Supreme Court Says Cell Phones Can’t Be Searched Without a Warrant

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In a sweeping victory for privacy rights in the digital age, the Supreme Court on Wednesday unanimously ruled that the police need warrants to search the cellphones of people they arrest.

Chief Justice John G. Roberts Jr., writing for the court, was keenly alert to the central role that cellphones play in contemporary life. They are, he said, “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.” But he added that old principles required that their contents be protected from routine searches. One of the driving forces behind the American Revolution, Chief Justice Roberts wrote, was revulsion against “general warrants,” which “allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.” “The fact that technology now allows an individual to carry such information in his hand,” the chief justice also wrote, “does not make the information any less worthy of the protection for which the founders fought.”

The courts have long allowed warrantless searches in connection with arrests, saying they are justified by the need to protect police officers and to prevent the destruction of evidence. But Chief Justice Roberts said neither justification made much sense in the context of cellphones. While the police may examine a cellphone to see if it contains, say, a razor blade, he wrote, “once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.” Should the police confront an authentic “now or never” situation, the chief justice wrote, they may well be entitled to search the phone under a separate strand of Fourth Amendment law, one concerning “exigent circumstances.” On the other side of the balance, Chief Justice Roberts said, is the data contained on typical cellphones. Ninety percent of Americans have them, he wrote, and they contain “a digital record of nearly every aspect of their lives — from the mundane to the intimate.” He wrote, “According to one poll, nearly three-quarters of smartphone users report being within five feet of their phones most of the time, with 12 percent admitting that they even use their phones in the shower.” Even the word cellphone is a misnomer, he said. “They could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers,” he wrote.

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The United States Bill of Rights: First 10 Amendments to the Constitution

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Preamble

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

 

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James Madison, primary author/chief advocate for the Bill of Rights in the First Congress.

Thomas Jefferson wrote to James Madison advocating a Bill of Rights: “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.”

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Third Amendment

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner; nor in time of war, but in a manner to be prescribed by law.

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.

Fifth Amendment

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.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

Seventh Amendment

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of common law.

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Ninth Amendment

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

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What To Do If You Are Detained For Taking Photographs

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Taking photographs of things that are plainly visible from public spaces is a constitutional right – and that includes federal buildings, transportation facilities, and police and other government officials carrying out their duties. Unfortunately, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs from public places, and harassing, detaining and arresting those who fail to comply.

The right of citizens to record the police is a critical check and balance. It creates an independent record of what took place in a particular incident, one that is free from accusations of bias, lying, or faulty memory. It is no accident that some of the most high-profile cases of police misconduct have involved video and audio records.

rts7uz6When in public spaces where you are lawfully present you have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities, and police. Such photography is a form of public oversight over the government and is important in a free society.

When you are on private property, the property owner may set rules about the taking of photographs. If you disobey the property owner’s rules, they can order you off their property (and have you arrested for trespassing if you do not comply).

Police officers may not confiscate or demand to view your digital photographs or video without a warrant. The Supreme Court has ruled that police may not search your cell phone when they arrest you, unless they get a warrant. Although the court did not specifically rule on whether law enforcement may search other electronic devices such as a standalone camera, the Constitution broadly prevents warrantless searches of your digital data. It is possible that courts may approve the temporary warrantless seizure of a camera in certain extreme “exigent” circumstances such as where necessary to save a life, or where police have a reasonable, good-faith belief that doing so is necessary to prevent the destruction of evidence of a crime while they seek a warrant.

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Police may not delete your photographs or video under any circumstances. Officers have faced felony charges of evidence tampering as well as obstruction and theft for taking a photographer’s memory card.

Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations. Professional officers, however, realize that such operations are subject to public scrutiny, including by citizens photographing them.

Note that the right to photograph does not give you a right to break any other laws. For example, if you are trespassing to take photographs, you may still be charged with trespass.

If you are stopped or detained for taking photographs:

  • Always remain polite and never physically resist a police officer.
  • If stopped for photography, the right question to ask is, “am I free to go?” If the officer says no, then you are being detained, something that under the law an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary under the law and is legal.
  • If you are detained, politely ask what crime you are suspected of committing, and remind the officer that taking photographs is your right under the First Amendment and does not constitute reasonable suspicion of criminal activity.

Photography at the airport:

Photography has also served as an important check on government power in the airline security context.

