CAN THE POLICE SEARCH YOUR CELL PHONE WITHOUT A WARRANT?

The Ohio Supreme Court just decided a novel question of law a couple weeks ago relating to the law of search and seizure. Up until now, neither the U.S. Supreme Court, nor any state supreme court has rendered a decision on whether the police can search the contents of a person's cell phone without a warrant. As I have said before, the Fourth Amendment to the U.S. Constitution prohibits warrantless searches unless the state can show that there were exigent circumstances or that the person who was searched consented to the search. Exigent circumstances include the possibility that the defendant was armed, that there was some other sort of threat presented, or that there was a possibility of the evidence being destroyed.

In Ohio v. Smith, a person who had bought crack cocaine from the defendant, Smith had been taken to the hospital after a drug overdose. At the hospital, the police questioned the patient and had her call Smith to arrange another drug deal. The police recorded their phone conversation. Later, the police arrested Smith at his customer's home. At the time of arrest, police searched Smith and took his cell phone. The police also later found bags of cocaine at the home.

While Smith was at the police station being booked, the police searched Smith's cell phone to confirm that he was the person the hospital patient had called and spoken to about setting up the drug deal. Smith did not consent to the search and the police did not have a warrant.

Smith went to trial and was found guilty of trafficking cocaine. Prior to trial, Smith moved to suppress evidence obtained from his cell phone on the ground that it was a warrantless search in violation of the Fourth Amendment, but the motion was denied. After Smith was convicted, he appealed and the Ohio State Court of Appeals affirmed the convictions. The Court of Appeals based its decision on U.S. v. Finnley, which I will discuss below.

The police can conduct what is called a search incident to arrest if it is contemporaneous to the arrest. This is for officer safety and to prevent the destruction of evidence. The police did this when they initially too Smith's phone, but when they were at the police station, a significant amount of time had passed and a search could not have been considered to be contemporaneous to the arrest at that point. In addition, the whole justification for a search incident to arrest is for officer safety and to prevent the destruction of evidence. Here, the police had no reason to be concerned for their safety, as Smith had already been placed under arrest, handcuffed, and transported to the police station. The Court of Appeals nevertheless ruled that the search was permissible under U.S. v. Finnley, which I will now discuss.

In Finnley, the Fifth Circuit ruled that cell phones were analogous to containers found on an arestee's person, which are subject to searches for the preservation of evidence.

In U.S. v. Park, however, a Federal District Court ruled that cell phones are not the same as containers for the purposes of a Fourth Amendment analysis. That court reasoned that because cell phones “have the capacity for storing immense amounts of private information,” they are much more like laptops, in which arestees have a significant privacy interest.

The Ohio Supreme Court cited U.S. v. Park in rejecting the lower court's reliance on U.S. v. Finnley. The Ohio Supreme Court said that because a person has such a high expectation of privacy in their cell phones, police cannot search the phones without a warrant. The court also stated that the police failed to show that the search was conducted because there was a concern for officer safety or imminent destruction of evidence.

This has been the first state supreme court on the issue of whether police can search the contents of a cell phone and for that reason I am posting it in this blog, which is usually limited to Washington State and federal cases and statutes. Hopefully, Washington State will follow Ohio's lead in protecting our privacy rights.

NEW LAW HELPS TO STOP THE POOR FROM BEING CONVICTED OF DRIVING ON A SUSPENDED LICENSE

As I have previously written, there are three types of Driving While License Suspended (DWLS) crimes in Washington State: DWLS in the 1st degree, DWLS in the 2nd degree, and DWLS in the 3rd degree. 1st degree DWLS is the crime you will be charged with if you are driving while your license is revoked under the Habitual Traffic Offender Act. 2nd degree DWLS is what you'll be charged with if you drive while your license is suspended and you are ineligible for reinstatement due to a mandatory license suspension for a specified period of time (such a 1 year suspension for refusing to take a breath test). 3rd degree DWLS is where your license is suspended, and you are eligible for reinstatement.

It's this last type of DWLS that I'd like to focus on in this posting because legislation was passed in May that will hopefully reduce the number of people who are convicted of this crime. People who are charged with 3rd degree DWLS usually have some sort of financial problem. They are all eligible for reinstatement as long as they pay money that they owe. This is often for unpaid traffic tickets, but it can also be for failure to pay child support or failure to pay a civil judgment when the defendant was found to be at fault in a traffic accident.

