The Supreme Court ruled in Riley v. California that a warrant is required to search a defendant’s cell phone, incident to arrest. The 4^th Amendment is having a hard time keeping up with quickly advancing technology. Virtually everyone carries a cell phone on their bodies today, and these phones hold much more information than just call logs. The Supreme Court has upheld this sentiment, making a distinction between cell phones and other items that someone may carry around with them, saying that today’s mobile devices are “in fact minicomputers that have the capacity to be used as telephones.” This advancement in technology has raised questions about where the information stored on people’s cell phones falls within the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizure.

The Supreme Court has held that cellphones are protected from warrantless searches, even incident to arrest. So much of an individual’s personal life is available on their mobile device that there needs to be the 4^th Amendment’s protection against unreasonable search. Cellphones contain private information that people might not otherwise carry on themselves, and the information is worth of the protection of the 4^th Amendment.

In Riley v. California, the defendant’s cell phone was searched incident to arrest for possession of firearms. Defendant’s cell phone had pictures of defendant making gang signs and other gang indicia. Instead of just being indicted for the possession of firearms, defendant was also indicted for separate charges of shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic firearm, all charges stemming from what was discovered on defendant’s cell phone. The Supreme Court unanimously held that the search of defendant’s cell phone violated defendant’s 4^th Amendment right to be free from unreasonable searches. The Robinson warrantless search exception following an arrest exists for the purposes of protecting officer safety and preserving evidence, neither of which is at issue in the search of digital data. Police officers have the ability to preserve evidence while awaiting a warrant simply by disconnecting the phone from the network and holding it until a warrant is secured.

The Supreme Court will be back in action next week, and will hear a case about the future of the exclusionary rule when it hears the arguments of Utah v. Strieff on February 22^nd. The specific question is whether evidence seized incident to arrest on a minor traffic warrant, discovered during a concededly unconstitutional detention, is inadmissible under the “attenuation” exception to the exclusionary rule.

Breaking the Chain of Events

Evidence seized after an illegal search or detention may be admitted under three exceptions to the exclusionary rule:

• (1) the independent source exception,
• (2) the inevitable discovery exception,
• and (3) the attenuation exception.

The attenuation exception applies where the police engaged in unlawful conduct, but the unlawful conduct was not the proximate cause by which the police obtained the evidence, because of an intervening circumstance breaking the causal chain. Under the attenuation exception, the intervening act is one that was made voluntarily by the defendant, such as a confession or consent to search given after illegal police action. The defendant’s voluntary act is sufficiently independent to break the legal connection to the primary violation, and therefor the evidence will not be excluded.

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The United States currently has thirteen states which have criminalized drunk driving test refusal, allowing police officers to arrest and charge individuals for refusing the Breathalyzer or blood test. Unlike these thirteen states, it is not a crime to refuse such tests in Massachusetts. Although there will be a license suspension, drivers in Massachusetts can refuse a breath test without incurring any criminal penalty or adverse inference during an OUI trial; however, the driver will face a license suspension depending on the number of OUI convictions they have in their lifetime.

While the ruling of the United States Supreme Court will not directly impact Massachusetts drivers, it is an important decision for DUI attorneys.  The decision would impact DUI convictions from Rhode Island.  Currently under Rhode Island DUI law, a second offense refusal to submit to a breath test is a criminal offense, even though a first offense refusal is only civil.  This decision would invalidate this provision of Rhode Island law criminalizing a second offense refusal. 

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A Nevada case brings up an important question – is it acceptable for a police officer to stop someone on the street due to a suspicion of alcohol consumption? More importantly, is it right for an officer to make these judgements based on how the person is walking? Finally, is evidence acquired by this [seemingly] unwarranted stop and seizure admissible in a court of law? These questions are presented in The State of Nevada vs. Ralph Torres. 

