Wednesday, June 25, 2014

Supreme Court Holds That Warrantless Searches Of Cell Phones Violates The Fourth Amendment

Today, in Riley v. California, a unanimous Supreme Court held that a warrantless search of data on a cell-phone constituted a violation of the fourth amendment.  The full decision is here. 

The Court declared that the immense storage capacity on a contemporary smart-phone is vastly different than other personal effects and implicates a much greater privacy interest.  The Court acknowledged that these are mini-computers storing digital versions of physical data (such as thousands or millions of pages) and that if the physical forms of this information were carried around, a warrant would definitely be required to search them.  The Court stated that “Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate. Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.”

It is a categorical decision.  The Court stated “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.”  

The Court rejected a proposal allowing officers to search a phone without a warrant if they believe it contained evidence related to the offense for which the individual was arrested.  The Supreme Court noted that such a rule would have no practical limit at all.  The Court similarly rejected a proposal to allow for warrantless searches to search for information relevant to the crime, officer safety, or identity, as such exceptions would also provide no substantive limitation on the officers.  And the Court struck down another proposal that would have allowed for a warrantless search if there was a “pre-digital counterpart" (the Government argued that “if the officers can open a diary to get the owner’s address, they should be able to open a phone to learn its number”) as such a rule would impose too big a burden on the court making that determination.

The Court was not only unanimous, but took efforts to be humorous as well, stating that “These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

When you read the Opinion, you may find yourself shocked by the intellectual dishonesty made by the State of California and the USA in arguments that the Court rejected. For example, the Court refused to adopt the following arguments (for reasons that are apparent):

  • Both California and the USA argued that a search of a cell phone could alert officers that confederates of an arrestee are headed to the scene to aid the person being arrested and harm the police.  But neither was able to offer any evidence stating that was based on actual experience.  (And its hard to imagine that someone would send a text saying that they were about to liberate someone who was being arrested).
  • Both California and the USA argued that there were two ways to remotely eradicate cell-phone-data evidence – (1) by having a third party send a signal to the phone that results in erasing data; or (2) having the phone programmed to do so if it leaves a geographical area).  The Court rejected these arguments as unsupported, noting that – if they were actual threats – they would require immediate attention to the phone to remedy.  More importantly, the Court stated that this can be prevented by severing the phone from its network, and this can be done by removing the battery or placing the phone in an enclosure that isolates it from radio waves (enclosures, such as “Faraday bags” -- sandwich bags made of foil -- are commonplace).
  •  The USA argued that a search of one’s cell-phone was not materially indistinguishable than a search of one’s wallet, address book, or purse.  The Court responded “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.  Both are ways of getting from point A to point B, but little else justifies lumping them together.  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. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.”
  • The USA conceded that a warrantless search of a phone to access files stored in “the cloud” would violate the Fourth Amendment, and suggested that such searches could take place when the device was disconnected from its network.  The Court rejected this proposal, and noted that the feasibility of this solution was contested by the USA itself with respect to the issue of remote wiping.

This is certainly a huge win, and perhaps an overdue one, for the defense bar.  But it does not mean that law enforcement agencies can’t access information on a cell-phone for use in a criminal trial – they just need to get a warrant to do so (and such warrants shouldn’t be hard to get).  In other words, if an officer pulls someone over who is allegedly under the influence of methamphetamine, they cannot search the cell-phone to see if there are text messages indicative of sales.  But if someone is arrested with meth, scales, ledgers, etc., and a cell-phone, law enforcement officers would likely be able to get a warrant from a judge and then examine the cell-phone.

The Court also expressly left open the exigent circumstances exception, and Law Enforcement officers can still explain to a court why the felt like a warrantless search was necessary, and if they can establish that there was an imminent remote-wipe attempt, the court can hold the search to be valid.

And Justice Alito, in his concurrence, called upon the states to enact legislation that could justify warrantless cell-phone searches, and such statutes likely will be enacted. 