So people struggling financially and are simply unable to pay the money they owe have the license suspended and to earn a living or to get from place to place in order to get the money they to pay off their debts, they end up driving. Now they get charged with 3rd degree DWLS, which is a misdemeanor criminal charge.

I have had a client who could not get his license reinstated because, although he was slowly coming up with the money to pay off his traffic tickets, he was given the runaround when it came to trying to figure out exactly who to pay- The courts told him his fines went to collection and the collections agency told him to call the courts because they did not have an account for him.

In May of this year, Senate Bill 5732 became law. The new law will be added to chapter 46.20 of the RCW and authorizes cities and counties to establish licensing diversion programs for the purpose of helping suspended drivers get their licenses back. The new law also requires the courts in jurisdictions that do not have licensing diversion programs to issue the defendant a copy of his or her driving abstract and give the defendant all of the information regarding what money is owed and to whom. This law only applies to people whose licenses have been suspended due to failure to pay traffic tickets, failure to respond to a notice of traffic infraction, failure to appear at a requested hearing, or for violated a written promise to appear in court.

Under SB 5732 a driver is not be eligible for a diversion program if he or she has been convicted of DWLS more than 4 times in the last 10 years. The law also limits diversion eligibility for drivers who hold a commercial drivers license. For the many struggling people who are down on their luck, the new law may be of great benefit to get out of a hole. It will also free up the courts which have to deal with a large number of 3rd degree DWLS cases.

OBSTRUCTION OF JUSTICE: MAKING FALSE STATEMENTS TO THE POLICE

Today I’d like to discuss the crime of false reporting. Actually, I'll be referring to the crime of making a false or misleading statement to a public servant, which is commonly known as "false reporting." I recently represented another lawyer on this charge and thought that I should warn others about what the police may do to you if you are rude to them or are otherwise difficult. The lawyer I defended on the charge of false reporting was admittedly rude to the police and made sure they knew she was a lawyer. The cops weren’t happy with the way she talked to them, so they stacked up a few charges against her, one of which was false reporting.

The police claimed that the lawyer left out the last part of her last name when she was asked to identify herself. I am writing about this charge because the police frequently use it to punish someone who made them angry or irritated or to punish someone they just don’t like. So be careful when the police stop you for investigative purposes. You can assert your constitutional rights, but be polite about it. The police often make up false allegations of false reporting against people who mouth off to them.

The actual title of the crime appears as “Making a false or misleading statement to a public servant” in RCW 9A.76.175. That statute says:

"A person who knowingly makes a false or misleading material statement to a public servant is guilty of a gross misdemeanor. "Material statement" means a written or oral statement reasonably likely to be relied upon by a public servant in the discharge of his or her official powers or duties."

Back in 1982, the Washington State Supreme Court found that the statute defining obstructing a law enforcement officer, which had similar wording to our current statute defining false reporting , was unconstitutional. The court reasoned that the term, “public servant” was too vague. So there may be a way to attack the statute on constitutional grounds if you are charged with this offense.

The public servant must be discharging official duties at the time you make a false or misleading statement. The courts have recognized the acts of making an arrest, stopping a suspect to investigate, and requesting ID while investigating a crime as official duties performed by the police.

Aside from attacks concerning the validity of the statute, you can also challenge the police claim that your statements were “material.” Also, if the police weren’t making an arrest, requesting ID, or investigating a crime at the time they cite you for false reporting, you can argue that they weren’t discharging official duties.

Again, one of the best ways to avoid this charge is to be polite to the cops. They have all of the power in many situations, even if you’re a lawyer. They often make up facts to support a charge of false reporting if you give them a hard time.

CONSEQUENSES OF RECEIVING AN OUT-OF-STATE TRAFFIC TICKET

Although traffic infractions are no longer considered to be criminal offenses in Washington State, I am making this posting in a criminal defense blog because many criminal defense lawyers, myself included, also handle traffic tickets. In addition, the consequences of receiving a traffic ticket that remains unpaid can result in criminal charges, as I will explain below. Just to clarify if anyone is confused, states share information regarding traffic tickets. That includes California and Oregon. If you get a traffic ticket in California or Oregon, Washington will know about it.

People sometimes ask me what will happen if they ignore a ticket they received while visiting another state. The answer is you will almost certainly have your driver's license suspended. Under the interstate Driver's License Compact (DLC), states share information with other member states so that drivers essentially have just one driving record which includes all traffic violations committed in every state.

