LegalMatch: Criminal Law

Unusual Judge’s Decision Almost Set Back First Amendment Rights by Several Decades

A recent Florida case nearly set First Amendment free expression back to a time before the Nixon administration. Fortunately, the Appeals Court reversed the decision.

Frederick Cobia was a well-known informant to the Palm Beach police. During his incarceration at the Palm Beach County Jail, his telephone conversations with his attorney and close family members were monitored and recorded. Although this is not unusual procedure in most jails, the recorded calls somehow wound up with the attorney for another inmate and the Palm Beach Post, a local newspaper. The Palm Beach Post then proceeded to post the transcripts on their website.

Judge Jack Schramm Cox ordered that the Palm Beach Post remove the transcripts from their website and placed a protective order against any future publication of the transcripts, citing the prisoner’s right to privacy. However, since the post is considered a newsworthy topic, many media lawyers considered the judicial order a violation of the First Amendment and the established precedent on prior restraint.

What Is Prior Restraint?

Prior restraint is basically a form of censorship on any expression before the expression actually takes place. Prior restraint prevents censored material from being heard or read by a third party at all. The government is not permitted to place prior restraint unless the reason falls under one of the few exceptions.

These exceptions mainly include information that protects national security, especially during wartime. Another exception is if the information may affect an ongoing legal case. Any exception must be reviewed under strict scrutiny so that the First Amendment is not violated. “Strict scrutiny” means that the government must have a compelling reason for censoring free speech and the law used must be narrowly tailored to that purpose. 

In this case, the information produced in the telephone transcripts did not affect any legal case and was not going to endanger national security. Instead, the judge ordered the censorship of the transcripts because they were taken from a prisoner who did not give permission to disseminate this information to a third party.

One factor in determining whether a prior restraint should be used is whether it would be effective. Since the transcripts were published online, taking them down from the single website does not prevent their circulation. In fact, several copies of the transcript appeared on various websites since the Palm Beach Post removed them from their site.

Does the First Amendment Trump the Right to Privacy?

The First Amendment provides free speech and press. The freedom of the press prevents the government from interfering with the publication of information and the punishing of those who publish their opinions. It not only covers newspapers and other news outlets, but it also covers individuals as well.

The freedom of speech is the right to communicate your opinions and ideas without fear of repercussions from the government. In general, the government cannot punish you in retaliation or censor what you say, as long as the ideas and expression are considered protected speech. There are very few exceptions to protected speech, but lesser protected speech does exist (defamation, obscenity, fighting words).

In contrast, the right to privacy is not found within the Constitution. Instead, the Supreme Court has found that a right of privacy is implicit in the Constitution. This right mainly covers certain civil liberties (such as compulsory education, procreation, and marriage laws). The other forms of privacy, including the right to keep private information about yourself private, are usually addressed in state laws.

The First Amendment and the right to privacy are often in conflict with one another. While privacy advocates argue for the ability to protect personal information like health issues from the public, journalists and media lawyers argue for the general public’s right to know about public figures and newsworthy issues.

Cobia’s Case

Although a prisoner may have some rights to keep certain information private, this particular prisoner Frederick Cobia is a witness to a murder case that remains pertinent in the Palm Beach area. Furthermore, as a prisoner, Cobia is already aware that his calls are monitored and recorded by prison officials. Once incarcerated, a prisoner receives several forms of notice that his telephone calls are monitored and/or recorded.

The combination of Cobia’s knowledge that his calls were already monitored plus the broadness of Judge Cox’s order is probably the reason behind Florida’s Fourth District Court of Appeal’s decision. Furthermore, by the time the transcripts were published online, they were made public record. The defense attorney in the murder trial in which Cobia was a witness had already submitted the transcripts as part of the court filing. For the most part, public records are considered fair game for news publication.

Authored by Emily Yu, LegalMatch Legal Writer

Should Drivers be Required to Consent to Breath Analysis Without a Warrant?