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The Transportation Security Administration (TSA) acknowledges that photography is permitted in and around airline security checkpoints as long as you’re not interfering with the screening process. The TSA does ask that its security monitors not be photographed, though it is not clear whether they have any legal basis for such a restriction when the monitors are plainly viewable by the traveling public.

The TSA also warns that local or airport regulations may impose restrictions that the TSA does not. It is difficult to determine if any localities or airport authorities actually have such rules. If you are told you cannot take photographs in an airport you should ask what the legal authority for that rule is.

Special considerations when videotaping:

With regards to videotaping, there is an important legal distinction between a visual photographic record (fully protected) and the audio portion of a videotape, which some states have tried to regulate under state wiretapping laws.

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  • Such laws are generally intended to accomplish the important privacy-protecting goal of prohibiting audio “bugging” of private conversations. However, in nearly all cases audio recording the police is legal.
  • In states like Tennessee that allow recording with the consent of just one party to the conversation, you can tape your own interactions with officers without violating wiretap statutes (since you are one of the parties).
  • In situations where you are an observer but not a part of the conversation, or in states where all parties to a conversation must consent to taping, the legality of taping will depend on whether the state’s prohibition on taping applies only when there is a reasonable expectation of privacy. But no state court has held that police officers performing their job in public have a reasonable expectation.
  • Laws that ban the taping of public officials’ public statements without their consent violate the First Amendment. A summary of Tennessee wiretapping laws can be found below.

Summary of Tennessee statute(s): An individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it, unless the person is doing so for the purpose of committing a criminal or tortious act. A person also can lawfully record electronic communications that are readily accessible to the general public. Tenn. Code Ann. § 39-13-601 (West 2012).

In-person conversations: The consent of at least one party to a conversation is required to record an “oral communication,” which is defined as “any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.” Tenn. Code Ann. § 40-6-303. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

Electronic communications: The consent of at least one party to any telephone communication, including one transmitted wholly or partly by a cellular telephone, is required to record it. And because the provision of the statute dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. Tenn. Code Ann. §§ 40-6-303, 39-13-604.

Hidden cameras: It is a misdemeanor to photograph or record, “for the purpose of sexual arousal or gratification,” a person when the person has a reasonable expectation of privacy if the image “would offend or embarrass an ordinary person” who appeared in the photograph, and a felony to disclose to any person the image obtained by these means. Tenn. Code Ann. § 39-13-605. The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (i.e., filming conversations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an in-person conversation or electronic communication is a felony offense. Tenn. Code Ann. § 39-13-602.

Civil suits: Anyone whose wire, oral or electronic communication has been recorded or disclosed in violation of the law can bring a civil suit to recover the greater of actual damages, $100 a day for each day of violation or $10,000, and can recover punitive damages, attorney’s fees and court costs as well. The statute also allows anyone whose wire, oral or electronic communication is or is about to be recorded or disclosed in violation of the law to seek to enjoin and restrain the violation in addition to suing for damages. Tenn. Code Ann. § 39-13-603.

Disclosing recordings: Disclosing the contents of a wire, oral or electronic communication obtained through illegal recording is a felony. Tenn. Code Ann. § 39-13-602.

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Should School Police Carry Weapons?

This piece originally appeared in the Pittsburgh Post-Gazette. I don’t agree with everything in this piece; but it might generate some much needed dialog on the issue.

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There is an emerging national debate about school policing. It is not about whether school police should be armed but about how best to improve school environments and ensure student success while minimizing unnecessary student arrests. Emerging best practices aim to reduce police involvement in routine disciplinary school matters, ensure fairness in disciplinary processes, and increase the ratio of counselors and student support services to cops.

Sadly, while many communities explore how to improve school climates by building trusting relationships between adults and students, Pittsburgh debates the arming of school police.

A recent Pittsburgh Post-Gazette editorial and a resolution adopted by the Pittsburgh Federation of Teachers’ executive board both put forth troubling arguments that are at odds with what we know about school policing.

The most immediate impact of arming school police would be felt by students, as school-based police spend the bulk of their time interacting with students in non-emergency situations. Having officers patrol the hallways with firearms sends a negative message to students. It makes many students feel that they are being treated like suspects. It can have an intimidating presence and can contribute to negative attitudes about police, in general.

