Unanimous SCOTUS: Cops Need Warrant to Search Cell Phone

In a surprising blow to law enforcement throughout the U.S., the U.S Supreme Court this week unanimously ruled that Americans have a Constitutional expectation of privacy in the content of their cell phones, thus triggering the requirement for a warrant before searching same.  In Riley v. California and companion federal case United States v. Wurie, the Supreme Court held that digital information in cell phones was protected by the Fourth Amendment of the Constitution and thus subject to the warrant requirement of that amendment.  The governments argued that such evidence was permissible to be obtained without a warrant as fruits of a search incident to lawful arrest, a long-held judicial exception to the warrant requirement established in Chimel v. California.  However, the Supreme Court declined to liken digital information contained within a cell phone to the contents of a cigarette case, per the government's cited precedent of the more recent decision in U.S. v. Robinson.  Simply put, the Court found the expectation of privacy in the contents of one's cell phone to be important and without reasonable question.

It is important to note that the Court did not reach the question/situation of exigent circumstances, which could be an identifiable exception to the warrant requirement with respect to cell phones.  Also, the Court did not find any objection in seizing a cell phone and otherwise guarding its contents until a warrant could be obtained, provided probable cause existed re the phone's contents.  Therefore, while the police are required to get a warrant before they examine what's in your phone, they can seize/control your phone while they are waiting to obtain a warrant.

This is just one of many legal issues relevant to the defense of a criminal charge, and why it is important to have knowledgeable and experienced legal representation.

SCOTUS Upholds Federal Law Prohibiting "Straw Purchase" of Firearms

In a case announced today, the U.S. Supreme Court upheld a federal law that prohibits persons from purchasing firearms for other persons from licensed dealers.  In Abramski v. U.S., a nephew (Abramski) agreed to purchase a firearm for his uncle using his law-enforcement discount.  In completing the Form 4473, the nephew replied in the affirmative that he was the actual purchaser of the firearm.  It was later discovered via investigation pertaining to an independent crime that Abramski purchased the firearm (a GLOCK pistol) expressly for his uncle, who paid him directly for the firearm's purchase price.  Although the uncle was in all forms and manner eligible to legally own/possess a firearm, Abramski was prosecuted and convicted for making false statements on the firearms purchase form.

In writing for the five-justice majority, Justice Kagan stated that the law had a clear purpose of keeping ineligible persons from obtaining firearms through indirect purchases through eligible persons, and that, in adhering to the express language of the law, there was no distinction made between purchasing firearms for legally-eligible or ineligible persons.  Justice Scalia, dissenting, disagreed, saying that even if Abramski's claim that he was the actual buyer of the firearm was false, such statement was not material to the otherwise lawfulness of the transaction since, but for the false answer, the firearms transaction was legal in all other respects.  Scalia also argued that it was not altogether legally settled that Abramski was in fact not the buyer of the firearm, as there is no clear law stating that a person who conducts a face-to-face purchase is not in fact the purchaser, regardless of what his ultimate intent or motive for the merchandise may be.

It is important to understand what this ruling does and does not do.  The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) has long held that purchasing a firearm to later give as a GIFT does not constitute a straw purchase unless the purchaser knows or has reason to know that the gift recipient is legally ineligible to own/possess a firearm.  The situation at bar in Abramski was clearly NOT a gift, since the uncle paid Abramski for the firearm, and therefore the court's ruling does not appear to change the legality of purchasing a firearm to later give as an outright gift.  However, outside the scope of a gift, the ruling in Abramski seems to make it clear that purchases intended for others, whether they are legally eligible to own/posses guns or not, are illegal.

Firearms laws change constantly, along with the court rulings interpreting them.  It is always advisable to consult an experienced attorney when issues arise concerning the sale, transfer, transport, use and possession of firearms.

Are DUI Breath Tests in Colorado Accurate?

It was recently reported by 9News in Denver that an Intoxilzer 9000 machine, used to measure breath alcohol in DUI cases in Colorado, in Weld County has been found to have been improperly calibrated and has been removed for service.  Cases involving this particular machine are being reviewed and may possibly have to be re-opened.

However, a larger problem continues to persist in Colorado pertaining to the 9000 machine.  There exists absolutely no evidence on record that the Intoxilizer 9000 machines that have been in use in Colorado for over a year were ever properly evaluated and certified under the specific standards set forth under Colorado law for such measuring devices.  Legal attempts to compel an accounting of the 9000 certification process, if one was ever used, have been stonewalled by the state; therefore, at this time, it cannot be ascertained whether the 9000 machines are legally qualified to provide admissible evidence against persons accused of DUI/DWAI in Colorado.

It is important to point out that the predecessor to the Intoxilizer 9000, the model 8000, has been disallowed for use in both Pennsylvania and Ohio, where the courts found the machines to be insufficiently scientifically accurate and reliable for results to be admissible in court.  The 9000 model has even less testing/vetting than the 8000 and Colorado is the only state that is using that model.

Current DUI cases involving the 9000 are being challenged by attorneys raising the certification issue surrounding the 9000, but no state-wide decisions/precedents currently address the situation.

In a constitutional republic, it is important that accused receive a fair trial, including due process of law.  This includes ensuring that scientific evidence admitted is grounded in sound, established scientific principles and the methods/procedures used are accurate and reliable.  This standard is NOT being observed in Colorado with respect to the Intoxilizer 9000.  Colorado citizens concerned about justice, fairness and due process should contact their legislators and the governor and insist on a PUBLIC investigation into the certification, or lack thereof, of the Intoxilizer 9000 and that its use be suspended until it can be ascertained that these machines are accurate and reliable according to established standards.