In all 50 states, drivers are told that when they get behind the wheel of the car, they “impliedly” consent to have their breath tested for the presence of alcohol. Driving a car is a privilege and not a right, and drivers cannot legally refuse a test when they are on the road. States impose both civil penalties (such as loss of a license) and criminal penalties (such as fines, additional criminal charges, or criminal sentence enhancements) for refusing to take a test.

Now, Illinois’ implied consent law is being challenged in the Supreme Court.  The Illinois law says that if a driver refuses a test, the test refusal may be used as evidence against that driver in criminal court. From this evidence, a jury or the court is allowed to infer that the driver was intoxicated. Illinois also enforces a civil penalty for test refusal, a one year summary suspension of a drivers’ license. One Illinois man who was punished under these laws is now fighting them, arguing that it criminalizes a constitutional right under the Fourth Amendment against unreasonable search and seizure.

The Facts of Illinois v. Gaede

Mr. Gaede was driving his motorcycle home after a visit with a group of friends. According to his attorneys, he was very careful about not driving under the influence due to what he called the “biker code,” and had only two beers on the night of the incident. He was not stopped for driving erratically. Instead, he was pulled over because he matched the description of a different driver who had committed a hit and run earlier in the evening. Mr. Gaede was polite and cooperative during the stop,  but did not perform particularly well on a field sobriety test because he failed to follow some specific (and somewhat complex) instructions. Mr. Gaede was arrested but did not submit to a breath analysis, believing that it was his constitutional right to refuse despite being informed of the consequences of refusal.

Mr. Gaede’s Argument

Mr. Gaede and his lawyers believe that defendants should have some constitutional protection from warrantless searches, even in the context of driving. They rely on many different past Supreme Court decisions, including Missouri v. McNeely (2013) in which the court decided that warrantless blood tests performed on drivers are not always constitutional. As in McNeely, “in the context of a DUI investigation, no warrant exception categorically excuses compliance with the basic command of the Fourth Amendment.”

Mr. Gaede is asking the court two questions in this case: Do motorists have the Fourth Amendment right to refuse consent to a warrantless breath-analysis, and to demand compliance with the Warrant Clause, before the State invades their bodily integrity in search of incriminating evidence? If so, can the State punish motorists for asserting these Fourth Amendment rights?

The State of Illinois’ Argument

The state of Illinois argues that implied consent laws have consistently been upheld as constitutional, and that Mr. Gaede knew the consequences of refusing to test. They also argue that a driver who has been drinking has a blood alcohol level that is constantly falling and that the need to administer a breath test quickly creates an exigent (in other words, pressing) circumstance. In truly exigent circumstances, a warrant is not required under the law because there is not enough time to secure one.

If Mr. Gaede Wins, What Will Happen?

Like the decision in McNeely, the Gaede decision could have great impact on DUI cases all over the United States. What Mr. Gaede and his attorneys are asking for might be difficult to do, but is not completely unreasonable. Police officers may have to make an effort to secure a warrant if a driver refuses to take a warrantless breath test. If they cannot get a warrant in time, they may then be able to declare the situation truly “exigent” and perform a warrantless breath test. States may have to revise their laws to punish test refusal only where police officers have secured a warrant or have made a reasonable attempt to do so and received no timely response. Many years ago, this type of warrant requirement would have created serious obstacles to DUI investigation, but with modern technology warrants can be requested fairly quickly.

On the other hand, if Illinois wins the case, the Supreme Court will have an opportunity to reinforce the implied consent doctrine and perhaps add further legitimacy to laws that are present throughout the United States.

Authored by Alexis Watts, LegalMatch Legal Writer

Trial by Tweet: The Effects of Social Media on the Courtroom

There are very few people who get excited when contacted for jury duty. Jury duty can be time consuming and can result in missing work. So, some people go to extremes to try to avoid serving any time on a jury. In one case, a juror in Florida tried to add the defendant on Facebook as a means of being removed from the jury. Once that juror was removed, he then bragged about how he was removed from the jury on Facebook. Consequently, he was jailed for criminal contempt.

In other instances, jurors are usually instructed by judges not to communicate with anyone besides other jurors during trial. But, some jurors succumb to the temptation of posting their opinions on social media outlets like Facebook and Twitter.

