Natty Shafer Law

Utah lawyer for criminal and immigration cases

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Cell Phones Are Private, Supreme Court Says

The United States Supreme Court issued a ruling today which requires law enforcement officers to obtain a search warrant for most searches of a cell phone. While the Court left open the possibility of officers conducting a cell phone search during “exigent circumstances,” the ruling in Riley v. California means officers cannot casually peruse cell phones.

The ruling was unanimous, which is a bit of a surprise for me, but this is a pretty big victory for champions of privacy rights. Often the Court refuses to protect the rights of those accused of crimes, but cell phones have becomes so ubiquitous that the Court could not ignore that cell phones are now among our most personal possessions. “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” the Court said.

Many phones now contain more personal information than anyone has in any one location, including our homes. As the Court said, cell phones are not just phones. “The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.”

This ruling does necessarily guarantee that police officers will never look through your phone, but it does make such evidence generally inadmissible during criminal court proceedings. Anyone who has been subjected to a cell phone search should contact a lawyer about various options.

You can read my previous posts on the subject of cell phone searches here and here.

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Anonymous Tip? Enough for a Traffic Stop

A Supreme Court decision came out today, and it now appears the police can pull over anyone with just an anonymous tip. The case, Navarette v. California, involved a tip from an unknown caller describing the truck and license plate of the defendants.

The driver in this case drove perfectly, at least while the police observed. An anonymous caller alerted 9-1-1 dispatch that a truck had allegedly run her off the road. Concerned about possible drunken driving, police located the truck and followed it for five minutes, but they failed to observe a single traffic violation. It is extraordinarily difficult to drive perfectly for five minutes. The police usually can find a traffic violation to pull over a vehicle, but they did not find a single reason. They pulled over the car anyway. But the Court said that is fine.

This should concern anyone who drives or rides in a car. The Court has put the threshold for pulling over someone at a very low point. Someone can now identify your car and allege some sort of traffic violation, and you may be pulled over. Anyone with a grudge canĀ use the police to harass citizens. Jilted exes, disgruntled coworkers, or stalkers need to allege something, and the police can make a traffic stop, and detain the unfortunate victim. The Court’s rationale hinged on the fact that 9-1-1 calls can be traced, but if no one is motivated to investigate, callers will remain anonymous.

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Warrant Exceptions: Stop and Frisk

An officer is allowed to conduct a stop and frisk (sometimes called a “Terry Stop” after the Supreme Court case that established their legality, Terry v. Ohio) when it is reasonable to believe that criminal activity may be taking place or is about to take place. The Court authorized the practice with the intention of improving police officer safety. Many crimes involve the use of dangerous weapons, and so, the rationale goes, it is reasonable to search for weapons when a person may be committing a crime.

Because a stop and frisk is supposed to be a search for dangerous weapons, an officer is not supposed to investigate further into objects which are obviously not weapons. A soft, powdery substance encased in a plastic bag, for example, could not be investigated further because the officer does not have reason to believe that the object could be a threat to officer safety.

The problem comes with how nebulous an officer’s suspicions can be. The Supreme Court has specifically said the standard for whether an officer can conduct a stop and frisk is lower than probable cause (which is low to begin with). The even lower standard is a “reasonable articulable suspicion” that a crime is taking place or is about to take place.

In plain language, officers must be able to explain to judges why they believe a specific person was about to commit a crime or was in the process of committing a crime. However, the Supreme Court has not required a particularly high threshold for what amounts to reasonable suspicion. In Illinois v. Wardlow , the Court held that running away from an officer in a “high crime area” was enough to arouse reasonable suspicion. With such a low threshold, judges often find in the officer’s favor.


Another Reason Not to Talk to Police

With yesterday’s decision, Salinas v. Texas, the Supreme Court has unwittingly shown once again why you should never talk to the police. The defendant in that case, Genovevo Salinas, went into the police station with the understanding the police were trying to clear him as a suspect. As should be clear from the record, the police had no intention of clearing him. They wanted him to incriminate himself. Salinas continued answering their questions until the police asked if the shotgun in his home “would match the shells recovered at the scene of the murder.” At that point Salinas stopped talking.

At his trial, the prosecutor used Salinas’ silence as proof he was guilty. He asked the jury to infer that an innocent person would have protested their innocence. It should go without saying that for the privilege against self-incrimination to mean anything, silence cannot be proof of a person’s guilt. With yesterday’s decision, the Supreme Court said there was nothing improper about the prosecutor’s comments. According to the Court, Salinas needed to specifically state the magic words, “I’m going to exercise my right to remain silent.”

How a non-lawyer is supposed to know what magic words to utter is beyond me. There are just too many things a layperson cannot know and therefore should never attempt to talk to the police without a lawyer. This is equally true if you are innocent. Remember, the police already think you are guilty, or they would not be investigating you. No matter how eloquent you think you are, the police have more practice at interrogation.

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Warrant Exceptions: Automobiles

Another category of exception to the warrant requirement is the automobile exception. Generally, a police officer can search any part of the car that they have probable cause will uncover evidence of a crime.

It dates back to the 1925 case Carroll v. United States. Despite its rather long history, it is is one of the more frustrating exceptions. The Court originally created the exception because of the mobility of cars and how easy it would be to make evidence disappear if officers waited for search warrants. The exception has expanded so now officers do not have to show there was a risk of evidence being destroyed, and an officer can search areas a weapon could conceivable be reached.

Back in 1925 when the Court crafted the exception, automobiles where a luxury that only a few people owned. Now, they are so ubiquitous that most adults own one. Many people treat their cars similarly to how they treat their homes. They keep clothes, food, toiletries, and countess other personal belongings inside. The Court, however, still treats the automobile as a unique technology that requires a special area of the law. Indeed, even mobile homes someone currently lives in are subject to the automobile exception.

Because a judge may second guess whether the officer had probable cause at the time the search, it is standard practice for officers to ask for consent to search a car; a warrant is never needed if a person voluntarily consents to a search. Even without consent, an officer with probable cause can use the automobile exception.

One may ask themselves at this point, “What difference does it make if I refuse consent, if the police officer can just search my car anyway? First, assuming the person is innocent of any wrongdoing, then the encounter ends sooner. For people who are completely innocent, it is more likely that the police lack probable cause to search the car and will have to let them go. If someone tells the police to go ahead and search, the search can last for upwards of an hour. Second, for people who do have something to hide, by refusing consent they have given their lawyer something left to argue: namely the officer lacked probable cause to search the car.

Consider the most common form of police encounter: the speeding ticket. When an officer stops someone for a speeding ticket, the chances of there being probable cause to search the car are very low. An officer can search a person to secure their safety, but they will need some evidence to show that they had reason to fear for their safety. Furthermore, the officer is not going to be able to search the trunk, a locked glove box, or other areas where neither the driver nor passengers can reach because there will be no evidence to uncover. All the evidence of speeding has already happened. If the officer searches anyway, there is a good chance a judge would suppress the evidence.

There have been some hopeful steps recently. A 2009 case, Arizona v. Gant, was the first case in a long time that narrowed the exception. The defendant in that case had already left his car when the police approached him and arrested him. The Court ruled it was illegal to search his car under those circumstances. It was a small step, but generally the Court had a history of making the automobile exception larger and larger.