Your Cell Phone Is Special…Don’t Give Up Your Fourth Amendment Rights To It!

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I follow Professor Jessica Smith on Twitter. She is the W.R. Kenan Jr. Distinguished Professor at the University of North Carolina School of Government. A post from her today about cellular phones is timely; I’m currently involved in a case where my client’s cell phone was searched by law enforcement, without a warrant.

There is a line of cases which hold certain things may be searched, without a warrant, incident to a person’s arrest. Those items include: (1) the person arrested and the area within his immediate control; (2) a vehicle when the person arrested is unrestrained and within reach of the passenger compartment; and (3) a vehicle when it is reasonable to believe evidence relevant to the crime of arrest might be found therein. The touchstone of any search incident arrest is “reasonableness.”

In 2014, in a case called Riley v. California the United States Supreme Court tackled the issue of whether the search of a cell phone incident to arrest fell within the exception to the warrant requirement of the  Fourth Amendment. The Riley Court explored several things which set cell phones apart from other items found on people when they are arrested. For example, the Supreme Court noted “modern cell phones…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.” The Supreme Court also was wary of extending the search-incident-to-arrest doctrine to cell phones because those devices:

differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. 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. They could just as easily be called cameras,video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

The Supreme Court also commented on the “immense storage capacity” of cell phones, noting:

Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. … Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant.

The Riley Court determined the Fourth Amendment required the government to obtain a warrant to search the contents of a cellular phone.

Unfortunately, my client likely did not know of the Riley decision. In my case, my client was arrested. Law enforcement seized her telephone. Before seeking a warrant to search it, the police officers  asked my client if they could perform a search of her cellular phone. Instead of insisting they “get a warrant,” my client consented to the search, thus waiving her Fourth Amendment right concerning that phone. Incriminating evidence was discovered and, unless I can find a way to challenge my client’s waiver of her rights, that evidence is fully admissible at any trial.

Sometimes Your Client Loses…

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I just returned from a two-day jury trial in Mountain Home, Idaho. My client was charged with burglary. She was brave and, because she believed in her innocence, did not plead guilty. She left her fate in the capable hands of twelve of her fellow citizens. Unfortunately, after 3+ hours of deliberations, the jury returned a guilty verdict  on the single count of burglary she was charged with. I take these loses hard.

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We were awaiting the jury’s verdict, in the hallway of this courthouse, discussing why she had spoken with law enforcement. She indicated to me (not for the first time) that, if she didn’t, she would be admitting her guilt. I understand why she felt that way but THAT IS NOT THE LAW!

You are under NO OBLIGATION to speak to the police to aid in any criminal investigation. Law enforcement knew that in this case and had my client sign a “Waiver of Rights Form,” which she signed.

Failing to speak to law enforcement concerning a crime they are investigating is not an admission of guilty. In fact, as discussed in a previous post, the fact you refuse to speak with law enforcement cannot be considered by any jury in determining your guilt. YOU HAVE A RIGHT TO REMAIN SILENT; the Fifth Amendment to the United State’s Constitution that says that.

Monday morning (or in this case, Thursday afternoon) quarterbacking is always a risky business when it comes to trials and their outcomes. What I will say is this: the jury saw snippets of her interview; what she said did not help her case. Would she have been convicted without the interview, I have no idea because we were not presented with those facts.

On the positive side: the judge could have taken her into custody immediately following the verdict. He did not indicate any desire to do so. She remains free pending sentencing, which is set for September 8, 2017.

She lost this battle, but the war continues and I will continue fighting on her behalf. As I have written previously, sentencing is a critical phase of the proceedings; I will fight to ensure my client receives the best sentence possible for this conviction.

Objecting To A Federal Presentence Investigation Report Is Critical To Help Insure The Lowest Possible Sentence

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In a previous post, I wrote about how sentencing is “where it’s at” in federal court. Well, before my clients ever get to the sentencing hearing, I do a lot – I mean A LOT – of work to ensure my client receives the lowest possible sentence.