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In a unanimous decision reached by differing concurring opinions, the Supreme Court of the United States finally resolved the question left open by Crawford asking whether statements made to persons other than law enforcement trigger the Confrontation Clause. Publishing its decision in Ohio v. Clark today, the Court unanimously voted that statements made to a teacher at a school program by a child suffering from domestic abuse were not testimonial, and so not barred by the Sixth Amendment Confrontation Clause.

The arguments before the court in this case were fierce, as the Court was poised to make a decision that would either limit a defendant’s Sixth Amendment right to Confrontation or restrict prosecutions of countless cases involving child abuse. You can click here to view a thorough outline of the facts of this case, the arguments, and the relevant law, in a prior posting on my blog.

The Majority decided this case primarily on its unique set of facts in this case, rather than by issuing a categorical legal rule. The Court explained that the record clearly reflected that abused child’s statements were not made with the primary purpose of furthering a criminal investigation or prosecution. Instead, the child spoke with the teacher with the primary purpose of addressing an ongoing emergency, and the teacher’s questions were targeted at eliminating the threat to the child’s life. The Court noted that the conversation was informal and spontaneous, and that even the child’s age (4 years old) calls to question the possibility that the child could appreciate the use of his responses in a criminal investigation while merely responding to his teacher.

The U.S. Supreme Court has agreed to hear the City of Los Angeles’ appeal of a Ninth Circuit decision holding that a city ordinance requiring hotels to maintain detailed records of each guest’s identity and personal information unconstitutional. In a split decision, the Ninth Circuit found the ordinance to violate the Fourth Amendment on its face, and prevented LA police from accessing the register without a search warrant or the hotel’s consent.

Hotel Registries and the Right to Privacy

In most jurisdictions, each hotel guest is required to provide certain personal identification information. Not only does this information serve basic record keeping functions necessary to hotel management and guest services, but it may also be used by law enforcement under a legislative enactment. For example, a current Massachusetts statute requires hotel administrators to maintain a registry of names of hotel guests, and to produce this information to law enforcement upon request. And unlike various other forms of searches and seizures, the state Supreme Judicial Court has upheld this statute as constitutional under the Fourth Amendment.

Many crimes require proof that the defendant specifically intended to cause the harm alleged by the crime. In Massachusetts, obtaining a civil harassment protective order requires the complainant to prove that the defendant intentionally placed someone in fear of harm using their words or acts. Just recently, however, the Supreme Court heard arguments to determine whether the First Amendment actually protects such expressions, if the speaker/actor did not intend to place anyone in fear.

Threats and First Amendment Protection

It is a federal offense to transmit any communication threatening to injure another person. The Supreme Court has repeatedly held the First Amendment does not protect individuals who threaten others, whether in person, by phone, email, or even social networking programs. But until today, the Court has never explained how a trial judge should determine what a “true threat” is, such that it would not be protected by the First Amendment. More specifically, the Court has not determined whether a threat is only a true threat if the speaker/actor intended to place another in fear, or whether it is enough that a reasonable person would be put in fear.

The U.S. Supreme Court will soon determine whether it will hear an appeal on the 6th Amendment Confrontation Clause rights of a defendant convicted of assault and domestic violence on his girlfriend’s children. The petition requesting Supreme Court review was filed by the State of Ohio after the Ohio Supreme Court ruled that a defendant had a 6th Amendment right to confront the child victim of his alleged criminal acts, and that testimony of teachers and physicians acting as mandated reporters violated his constitutional right to confront his accuser.

The Case of Ohio v. Clark
The case, Ohio v. Clark, stems out of a grand jury indictment against the defendant on five counts of felonious assaults on children, two counts of endangering children, and two counts of domestic violence. The child victims in this case, two and three years old at the time, were dropped off at a Head Start program by the defendant when one of the daycare teachers noticed bruises and markings on the children. After asking the children several times about the bruises, the children mentioned a name later discovered to be the defendant’s nickname.

The injuries were then reported to Ohio’s department of children and family services, where social workers conducted interviews of the children, who implicated the defendant as the abuser once again. The social worker subsequently notified law enforcement, and took both children to the hospital to be examined by a physician, who concluded that the children were victims of recent abuse. A jury convicted the defendant of all but one charge, and the defendant was sentenced to a total of 28 years.