Under the DLC, if you are cited with a traffic violation in another state while you're visiting and the state in which you live permanently has a similar statute prohibiting the same action for which you were cited in the other state, your home state will file an action against you as if the violation had occurred in your home state and your state will apply it's own law. If you disregard the citation and fail to pay the fine or request a hearing, your license will be suspended until the ticket is payed off.

But what if while you're visiting another state, you get a ticket for something that is illegal in that state, but is not considered to be a traffic violation in your home state? That's where the Non-Resident Violator's Compact comes in. 45 states in the U.S. are members of the Non-Resident Violator's Compact. If your state is a member of the Compact and you receive a traffic ticket (for something that would not be illegal had you done it in your home state) in another member state, that state will inform your home state of the traffic ticket. If you do not take care of the ticket, the state in which you received your ticket will inform the state in which you reside and your driver's license will be suspended until the ticket is payed.

If your address of record filed with the Depatment of Licensing (DOL) is not current, then you will not receive notice of the suspension. This is how many people get charged with Driving While License Suspended (DWLS) in the 3rd degree- they were unaware that an out-of-state ticket would have any affect on the status of their driver's license and did not receive notice because their address of record was not current.

If you were issued a traffic ticket in another state, in order to keep your driver's license, you will need to either (1) pay the ticket, (2)request a contested hearing or a mitigation hearing and return to the state where you received the ticket and fight the ticket yourself, or (3) hire a traffic lawyer who is licensed in that state to fight the ticket for you. Your safest bet is option (3).

All states are members of the Non-Resident Violator's Compact except for Michigan, Wisconsin, California, Montana, Oregon,and Alaska.

A newer law called the Driver's License Agreement (DLA) has been written to take the place of both the Driver's License Compact and the non-Resident Violator's Compact. As of the date of this posting, only Connecticut, Arkansas, and Massachusetts are members of this agreement. I will write more about the DLA in a future posting.

CAN YOU REFUSE TO GIVE POLICE INFORMATION WHEN QUESTIONED?

I read an article recently about Seattle City Attorney, Tom Carr making the announcement that police in Capitol Hill will be stopping people on the street who appear to be intoxicated, ask them where they have been drinking, and try to close down the bars that people name. The author of the article I read urged people to not provide the police with any information regarding where they had been drinking.

That bit of advice prompted me write this posting about your legal rights and consequences of refusing to provide information to the police if you find yourself in the type of situation described above. The statute we have in Washington that defines “Obstructing a law enforcement officer” used to say that you are guilty of this offense if you, without lawful excuse, refuse to furnish or knowingly fail to furnish any information lawfully requested by a public servant. This statute has since been changed after the Washington State Supreme Court found it to be unconstitutionally vague.

Under the old statute, you would be guilty of obstruction of justice if you refused to tell a cop where you had been drinking if a cop asked you. The new statute now says that you are guilty of obstructing a law enforcement officer when you do anything that hinders, obstructs, or delays a law enforcement officer in the discharge of his or her powers or duties.

The courts have found certain things to qualify as acts that hinder, obstruct, or delay the police in performing official duties. These acts include refusing to produce a driver’s license when asked, refusing to stop talking to a person who is being arrested, and refusing to leave the scene of an investigation after being asked to do so.

In the case of State v. Turner, Washington State Court of Appeals said that merely refusing to answer questions asked by the police does not in and of itself constitute obstructing a law enforcement officer. So you can refuse to tell a cop where you have been drinking and not be charged with obstruction. Be careful, however. The cops are known to make false allegations of obstruction or false reporting if you are rude or obnoxious when stopped and questioned.

SEARCH AND SEIZURE: U.S. SUPREME COURT RESTORES OUR 4th AMENDMENT RIGHTS

It is sometimes said that the law of search and seizure is the bread and butter of criminal defense. The outcome of many cases is frequently determined by the facts surrounding a traffic stop and a search or prolonged detention that follows the stop. I like to comment on recent changes in the law. While the U.S. Supreme Court decision that I will be discussing in this posting was handed down back in April, it is still very recent when you consider the fact that it effectively overturned a case from 1981 establishing basic principles regarding searches of automobiles when the police make an arrest.

Before I get to the recent Supreme Court case, I must first discuss an older case from 1969 called California v. Chimel. In that case, the police showed up at Chimel's house with an arrest warrant. Chimel's wife let them in and they waited for Chimel to arrive so they could arrest him. When Chimel returned home, the police arrested him and then searched the entire 3 bedroom house and the garage. The search lasted about an hour and the police opened a number of drawers.

