LegalMatch: Criminal Law

California Supreme Court: Police Can Search Cell Phone without a Warrant

2011-01-24T11:12:45-08:00

If you’ve got a cellphone on you, the police can search it during a lawful arrest (including going through saved text messages, phone numbers, etc.), and they don’t need a warrant. So says the California Supreme Court - here’s the full opinion (PDF).

Before discussing this story, here’s some basic background. The 4^th Amendment to the constitution protects you from “unreasonable search and seizure” and says that search warrants can only be issued when there’s probable cause to do so. Note that it does not say that the police need a warrant to do a search, nor does it say when a search warrant is required at all. So, over the years, the courts have had to come up with rules to determine when a search is reasonable, and when a warrant is required.

The basic rule is this: any search without a warrant is per se unreasonable – basically unreasonable on its face, meaning that every search must be done with a warrant, unless some exception applies. There are several important exceptions to this rule, but the relevant one here is the “search incident to a lawful arrest.” Basically, this means that if you’re arrested, the police officer can search you, and any containers (bags, purses, cigarette packages, etc.) on you, as well as within your immediate control (sitting next to you in your car, in a glove box, on a table in front of where you were sitting, etc.).

This exception was originally devised to allow the police to search for weapons that the suspect might be able to use against them in resisting arrest, and gradually expanded to cover anything that’s found in the course of such a search, whether it’s a weapon or not, and it doesn’t even require the officer to have probable cause that there might be a weapon in the vicinity, on the grounds that a weapon could be anywhere.

On its face, it seems like search of the digital contents of a cellphone would fall squarely into this category. However, as cellphones become more advanced, and we conduct more and more of our lives online, could we get to the point where a search of a person’s cellphone is no different from a search of their everything?

Think about it: if you’re like most Americans, chances are you’ve got a Facebook profile (or MySpace page if you live 5 or 6 years in the past) which has a lot of personal information, including messages sent between you and people you know. There’s also a good chance you’ve got a web-based email account, which likely contains some very personal messages. And think of all the other online services you can sign up for, which might contain information you don’t want to make available to the world.

If you’ve got a cellphone (especially if it’s a smartphone), chances are you use it to access every online service with which you have an account. And if you’re like many people, you might have your login information saved, for convenience.

So, suppose you’re arrested, and the police decide to search your phone. Are they limited to the data that’s actually stored on the phone, such as stored text messages and phone numbers?

If not, where do you draw the line? The smartphone is increasingly supplanting the role of the personal computer, which is used so often to conduct one’s personal and business affairs that unfettered access to a computer can give you a window into the owner’s entire life. Most people, however, don’t carry a PC around with them every time they leave the house. On the other hand, when was the last time you left your house for any significant period of time without your cellphone?

Given the fact that we conduct so much business in the “cloud” (using data not stored locally), it’s hard to tell just by looking at the screen of a phone or a computer where the data being displayed is actually stored.

And an argument could be made that this is irrelevant, since the location of a piece of data is pretty irrelevant for practical purposes.

It will be very interesting to see how courts wrestle with this issue, because it’s not an easy one. Obviously, there’s no data on a cellphone that could be used as a physical weapon against a police officer, but then again, the search incident to arrest exception doesn’t seem to take that into account.

The dissent notes that this ruling, if it isn’t modified in the future, essentially gives police officers a blank check to access the massive amounts of person and business information that can be found on the average cellphone, just because it happens to be physically present on the suspect’s person. Hopefully, in the future, as it becomes clear that cellphones are basically tiny personal computers, courts will change course on this, and give them the same protection that a computer stored in a person’s home would receive.

By: John Richards

The Coffee Made Me Do It: Drugs and the Insanity Defense

2010-09-24T06:24:00-07:00

There’s an interesting story in the ABA Journal today: a murder defendant is arguing that he should be found not guilty by reason of insanity. This isn’t unheard of, by any stretch of the imagination. However, his basis for the insanity defense is interesting: he claims that he spent the weeks before the murder drinking lots of coffee, and that the resulting caffeine-induced sleep deprivation drove him into murderous insanity. The story is also reported here and here.

Before continuing, I should note that I think the insanity defense gets a bad rap. It’s not the get-out-of-jail-free card that some people seem to think it is. First of all, in the U.S., the insanity defense is only even attempted in slightly less than 1% of criminal cases. And when the defense is raised, it only succeeds slightly less than a quarter of the time. This means that less than one quarter of one percent (0.25%, or 25/1000, or .025) of criminal defendants is found not guilty by reason of insanity.

