Searches of Cell Phones W/O Warrant Upheld

WOW, I did not notice it had been so long since I added to this blog. I guess with only six followers it isn't a monumental issue. It is kinda like talking to yourself......Anyway.

People v Nottoli, CA 6th Court of Appeals, September, 2011. OK OK, I know it is only a California court of appeals decision and has no affect anywhere else in the world, it may just be upheld by the California Supreme Court.

Nottoli and his girlfriend were driving along at 90 MPH on a 45 MPH zone early one morning and were stopped by a local sheriff deputy. You know the drill...speech rapid, eyes blown out, sweating on a cold night. Enough where the deputy thought he was driving under the influence of a controlled substance. The deputy ultimately arrests Nottoli for that, cuffs him, and places him in the cage of his car.

OK, there are a couple of things going on here with the 4th Amendment. First, a case decades ago said that cops can search the interior of cars and all contents therein "incident to an arrest" That was black letter law for a really long time....that is until the Gant case came along a couple of years ago. There, the Supremes said not so fast. It,(to them) does not make sense to allow a search incident to arrest of a car if the bad guy is already restrained. The idea behind Belton was to protect cops from weapons the bad guy might go for in the car so a search was "reasonable" without a warrant. SO, if the arrestee is secured in the cop car, then the search of the interior of the car incident to the arrest is not allowed. Gant, however, also said the ruling did not affect the Ross holding and if probable cause to believe there is evidence of crime in the car, then the cops can search without a warrant.

In Nottoli, the deputy searched the car after arresting and securing Nottoli, counter to the holding in Gant, some would say. But, wait, there's more!!!. Shifting back a couple of decades, a case called Ross came along and Ross said: If a cop has probable cause to believe a vehicle contains evidence of crime, then no search warrant is required and the entire vehicle can be searched for evidence. Gant also said that. So, OK, it looks like the deputy in Nottoli is off the hook, right? Yes he was, so said the CA Court of Appeals. Here Nottoli was found to be under the influence of a controlled substance and arrested and it was deemed reasonable to conclude there may be evidence of crime (dope) in the vehicle. So far so good. The deputy saw a cell phone later determined to be Nottoli's in the cup holder. The deputy checked it to see if it worked and then went through the text messages and found photos of Nottoli with illegal weapons (he was a convicted felon) and evidence of drug dealing. The trial court suppressed this evidence because the cell phone search was without a warrant. Well, searches of vehicles based not on an arrest but on probable cause allow searches of all of the vehicle and all "containers" in the vehicle. In basic terms, the court in Nottoli held that the data in the cell phone can be accessed and searched since the cell phone was a "container" within the automobile.

So, here is how it works. Cop stops car for speeding. Driver is under the influence of dope. Driver is arrested. Any cell phone found on driver or in his vehicle can now be searched and the data downloaded as it pertains to the crime of driving under the influence of dope. If any other crimes are discovered (like kiddie porn photos in the phone for example), then the defendant can be charged with those crimes as well.

I agree with the constitutional rationale and the outcome of this case, but I bet the defense attorneys are going to go nuts over this one. It is a broad new tool for law enforcement. We will see if the California Supreme Court will uphold it and if the U.S. Supreme Court will affirm as well. Oh, by the by......What if Nottoli's lap top computer was in the car?.....is it a "container"......Interesting, don't you think?

He Has Got To Be Crazy

This weekends shooting of nineteen people including a congresswoman and a federal judge in Arizona is a tragic and deplorable act and should be condemned by all civilized people. Assignation of our government officials is not the way we do business in this country. Already, there are calls for new and more restrictive gun controls, specifically a federal ban on large capacity magazines, as has existed in California for many years. More on that later.

The act of this "whacko" is likely to be characterized as proof alone that the shooter is "crazy". Most people tend to look at the result of an act as sufficient evidence of legal insanity. To do so is natural but legally flawed.