Confrontation Clause Challenge
Defense counsel attempted to exclude any testimony about the statements made by the children incriminating the defendant as the abuser. During the trial, defense counsel successfully argued that the children were incompetent to testify because of their young age. Since the children were barred from testifying, defense counsel raised a Confrontation Clause challenge to the admission of any of the children’s statements through any of the mandated reporters who investigated this case as “testimonial,” since the declarant children would not be available for cross-examination. The trial judge overruled the objection, and allowed the daycare teachers, investigating social workers and police officers to testify to the statements made by the children incriminating the defendant.

The Ohio Supreme Court agreed with the defendant by a slim majority, finding that the testimony of all the teachers, social workers, and police officers violated the defendant’s Confrontation Clause. Under U.S. Supreme Court precedence outlined in Davis v. Washington and Michigan v. Bryant, every defendant has a 6th Amendment right to confront his accusers. This right of confrontation requires the trial court to exclude any “testimonial” out-of-court statements by a declarant incriminating the defendant, where the defendant has not had an opportunity to cross-examine the declarant on those statements.

In the case of Ohio v. Clark, the Ohio Supreme Court found that the children’s statements to the teachers, social workers, and police officers were in fact testimonial, and so barred from evidence since the children were not competent to take the stand and be subject to cross-examination. The court’s determination relied on an analysis of the function of mandated reporters and the nature and purpose of the children’s incriminatory statements to the reporters.

Mandated Reporters as Agents of Law Enforcement
First, the court found that mandated reporters are effectively agents of law enforcement. By statute, teachers and social workers (among others) are obligated by law to report child abuse and neglect primarily to protect children. However, the court found that the legislature contemplated an inherent obligation to identify the perpetrators to law enforcement so that they may be prosecuted and prevented from causing more harm to the victim children. When mandated reporters identify such perpetrators to law enforcement, they are effectively acting as agents of law enforcement with the primary purpose of prosecuting the perpetrator. Therefore, any statements obtained by mandated reporters are testimonial and subject to the Confrontation Clause.

Testimonial vs. Non-Testimonial
Second, the court also found that the statements of the child victims to the teachers and social workers were in fact testimonial. A statement is testimonial if its primary purpose was to assist law enforcement in the investigation of a possible crime. Non-testimonial statements, which do not trigger the Confrontation Clause, are distinguishable in that their primary purpose is to assist law enforcement in meeting an ongoing emergency. Supreme Court case law emphasizes the importance of timing in these types of analyses – when viewed objectively, the circumstances surrounding a testimonial statement indicate that the statement serves a future goal of apprehending and prosecuting a criminal offender, whereas a non-testimonial statement is primarily relevant to an imminent and ongoing emergency.

The teachers and social workers did questioned the children both to determine the cause of their injuries and to identify their abusers in order to prevent them from causing the children more harm. In other words, the reporters were acting out of their statutory reporting duties when they questioned the children about their injuries. They did not question the children in order to provide emergency medical attention, and the children neither needed nor requested medical attention. Therefore, since the children made their statements in response to the repeated questioning of the mandated reporters acting as agents of law enforcement, the statements were testimonial.

To date, the U.S. Supreme Court has not determined whether the Confrontation Clause applies to statements made to non-law enforcement. To avoid infringing on the Supreme Court’s federal constitutional law jurisdiction, the Ohio Supreme Court interpreted the state legislation on mandatory reporting broadly so as to find mandatory reporters to be agents of law enforcement. By doing so, the Ohio court was able to apply Confrontation Clause review – which is applicable to only law enforcement personnel – to mandatory reporters as well. If the U.S. Supreme Court chooses to hear arguments in this case, defense attorneys will expect the Court’s decision to substantially impact a defendant’s Sixth Amendment rights, and possibly trigger changes in mandatory reporting legislation all across the country.
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