Secondly, if you’re found not guilty by reason of insanity, all this means is that a jury has found that the defendant didn’t have sufficient awareness of, or control over, their actions to find the moral culpability to warrant punishment. This doesn’t mean that such a person isn’t still dangerous. As such, a person acquitted because of insanity sometimes ends up in a mental institution, where they can be held until they’re deemed to no longer be a threat to themselves or others. This might just be a few months. But it might also take many years, perhaps even longer than their prison term would have been had they been convicted. Sometimes, it never happens, and they are institutionalized for the rest of their lives. As you can see, this isn’t exactly a sweet deal for the defendant.

Third, the insanity defense actually serves a very important purpose. Criminal law is based on a few different objectives, the two main ones being deterrence and retribution. Almost everyone agrees that these two factors play a role in criminal justice, though there is a wide range of opinions on exactly how much of a role each should play (with the modern trend being a stronger focus on deterrence through rehabilitation, rather than simple punishment/retribution). In any case, because criminal law involves punishment, there must be some type of fault on the part of the defendant to warrant it. If a person is so completely out of their mind that they have no idea what they’re doing, or are completely unable to control their actions, it’s not fair to punish them. But as discussed above, they still may represent a danger to the public, and have to be dealt with accordingly.

However, when the insanity on which the defense is based was caused by the defendant’s own willful conduct (such as taking drugs), the situation becomes a little ambiguous. The defendant’s mental state may well be sufficient to make them less responsible for their actions. However, they voluntarily took a drug that they should have known might put them in such a state. As a matter of policy, it seems that a person shouldn’t be able to voluntarily put themselves in a state in which they aren’t legally responsible for their actions.

This isn’t to say that we should ban all intoxicating drugs. Rather, it’s simply an argument that, if you voluntarily take an intoxicant, you shouldn’t be relieved of any responsibility for your actions while in your intoxicated state.

I would not be surprised if this particular case, because of its unusual facts, got blown way out of proportion by the media. First of all, the success of this guy’s insanity defense depends entirely on whether a jury buys it. They very well may not. It might also be compared to the “Twinkie Defense” fiasco.

When former San Francisco supervisor Dan White shot and killed Supervisor Harvey Milk and Mayor George Moscone in 1978, he had been in a downward spiral of depression and paranoia. Once considered a fitness fanatic and advocate of healthy eating, his diet had come to consist almost entirely of junk food, including Twinkies. In his murder trial, he was found guilty of a lesser offense on the basis of diminished capacity, because of his damaged mental state at the time the crimes were committed. This became known as the “Twinkie Defense” in the media, with the assumption being that he was acquitted simply because he ate a lot of junk food. The term has come to refer to any improbable-sounding legal defense, usually derisively.

However, White’s defense attorney never made this argument, and the jury didn’t acquit him on that basis. Instead of arguing that his excessive consumption of junk food caused his insanity, they simply presented it, among many other facts, as evidence that he was insane; the exact opposite cause-and-effect relationship that the “Twinkie Defense” is said to represent.

So, what should we take away from all of this? Well, first of all, if this guy is actually acquitted (which seems unlikely) we can probably expect a few editorials and blog posts bemoaning our “broken” legal system, and wondering how this could happen. Chances are, they’ll compare it to the fictional version of the “Twinkie Defense” that everybody seems determined to believe.

However, by the time the facts of a case are distilled through the media, many important details are often lost in the shuffle. People often complain about criminal defendants “getting off” on a “technicality” even in the context of an insanity defense. This seems to be a stand in for “I didn’t like the way this case came out so it’s clearly illegitimate.” Given the actual nature and consequences of the insanity defense, anyone who fully understood it probably wouldn’t be so outraged over its use, even in bizarre cases like this.

By: Rusty Shackleford

Why do Innocent People Confess to Crimes?

2010-09-16T12:10:03-07:00

If someone is in prison because they confessed to a crime, you can be pretty sure that they’re actually guilty, right? Statistically, that’s probably a safe bet.

However, a surprising, and disturbingly-high, number of people have been exonerated (almost always through DNA evidence) years after having been convicted, with the only evidence against them being their own confession. Since 1976, at least 40 people in prison based on their own confessions have been proven innocent, according to a New York Times story. And that’s just the number of confirmed cases. The actual number is almost certainly much higher.

How can this be? What could possibly drive an innocent person to doom themselves to years in prison by confessing to a crime they didn’t commit?

Well, there are some obvious explanations: if a defendant is very young, mentally ill, or mentally impaired, inducing them to confess might be quite easy, and interrogators might even induce false confessions unintentionally in cases like this. However, a large number of these cases involved adults of at least average intelligence, with no obvious susceptibility to suggestion.

