Natty Shafer Law

Utah lawyer for criminal and immigration cases


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Court Will Soon Clarify Cell Phone Searches

Tomorrow, the Supreme Court is scheduled to hear oral arguments in two cases that will decide the extent law enforcement officers can search a person’s cell phone after an arrest. I have written about this issue before, and about how much sensitive data most people keep on their cell phones. Once the Court issues its ruling, we will know where whether our cell phones are really private.

People put embarrassing and deeply personal information on their cell phones, but most data files do not relate to criminal acts. The couple depicted in the commercial below probably would not want anyone looking through their cell phones. If the Court allows it, police departments will routinely copy all the information from seized cell phones and upload it to a database for permanent storage. Government officials could peruse the data whenever it suits them.

The capabilities of cell phones allow for nearly unlimited personal information to be stored. Some smartphones now hold 64 gigabytes of data. Right now, phones have enough space to store thousands of personal emails, pictures, videos, and text messages simultaneously, and data storage capacity increases each successive year.

If the Court rules that an arrest does not necessarily justify a search of a suspect’s phone, the police will still have the option to request a warrant. With electronic warrants, it is possible to issue a search warrant within a couple of minutes. The importance of this is that you have a neutral judge deciding whether there is probable cause to search the phone. Otherwise, we will have police officers fishing for evidence for each person they arrest, and the private lives of everyone will be a little less private.


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Bootleg Video Renews Debate about Cameras in Supreme Court

On ongoing debate among Supreme Court observers concerns whether or not the Supreme Court should allow cameras into the Court. “Debate” might not be the right word since no one seems to be making a strong case for the opposing argument. The consensus among observers is that the Court should allow cameras, and the Court seems not to care. It just quietly continues to forbid cameras in the courtroom.

Last month a youtube video emerged (shown below) which appears the be the first video of the Court in session. This has rekindled the old argument. Professor Erwin Chemerinsky is the latest to take up the mantle. His argument essentially is that open government proceedings are a necessary part of a functioning democracy.

I cannot disagree with Chemerinsky, but this will likely decrease the public’s estimation of the Court. For the most part, the way the Court operates is a mystery. Most decisions are ignored, but occasionally there is an important case that catches the public’s interest. At those times people seem to care more about the outcome of the case and not necessarily about the reasons the Court made its decision. Idealistic notions about the Court will end once everyone sees the behavior of individual justices. It is only a matter of time until a justice is lampooned on late night television for an impolitic jab made during oral arguments.

That is not to say that I am necessarily against cameras in the courtroom. Perhaps the public could use a little healthy distrust of the Supreme Court.


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Is Prosecutorial Misconduct Becoming Common?

That certainly seems to be the opinion of a growing number of judges, and a few opinion writers have have followed their lead and registered complaint. The most prominent judicial critic thus far has been Chief Judge Kozinski of the Ninth Circuit Court. Writing a scathing dissent of the Court’s refusal to rehear United States v. Olsen last December, Kozinski characterized the panel opinion as a free pass for prosecutors to shirk their duties. He wrote, “the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway.”

Prosecutors have a constitutional duty in the United States to turn over evidence that could be favorable for the defendant. To fail to do so would be a due process violation and should be grounds for a new trial and sanctions against the prosecutor. You would not know it, however, by examining appellate court decisions. All too often, appellate judges shrug theirs shoulders and decide to do nothing.

It has been just over fifty years since the Supreme Court explicitly stated a prosecutor has a duty to turn over evidence to the defendant. In Brady v. Maryland the Court held, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” As United States v. Olsen shows, however, appellate courts find that a lot of evidence is not “material.” Taping unparalleled powers of mind-reading, appellate judges regularly express “confidence” that a jury would have convicted even if they had heard the evidence favorable to the defendant. Kozinski thinks this has lead to rampant unethical prosecutorial behavior. “Some prosecutors don’t care about Brady because courts don’t make them care,” he wrote in his dissent.

The bottom line is that there are plenty of incentives for prosecutors to shirk their duties, but few disincentives. Formal sanctions from state bar associations are rare. Appellate courts are reluctant to overturn convictions. In the rare instances where a conviction is overturned, a prosecutor is rarely personally punished. It is very difficult to bring civil suits against prosecutors for constitutional violations. They enjoy qualified immunity which means—without getting too technical—there is a threshold a person has to show before they are even allowed to get their day in court and sue for damages. And if someone happens to prevail in spite of those difficulties, taxpayers pay the settlement.