Here, although the police had an arrest warrant, they did not have a search warrant. Searches without a warrant are considered to be per se unreasonable under the Fourth Amendment of the U.S. Constitution. When the case reached the U.S. Supreme Court, the court said that the police's search of the entire house was unconstitutional. It also created a rule defining a "search incident to arrest." The court said that when the police arrest someone, they may search the area within the immediate control of that person for the purposes of officer safety and to prevent the destruction of evidence. So if it's an area that is within the arestee's reach, the police can search the area so that the arestee cannot grab a weapon or destroy evidence. The search must be contemporaneous to the arrest. The search doesn't necessarily need to take place after the person is officially arrested, but it must be close in time to the arrest.

Now we get to the case of New York v. Belton, which was decided in 1981. In that case, a single cop stopped a car for speeding. The cop made contact with the driver and asked for the driver's license and registration. At this point, the cop smelled marijuana and ordered all four people out of the car, patted them down, and arrested them. He separated all four suspects while he searched the vehicle. During the search, the cop found a bag of cocaine in the pocket of a jacket that was in the backseat of the vehicle.

When that case reached the Supreme Court, the court based its decision in part on California v. Chimel, which I discussed above. The court said that the cops can make a "search incident to arrest" even though the suspects were outside the vehicle. For years, courts across the U.S. interperted this decision broadly. The police took it to mean that they were entitled to conduct warrantless searches of all automobiles as long as someone was arrested, whether the inside of the vehicle was within their reach at the time of the search or not.

I never liked the Belton decision. It just didn't make a whole lot of sense to me. The whole reason the court said that a search incident to arrest was permissible was for officer safety and to prevent the destruction of evidence. If the suspects are in handcuffs and no longer in the vehicle, then how could they possibly grab a weapon that's in the vehicle or destroy evidence that's in the vehicle? This case became an obstacle for me when I was making search and seizure arguments in felony appeals at the Washington Appellate Project.

28 years after New York v. Belton, the Supreme Court has finally said that police can no longer search the suspect's automobile when the suspect is arrested, in handcuffs, and has no access to the automobile unless the police have reason to believe that there is evidence in the automobile related to the offense for which the suspect was arrested.

Just a few months ago, the U.S. Supreme Court decided the case of Arizona v. Gant. In this case, the police were aware that there was an outstanding warrant for Mr. Gant for driving on a suspended license and they were aware that his license was still suspended. They went to his house and saw Mr. Gant pull up in his vehicle. Mr. Gant got out of the vehicle and the police called him over to them. Mr. Gant walked over to the police. They put him in handcuffs and locked him in the backseat of a patrol car.

The police then searched his vehicle and found cocaine in the pocket of a jacket in the backseat, just like the cop in New York v. Belton. In April of this year the U.S. Supreme Court said that this situation is different than the situation in Belton for a few reasons. First of all, in Belton, there was only one cop and four suspects, who were not locked in patrol cars and were all within a short distance from the vehicle that was searched. In Mr. Gant's case, however, there was more than one cop and only one person who had been in the vehicle and the suspect was locked in the back of a patrol car, making it impossible for him to reach any weapons in his vehicle or destroy evidence. Second, the cop in Belton was looking for evidence related to a drug offense- the offense for which he arrested the four suspects. In Mr. Gant's case, there could be no evidence found in Mr. Gant's vehicle that is related to the offense for which he was arrested- driving on a suspended license.

The U.S. Supreme Court pointed out that because there was no reason to believe that Mr. Gant could reach a weapon in his vehicle or destroy evidence related to the offense for which he was arrested, there was no justification for a search incident to arrest. The court effectively overturned New York v. Belton.

The dissenting justices in Arizona v. Gant claim that the majority's opinion will make things confusing for law enforcement. They say that police officers have been taught for over a quarter of a century that they can always search a vehicle when they arrest someone who was inside the vehicle and the police should be able to rely on this long-standing rule.

I disagree. I believe New York v. Belton gave the police unbridled authority to search a vehicle with no justification. It gave them an incentive to make arrests when they would not otherwise have done so in order to have an excuse to search the vehicle with the hopes of finding some sort of incriminating evidence- basically a fishing expedition.