There is no evidence that arming school officers increases overall safety or improves relationships within school communities. Having an armed officer stationed in schools has neither prevented nor stopped “active shooter” incidents. It did not at Columbine High School nor has it elsewhere. Thankfully, these tragic situations are still rare in schools.

How school-based police interact with students and the tools they carry and sometimes use have been the source of controversies. Incidents involving the use of even less lethal police tools, such as Tasers and pepper spray, have resulted in complaints, lawsuits, and injuries to students. These have been on the rise in recent years.

Pittsburgh is far from alone in not having armed officers in schools. The largest school district in the state, Philadelphia, does not permit its school police to carry firearms. Instead, the School District of Philadelphia, its police department, and the city police department have focused on instituting policies and programs designed to reduce unnecessary student arrests, which have been cut in half in recent years. And, so far, there has been no major uptick in violence in those schools.

Unarmed school staff does not mean that schools are defenseless in emergency situations. School districts have arrangements, formal or informal, with local law enforcement in which outside assistance is provided when needed in emergencies, such as when there is a bomb threat or serious injury.

Especially troubling is the editorial’s argument that school police should be armed because police in surrounding communities are.

Places of learning are not security zones or criminal justice institutions, and they should not be staffed that way.

The national conversation about school policing has begun to focus on what kind of staffing is appropriate for schools. In 2016, the U.S. Department of Education released data showing that 1.6 million public school students attend schools with full-time police officers but no counselors. Recent studies have found that the number of police exceeds the number of counselors in many districts.

Forward-thinking districts are reconsidering the kinds of support staff that work in schools, not whether they should be armed.

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“no offense, but I need to get a real lawyer”

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I have worked for the Office of the District Public Defender for nearly 16 years. I have turned down other jobs that would have paid more and been less work, but I keep doing what I’m doing because I like it and because I get to spend a lot of time in the courtroom, and if I do say so myself, I’m pretty good at it. I constantly run into people- including, unfortunately, clients- who think that because I’m an assistant public defender, I am either not really a lawyer or not a very good one.        

I am an assistant public defender because I believe the government must be held accountable and kept firmly in check. The rights to a defense, a trial by impartial jury, and access to the advice of counsel are so important they were written directly into the Sixth Amendment of our Constitution. I am an assistant public defender because I believe that “but for the grace of God, there go I.” What if the power of the government stood against my wife, or my sister, or my mother, or my child? I would want a strong and sharp lawyer who cared what happened to that person and treated them and their rights with respect. I strive to be the lawyer I would want for my family and to represent my clients to the best of my ability, regardless of what they look like, how much money they have, or what they have been accused of.  

The average assistant public defender will handle more cases in one year than most private lawyers will handle in ten.

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At the point lawyer and client decide to bring a case to trial, the stakes are carefully considered. The stakes are the difference between the state’s offer if your client pleads guilty and the much higher penalty the state will demand if the case is lost at trial. By trial date, those terrible stakes have been put in cold storage somewhere in the trial lawyer’s mind. The focus is now on the jury and how to persuade them that there is a reasonable doubt about the state’s case against your client, and that persuasion begins the moment they first file into the courtroom and continues through the pinnacle of the trial, closing argument. Although you are drained afterward, the trial itself is exhilarating.

Assistant public defenders deal directly with both the Tennessee State Constitution and the U.S. Constitution on a daily basis, and that’s also fun. We go into court and argue the state and federal constitutions and see the law of those two documents applied directly in our case at bar. It sends a chill down my spine every time.

The excitement of being an assistant public defender makes the serious part of the job bearable, and the serious part is what keeps us coming back to the courtroom.

Representing an indigent client is all about duty. When a case is assigned, that duty arises, and it remains until the client is sentenced after a plea of guilty, he is freed after a successful trial, or his case is appealed after an unsuccessful one. Because your client is poor and can’t afford anyone else, the duty owed him is the highest duty a lawyer can have.

Because the client is poor, he is at the mercy of everyone in the criminal justice system. The full power of the state is arrayed against the client, and the only thing that stands between him and that pulverizing power is you.

The duty that a public defender owes to his client comes before anyone or anything else, before wives, before children, before friends, before any personal plans, and before sleep.

If an assistant public defender wins at trial, there will be no pep rally and there will be no raise in pay. A harried colleague passing in the hall might call out, “good job.” If he loses, there will be no anxious postmortem in the supervisor’s office. There simply isn’t time.