In Detroit, a woman posted on Facebook her opinion that a defendant in a local trial was guilty. The only problem was that the woman was a juror, and the trial was not over yet. The result for this woman? The judge had to remove her from the jury and made her write a five page essay on the constitutional right to a fair trial.

While some judges may scold a juror for their indiscretion, other judges may hold the juror in contempt, or the indiscretion can even result in a mistrial.

The attorneys for Boston Marathon bomber Dzhokhar Tsarnaev are appealing for a new trial because they argue that social media and publicity surrounding their client led to his guilty conviction.

As one court recognized, the exposure to prejudicial communication can be much higher “when a juror comments on a blog or social media website . . . given that the universe of individuals who are able to see and respond to a comment on Facebook or a blog is significantly larger.”

Solutions to the Social Media Problem

The negative effects of social media on juries has been well publicized, but few discuss solutions or the possible benefits of social media prevalence and trial. There is an emerging industry of companies that can search and monitor users’ online social media activities during trial. Such solutions may be costly, and if a jury member refuses to provide their account information, judges may be forced to either dismiss them from the jury or find them in contempt of court.

Instead, judges have also simply requested that jurors refrain from using social media until the trial is over. Activities such as friending the victim or defendant (or their respective friends and family) online can be mentioned and discouraged explicitly. Attorneys on both sides of the case can also include jury instructions that explain to jurors that they should ignore social media and only use the evidence provided in court to make their decisions.

In a 2011 Federal Judicial Center survey, most judges already take some steps to prevent jurors from using social media. Out of 508 judges surveyed, only 30 judges reported any social media use by jurors during trial after the judge explicitly warned jurors not to. Although the prevalence of social media is much greater today, most jurors still hold a level of respect and deference toward judges and other officers of the court. A warning from a judge to the entire jury may be sufficient to curb most social media activity during trial.

Selecting Jury Members Using Social Media

Traditionally, attorneys use a questioning procedure among a group of potential jurors called “voir dire.” Attorneys will ask a series of questions to the group or to an individual potential juror to see whether the juror is biased, if the juror can make judgments fairly and reasonably, and if there is any reason the juror cannot serve on the jury.

With Facebook and Twitter, an attorney can research a potential juror for personal biases. Attorneys can better determine if a person would be an ideal juror or if that person should be dismissed.

Critics of the use of social media argue that it is an invasion of privacy. However, if attorneys request social media account names from potential jurors and remain transparent about why they want the information, then attorneys can avoid privacy violations.

Social media can have a substantial effect on the results of a trial, but the effect can also be mitigated through transparency and due diligence by the court.

Authored by Emily Yu, LegalMatch Legal Writer

The Top 5 Mistakes Clients Make in Criminal Law

Although criminal law is the most famous area of law, many people still make mistakes when dealing with police and prosecutors. When your freedom, or even your life, is at stake, can you really afford to make any mistakes when defending yourself?

1. Helping the Prosecutors Make The Case Against You

There are several times during the course of a criminal case in which defendants may harm themselves by incriminating themselves or giving the police or prosecutors evidence. Here are some tips to avoid doing that:

• Assume that you are under surveillance when you are inside a police car, at a police station, or in jail. Do not talk about what happened with anyone, including visitors and your cell mates.  Be very careful what you discuss over the phone with friends and family from jail. Phones are often monitored, and recorded conversations can become evidence.
• Be respectful to police, but never speak with police or try to “tell your side of the story” without a lawyer present. You have a right to an attorney during questioning. Police often appeal to the natural desire to set things straight, causing criminal defendants to make harmful statements or to confess. It is scary to be arrested, but keep your wits about you! Invoke your right to remain silent and clearly ask for an attorney instead of speaking with police.
• If the police ask for consent to search you or your property, be polite but do not give it. If they are allowed to search without a warrant, they will do so without your consent. Otherwise, they should get a warrant first.
• Consider carefully whether or not you wish to testify in court. If you cannot tell the truth or if bad facts will come out when you are cross-examined, testifying may hurt your case. Discuss this issue thoroughly with your attorney.