In Idaho federal court, when my client is found guilty – either because they pled guilty, or following a trial where a jury finds them guilty – the judge orders a “Presentence Investigation Report.” The “PSR” contains information to assist the judge in determining what sentence is “sufficient but not greater than necessary” to achieve the goals of sentencing. An initial PSR is provided to both me and the attorney for the government. Each of us has the ability to make written objections, which the United States Probation Officer considers. Sometimes the Probation Officer agrees with the objection and changes the PSR; sometimes not.

Recently, a Probation Officer agreed with my objection and amended the PSR to reflect a new recommended sentence under the United States Sentencing Guidelines. What’ the big deal, you may ask? My answer: MONTHS of potential incarceration for my client.

I strive to achieve the best possible outcome for my clients. Objecting to the PSR is a critical step in helping me reach this goal for my clients.

Oral Argument Before The Ninth Circuit Court of Appeals – You Better Keep an Eye on the Clock!

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In 2013, it was my honor to represent David Swenson in a 44-day jury trial in which he was accused of money laundering, conspiracy, wire fraud and securities fraud for his involvement in a company known as DBSI. During the proceedings, the federal government referred to the DBSI case as “the biggest fraud prosecution in the history of the state of Idaho.” Thousands of people lost millions of dollars when DBSI was forced to cease operations due to the “Great Recession” in 2008 and the freezing of the credit and real estate markets. As I said in my closing argument – that was a shame. Although David was acquitted of the money laundering, conspiracy and wire fraud counts, he was unfortunately convicted of the securities fraud counts and received a 36-month prison sentence and was ordered to pay restitution in the millions of dollars.

“Fast” forward to June 5, 2017. (Thankfully, David and his co-defendants are on release pending appeal at this time.) Oral argument on David’s and the three co-defendants’ appeal was heard before a 3-judge panel of the Ninth Circuit Court of Appeals in Seattle, Washington. The case took, literally, thousands of hours to prepare for trial. As I said above, the trial took 44 days. There were many unique and significant legal issues which could lead to reversal of David’s and the others’ convictions and, potentially, their freedom. There were literally thousands of pages of transcript and record materials. There were literally hundreds of written arguments in the briefing submitted to the Ninth Circuit.

Now to the crux of this post and the reason for the title. All 4 people convicted – known as “appellants” in legal jargon, were granted a total of 20 minutes for argument. That breaks down to 5 minutes per individual if all counsel had decided to present argument. As a team, we thought it was best to utilize our time by having two attorneys argue. This way the clock wouldn’t keep running when counsel changed and time wasn’t wasted giving introductions 4 times. I will tell you – 20 minutes flew by. It really was quite unbelievable how quickly those 20-odd minutes passed. At the end, you always wish for more time, but hope you did the job with the time you had. (I guess it’s a lot like life that way!) You have to make your time count by: (1) submitting well-written briefs; (2) being prepared for any possible question by reviewing the law and the briefs; and (3) narrow the issues to present at oral argument to those that either will make the most difference or in which the judges take the most interest.

In any event, if you are interested in listening to the oral argument, simply click on this link. It will take you to the audio recording. I expect we won’t be getting an opinion in this case for 4-6 months. When it comes out, I’ll be sure to let you know my thoughts.

A Timely Blog Post By Another Criminal Defense Attorney: “Most people accused of a crime are treated like criminals, that’s why we fight to protect your rights and keep you out of jail.”

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My good friend and top-notch criminal defense attorney Chuck Peterson just posted the following to his blog: “Most people accused of a crime are treated like criminals, that’s why we fight to protect your rights and keep you out of jail.” After reading the post, I couldn’t agree with Chuck more, that’s why in the “About” page in this blog I touch on the fact most people accused of a crime are treated as though there is a “presumption of guilt.” Kudos to Chuck for touching on the important topic of the “presumption of innocence.” It’s a shame not all criminal defense attorneys treat the presumption as it should be treated – with the utmost respect.