First, being mentally ill and "crazy" is not the same as being legally insane. In fact, some very, very nutty people have done some very nutty things and are very legally sane. One can point to some infamous killers in our time, like Charles Manson, who were found legally sane and responsible legally for their acts. Some can point to some mental defenses such as diminished capacity as a "loop hole" allowing people to not be held accountable for their crimes. You may recall the murders of Mayor Mosconi and Councilman Harvey Milk who were shot and killed by a person who claimed he was "high" on sugar from Twinkies, and his capacity to understand was diminished. and, indeed, the jury bought it and he got manslaughter instead of murder. This led to a so-called banning of the diminished capacity defense in California. I say "co-called" because , in effect, it did not ban the defense, but changed it into something else

As a general rule, and the law in the majority of states, a person is not legally insane if: They understand the nature and quality of their act or they didn't, they knew it was wrong, they are sane. A person can be crazier than a bed bug but if they know what they are doing is killing a human being and that to do so is wrong, they are legally sane.

So, Mr. Arizona Whacko can rant all he wants about not wanting to use the countries money because it is not on the gold standard, or his "dreams" or what every the hell he wants to rant and rave about. If he knew that shooting people was held as wrong by society and he knew that he was, in fact, shooting people, he is legally sane. How do you prove that? Well, he tried to get away, for one thing. People who believe they are not doing something wrong, have no reason to run.

The fact is that mental defenses do not work often and jurys don't like them. They don't care if his mommy was mean to him or he was picked on at school. Mr. Whacko can have all the shrinks he wants to testify about his little brain and how it doesn't work. It will not work, in my humble opinion.

So, when someone comments this guy was "nuts" or "crazy" because of all the news stories about his Facebook statements or whatever he as written in his dream journal, just shake your head and tell them that just because he is nuts, it doesn't mean he is legally insane. I wish Arizona or the Feds had an electric chair with really, really high voltage. No one is more deserving than this guy.

Reporters and the Law

A story recently appeared in a local paper where the reporter discussed a business that was the victim of a drive by shooting. The business was closed, no one around and no one inside or hurt in any way. The reporter said there was no evidence the business was "robbed". I know it is a small thing, but the misuse of legal terms by seasoned reporters drives me crazy. So, since I know the reporter from many contacts when I was working, I sent him an e-mail. It was polite and friendly, wishing him the best, etc. He replied that he got the term "robbed" from the sheriffs deputy that made the reference.

Wow, now I am really alarmed. It was bad enough that a reporter did not know the difference between a "burglary" and a "robbery", but the sheriffs deputy who took the call?

OK, I know none of you will ever make that mistake, but just in case, here is the difference. A Burglary is the breaking and entering of a building with the intent to commit a felony or any theft. No one needs to be there to be a victim of burglary. A Robbery is the taking and carrying away the personal property of another by force or intimidation.

Someone has to be forced or intimidated into handing over their stuff to be robbed. A building cannot ever be robbed. People are robbed, buildings are burglarized....It is just that friggin' simple. And, for a reporter who has the assignment of covering crime, and doing the job for decades to not have picked up the difference along the way is , well, astonishing. But for a deputy sheriff to be so careless in the terms, is unforegivable.....There, I do feel better now

Flying Naked

OK, well at least it got your attention. Are we headed for a world where flying without clothes is going to be the norm? Is security worth the restrictions? Does the fourth amendment to the Constitution have any affect on the Washington idiots? Most directly, do we all have to give up privacy as an exchange for so-called increased air security?

The Fourth Amendment to the Constitution says, inter alia, that "the people shall be secure in the persons, houses, papers and effects, and no warrant shall issue without probable cause". The latter part of the sentence is what is called the "warrant clause" Many constitutional scholars believe it stands, in application, as a "warrant requirement". Indeed, the SCOTUS has said over and over that "searches without a search warrant are presumptively unconstitutional" And, almost in the same breath, have carved out exception after exception to searches of persons being reasonable without a search warrant.