2. Not Working Well with a Criminal Defense Attorney

While not all criminal defense attorneys are equally skilled, most have knowledge of the law---and particularly of legal strategy---that other people just don’t have. It is normally best to cooperate with your attorney and trust their advice. Often, defense attorneys have a better sense of the strengths and weaknesses of your case than you do because they can see it more objectively. Their advice may also prevent you from unintentionally harming your case.

If you can afford your own lawyer, make sure to do some research (if possible) before you hire one. This can ensure that you get an experienced criminal attorney who will charge a fair rate for their services. Beware both cut-rate lawyers and lawyers who charge too much for doing too little.

If you are indigent and cannot afford an attorney, you will likely be appointed a public defense lawyer. Public Defenders have often seen a wide range of criminal cases and can be some of the most experienced and knowledgeable defense attorneys. Do not discount their advice merely because their services are free to you.

3. Choosing to Accept a Plea Bargain Too Early in the Case

As a defendant, you have the right to a criminal jury trial in which the prosecutor must prove your guilt beyond a reasonable doubt. While there are times when accepting a plea bargain is a good idea, many defendants become impatient and accept a bargain too soon---before there’s any way to know how successful a trial would be. Do not accept a deal (and plead guilty to a crime) before you have had a meeting with your attorney in which you discuss the charges, the deal that the prosecutor is offering, the evidence against you, your realistic odds of winning a trial, and your goals in general. Think about your options carefully. Only you can make the final decision to plead guilty to a crime and accept a criminal conviction, and there are sometimes serious consequences that may follow that decision.

4. Disregarding the Conditions of a Plea Bargain

Quite often, criminal defendants accept plea bargains and avoid going to trial without completely understanding what they’ve just agreed to. Make sure that you understand all of the requirements of the deal before you take it. For example, if you agree to plead guilty in order to be placed on probation rather than to a serve time in jail or prison, you should know:

• how often you will have to report to a probation officer
• what restrictions will be put on your behavior
• what tasks or programs you will have to complete
• what the consequences for violating probation could be

If you fail to take the terms of your plea bargain seriously, you may end up back in jail or prison. You may even be charged with new crimes. For example, possession of a firearm as a felon, which can make your situation much worse.

5. Failing to Clear Your Past Criminal Record

People with criminal records face challenges in employment, housing, and several other areas. In many states, there are ways to have certain cases expunged, dismissed, or sealed after a sentence has been successfully completed. There may even be some options available to individuals who have committed serious crimes in the distant past and wish to move on with their lives. Some criminal lawyers specialize in helping people clean up their criminal records; there are also clinics held in many towns and cities.

Authored by Alexis Watts, LegalMatch Legal Writer

Evidence Cops and Prosecutors Must Disclose To You

Police and Prosecutors have the vast resources of the government at their disposable to investigate arrest and incarcerate individuals they believe engaged in criminal activity. However, Police and Prosecutors are people that make mistakes, so what power does a private citizen have against them?

One of many controversial issues in the prosecutorial system are Brady Disclosures. Brady disclosures arose in the 1963 United States Supreme Court case of Brady v. Maryland. This case held that a prosecutor must provide the Defendant with evidence that is material to their guilt or punishment. This essentially means the prosecutor must hand over evidence that makes a Police Officer, Prosecutor or anyone else involved in the prosecution look bad. For example, if a police officer has been convicted of perjury in a previous case the prosecutor must disclose that, or if a prosecution witness is granted immunity that needs to be disclosed.

Brady disclosures are controversial, because the prosecution is responsible for determining what is disclosed. Unsurprisingly, there are many gray areas regarding disclosure.  For example, if someone is arrested and alleges a cop used excessive force, but there is no evidence of excessive force, should that complaint be disclosed in a separate trial two years later? If an officer was convicted for possession of marijuana in college, years before becoming a cop should that be disclosed? The list of possibilities is endless and there are very few clear answers regarding what should be disclosed. Therefore, the prosecutor is put in the catch-22 of prosecuting criminal activity, but also responsible for disclosing evidence that may allow criminal activity to go unpunished.

