Daily Archives: June 25, 2014

Limits on cell phone searches

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The U.S. Supreme Court has now held that law enforcement officers must get a search warrant for most cell phone searches.

“Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life,” Chief Justice John Roberts wrote in Riley v. California, one of two cases on the issue decided on June 25.

The federal government and the state of California argued that cell phone searches should be allowed under the same rationale that allows police to empty a suspect’s pockets and examine whatever they find to ensure officers’ safety and prevent the destruction of evidence. But the court agreed with the defendants, saying that the comparison was not accurate. A cell phone is simply too powerful, and may hold far too much private information, to allow a warrantless search in most situations.

The court did acknowledge that there may be legitimate concerns about the destruction of evidence; when those concerns arise, steps can be taken to prevent a person from remotely erasing a phone’s contents or activating encryption.

There is a long-standing exception to the warrant requirement when officers reasonably fear for their safety or the lives of others — such as a bomb threat or a kidnapping case. The court also left that possibility open.

In the San Diego case, police looked through David Riley’s smartphone after his arrest and found video and photos indicating gang membership, which they used to convict him of attempted murder and other charges. California courts had upheld the convictions and use of the evidence; the California Supreme Court must now take another look at Riley’s case.

In the Boston case, Brima Wurie was arrested on suspicion of selling crack cocaine. Police checked the call log on his flip phone and used it to figure out where he lived. They got a warrant to search his home, where they found crack, marijuana, a gun and ammunition. He was convicted and sentenced to more than 20 years. The federal appeals court ruled that police must have a warrant before searching arrestees’ cellphones, reversing most of the convictions, but upholding his conviction for selling cocaine near a school, a charge unrelated to the tainted evidence. The administration appealed the court ruling because it wants to preserve the warrantless searches following arrest. More, including the opinion, from the SCOTUS blog. 

Consider how you can use this to help your characters, or create more obstacles.   

Googling potential jurors

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I’ve done it for years. When my law firm takes on a new case, I Google opposing parties and scour their websites. I Google our client. I look at what they post — publicly — on Facebook. I check for news accounts of the incident involved. I’ve discovered surprising things that weren’t in the files. No smoking guns, but useful information that helps me understand who and what we’re dealing with. I read the comments on news accounts to get a sense of the public perception, true or false. And if a case goes to trial, we do the same for potential jurors, to get a sense of who they are — and keep an eye out for any violations of the judge’s admonitions against talking about the case publicly during trial. Trials are expensive, emotional, and time-consuming — and a juror’s misconduct can torch years of effort.

Never, ever, though, would I go beyond the public wall to “friend” or “follow” a witness or potential juror. Like many other lawyers, I think it’s part of my obligation to my client to look at the information a person shares publicly, but to pry into private communications or to “friend” a witness on FB — even if they know, or should know, who we are — would clearly be an ethical violation.

The American Bar Association has now given a green light to the practice of looking at public information, such as corporate or individual websites, or public Facebook profiles. Whether lawyers can hire firms to do the research, essentially profiling a juror from their social media posts, is still an open question. Individual states and courts may, of course, approve or sanction the practice, but the ABA opinion is good guidance.

How will your characters use this tool — or break the rules?