Wallach On Law Interviews Hon. Terry Smerling, And Discusses Treatment of Mentally-Ill In LA County Jails

On Wallach On Law, I interviewed Hon. Terry Smerling, who had written an opinion piece in the L.A. Times questioning a new program adopted by L.A. County to build a super-prison with 3000 beds for the mentally-ill, instead of investing in treatment programs.  The interview is here:

The Ongoing Crisis In Men’s Central Jail – Simply Inexcusable

The crisis in LA County Jails is inexcusable.  I represent indigent defendants in Los Angeles.  I’m a former Public Defender and currently take state-appointed cases.  That means I am hired by the county of Los Angeles to represent people who can’t afford to hire an attorney.  All of my clients have been in LA County Jails.  LA County has the largest jail system in the USA, with over 22,000 incarcerated.  Most of my clients have been in “Men’s Central Jail.”
“Men’s Central” is a “Jail.”  It is not a “prison.”  Jails are operated by cities.  They are designed primarily to house those convicted of small crimes – misdemeanors  (which are usually prosecuted by City Attorneys) and people who are awaiting trial.  Prisons, by contrast, are state facilities that house serious offenders, or “Felons.”
Men’s Central Jail presently houses over 7,000 people -- far beyond capacity -- 57% of whom are awaiting trial.  If you have a drink on a Friday, and an officer thinks you might have driven while intoxicated, and you can’t put up a deed and spend $3G - $5G for bail, you might spend the weekend at Men’s Central Jail.
Because California’s state prisons are overcrowded, jails, like Men’s Central Jail, now house the overflow.  So that weekend in Jail would be spent alongside felons who have already served substantial time and conformed to the prison lifestyle.
The ACLU has been calling for the closure of Men’s Central Jail for years.  This month, the Department of Justice stated that the conditions of Men’s Central Jail constituted cruel and unusual punishment, and that they “present, rather then prevent, a risk of suicide.”  (This became international news, with the BBC stunned that this could happen in the United States, and especially in a major metropolitan city like Los Angeles).  This year, Mother Jones Magazine listed Men’s Central Jail first in its list of “10 worst jails in America.”  Twenty-one Los Angeles County Sheriffs have been indicted in federal court for allegations of civil rights violations in LA Jails, and primarily in Men’s Central Jail.  One trial is going on now.  It involves allegations that the Deputies interfered with a federal investigation into abuse at Men’s Central.  One of the FBI informants was an inmate at Men’s Central Jail.  In that trial, one of the defendant Deputies has admitted that, upon learning that the inmate was an FBI informant, the deputies purposefully hid that inmate from the FBI.

         Hopefully, you won’t ever spend a day in Men’s Central Jail.  And neither will those that you care for.  But it could happen.  And Men’s Central Jail is but one example of how we treat people accused of crimes.  The punishment inflicted on one who has been accused of a crime should not be worse than that inflicted on one who has been convicted of one.  And as a modern nation, we need to ensure that punishment is just, and that “cruel and unusual” conditions are the rare embarrassing exception, not the daily occurrence happening in downtown Los Angeles. 

6 Los Angeles Deputies On Trial For Misconduct At Men’s Central Jail – Jury Should Get The Case Tomorrow

Twenty-One Los Angeles Sheriff Deputies have been indicted in federal court on charges of obstruction of justice and other civil rights violations.  One trial – involving six of the deputies – is coming to a close.  Arguments have been made and the jury is expected to have the case on Thursday, June 26. 

This first case involves allegations that deputies purposefully hid Anthony Brown from the FBI, after learning that he was an informant for the FBI in an investigation of the conditions of Men’s Central Jail.  According to Victoria Kim of the Los Angeles Times, “Lt. Greg Thompson and deputies Gerard Smith and Mickey Manzo allegedly moved federal informant Anthony Brown around in the jails, including the infectious disease wing, keeping him hidden under false names when both his FBI handlers and the U.S. Marshals Service, with a grand jury writ, were looking for him. Craig, Sgt. Maricela Long and Lt. Stephen Leavins are accused of telling witnesses not to cooperate with the FBI and threatening to arrest an FBI agent, falsely telling her there was an impending warrant.”  (The full article can be read here:

The defense is arguing that these were simply “worker bees” following orders.  This “Nuremburg Defense” is not recognized in law.  And the U.S. Attorney who is trying the case – Brandon Fox – stated so in his rebuttal argument, arguing that “To the extent that they're ever charged, that's for another jury, another day.”