In summary, Brady disclosures are mandatory, but determining what needs to be disclosed is a very difficult decision. If you are facing prosecution there are other ways to obtain information such as discovery. In California, for example, you can file a Pitchess Motion to review the Police Officer’s disciplinary file, but specific requests must be made.  However, Brady material is the catchall to ensure that someone facing prosecution is provided all the necessary information to receive a fair-trial.

The penalties for not disclosing Brady material include overturning a conviction and attorney-discipline. Prosecutors are in a catch-22, but criminal defendants are entitled to have all necessary information available to them.  This system is not perfect and there have been numerous cases and legislative changes over the past 50 years to ensure fairness in the criminal justice system. However, ensuring fairness in the criminal justice system poses difficult questions with no easy answer.

Authored by Ryan Griffith, LegalMatch Legal Writer and Attorney at Law

“Yes Means Yes” Laws Gain Ground on Campus: What You Need to Know

Sex offenses that occur on college campuses have garnered much media attention in the past several years. Some studies claim that as many as 20 - 25% of female students (as well as some percentage of male ones) may be sexually assaulted while on campus.

Students who allege sexual assault have often gone on to have poor experiences coming forward to authority figures at their schools. A Columbia student, Emma Sulkowicz, protested her university’s inadequate response to a rape allegation by routinely carrying a mattress with her while on campus. Some students instead drop out of school due to the social and psychological toll of being the target of a crime (and in some cases the added stress of being victimized by a trusted peer). Others never report the crime, fearing the stigma that can surround this type of case. 

At times, the only clear evidence of sexual assault is found in two different versions of what happened, resulting in a version of the classic “he (or she) said” versus “she (or he)” said dilemma.  This is especially true when there are few or no witnesses to the events or where a medical examination of the victim does not clearly show any trauma. Confusion over consent to sex is also compounded when students are intoxicated or their judgement is otherwise impaired. What may be one person’s “misunderstanding” with regard to consent can become another person’s source of great suffering.

What is Affirmative Consent?

One potential solution to some of these problems has come in the form of rules which ask students to more clearly consent to sex with one another. The logic goes that if there are steps taken to make a brighter line between wanted and unwanted sexual contact, fewer assaults will occur.  Both California and New York now have laws that make affirmative consent mandatory at all universities and colleges in their states.

Affirmative consent requires not that a potential partner not say “no” to sex, but that they actively say “yes.” For example, in the California bill:

• Affirmative consent means affirmative, conscious, and voluntary agreement to engage in sexual activity
• Each person must ensure that he or she has the affirmative consent of the other or others to engage in sexual activity
• Lack of protest or resistance, or silence, does not mean consent
• Affirmative consent must be ongoing throughout a sexual encounter and can be revoked at any time
• The existence of a dating relationship or past sexual relations between persons involved should never by itself be assumed to be an indicator of consent
• An accused person may not rely on the argument that they believed they had consent because they were intoxicated or behaving recklessly
• In addition, an accused person may not rely on the argument that they did not take reasonable steps to ascertain whether the alleged victim affirmatively consented

What are the Benefits and Drawbacks of these Laws?

These laws have the potential to help some students navigate the complicated worlds of dating and sex without becoming entangled in either side of a sexual assault case.

However, critics say that these laws still pit one person’s word against another’s but now give alleged victims too much power to accuse other students of sexual assault. They argue that any time a person can’t prove affirmative consent, they will now be presumed guilty. Those who oppose these laws also note that the existing law already prohibits conduct like having a sexual encounter with a person who is unconscious or says no to sex, and that the laws that are already in place are enough to protect “real” victims. Finally, some argue that this law is the epitome of government (and in this case school) intrusion into private life, regulating an area of activity that is truly personal.

On the other hand, studies have shown that sexual assault accusations are no more likely to be falsified than accusations of any other crime. The new law is designed to welcome victims to come forward and to share their experiences without having their allegations too quickly dismissed. Ideally, this law also does a favor for the would-be alleged rapist, making a clear roadmap that he or she can follow to safeguard against any future claim that an encounter was not consensual.

