A Cell Phone is Not Like a Pair of Pants

I am happy to report that the Fourth Amendment is alive and well in Texas...for now.  The Court of Criminal Appeals (finally - it's been on file since 8/16/12) issued its opinion in State v. Granville.  It's a good, solid opinion.  I say finally because this case has been on my radar for quite sometime as it has far reaching implications for all of us. 

Perhaps the opinion is, in part, a comment on the NSA's collection of "bulk telephony metadata" from the public at large.  Perhaps, in each of their minds, the judges were carefully cataloguing the plethora of information contained on each of their cell phones.  Or perhaps the opinion is just strict adherence to the Fourth Amendment.  Take your pick - either way it's a good result.

Anthony Granville was arrested for causing a disturbace on a bus, a class C misdemeanor offense.  While in custody the police took his cell phone from the property room, turned it on, and went through the pictures on the phone, and printed the ones he wanted.  Granville was then charged with improper photogrphay, a felony.  He filed a motion to suppress because the police did not get a warrant before searching his cell phone nor did he consent to the search.

The Fourth Amendment states that "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated."  As the Court noted, "[t]he term 'papers and effects' obviously carried a different connotation in the late eighteenth century than it does today."  The "central concern underlying the Fourt Amendment has remained the same throughout the centuries; it is teh concern about giving police officers unbridled discretion to rummage at will among a person's private effects."  

The State wanted to uphold the warrantless search of Granville's cell phone (of course).  Their argument was that anytime a person is arrested for any offense - class C tickets included - everything that the person possessed at the time of the arrest - purse, laptop, medical records, phone, briefcase, IRS returns, etc. - is subject to a warrantless search because all of that citizen's privacy interests have completely disappeared.  It was a combination of "search incident to arrest" and "status as an arestee" argument.  Thankfully, the Court didn't buy into that argument or reasoning.

As of today, no longer will the police be able to rummage through the private, personal contents of a cell phone without a warrant just because the phone's owner has been arrested.  The Court of Criminal Appeals spoke clearly and firmly today in its opinion.  "[A] cell phone is not like a pair of pants or shoe...A citizen does not lose his reasonable expectation of privacy in the contents of his cell phone merely because that cell phone is being stored in a jail property room."  A search warrant based upon probable cause is required.

Speak Up or Shut Up?

"No person...shall be compelled in any criminal case to be a witness against himself."  Sound familiar?  It's the Fifth Amendment guarantee against self-incrimination - the right to remain silent.

The question is how do you invoke your constitutional right to silence.  How do you talk without speaking? [see lyrics from "Sounds of Silence" by Simon and Garfunkel]  As of Monday, June 17, 2013, the US Supreme Court has made clear that you cannot simply assert your constitutional right to remain silent by, well, remaining silent.  No, you must expressly invoke the right.  See Salinas v. State, No. 12-246, 570 U.S. __ (2013).

Salinas originated in Texas - Harris County to be precise.  Mr. Salinas was interviewed by the police after a double murder.  By all accounts he was at the police station voluntarily and was not in custody.  Because he was not in custody the police did not provide Mr. Salinas with his Miranda warnings, one of which is the right to remain silent.  Mr. Salinas answered some questions but fell silent when police asked questions about bullet casings.  At trial the government argued that Mr. Salinas' silence was evidence of his guilt.  He was convicted and sentenced to 20 years in prison.  He appealed arguing that his silence in the face of police questioning invoked his constitutional right to remain silent.

Seems logical, right?  However, a plurality of the US Supreme Court held that Mr. Salinas' Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question.  Mr. Salinas did remain silent but that wasn't enough here.  According to the US Supreme Court he should have expressly claimed his privilege; he could not simply remain mute.  The plurality held that "the Fifth Amendment guarantees that no one may be 'compelled in any criminal case to be a witness against himself;' it does not establish an unqualified 'right to remain silent'".

So, at the very outset, if you find yourself in the unfortunate position of being questioned by the police - be it in a police station or on the side of the road or wherever - the first question to politely ask is "am I free to leave".  [Also, it is important to remember that if you are speaking with a police officer, the conversation is being recorded]  If the answer to that question is "yes" then it is a very good idea to leave.  If the answer to that question is "no" then the response to any question, in light of Salinas, should be "I am invoking my constitutional right to remain silent and I want a lawyer."  Then politely remain silent. 

What Salinas leaves unanswered, however, is whether the government can use an accused's assertion of the Fifth Amendment during a non-custodial police interview as part of its case in chief.  Courts are split on that very issue.  I suspect the answer to that question may be yes.  We will see...

No Blanket DWI Exception to the Fourth Amendment

The US Supreme Court is making clear - again - its preference for warrants.  On April 17, 2013, the USSC handed down its decision in Missouri v. McNeely.  This really isn't anything new, but it's a great opinion to show that there is no blanket "DWI exception" to the Fourth Amendment.  There is no bright line rule.  Each case must evaluated individually.

McNeely was stopped for DWI - a garden variety DWI by all accounts - no accident and not a felony.  He performed less than perfect on the field sobriety tests and was arrested for DWI.  He declined the officer's invitation to provide a specimen of his breath.  The office took him to the hospital where his blood was drawn.  

Justice Sotomayor authored the opinion of the court.  Sotomayor recognized again that "any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests."  Ultimately, the USSC held that in DWI investigations "the nature dispensation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant." 