As an aside, you may be wondering why I am putting Chuck’s post on my blog. The simple truth of the matter is this: When I see someone posting on a topic I believe is important, I want to do everything I can to make sure my readers see it – even if it is pointing out what another criminal defense attorney is saying. Do I want your business? Sure. Do I truly believe I would be your best option for a multitude of criminal defense matters including defense of DUI/DWI and drug and fraud charges? Absolutely. At the end of the day, however, I believe you are entitled to the absolute best fit for your criminal defense needs. If you wind up retaining another attorney, so be it…so long as your rights are protected and the government is held to its burden.

Can I Move To Suppress Evidence Of An Illegal Search Of A Car? Do You Have “Standing”?

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I participate in various forums, such as Avvo, where citizens can ask general questions of lawyers. I find this an efficient way of answering legal questions for people in Idaho and around the country. A question came across the other day about whether a person could move to suppress evidence of an illegal search of his girlfriend’s car. The post began like this: “I was pulled over for having a headlight out in my girlfriend’s car. She was the passenger!” Additional  facts provided were: “When I was out of the car the officer asked if he could search the vehicle! I told him no because it wasn’t my vehicle.” The owner of the car eventually consented to a search of it. Of course, drugs, scales and paraphernalia were found. Presumably the individual is now subject to criminal charges.

The search of a vehicle implicates the Fourth Amendment to the United States Constitution, which Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

There are many exceptions to the warrant requirement of the Fourth Amendment. In the context of a vehicle search, Of course, the consent to search is one of the exceptions.

Unfortunately for the driver who posted the question, he simply does not have standing to challenge the search of the vehicle. He cannot seek to suppress the evidence found.

In State v. Bordeaux, the Idaho Court of Appeals provided a nice summary of this area of the law:

Generally, only the owner of a vehicle has standing to directly challenge an illegal search. Idaho courts have consistently held that a passenger in a vehicle subject to an allegedly illegal search generally does not have standing to object to the search of the car. A passenger who has no proprietary interest in the vehicle lacks a reasonable expectation of privacy, and therefore, standing to challenge a search where the driver has consented. The rule is well established that in order to assert standing to suppress evidence, the individual seeking suppression must demonstrate some proprietary interest in the premises searched or some other interest giving a reasonable expectation of privacy.  The individual’s rights must have been infringed. These rights are personal and a claim may not be asserted vicariously that the government has invaded a third party’s privacy rights. Id. Where a passenger fails to make a showing of a legitimate expectation of privacy, his Fourth Amendment rights have not been violated.

In the factual scenario posted by the driver of the vehicle, he stated it was his girlfriend’s car. Additionally, when law enforcement asked him for consent to search the vehicle, the driver disavowed any ownership interest and, thus, any reasonable expectation of privacy in the car.

Search and seizure law is highly technical and a proper analysis and argument which leads to suppression of evidence is a big win for defendants. If you have a case involving the search and seizure of evidence, you need a good criminal defense attorney.

 

Sentencing is Where it’s at in Federal Court

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I had a sentencing in federal court today. My client was charged with obtaining cough medicine with fraudulent prescriptions and received  a “middle of the Guideline sentence” of nine months in prison. He has been locked up since December 15, 2016, and so, will have to serve an additional 3+ months before his release.

In my experience, a large portion of federal prosecutions end with a guilty plea and, so sentencing is where it’s at in federal court. As I was preparing for sentencing today, my research led me to actual data to back up my experience.

Under the federal sentencing guidelines, “simple drug possession” includes: §2D2.1 – Unlawful Possession, Attempt and Conspiracy; §2D2.2 – Acquiring a Controlled Substance by Forgery, Fraud, Deception, or Subterfuge; and §2D2.3 Operating or Directing the Operation of a Common Carrier Under the Influence of Alcohol or Drugs. According to the United States Sentencing Commission, charges amounting to “simple drug possession” are almost always settled by a guilty plea in the Ninth Circuit (the circuit Idaho is in). When I say “almost always,” I mean in more than 99 cases out of 100! As this table – Guilty Pleas and Trials in Each Primary Offense Category FY 2016 – shows, in 2016, in the entire Ninth Circuit, there were 1,489 cases charged under the “simple possession” guidelines. Of those, only 1, went to trial. That’s a minuscule 0.067%.