This defense may help sway a juror who doesn’t want to hold a law enforcement officer accountable for misconduct.  But at a minimum, we need to hold those who arrest others to the same standards as those they arrest. 

Thursday, June 19, 2014

Washington Post Addresses New Movement To Include Public Defenders and Other Defense Lawyers For The Indigent From Politics

Compassion apparently has no place in politics.

Journalist Philip Bump, of The Washington Post, authored an article titled “Why being a public defender is increasingly bad for your political future” (link here: discusses attacks on political candidates who, at one time, represented indigent clients on court-appointed cases.  These lawyers include Hillary Clinton.  Typically, these lawyers make between 10% - 20% of what their work would be valued in the private sector, and take this work out of a belief that an imbalanced legal system is a failed one. 

The author writes: 

Congressional Research Service compiled data on the composition of the 113th Congress earlier this year. Congress includes more than  200 members that have a background in practicing law, including "7 former judges (all in the House), and 32 prosecutors ... who have served in city, county, state, federal, or military capacities." Prosecutors get to run on their record of putting criminals away. Defenders don't. A search of the House's historic database of information on members turns up five members of the House since 2000 who list work as public defenders in their biographies. One is no longer in Congress. Another later worked as a prosecutor.

Steve Benjamin, former president of the National Association for Criminal Defense Lawyers, stated that “It should never be that an attorney who fulfills his constitutional and ethical obligation to represent a person who is criminally accused faces a question about that attorney's character or qualifications for any office.”  And Republican Charlie Condon, the former attorney general of South Carolina, called such attacks on candidates "fundamentally wrong", stating “The basis of our whole constitutional system is that it's a noble calling, it's a really positive profession, positive calling, to be a lawyer and particularly a criminal defense lawyer."

I am a former Deputy Public Defender for the County of Los Angeles.  It is a badge I wear with honor.  Allowing our society, as a whole, to let someone be subjected to the criminal justice process -- without the aid of a competent advocate -- would be, collectively, more horrible than what any individual can do.  Innocent people would be convicted.  Some executed.  Sentences would be unfairly doled out.  And the poor of our country would be treated completely differently than the rich, to a much greater extent than is already the case.  

There are lawyers who are willing to forego personal gain, and try to make sure that justice is administrated properly to everyone.  They protect us all from acting like savages.  They should be applauded for their work – certainly more than those who chose to make much more money discussing money, like corporate attorneys, or putting people away without ever talking to them, like prosecutors and judges.  

I hope the day comes when a prosecutor is running for office, and someone plays a ridiculous closing argument they made, filled with inflammatory language that bears nothing to the facs, or shows a cruel streak of sentencing offers, and the public says “no way can he be in charge – he is an animal.”  

Tuesday, June 10, 2014

Editorial Board Of LA Times Proposes L.A. County Surrender Control Of Its Jails

A June 6 report by the Department of Justice stated that the conditions of LA County Jails were “deplorable,” and that the conditions “present, rather than prevent, a risk of suicide” for mentally-ill inmates.  Today, the Editorial Board of the LA Times called for consideration of surrender of control of those facilities to the federal government.  The Opinion Piece, available here -- -- states that “…for nearly two decades, the county has moved at an unnecessarily glacial pace in responding to long-standing concerns about poor treatment of incarcerated people who more properly should have been treated as patients in medical and mental health treatment facilities” and that “The sheriff and the supervisors ought to think seriously about accepting the inevitable and working with the Justice Department — more closely than ever — to offer more effective and more humane mental health care to people who need treatment more than they need punishment.”

Monday, June 9, 2014

First Episode of Wallach-On-Law (Talk Show on Criminal Justice Reform)

Today on Wallach-On-Law we discussed current criminal cases and the DOJ Report on LA County Jails.  We welcomed Pete Mills, attorney and Chief Trial Counsel of the Florida Public Defender’s office, to discuss the the Supreme Court decision in Florida v. Hall (striking down Florida's rigid adherence to an IQ score to determine if one is sufficiently competent to be executed).  We were also joined by Chad Curlett of Levine Curlett ( to discuss the recent Department of Justice Policy Memo calling for all federal agents to electronically record interviews.