One of the exceptions the SCOTUS has established are so called administrative searches, such as what it going on in our airports. They have reasoned that a person has the option not to enter if they object to a search and that they (the passenger) have, by implication, consented to the search when they chose to fly on a commercial airplane. Forgive the directness, but WHAT BULLSHIT!

OK, right, yes the court has held limited searches to enter places reasonable but the denial of privacy was balanced against the need of government and in this balance, the court fell on the side of the government. But, come on!.... I do not believe the level of intrusiveness of the searches being conducted in our airports is reasonable in that balance and that it will, or damn well should, be found to be unreasonable and therefore unconstitutional. You see, government can violate your rights if they have a "compelling governmental interest" This is called a strict scrutiny. While a case can be made that terrorists being prevented from blowing up airplanes or using them as weapons is a compelling government reason to violate our fourth amendment rights, the government must be able to prove that the procedures they are using will likely achieve the need. I don't think they can do that. The government (TSA) admit the new porn scanners cannot detect bombs like the underwear bomber was using, or an explosive device hidden in a body cavity, so how are they going to show their procedures meet the governments need?

The fact is, they are targeting the wrong goal. The government needs to concentrate on detecting BOMBERS not bombs. What they are currently doing is, to quote the former security chief for El Al Airlines, idiotic. The government should stop searching grandmothers, infants and housewives from Philly and concentrate on the traits of those who have attacked this country in the past. That is not, repeat, not racial profiling...it is just common sense. If a segment of our society gets offended because they get to have a chat with a government official every time they fly, so what.....don't fly.....That is exactly what they are telling the rest of the country to do if they object to the current porn scanners or grope search, isn't it? We have got to stop being political correct long enough to save the country, don't you think?

Back to the law...... I hope a case gets to the SCOTUS on direct appeal soon enough for some of us to actually be willing to fly again. As for me, it would have to be a really "compelling need" for me to go through this crap to get on a plane..... Don't be so willing to give up a constitutional right so easily...Before long, you may not have any.

Another Word on AZ's Immigration Law

Ok, well a local federal judge has enjoined much of the law, so now it goes to the 9 th circuit Court of Appeals. Don't expect much difference there as the most overturned appellate district in the country. But if and when it gets to the Supreme Court....well yes, I did say "if" The high court does not have to accept the case if they choose not to. While unlikely, that would end the matter at the 9 th. Most likely though, the Supreme court will review the case.

There are, it seems to me, two issues. The first is: Is the AZ law unconstitutional on its face. If it is not, then the question is: is the law unconstitutional as applied. Well, aside from the tired argument that only the fed can legislate on immigration issues, the law mirrors the federal statutes. It would be difficult to find the law unconstitutional on its face, or otherwise they would likely cast doubt on the federal statutory scheme as well. And, many forget, the Supreme Court has empowered states to legislate in immigration areas almost thirty years ago. So, if the law is valid on its face, then the test is to determine if the law is unconstitutional "as applied". Meaning, is there something in the way it is actually being implemented that, as used, makes its application unconstitutional.

For the second issue, there must be someone who is a plaintiff or "victim" who suffered a constitutional wrong. That is a problem for those opposed to the law. You see, the injunction all but guarantees local cops are not going to enforce any aspect of the statute until the high court rules, even if some of the law is in effect. So, no plaintiff to use to claim HIS or HER constitutional rights were violated in the application of the law.

So, here is a prediction. The Supreme court will overturn the 9th circuit when it affirms the lower courts injunction and ruling. The AZ law will be found to be "facially valid" and upheld. Once the law is actually in full force and effect, then there will be a second challenge to its constitutionality, based on a claim of some "victim" claiming their personal rights were violated. Then, we will probably see dozens of law suits, each making a constitutional claim. Each will be found to be valid in the lower courts and each will likely be overturned at the Supreme Court. We'll see over then next few years if I am right.......

So, if your looking for a resolution of this issue any time soon.........as they say in NY, "Fa get about it"

Arizona Law and Illegal Aliens

OK, I gotta weigh in. At first blush, it seems incredible the President, the Attorney General, and the Homeland Security Director have or had not "read the Arizona law" You know the one. The one which says that local state law enforcement can enforce a state law which makes it a crime to be an illegal alien in the State of Arizona.