In order to be a successful federal criminal defense attorney, you need to know the lay of the land, recognize when a plea is in the best interests of your client, and know how to prepare and argue effectively for your client in the sentencing proceeding. It is most likely where you’ll be able to do your client the most good.

Michael Flynn is “Taking the Fifth”…You Should Too.

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Today we learned from Karoun Demirjian of the Washington Post that “Retired Lt. Gen. Michael Flynn, the former national security adviser under President Trump, refused to comply with a Senate Intelligence Committee subpoena….” Frankly, if you are being investigated for a crime, you’d be smart to follow Ret. Lt. Gen. Flynn’s example of invoking his right to remain silent.

The Fifth Amendment to the United States Constitution provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The bolded language is what’s important here.

Many of my clients think talking with law enforcement and trying to “tell their side of the story” without an attorney present is a good idea. Frankly, they are always wrong. Law enforcement will utilize various techniques, including out-right lies, to get people to incriminate (provide harmful information about) themselves. By the time I get the case, my client’s own words often “seal the deal” for the government.

Some say “taking the Fifth” demonstrates your guilt. This is simply not so. Relying on the protections of the Fifth Amendment to the United States Constitution is something the Founders of this country believed to be an appropriate protection against the government. It is your absolute right to not speak with law enforcement. Your refusal cannot be used against you.

If you are, or believe you might be, being investigated it is in your interest to not speak with police until you have obtained the services of a qualified attorney to advise you. Call me if you’d like representation in this situation. Trust me, you are better off getting legal help now than after you have cooked your own goose.

Prosecutor Agrees: Improperly Suggestive Photo “Lineup” Should Not Be Used.

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Today was supposed to be a hearing on my Motion to Suppress Unconstitutionally Suggestive Photographic Identification. Surprisingly, the prosecutor agreed my motion was correct and we agreed he would not use the out-of-court identification in an upcoming burglary trial. He also agreed not to have the witness conduct an in-court identification of my client as the individual in surveillance video of a robbery.

The Motion was based on the Idaho Supreme Court’s decision in Wundermann v. State. There the Court identified the factors to be considered in suppressing an out-of-court identification. The key is “reliability.”

In order to determine whether  an identification is reliable, the Court considers these factors: “(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated at the identification; and (5) the length of time between the crime and the identification.”

In my case, the owner of the business gave a general description of the person she observed on the video. The owner then got “still captures” (think a single frame) of a video feed and reviewed them. She initially said she thought the person in the frame was named “Vicki.” The police officer believed the person was Vicki’s sister “Michelle” and told the owner of Michelle’s existence and the fact she is Vicki’s sister. The owner  proceeded to search Facebook for pictures of Michelle. There was no evidence the person had ever heard of Michelle before the police mentioned her.

My argument was because the police officer directed the identification of Michelle, it was unconstitutionally suggestive. Apparently the prosecutor agrees. We have stipulated to “suppress” the identification.

Trial in this case is in June. I’ll be sure to post an update following the trial to let you know how it all turned out.

If you are interested, here is a link to my memorandum laying out my argument. 2017-04-28 Memorandum in Support of Mtn to Suppress Photographic Identification

Introduction – Hello World!

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I’ve decided to begin writing a blog to provide information about criminal law and associated issues as well as to provide helpful information to you if you are ever charged with a crime. There are many issues which are “case specific” meaning that, although a general post here may give you information, a more detailed review of the facts and circumstances of your particular issue is necessary. The posts on this blog will, hopefully, be a starting point for you. It is also my goal to provide current general information from the world of criminal defense and my criminal defense practice. I know there are many attorneys out there, I hope the information provided here is useful to you.