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DNA Can Be Taken for ‘Serious Crimes;’ What’s Next?

This Monday, the Supreme Court ruled that states may collect DNA from people who have been arrested for “serious crimes.” By itself, the case of Maryland v. King is only somewhat concerning if the Court stays true to its word, but, as with many precedents, the Court could build on it. The Court did not define what “serious crimes” are, which leaves open the possibility of nearly any crime being defined as “serious.” After all, our elected leaders thought the crimes were serious enough to make them illegal. In the future, public intoxication might be considered serious.

Incidentally, I do not take a “slippery slope” argument lightly. Sometimes people see a slippery slope where there really is not one. There can be many intermediate points before a supposed inevitable conclusion. What do I mean? Consider a hypothetical city considering raising its speed limit by five miles per hour on a 4 lane thoroughfare. Those in favor of the increase argue that it can be done safely and improve traffic flow. Those against it argue that if they raise the speed limit 5 mph, there is no end to how high it can be raised, and pretty soon people will be driving 65 mph on a city street. Here, the slippery slope argument is fallacious because each time the city raises the speed limit, a new assessment of safety and speed would be in order.

On this particular issue, however, I believe I am on safe ground to wonder if the Court is treading on a slippery slope. The only guidance the Fourth Amendment gives on the issue of search and seizure is that it must not be “unreasonable.” With such flimsy guidance, the Court has walked down the slippery slope before and in essence said, “we took a step along this path before and that was not unreasonable so it is not unreasonable to take one more step.”

The new rule only negatively affects the people who would have been acquitted of their crimes. In Maryland v. King, the defendant Alonzo King was convicted of assault. It was only a matter of time until Maryland took his DNA as a result of his conviction. Now, everyone who is arrested for a serious crime—whatever that is—might have their DNA information permanently on file. Soon, it will be possible to use that information to implicate a family member as well as the arrestee. Since people related biologically share several DNA markers, it is only a matter of time until someone is held on a serious crime, acquitted, and then unknowingly implicates their loved family member. It is a good bet that a judge will find “probable cause” to take DNA samples of everyone who could be guilty.


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A Low Threshold for Probable Cause

Two weeks ago the FBI arrested Paul Kevin Curtis for sending letters laced with ricin to President Obama and Senator Wicker of Mississippi, and it has been another week since the charges were dropped. Now the FBI has a second suspect in custody who may be responsible for sending the letters.

One lesson to be learned from the episode is the importance of letting the judicial process take its course and realizing that it is not just a cliche that a person is innocent until proven guilty. It is a central concept of our judicial system that until a person is convicted, they are still innocent under the law, and travesties will happen if we let mob mentality undermine that.

However, the episode also shows the depressingly low standard that it takes to arrest someone or for a judge to issue a search warrant. The Supreme Court has said that the standard for both an arrest and a search warrant is “probable cause.” The definition of probable cause has evolved a bit, but we are now using the definition outlined in a 1983 case, Illinois v. Gates, in which the Court said, “probable cause does not demand the certainty we associate with formal trials.” Instead, judges issuing search warrants should determine whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place…. This flexible, easily applied standard will better achieve the accommodation of public and private interests.”

The Court is correct that this is an easily applied standard. It is easily applied because it sets the bar so low. The Court has never set a numerical value on what “fair probability” means, but if I were to say there is a fair probability of rain tonight, and the weatherman says there is a 15% of rain tonight, I don’t think anyone would find those statements contradictory. As has become apparent in the 30 years since the Gates decision, judges have interpreted “fair probability” to mean “within the realm of possibility.”

It is doubtful the FBI will voluntarily release the information that backed their search warrant and arrest of Paul Kevin Curtis, but from news reports, it appears there was little evidence against him. Both letters were signed “I am KC and I approve this message.” That is a sign off phrase Curtis has used in internet postings. The FBI acknowledged that the letters and stamps had no fingerprints and were sealed with self adhesives, leaving no DNA evidence. It would seem that the “probable cause” leading to the arrest and search of Mr. Curtis’ house consisted entirely of the repetition of phrases that he likes to use in social media, and the fact that he lives in Mississippi and his initials are KC.

If that is all it takes to establish probable cause, there is not much stopping the police from searching anyone’s home and not much stopping them from arresting just about anyone.