In an era where school is an expensive investment necessary for many people’s future careers, schools must be proactive in making their campuses safe and free from sexual assault. These laws are a positive step in ensuring that the educational experience does not involve rape.

Authored by Alexis Watts, LegalMatch Legal Writer

Legal Aftermath of Baltimore Riots

Many people use a tragic event to intentionally create or incite public terror. Rioting occurs when three people or more recklessly or intentionally cause a grave risk to the public. Rioting and arson aren’t the same type of criminal acts. Arson is the malicious and willful charring or burning of a structure or property. A riot disturbs public safety typically require police action.

People who riot claim they are overwhelmed with emotion because of a local, state, or national incident like a police shooting. They don’t plan to riot, but are so overwhelmed by the incident that they “vent” their frustration in the streets. Well, that isn’t always the truth. 

One example is the Baltimore riots of 2015. In April, people rioted to protest the death of Freddie Gray. Gray died after suffering injuries allegedly sustained while in police custody. They looted. They started fires. They participated in standoffs with the police. One rioter purposely committed a federal crime during the Baltimore riots and was caught.

Cater's Crime

24-year-old Raymon Carter, a resident of Baltimore, plead guilty on September 16 to a federal charge of rioting. A federal crime involves violating laws created by the federal government rather than local or state governments. Punishment is determined according to federal sentencing guidelines.

The federal crime of rioting involves either traveling across state lines, use of any facility, or foreign commerce to do the following:

• Incite a riot; or
• Encourage, promote, or organize, participate in or execute a riot; or
• Commit an act of violence to continue a riot; or
• Abet or aid an individual in a riot;

During the Baltimore riot, Carter destroyed a looted CVS located on Pennsylvania Avenue. He was indicted for the federal crime in July. Federal law prohibits anyone from traveling across state lines or using any facility to riot. In Carter’s case, he used a telephone to participate in a riot. This element was used to charge him with a federal crime.

Carter was caught on surveillance video entering the CVS after looters broke the store’s front doors. He tried to open the safe. Later, Carter was seen igniting a fire in three separate locations of the store. The property damage was more than $1 million. Carter was identified by Baltimore residents after ATF released still photographs of him from the surveillance video.

In a plea agreement reached with prosecutors and Carter, he’ll spend four years in federal prison and pay restitution. The exact amount of the restitution will be determined at his sentencing hearing. The hearing is scheduled for November.

The true intentions of rioters aren’t really known. How could a person be so overwhelmed by emotions that they feel the need to destroy property or steal merchandise? The federal government has just made an example of Carter. Anyone who wants to participate rioting, think again. Some government entity may be watching.

Authored by Taelonnda Sewell, LegalMatch Legal Writer

How to Legally Get the Dirt on California Cops When You are Charged with a Crime

If you have been charged with a crime in California and believe the officer that arrested you engaged in misconduct, or has a pattern of misconduct, you can request a judicial review of the officer’s disciplinary file. Police Officers and law enforcement are legally required to turn over “Brady” material, but the police officers and district attorney determine what should be turned over and how much information is turned.

This puts the D.A. and police officers in a catch-22; if they disclose info, they hurt their case and they may not even know all the material. Therefore, if a criminal defendant wants to take the lead they can file a Pitchess Motion to review the Officer’s file. 

If your attorney files a Pitchess Motion, a Pitchess Hearing is set, and a city attorney will attend the hearing to defend the officer’s privacy information, but the city attorney is not the prosecutor.

The Pitchess Motion can allege police officer misconduct such as:

• Excessive Force
• Untruthfulness
• Racial Profiling

At the Pitchess Hearing, a judge will review the documents filed by your criminal defense attorney and the city attorney’s response. If the Judge thinks your defense attorney’s Pitchess Motion has merit, the judge will ask the city attorney and police officer representative to come into their chambers and conduct an in-camera review of the officer’s files. 

The judge will review the police officer’s files and determine if any of the disciplinary action against the officer is relevant to your case. For example, if you were charged with resisting arrest to your criminal defense attorney’s claim and if the documents are relevant to your case the City must provide information on the Officer to your criminal defense attorney.

