long in use there, ALPR was first put to practical use in the late 1970s. However, despite its early potential, the prohibitive cost of computing and camera equipment made widespread use of the technology impractical until the last decade. Broad public knowledge of the practice is still underdeveloped. News reports were covering ALPR back in 2006, including an article published in Wired; but even at that relatively late date, the more nefarious aspects of the technology were still all but unknown. Even the ACLU is quoted in that article as being unconcerned about the practice at the time stating that there had been no legal challenge because the activity was not illegal – what a difference a few years can make.

Lost cost digital storage and the rise of privacy concerns

Much has changed since 2006 to make ALPR technology a much bigger concern today than it was just a few years ago. Of primary concern is the rapidly decreasing cost of huge computer storage capacity. Once a barrier to privacy invasion, digital storage technologies now allow law enforcement to maintain the records of their scans indefinitely; a possibility many agencies are all too happy to embrace. In the early days, hits were only scanned against a short list of “hot” vehicles. Today, everything has changed. Now, every single scan is logged into a database with some jurisdictions storing more plate data points per year then there are residents under their protection. What was once a benign police tool has now become every bit as controversial as the NSA phone surveillance program revealed earlier this year.

Indefinite storage

While police agencies tout the many legitimate uses of the ALPR technology, privacy concerns about the system stem not from its legitimate uses but largely from the length of time for which collected data is retained. Because every scanned plate is logged and stored in the database, Los Angeles streets are effectively under nearly permanent video surveillance. In the absence of any statewide regulation, agency privacy protections vary dramatically between institutions. The LAPD, for example, apparently holds the data for approximately two years, even on entirely innocent individuals. While the department has been hesitant to respond to ACLU records requests, written procedures appear to allow for data retention even of information not linked to any crime.

Dragnet

ALPR Camera Dragnet

Perhaps worse, no warrant is typically needed to mine the data, most of which is statistically worthless to law enforcement. Even in large jurisdictions such as LA County, the ACLU report reveals that less than one percent of the plate data recorded ever leads to any meaningful police action. The problem, however, is that location data, especially location data over long periods of time, can tell a great deal about personal behaviors. Which doctor you visit, what church you attend, which political rallies you have marched with, what friends you keep, which streets you take to work each day; all of this and much more can be gleaned from the plate databases of the LAPD alone. Even more troublesome is the fact that much of the data is stored by private companies with clear profit motives and that there are few, if any, access guidelines attached to the data. In short, it may be that anyone can access your location data at any time, even for commercial purposes.

How to protect yourself

In effect, your entire vehicle related paperwork is being continually monitored without your knowledge by most local law enforcement agencies in the LA area. To protect yourself it is critical that you make absolutely sure that your DMV paper work is complete and up to date. Maintain car insurance, make sure your registration is current, and keep up on your car payments. Any slip could give officers potential probable cause to pull you over and from there even a complete search of you and your vehicle is a possibility.