To be a skilled interrogator, one has to be very good at psychological manipulation. There’s nothing inherently wrong with that. However, an interrogator must be careful to ensure that they’re manipulating the subject into to telling the truth, not what the interrogator wants to hear. Sometimes, even the interrogator might not be consciously aware of which is which.

In getting a confession, the first thing the interrogator has to do is convince the suspect to start talking. After all, when you’re arrested, you’re under absolutely no legal obligation to answer the questions of your interrogator, and you have a right to have an attorney present during questioning. However, when a suspect invokes this right, the police typically don’t bother with an interrogation, since the presence of an attorney makes interrogation much more difficult. So, the first thing the interrogator has to do is get the defendant to waive this right. Usually, it’s not very difficult.

The interrogator will tell the suspect something like “well, you could get a lawyer, that’s certainly your right, but if you do, we won’t be able to talk anymore, and I’ll have to write it up like I see it, without getting your side of the story.”

“You made a smart choice, kid. Now, if you could just sign here, indicating that you voluntarily waive your right to remain silent, we can get started…” And so it begins.

The suspect has agreed to talk. Why don’t they just explain where they were when the crime was committed, and, knowing they’re telling the truth, assume that the evidence will bear this out? Well, if an interrogator is convinced that they’ve got the right person, they probably don’t want to be proven wrong (just as nobody likes being proven wrong). According to the New York Times story, one suspect simply told the interrogator what he thought he wanted to hear, just to end the hours of intense questioning, which had become nearly unbearable. Still, many of these false confessions contain details about the crime that prosecutors tell juries only the perpetrator could have known.

In the case of false confessions, this is caused by interrogators dropping certain hints about the details of the crime to the suspect, either intentionally or unintentionally. This is known as “contamination.” Just like a crime scene needs to be tightly controlled to prevent outside materials from mixing with evidence left by the perpetrator, interrogators must be very careful to not give the suspect any information about the crime that only the perpetrator should know. This way, if the suspect slips and lets on that they know some of these details, you can be pretty sure that they were in some way involved in the crime. But if the interrogator accidentally lets some of this information slip, this method immediately becomes unreliable.

According to the Wall Street Journal Law Blog (also reported here) criminal defense attorneys are taking note. It used to be that an admissible confession was the final nail in a coffin for a criminal defense. Nowadays, defense attorneys are paying much closer attention to confessions, and going to a much greater effort to ensure that confessions are reliable. After all, defense attorneys don’t simply take witnesses for the prosecution at their word, and of course they shouldn’t. They generally expect the prosecutor to present some evidence backing up the statements of witnesses, and if none exists, they make sure the jury knows it.

While it’s certainly good that defense attorneys are getting wise to this phenomenon, some serious changes should be made in police procedure to mitigate the problem of false confessions. For example, perhaps interrogations should be videotaped in all cases involving major crimes, not just capital cases.

And this might be a common theme that’s emerging in my posts, but it always seems to be what I take away from stories like these: the general public needs to be better-educated on the basics of the substantive law that governs their actions and, perhaps more importantly, the legal system that actually carries out those laws.

A citizenry that’s educated about their legal rights will be far less likely to waive them. And if you find yourself suspected of a crime you didn’t commit, waiving your right to have an attorney present during your questioning is just about the last thing you would want to do.

By: Rusty Shackleford

Lindsay Lohan Goes to Rehab...Again

2010-09-01T08:00:00-07:00

Dear Miss Lohan, thank you for all the legal lessons your social life teaches the general public. The latest from Lindsay Lohan: she has been released from rehab and will now be under strict probation in an outpatient rehab program that includes therapy and drug testing multiple times per week—a break from the inpatient rehab program she was currently serving. If Lohan violates any of the terms of her probation, the judge in the case warned her that she could be sent back to jail for up to 30 days. This will be the 5^th trip to rehab for the actress that has only been legal to drink for 3 years. Of course never one to miss out on a business opportunity, before beginning the jail sentence that started the rehab chain reaction, La Lohan signed a seven-figure tell all about her life.

Now for the everyday legal lesson at play here....why you shouldn’t violate the terms of your probation. Probation is a form of sentencing that allows the offender to avoid (or lessen) jail time but still remain under legal supervision. In the case of Lohan, moving from an inpatient to outpatient rehab will allow her to continue working as well as regain some of her personal freedom. LegalMatch offers some scary consequences for probation violation, including: modifying the terms of probation to reflect a stricter sentence, fines, or a reinstatement of the original jail time. In addition to getting into some major trouble for a probation violation, the violation itself is often a separate offense that can carry its own punishment.

