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Fourth Amendment

No Cell Phone Search Without Warrant Says U.S. Supreme Court

Jun. 25th 2014

COURT FINDS WARRANTLESS SEARCH OF YOUR CELL PHONE VIOLATES FOURTH AMENDMENT 

The Fourth Amendment protects you against unreasonable governmental contact.  Today, the U.S. Supreme Court, in a key decision, held that you have a right to privacy and to be free from unreasonable search and seizure of your cell phone, including smart phone.  In a unanimous decision the Court held that a cop must have a warrant before they can search your cellphone.  Many believe that this ruling would also include tablets and I-pads.

What this means is that the cops cannot just take your cell phone and start looking at who you called, texted, or emailed. The cop is required to have a judge issue a warrant that is based on probable cause before any such search is conducted.

What about non-cops, such as friends and family? Sorry, the Fourth Amendment protects only against unreasonable governmental contact not your friends and family. Governmental contacts are law enforcement, the prosecution, border patrol and good rule of thumb would be anyone who works for the government on any level, town, city, state, feds.

DOES THIS MEAN THE COURTS CAN NEVER SEARCH MY CELL PHONE?

Not necessarily.  Many times officers will simply ask you for permission to look at your phone contacts, histories, or text messages.  If you allow them to or give them permission to see your phone, it will take any search outside protections of the Fourth Amendment because the courts will consider it to be consensual. Meaning you agreed to waive the warrant requirement and allow the cop to search your phone.  The cops are not required to read you Miranda before they ask if they can see your phone or tell you that you have a constitutionally protected right to say no.

A good rule of thumb is:  if the cop is using words of permission, no matter the inflection or tone, you have a right to say no.  An example could be:  May I see the phone or how about you let me look, or let’s just clear this up now, or you can just let me see it; otherwise, I’ll go and get a warrant and keep you here longer.  The purpose of the warrant is to disallow the officer from conducting a fishing expedition, if they will seek a warrant or even get a judge to sign it, are unknowns that you don’ t know at the time.

For the full Supreme Court opinion click Riley v. California

We hope that this post on the Fourth Amendment has been informative.  If you believe that your Fourth Amendment Rights have been violated, contact us today for a free case evaluation at (303) 747-4686 or complete a request for information.

Posted by Laurie Schmidt | in Fourth Amendment, Uncategorized | Comments Off on No Cell Phone Search Without Warrant Says U.S. Supreme Court

FOURTH AMENDMENT DISALLOWS WARRANTLESS BLOOD DRAW IN DUI CASES

May. 2nd 2013

FOURTH AMENDMENT DISALLOWS WARRANTLESS BLOOD DRAW IN DUI CASES

The U.S. Supreme Court recently held that the police could not conduct a warrantless blood draw in a routine DUI investigation.  In Missouri v. McNeely, the court held that “ in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”

The government was arguing for a “per se” rule that would allow the cops to draw blood without your consent and without a warrant in all DUI cases and DUI investigations.  The U.S. Supreme Court rejected this argument and found that there was no exigency that would justify such a per se rule.  Allowing the cops to force a blood draw without your consent and without a warrant in DUI cases could result in the police- simply drawing blood based on a hunch and NOT probable cause.  For more information about your rights during contact with law enforcement, visit our MIRANDA  and DUI STOPS WHAT YOU NEED TO KNOW posts.

Our Fourth Amendment of our United States Constitution guarantees your right to be free from unreasonable search and seizure.  A warrant is issued by an independent magistrate and must be based on probable cause.  Generally, a search or seizure based on a properly issued warrant is reasonable and is not a violation of the Fourth Amendment.

Throughout our history the courts have carved out various exceptions to this warrant requirement.  One such exception is the exigency requirement.  Exigency applies when the situation make the needs of the police so compelling that a warrantless search objectively reasonable.  An exigency requirement has been found constitutional based on a theory of destruction of evidence- basically giving the cops no time to seek a warrant because they are confronted with a now or never situation because the sought after evidence would be destroyed.

A blood draw is a physical intrusion beneath the skin and into the veins to remove evidence to be used in a criminal prosecution.  Thus, you have a Fourth Amendment right to be free from an unreasonable seizure of your blood.

This does not mean that a warrantless blood draw would be unreasonable, but the Court refused to hold a per se exception to allow all warrantless blood draws.  If a warrantless blood draw is or is not a violation of your Fourth Amendment rights will be determined by the specific facts of your case.

In the context of DUI investigations, if the officer has probable cause to arrest you for suspension of DUI, Colorado has an Express Consent law. Refusing to consent to blood or breath test would most likely result in the revocation of your Colorado license for at least a year by the Colorado Motor Vehicle Department.

If you feel that your Fourth Amendment Rights have been violated or you were the victim of an unreasonable search or seizure by the cops – contact us for additional information at (303) 747-4686 or click here.

Thank you for visiting our post on the Fourth Amendment- for more information about us- visit our website at:  www.criminaldefenseyouneed.com 

Posted by Laurie Schmidt | in DUI arrest, DUI laws, DUI Post, Fourth Amendment | Comments Off on FOURTH AMENDMENT DISALLOWS WARRANTLESS BLOOD DRAW IN DUI CASES

U.S. Supreme Court Ruled Dog Search Around Home without a Search Warrant Unconstitutional

Apr. 1st 2013

Search warrants are required before officers can allow a trained dog to sniff around your home.  Without a search warrant it is a violation of your fourth Amendment Rights.

