Cell Phone Search Case – an easy ‘call’

Now Appearing on the Docket- your cell phone…

My iPhone is my attic, my storage locker, and my deep dark basement. While it primarily holds music and games and contacts, it is- in essence- a portal to my digital image. And this image is the very image (and home) the framers of our constitution sought to protect. And while Jefferson, Madison and their pals could never have conceived of such a library of information – all in the palm of your hand – it is now up to the SCOTUS to bridge this generational (millennial) gap. After all – that’s really why they exist yes? To interpret the framework of our constitution and laws for a changing population and time.

And this was exactly what they did.  On June 25, 2014, the Supreme Court ruled it (in a nutshell) illegal for police to search a ‘suspects’ cell phone without a warrant.

As a reference point – let me offer you the following (and completely fabricated, of course) example:

“I was pulled over by the police. An officer ordered me to get out of my car, and then he patted me all over. When he felt my mobile phone in my shirt pocket, he removed it and demanded that I give him the unlock code. At first I said no, but he said I had no “right to privacy” in my phone, and that it would be suspicious if I refused. So I gave him the code. Was he right that I had to give the police my unlock code?”

The short answer is no–examining the digital data on your mobile phone is a search for constitutional purposes and the police must first get a search warrant. There are exceptions to the warrant requirement–to protect officer safety or to prevent destruction of evidence–but the U.S. Supreme Court recently held that in the normal situation, these exceptions do not apply to a mobile phone. (Riley v. California (2014).) Even if you are arrested, and even if you are in your car–circumstances that give the police greater power to search without a warrant–your privacy interest in the data on your mobile phone requires that a search warrant be issued by a judge before the phone data can be examined.

This latest decision, by the Supreme Court – clearly identifying the rights above – was monumental. Historically their decisions have been quite liberally based in the areas of privacy and technology – when related to law enforcement. This opinion was a head-on decision towards fourth (and first and even fifth) amendment rights for the private citizen and their personal technology.

For more information….. SCOTUS Opinions


Perpetuating the Myth: The ‘dumbing-up’ of society

A colleague of mine recently shared an anecdote that perfectly sums up the ‘myth-conceptions’ our general public has with regards to their constitutional “rights”. Many years ago my colleague was attending a local function with a rather eclectic mix of people. A fellow attendee, one of the women at his table, leaned over to express condolences on the passing of Ernesto Miranda. She voiced praise for his bravery and sadness at, what she perceived to be, the loss caused by his passing. A bit dumbfounded my colleague asked her to continue. In a nutshell, she felt that “his contribution” to our society, through the development of “his” laws, and the protection they provide our citizens was akin to the work of our great civil rights leaders.

In an effort to better explain why my colleague was so baffled by this declaration of appreciation, let’s examine for a moment the history of Ernesto Miranda. Miranda, a private citizen of Arizona, was arrested in 1963 for the armed robbery of a bank worker. He had a previous history of armed robbery, attempted rape, assault and burglary, and upon his arrest confessed to the most recent crime while in custody. He also confessed to additional crimes, of rape and kidnapping, that had occurred just prior to the robbery. He was convicted, but his conviction was overturned by the U.S. Supreme Court, as it was determined he had not fully “understood” his constitutional right not to self-incriminate. This technicality created a second trial, again resulting in a conviction, without the confession. Miranda served 11 years in prison and was killed in a bar fight in 1976.

Now let’s examine what the Miranda rules are, and are not. The Miranda statements are in place to point you to your 5th Amendment protections. When you are in custody, the police must remind you of these constitutional rights before questioning you. This is important because these statements create a boundary between coerced and voluntary statements.

What the Miranda rules do not mean is that the authorities MUST read you the warning in every situation. Arrests can occur without the Miranda warning being recited. For instance if the police do not plan to interrogate you, perhaps if they feel they already have enough evidence against you, they don’t have to remind you of these rights. I suppose they assume 8th grade constitution class took care of that.

Additionally, the Miranda warning does not mean that, even if recited, you can pull a lawyer from a bottle just by asking. Unfortunately television shows today (think Law & Order/CSI/NCIS) do a disservice to the education of our citizens, in allowing every Mike, Harry, and Susie to think they have earned an honorary constitutional law degree. What we see on TV, the angry detective walking from a room as soon as a lawyer is requested, is not really the way life happens. Your request for an attorney is a very smart move, and does mean you can stop talking (which is probably a really good idea). But just because you clam up, does not mean they have to. In fact, a common tactic is to continue to pepper you throughout your silence. Sometimes this will wear a suspect down until they either A) try and drown themselves in their Dixie cup of water or B) develop a bizarre vocal tic and confess to everything from the downing of Amelia Earhart to the death of the Lindbergh baby.

And because the Miranda language isn’t detailed anywhere in the Supreme Court’s documented history, the language can vary. Yes, yes, we know what you see on TV, but trust me- the language can vary as long as it always contains this singular theme:

  • Keep your mouth shut (You have the right to remain silent);
  • Anything you do say can be used to slap you in the face later (anything you say can be used against you in court);
  • You have the right to phone a friend (you have the right to an attorney);
  • If you can’t afford a friend, you will be added to the pile of an underpaid and overworked Public Defender (one will be appointed to you free of charge).

Miranda is an often litigated, never settled debate. This issue has continued to haunt the courts, with additional Supreme Court decisions that have weakened the Miranda laws but not overturned them. And, while criminals everywhere may be forever grateful for this helpful reminder, Ernesto Miranda was no hero. Simply put, he unwittingly and unintentionally assisted in the creation of a wormhole that has plagued our justice system for years and allowed for constitutional rights to be clouded in technicalities.