Some probation violations can be appealed, as can the terms of the probation if something comes up; but the bottom line is that probation is a favor that a judge does for an offender and they do not take the violations very lightly. I think that probation is an excellent way for the courts to let an offender assimilate back into society and still maintain supervision of the individual. Hopefully the good behavior that a probation sentence demands of an individual will continue long after the terms have been fulfilled. As for Lindsay Lohan, let’s hope the fifth time is a charm!

By: Violet Petran

Asked and Answered: You Do Have a Constitutional Right to Lie (sometimes)

2010-08-25T16:16:22-07:00

A while back, I posed a simple question: do you have a constitutional right to lie? I did this with knowledge that a federal appeals court would eventually answer it. The answer is, in some cases, “yes.” The question was in response to the Stolen Valor Act, a federal law which makes it a crime to knowingly lie about having received any military decoration. A man, who made a mini-career out of pretending to be a highly decorated U.S. Marine, was charged under that law.

In a similar case (see also), involving another person, the Ninth Circuit Court of Appeals has found the Stolen Valor Act unconstitutional.

I generally agree with the court here. While I should be clear that I find it absolutely abhorrent that anyone would go around lying about such things, I have serious problems about criminalizing such conduct, mostly on free speech grounds. While I have no problem with laws prohibiting lies which can actually harm people (fraud, for example), going to a bar and making up some story about being a decorated Marine, in order to pick up a girl, probably isn’t something in which the criminal justice system should involve itself.

The court even noted as much in its opinion: if the Act is constitutional, then there would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspects of their lives from time to time. I find it interesting that a federal appeals court was comfortable mentioning Facebook and Match.com without explaining what they are. I guess it’s officially the future. But I digress.

The above quotation hits the nail right on the head: in a free society, some conduct which we find immoral or distasteful is going to be legal. The proper response is not to criminalize conduct which doesn’t actually harm anyone, but is despicable nonetheless; instead you should refuse to associate with (and publicly expose, when possible) people who engage in that conduct.

Now, this isn’t to say that all speech is constitutionally protected, let alone all lies. There’s a reason why you don’t hear about too many people challenging fraud laws as unconstitutional. And there’s a reason for this; while fraud, boiled down to its essence, is nothing more than a lie, the reasons behind, and the effects of, a fraudulent lie are different from some of the other lies mentioned above.

Fraud is defined as a lie which is told to someone with the intent that they rely on the statement, with such reliance causing them harm. For example, if I offer to sell you a large diamond, for the standard going rate of such a diamond, and knowingly sell you a much less valuable imitation diamond instead, I’ve committed fraud, and you’ve suffered a direct financial injury. It’s well settled that I would have no constitutional defense in such a situation.

While it could be argued that all lies cause some form of moral or metaphysical harm, either to the speaker or the listener, that’s not nearly enough to justify legislation on the subject. As the court mentioned, everybody lies about certain aspects of their lives, and while those lies may cause some harm, it’s harm of a type which is almost impossible to quantify. How, after all, do you create a punishment appropriate for causing hurt feelings? Are hurt feelings even a legally cognizable injury? I doubt it.

According to the court’s opinion, the guy in this case made a habit of spinning extremely outlandish stories about his past, to the point that nothing he said had any credibility. To criminalize such speech sets a very dangerous precedent, I believe.

If we can criminalize one form of lie, which is admittedly reprehensible, what’s to stop us from criminalizing other “lies” such as works of fiction? And then there’s the big elephant in the room: religious texts. Suppose that the Christian majority in the U.S. decides that all non-Christian religious texts are “lies,” and decides to criminalize them.

What’s to stop the political party in power at any given moment from criminalizing the “lies” spread by other parties? I’m not a huge fan of slippery slope arguments, but history has shown us that governments generally like to push the limits of the power that’s given to them, and such hypothetical situations don’t seem all that outlandish, unless they’re nipped in the bud.

And in the end, it’s utterly pointless to criminalize most forms of speech. Some people, like the defendant in this case, are apparently compulsive liars. That’s unfortunate for them, and the people they lie to, but it’s possible that they truly can’t help it. Furthermore, most people who have known a compulsive liar for any amount of time figure it out pretty quickly, and learn to take everything said by known compulsive liars with a grain of salt.

And, really, who hasn’t at least embellished the truth about themselves a bit in a social setting, especially after a couple drinks? Do we really want to set a precedent where we risk going to jail for something like that?

By: Rusty Shackleford