There is no reason for the police to be confused about this decision; they have to follow the rules regarding probable cause in all other situations. What's so difficult about them following the rules when there is a vehicle involved? All the court is saying is that the police must have a reason to believe that the suspect may be able to reach a weapon in the vehicle or there's evidence related to the offense for which the suspect was arrested in the vehicle. If the police already arrested the suspect, that means they already have probable cause. They just have to support their decision to search the vehicle by facts indicating that it is more likely than not that there is evidence of the alleged offense in the vehicle. What's so hard about that?

The dissenting justices also criticize the majority for overturning a prior Supreme court case (New York v. Belton). I agree that even though the majority claims that Belton has not been overturned, they really did in fact overturn Belton. But I don't see a problem with that. If the Supreme Court makes a poorly reasoned decision that is in conflict with the Constitution and limits the rights it guarantees, the decision should be reviewed and overturned. In my opinion, the Supreme Court overturning New York v. Belton was long overdue.

As a criminal defense lawyer, I consider this to be a major victory for anyone concerned with individual rights guaranteed by the Constitution. There seemed to have been a good deal of progress made with regard to privacy rights and the Fourth Amendment in the 1960s, but those rights appear to have been eroded by a number of Supreme Court decisions over the last couple decades. Arizona v. Gant is a case that has restored our Fourth Amendment rights to some extent. Interestingly, Justices Scalia and Thomas joined in the majority opinion in this case. These justices are conservative and tend not to reverse criminal convictions or join in opinions that limit law enforcement officers' ability to search you, your belongings, your home, or your vehicle.

QUASHING A WARRANT: WHAT TO DO WHEN THERE IS A WARRANT OUT FOR YOUR ARREST

Over the last few weeks, I have run into a large number of people who not only have criminal cases pending, but also have warrants out for their arrest. One of the most common reasons people find themselves in this situation is that they missed their court date. When this happens, it is considered to be an FTA (Failure To Appear). If you FTA, the judge will issue a bench warrant.

One of the most common reasons people miss their court date is because they do not keep the court informed of their current address. If you know you have a criminal matter pending, make sure the court knows your current address and that you check your mail regularly.

Many of the people I have talked to who have outstanding warrants are scared and don't know what to do. The only thing you should be worried about is getting picked up by the police. If the police stop you, whether you're in a vehicle or just walking down the street, for whatever reason, and they discover that there is a warrant out for your arrest, you will be taken into custody. No doubt about it- you are going to jail.

The best thing to do when there is a warrant out for your arrest is to go to the warrants calendar at the court in which your case has been filed and have the warrant "quashed". The word, "quash" is a middle English word that means to extinguish or destroy. In the legal context of a warrants hearing, to quash a warrant means to terminate or revoke the warrant. When you do this, the warrant will be gone and you will be given a new court date. Except for unusual circumstances, the judge usually quashes the warrant and gives you a new court date. You will be given a slip with that court date on it. Do not lose this slip; the court will not send you any further notice of your court date. Make sure you inform your attorney of the new court date.

Speaking of attorneys, defendants are usually not represented by a lawyer when they go in to quash a warrant. They usually just call up the court and find out the day, time, and courtroom number where the warrants calendar is held and just show up on their own. In Seattle, you must go to the clerk's office on the 3rd floor of the King County Courthouse on 3rd Avenue and ask to be added to the warrants calendar. Warrants are quashed every day at 2:00 p.m. in courtroom 1 at the King County jail. Yes, that's right- the jail. There is a courtroom in the jail specifically for quashing warrants and probable cause hearings. The courtroom for quashing a warrant in Seattle is in the jail, not the courthouse. But you have to go to the courthouse first to get added to the warrants calendar.

In some cases, the judge may require you to post bail in order for the warrant to be quashed. There is always a bail bondsman present at the warrants calendar at the King County jail. If you can't post bail, then the judge will just send you on your way with an outstanding warrant; people are rarely taken into custody at these hearings. But it does happen sometimes. If you have a history of FTAs or your case is particularly egregious, the judge may require bail or even have you taken into custody. On the other hand, if you accidentally missed just one court date and do not have a significant criminal history or FTA history, the judge probably won't require you to post bail or have you taken into custody. These decisions are made on a case-by-case basis.

The main fear that people have when they "turn themselves in" is that they'll be taken into custody. In many cases, you should not worry about that. The judge will most likely just quash the warrant and give you a new court date and you won't have to be constantly looking over your shoulder to see if a cop is behind you. But if you have a warrant out for your arrest and you chose to ignore it, you will certainly be taken into custody if you're stopped by the police and they run a warrants check. Do not make this mistake.