No one but you will know if you met your duty. Sometimes a savvy client will know, but most of the time only you will know. And even if you believe you have done everything legally, ethically and humanly possible, you will still wake up in the middle of the night to go over the case step by step one more futile time, and God help your conscience if you conclude that yes, there was something more you could have done.

I consider it an honor to be an assistant public defender, to protect the rights of an otherwise defenseless human being, to embrace the duty regardless of personal cost, and fight to keep the power of the state in check.

Assistant public defenders are generally very capable, highly experienced trial lawyers who make the most of their resources and stand for ensuring that people receive a zealous defense. Assistant public defenders are the last line of defense against the presumption of guilty unless proven innocent.  

Are assistant public defenders real lawyers? You bet they are, and I am proud to be one.  – – Ken McKnight

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Robbery vs Burglary

Theft crimes are often confusing because slight variations of the crime can change the name of the offense along with the penalties. The average person often does not know the difference between a robbery offense and a burglary offense. The main difference is the presence of violence or the physical presence of a victim. Burglary occurs when an individual enters a building with the intent of committing a felony crime. There is no specification of a person being present or coming in contact with the victim. To be charged with burglary, the requirements include:

  • Breaking into;
  • Entering;
  • A building;
  • Without having consent from the owner;
  • While having the intention of committing a felony or stealing

Robbery, on the other hand, involves violence or threatening harm in order to steal from a victim. This offense is a combination of theft and violence, or the threat of acting violently. To be charged with robbery instead of burglary, there must be the use of force to take property from a victim directly. An example of robbery would be pulling a gun on a bank teller. Whether or not you use the gun does not necessarily matter, threatening the use of a gun is enough to be charged with robbery. If the gun is used; however, the charges could be aggravated.

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The penalties for these crimes vary, robbery is generally charged as a Class C felony in Tennessee. This crime is punishable by between three and 15 years in prison and a fine of up to $10,000. This could be aggravated to a Class B or Class A felony with harsher penalties if the offense has a weapon involved or other aggravating factors. Burglary is generally charged as a Class D punishable by between two and 12 years in prison and up to $5,000 in fines. Some burglary offenses could be charged as a Class E felony with lesser penalties, but some can also be aggravated to Class C and Class B felonies.

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KNOW YOUR RIGHTS: MIRANDA WARNING

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Anyone who has a TV and a vague understanding of how our legal system works has heard of Miranda Rights, even if they do not understand what they mean. I think it is fair to say that every American has at one time or another heard the words, “You have the right to remain silent,” either from TV shows or other forms of media. Cop dramas almost never state the full Miranda Rights and most people do not fully understand when these warnings are implemented or why. Because of this, there is a misconception that if you are arrested and an officer does not recite the Miranda warnings, you can use that as an argument to get your case dismissed. This is far from true.

What Exactly Are Miranda Rights?

In 1966, numerous cases involving interrogations resulted in admissions and written statements because the defendants did not know about their rights during the interrogation process. The Supreme Court ruled that collecting this self-incriminating evidence while the suspect was unaware of his or her rights was unlawful. The Miranda warnings are a serious of statements that law enforcement officers use in order to remind suspects of these rights.

The Miranda Rights state that:

  • You have the right to remain silent
  • Anything you say can be used against you in a court of law
  • You have the right to an attorney
  • If you cannot afford an attorney, one will be appointed to you
  • You can invoke your right to remain silent during an interrogation
  • If you invoke your right to remain silent or your right to an attorney, the interrogation must stop or stop until the attorney is present

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These warnings are issued in two specific situations: when the suspect is in police custody and when the suspect is under interrogation. The police are not required to issue these warnings unless these specific situations exists.

Reality vs. Myth

Just because a police officer does not read you the Miranda warnings doesn’t mean you get a “get out of jail free” pass. In actuality, it means that the police simply cannot use anything you say as evidence against you in court. Without your rights being recited, anything you say that is self-incriminating cannot be used against you. Furthermore, if you say something that leads the police to discover physical evidence of a crime; then that evidence cannot be used against you in court. Once the rights have been read and you have verbally accepted them (silence does not count as a confirmation), then what you say may be used in court.

Invoking Your Rights

It is imperative that if you are arrested you take full advantage of your rights. Do not answer questions and request an attorney. Because anything you say can be used against you, it is imperative to say nothing, even if you think it is harmless.

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