Last week, the U.S. Supreme Court handed down its decision in Florida v. Jardines, which affirmed a Fourth Amendment Right to be secure from unreasonable search and seizure in a dog sniff case.

Miami officers, acting solely on a tip that Jardines was growing marijuana plants out of his home and without a search warrant, went to Jardines home with a trained drug detection dog.  The dog sniffed around the front porch and after a few minutes he altered officers to the presence of marijuana.  At that point, the officers obtained a search warrant for the home and found a marijuana-growing operation inside of the home.  The probable case for the search warrant was based on an illegal search, thus the discovery of the marijuana plans was tainted and could not be used in the criminal prosecution.  The government was left with only evidence of a tip; which is patently insufficient

The Courts have traditionally held that anyone from the general public, including the police, have a license to approach a house’s front door (to leave a flier or ask the occupant a question).  This concept does not allow officers to bring a drug-sniffing dog onto your front porch, in order for this action a search warrant must be issued by a neutral and detached magistrate

What does this mean for your rights?

Police must have a search warrant to be able to stomp through your home (the front porch is part of your home).  Police cannot go to your home and allow a dog to sniff around your front porch, cannot use a metal detector, or other device on the curtilage of your home WITHOUT A SEARCH warrant.

–       Police cannot climb a ladder to “peak” into your home

–       Police cannot use a detention dog to smell for marijuana

–       Police cannot use a thermal imaging device to detect elevated heat to establish probable cause that heat lamps are being used

Police cannot use sense-enhancing technology to conduct a search into your home that would otherwise require a physical intrusion into your home.  The home is still a constitutionally protected area where you have an expectation of privacy.  These searches were held as unreasonable and in violation of the fourth amendment because they were conducted without a search warrant.

What if your rights are violated?

If you believe that the government or police have violated your rights by acting without a search warrant; consult with a criminal defense attorney in your area.  The most common penalty is that the government is not allowed to use the tainted evidence in a criminal prosecution.  This may mean that they cannot move forward with you case because they lack evidence, which could result in a dismissal of the charges.

Thank you for visiting our post on Protection of Your Fourth Amendment Rights.  For additional information about this post, please contact us directly at (303) 747-4686 or click here.

Posted by Laurie Schmidt | in Fourth Amendment | Comments Off on U.S. Supreme Court Ruled Dog Search Around Home without a Search Warrant Unconstitutional

I wasn’t read my Miranda rights – will my case be dismissed (MIRANDA)

Feb. 26th 2013

As a criminal defense attorney there is one question that I get over and over again they [police] didn’t read me my Miranda Rights, can’t we get the case dismissed or my rights were violated, shouldn’t my case be dismissed.  WRONG. Police are NOT required to give you a Miranda warning, UNLESS both of the following happens:  1. you are in custody and 2.  the question seeks incriminating information.  Even if you are in handcuffs, you may not be in “custody” for the purpose of Miranda.  If you think your rights were violated, contact a criminal defense attorney.

If my rights are violated my case is dismissed, right?  WRONG

A Miranda violation (you weren’t read your rights) does not mean that the case will be automatically dismissed.  It’s an exclusionary rule meaning the government could be prohibited from using those statements against you in a trial.  As a criminal defense attorney I scrutinize the facts and circumstances surrounding the statement to determine if your Miranda Rights were provided and if not the impact of a violation to a case.  Even if the statement is suppressed, aka, not allowed in, there may be additional evidence that could be used against you and the case may go forward.

Here’s what the government and police officers DO NOT want you to know- you never have to talk to officers- YOU have the right to remain silent- USE IT!  Don’t count on the police “reading you your rights”- EXERCISE your rights- REMAIN Silent.  Think about it this way, you don’t know why the police are asking you questions, you don’t know what crime they are trying to pin on you.  Even if you are not told you have rights- exercise your Miranda Rights, remain silent.

You are up against trained law enforcement personal – police officers get training, not only when to provide Miranda Rights to suspects but also how to legally avoid giving Miranda– I have attended Miranda training with law enforcement geared at helping law enforcement avoid providing Miranda.  Why?  It is easier for the prosecution to convict you with a confession, even a partial confession.

So, how do they do it- Here is a list of some of the most common tactics to avoid providing Miranda Rights:

  1. Officers won’t arrest you, they will approach you, at your house, on the street, at your work and they will ask you to talk with them, informally, right there, in your home or work  (this is legally a consensual encounter)
  2. Officers will ask you to come down to the police station, just to talk, informally, you’re not under arrest, you can leave at anytime, they just wanting to get your side of the story. (this is non-custoidal)
  3. Officer may say something like – I just want to get your side of the story, you know so we can clear this up and move on

The government cannot make you help them in their investigation of YOU.  Did you know that it is easier for the government to prove its case if you make statements, even in denial.  DO NOT make their job easier.  DO NOT help them build their case against you.  REMAIN SILENT.

What do you say- say nothing, if you want to make a statement, make it through an attorney.  What your attorney says is not evidence it cannot be used against you

Thank you for visiting our post on Miranda Rights.  Should you like additional information or to speak with attorney Schmidt about your case, click here or contact us at (303) 747-4686.

Posted by Laurie Schmidt | in arrest, Fourth Amendment, Miranda | Comments Off on I wasn’t read my Miranda rights – will my case be dismissed (MIRANDA)