Now, do any of you really believe the above high ranking federal officials had not read the Arizona law when asked if they had?. Of course not. They read it. They, in a calculated stance said they had not. Now why would they do that?. Well, it seems to me the clear and unambiguous reading of the law makes several factors clear as day. First, cops cannot ask a person about their status on the basis of race. Second, cops cannot ask about their status unless there is at least a constitutional basis for the persons detention concerning a possible violation of an unrelated law. By constitutional basis I mean at least "reasonable suspicion" the person has or is about to violate a law. Period. A suspected illegal alien cannot be detained solely to inquire about their status in this country. There has to be another legal basis for the detention or arrest. In fact, a careful reading of the Arizona law makes it clear the law enforcement contact cannot even begin as consensual to then ask about their legal status in the country.

So, back to why all these federal officials say they have not read the law. Well, it seems clear to me that had they admitted to having read Arizona's law would place them in a position to defend their broad and sweeping statements the law encourages profiling. So why say they haven't read it?. It is because they cannot defend their position in logic. They cannot win a debate on the issue. They will be forced to admit the law does not do any of the evil crap they say it does.

The main stream media is no better, and they will not ask these officials why, in the face of the clear language of the statute they say what they have said. Instead, it has become a lie told often enough, may Americans believe it. Don't you believe for a second they didn't read the statute. They have, they just cannot defend their position if they admit they know what the law says.

Now, is it constitutional?. Well, it should be. It does not violate any federal statute. In fact, it mirrors the federal statute at issue. And, the Supreme Court long ago found it constitutional for a state to pass immigration laws. What will happen is any ones guess. The supremacy clause is not the real issue and the feds know it. We won't know how it will end until the Supreme Court rules and the local federal trial and appeals court decisions mean little on the way up.

The bottom line is any lawyer, hell any non lawyer, can read the Arizona alien statute and come away with the same conclusion. It does not allow a detention unless there is a lawful independent reason for a detention. Read it yourself..... just don't say you haven't to avoid a debate in the issue...like many of our "leaders" have done.

FUNDAMENTAL RIGHT, by God

McDonald v. Chicago. In deed, it is hundreds of pages long. And, it represents the very first time the U.S. Supreme Court has ever directly ruled on whether the Second Amendment applies to the states.

If you have looked at some of my prior posts, you will notice I talked about how the Bill of Rights and its various provisions, affect the individual states. The short version is that after some decades of battles, the court decided only those Amendments which are "implicit in the concept or ordered liberty" apply to the states. Never before McDonald has the court directly addressed this issue. But a few weeks ago it did. The court held that the right to keep and bear arms is a fundamental right. The states may still regulate firearms as long as their laws do not infringe on the right to keep and bear arms.

McDonald, while historic in nature, is somewhat limited. It concerns the right to be armed in your home without a local law telling you it is illegal. As far as it goes, it strikes down state and local laws that directly or indirectly outlaw a person from having a handgun in their home. That is all it says. It does not say states and local governments cannot pass regulations as to the carrying of a gun, the type of ammo you put in it, etc. In fact, the city of Chicago reacted to McDonald by immediately passing a law that says you have to have a friggin' permit from them to step out out in your own yard with your gun! The NRA immediately filed a lawsuit.

It will be interesting to watch. I predict a lot of litigation yet to come. The funny thing is, the states and locals may loose. You see, government can infringe on a basic or fundamental right if they can show a compelling reason. Hell, I don't think they can even show a rational basis for the laws. The facts are clear. Where gun ownership and carry is restricted, crime goes up. When people are relatively unrestricted in the carrying of weapons, violent crime goes down.

One by one, the state and local gun laws will fall. It may take a decade, but it will happen. So, it looks like McDonald v Chicago will be viewed as a landmark gun rights case, and maybe the most important decision in this area in a century. Lock and Load!