The 9News Weld County story may be found at http://www.9news.com/story/news/crime/2014/06/05/weld-county-breathalyzer/10009133/

SCOTUS: Anonymous Tip Can Justify Stop

In a startling ruling this week, the U.S. Supreme Court, in a 5-4 decision, held that an anonymous tip, under certain circumstances, can justify a motor vehicle stop without corroboration of the conduct described in the tip.

In Navarette v. CA, police received an anonymous tip via 911 regarding a suspected reckless/drunken driver.  Police located a vehicle matching the description of the reported car and followed it, but were unable to observe any suspicious behavior or violations.  The police nonetheless stopped the car and, upon contacting the driver, noticed an odor of marijuana.  The driver consented to a search and a large amount of marijuana was discovered.

In upholding the stop of the car, Justice Thomas ruled that the tip had "sufficient indicia of reliability" since it described a particular car and type of driving. The Court essentially ruled that an officer doesn't have to wait for a potentially-dangerous driver to actually injure someone in order to investigate and/or prevent a public danger; that reckless/drunken driving was more serious than a mere traffic infraction.  The Court noted that this particular ruling did not necessarily vacate or reverse previous rulings that disapproved reliance on an anonymous tip as a basis for stopping or seizing a person, but that the circumstances articulated by the officer, combined with the nature of the report, were of sufficient concern to merit investigation which could only be effected by stopping the vehicle.

Justice Scalia, in a pointed dissent, said "The court's opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness." 

An important point to note here is that, regardless of the basis for a stop, a driver should never consent to a search of his vehicle or person.  Though not specifically noted, it cannot be overlooked that the Court's concern for the claims of the appellant here were possibly clouded by the fact that he consented to the search that discovered the contraband at issue.

Court of Appeals: Medical MJ Use Can Violate Deferred Judgment

The Colorado Court of Appeals, in the case of People v. Wilburn decided this week, has ruled that use of medical marijuana is not an affirmative defense to violation of a deferred judgment and sentence stipulation.  In Wilburn's case, the trial court dismissed a petition to revoke his deferred judgment and sentence for violating a provision prohibiting the use of controlled substances.  The Court of Appeals held that the trial court erred in finding that the Colorado Constitution provision pertaining to medical marijuana afforded Wilburn an affirmative defense to revocation of the deferred judgment.  The Court of Appeals distinguished the prosecution for a crime, which IS afforded an affirmative defense under the Colorado Constitution, from a petition to revoke a deferred judgment and sentence stipulation where a plea has already been entered.  Although the trial court ruling was disapproved by the Court of Appeals, the dismissal of Wilburn's case was not vacated pursuant to Double Jeopardy prohibitions.

A deferred judgment and sentence is a form of plea bargain where a defendant enters a plea of guilty to a charge or charges, but his/her plea of guilty is held in abeyance by the court subject to the satisfactory completion of a probationary period, usually 1-2 years.  Upon successful completion of the probationary period, the defendant is allowed to withdraw his/her plea and the matter is then dismissed; failure to satisfactorily complete probation results in entry of judgment of conviction and subjects the defendant to the full array of possible sentences for the offense, including jail/prison.  While often a very effective way to resolve a criminal matter without trial, this form of plea bargain is nonetheless a binding legal agreement fraught with snares and complications.  It is always wise to have the assistance of an experienced attorney to explain ALL the implications before entering into such an agreement.

Habitual Domestic Violence Offender Law Gets View by COA

The Colorado Court of Appeals this week, in People v. Vigil, ruled that the rarely-used Habitual Domestic Violence Offender law, enacted over a decade ago, requires that charges filed under the law be prosecuted as felonies, even if the underlying offense is a misdemeanor.  The HDVO law provides that a misdemeanor offense charged as an Act of Domestic Violence, when preceeded by three or more convictions for Acts of Domestic Violence, becomes a Class 5 felony offense, punishable by sentence to the Colorado Department of Corrections.  Because the defendant in Vigil was not given the process afforded a person charged with a felony, namely trial before a district court judge and a jury of twelve persons, the COA reversed his conviction and remanded the case for trial in the proper court with the proper jury panel.

Criminal cases can be complicated, both factually and legally, and require the attention of an attorney experienced in this area of the law to ensure that the proper procedure is followed and, when it is not, that the matter is properly preserved for review by the appellate courts.

Permitting Jurors to Discuss Case Before Evidence Concludes Not a Constitutional Violation

The Colorado Supreme Court ruled this week that, although it was improper for a judge to permit jurors to discuss the case before the evidence was concluded, such conduct does not unconstitutionally deprive a criminal defendant of a fair trial.  In People v. Flockhart, the trial judge expressly permitted jurors to discuss the case among themselves prior to the conclusion of all the evidence in the case, contrary to both convention and the law.  Although the Supreme Court disapproved of this, it held that it did not deprived the defendant of any right enjoyed under the Constitution, namely of the due process of a fair trial.  Additionally, the Supreme Court also let stand the trial judge's practice of requiring trial counsel to state reasons for excusal for cause in front of the entire venire panel.  Although most judges permit, in fact require, such discussions to take place out of hearing of the potential jury members to avoid tainting and/or prejudicing the potential jurors, the Supreme Court held that the practice was entirely within the discretion of the trial court.

It is the opinion of this blog host that the Flockhart decision seriously weakens a defendant's ability to enjoy a fair trial, and reflects a decided lack of concern by the Colorado Supreme Court for same.  The Flockhart case illustrates how the need for an experienced criminal attorney is essential in the never-ending battle to obtain true fairness and justice before our Colorado courts.