Now, it will have to be seen how mandatory blood draw statutes - like the one in Texas - are reconciled with this opinion by the courts.

"When it Comes to the 4th Amendment, the Home is [Still] First Among Equals"

On March 26, 2013, in a short 10 page majority opinion, authored by Justice Scalia, the United State's Supreme Court again recognized the sanctity of our homes.  In Florida v. Jardines the government - based on an "unverified tip" - suspected the residence of Joelis Jardines was being used to grow marijuana.  The government followed up that "unverified tip" with surveillance which produced no unusual activity.  The detectives on the case then went up to Jardines' home with Franky, a drug dog.  Franky hit on Jardines' home - the front door to be precise.  On the basis of that information the government applied for, and obtained, a warrant.  Execution of the warrant revealed a grow operation, and Jardines was subsequently charged with trafficking in cannibis.  

At the trial court level Jardines challenged the search contending it was unreasonable under the Fourth Amendment.  The trial court agreed.  The court of appeals, however, reversed.  The Florida Supreme Court agreed with the trial court.  The case was appealed to the US Supreme Court.  In this opinion, the USSC answers the question of "whether the officers' behavior was a search within the meaning of the Fourth Amendment." Justice Scalia - for the majority - answers that question yes based on property grounds.   (Justice Kagan concurred to state that she believes the answer is yes based on privacy as well as property grounds.)

Some of the reasoning:

The Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated."  As the USSC noted yet again, the 4th Amendment establishes a simple baseline - when the government obtains information by physically intruding on persons, houses, papers, or effects a search within the original meaning of the 4th Amendment has undoubtedly occurred.  The curtilage of the home enjoys protection as part of the home itself.  Therefore, it follows that "the front porch is the classic exemplar of an area adjacent to the home and to which the activity of the home life extends." It is undisputed that the government was on the constitutionally protected extension of Jardines' home and that he had not - even implicitly - given them permission to be there.  Detectives and drug dogs are unlike "ordinary visitors."  They are not like "the Nation's Girl Scouts or trick-or-treaters."  There is no customary invitation to bring a trained police drug detection dog to explore the area around the home in hopes of finding incriminating evidence.  

"When it comes to the Fourth Amendment, the home is [still] first among equals."   

On a Roll

I finished a DWI breath test jury trial last week.  "Not Guilty" is one of the greatest phrases ever spoken.  This is how it all went down:

On Monday, a panel of 18 potential jurors were called in.  6 jurors are needed for a misdemeanor case.  After I finished speaking with them, only four jurors were left who were qualified to serve.  The judge declared a mistrial and ordered us all back at 8:00 a.m. on Tuesday.  He said he would be calling in 24 potential jurors.  I asked the prosecutor if we could plead to obstruction of a highway.  She said no way.

The next day we got a jury.  The state's first witness was the fast food employee, a former army medic, who called the cops because my lady was throwing up drunk and shouldn't be driving.  She said my lady had driven on the curbs and parked across 3 parking spaces.  They played the 911 call.  Then 2 police officers testified that my lady was drunk.  Then the breath test operator testified that she was drunk.  Then the breath test technical supervisor testified that she would have had 3-4 drinks in her system at the time of the test and that the test was a .115.  On cross examination, however, he admitted that absorption is a process and that she definitely could have been under .08 at the time of driving.

We made closing arguments.  After an hour the jury came back with a not guilty.  I am so proud of my lady for having the courage to try the case.  I am getting her record expunged now.

As my dad would say, "Keep on keepin' on and mess with Texas..."

County Time

I just finished a burglary of a building trial yesterday.  Ordinarily, burglary of a building is s state jail felony which carries a punishment of 180 days - 2 years in a state jail prison facility and up to a $10,000 fine.  However, my client has a substantial criminal history.  Therefore, what would normally be a state jail felony was enhanced to a third degree felony which carries a punishment of 2 years - 10 years in prison and up to a $10,000 fine.

From the beginning, he just wanted "county time" on a criminal trespass.  He said he would take 6 months county time.  The offer was never "county time." 

So right before jury selection, he got nervous.  He'd never had a trial before.  He had always just taken a plea deal.  He offered to take 9 months state jail time.  The prosecutors didn't go for that.  So we had a trial.  

We talked about the constitution.  We talked about the presumption of innocence and what that means.  We talked about the 5th Amendment and how it's a bit of a paradox - if you testify, you'd say anything to save your own skin and if you don't it must be because you're hiding something.  We talked about what proof beyond a reasonable doubt really is.  The jurors followed the law and applied those very constitutional principles.

In the end my guy got "county time."  He was found not guilty of burglary of a habitation and convicted of the lesser included class B misdemeanor offense of criminal trespass.  No fine.  90 days in the county jail; time served.  He's a free man. 

This was a court appointed case.  I tried it no differently or put no less effort in it than I would have had he walked in and hired me.  

Make 'Em Work

I ran into a couple of situations last week that wouldn't have been interesting at all but for the reactions of the prosecutors I was dealing with.  As I always do, I filed several motions in two felony cases I currently have pending.  This wasn't necessarily the big hurdle.  The big deal, apparently, was the fact that I had scheduled the motions for pretrial hearings.

In getting a date for the pretrial hearing, I was met with frustration, exasperation and outright rudeness.  I will not apologize or feel bad for doing my job.  I am a criminal defense lawyer.  To do the job properly and effectively requires time, effort, and work.  I work.  I will not be outworked nor out-prepared if at all possible.