For instance, suppose you are charged with resisting arrest and the officer has numerous excessive force complaints against him or her. These excessive force complaints can be used in your trial to show the officer has a history of excessive force, which is a defense to resisting arrest. Obtaining this information could clear the criminal charge against you.  However, if your Defense Attorney does not ask for the records, it is unlikely they will be turned over, which is why choosing the right criminal defense attorney is so important.

It should be noted that most police officers are upstanding citizens with impeccably clean records, and more often than not nothing is disclosed. However, if your freedom is at stake, pitches motions are one of the most important legal tools an experienced attorney can offer.

Authored by Ryan Griffith, LegalMatch Legal Writer and Attorney at Law

Refusing a Police Search Can Keep You Out of Jail

A popular myth is that the innocent have nothing to hide. So it must be in the defendant’s best interest to consent to a police search, right?

Not so fast.

The 4^th Amendment to the Constitution says the following, “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.”

In layman’s terms, this means that the government cannot search your home, office, vehicle or seize your possessions without a warrant or probable cause.  One exception to this rule is if you consent to a search. If you consent to a search you waive your 4^th Amendment Rights. Therefore, Officers will often ask if they can search your car, home, etc. Most people consent to such searches. However, you are not required to consent to these searches and if you refuse consent the Officer must establish probable cause or obtain a warrant to conduct the search. 

Many people wonder what “probable cause” means.  There is that no exact legal definition, but courts typically use a “totality of circumstances” test. That means the judge will use all available evidence presented to make a decision rather than depend on one or two factors. This standard leaves lawyers room to argue about how far the government can intrude on one’s privacy.  

There are instances where the totality of circumstances clearly establishes probable cause. For example, if someone walks out of a bar stumbling carrying a bottle of whiskey, then enters their vehicle and hits the gas going 60 mph in a 20 mph zone an officer has probable cause to pull the driver over for drunk driving.

However, if someone walks out of a bar, walks to their car, and drives away at a reasonable rate of speed, the officer is unlikely to have probable cause. If this driver is pulled over and the officer asks whether the driver has had anything to drink, answering “yes” may be sufficient to establish probable cause. On the other hand, an answer of “no” may negate the totality of circumstances.

There are countless scenarios that arise in each criminal case where evidence can be “suppressed.” That means a Defense Attorney can keep any evidence the police illegally obtained from entering trial. If key evidence is suppressed, the government’s case can fall and you may be acquitted.

Authored by Ryan Griffith, LegalMatch Legal Writer and Attorney at Law

The Use of Wearable Devices as Evidence

Wearable devices, such as FitBit, and the data they contain, may soon be used as evidence in the courtroom. They can record all of your movements and activity, including your heart rate and sleep cycles, and can be used to either corroborate or disprove testimony. In other words, it can be used to reveal whether or not you have lied about your whereabouts.

The devices are already being utilized by law enforcement to charge individuals with criminal offenses. For example, according to Lancaster Online, police scrutinized a woman’s FitBit tracker, the results of which were used to prosecute her for knowingly filing a false police report. In March of this year, the woman alleged that she was assaulted by a stranger at midnight, but her FitBit device showed that she was awake and walking at the time that she claimed to have been sleeping. Other evidence proved that the scene of the alleged crime was staged, and that there was no intruder. 

In addition, insurance investigators are looking at social media in order to discredit workers’ compensation claims. Similarly, an attorney named Simon J. Muller, who is based in Calgary, Canada, is attempting to enter into evidence data from his client’s wearable device in order to prove that her activity was greatly diminished due to an accident.

It is predicted that data from such devices will eventually be admitted into evidence in courtrooms across the U.S. While they may not be relied upon independently, they may be considered in conjunction with other types of evidence, such as expert testimony.

However, there are some concern regarding the data from wearable devices, including reliability and privacy. Although the devices may work properly, people may not remember to charge or wear them. Since the devices may contain personal health data, those who wear them may raise objections based on invasion of their right to privacy. Nevertheless, it seems the value of wearable devices far exceeds any potential risks or disadvantages.

Authored by Roxanne Minott, LegalMatch Legal Writer and Attorney at Law