Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair
California Supreme Court Allows Search of Data Stored on Mobile Phone without Warrant
By: Houston Criminal lawyer John Floyd and Paralegal Billy Sinclair
Early last year we posted a piece about the way federal prosecutors have increased their efforts to secure sensitive data from telecommunications companies about customers’ cell phone use. Prosecutors justified these individual privacy intrusions by saying it helps them trace the movements of drug dealers, human traffickers, and even corrupt politicians. Newsweek called the cell phone “The Snitch in Your Pocket” (March 1, 2010) as they reported about this new crime-fighting effort by federal authorities. And more recently we have reported on additional, more inventive ways the Government has found to intrude into the private lives of everyday, law-abiding citizens under the now incestuous wars of crime and terror (here and here).
And as they say on music radio, “the hits just keep on coming.” Individual privacy took a major hit recently with a ruling by the California Supreme Court which held the a cell phone’s text messages can be searched without a warrant if its owner has been arrested, and that any incriminating evidence retrieved from it can properly be admitted into evidence at a criminal trial. The court’s ruling in the case of People v. Gregory Diaz essentially held that the warrantless search of a cell phone is “incident of a lawful arrest (See the dissent for good arguments for your motion to suppress). The facts of the Diaz case are these: In April 2007 he made a drug buy from a police informant. The buy was witnessed by a sheriff’s deputy with the Ventura County Sheriff’s Department. The deputy arrested Diaz and found six tablets of Ecstasy. Diaz was transported to a police station where a detective seized his cell phone. The detective subsequently found an incriminating text message on the cell phone which prompted Diaz to confess. He was charged with selling a controlled substance and he moved to suppress the incriminating evidence discovered on his cell phone. The trial court denied Diaz’s motion to suppress and the matter ended up before the California Supreme Court.
It has been a longstanding rule of constitutional law that searches conducted without a warrant are per se unreasonable. But the U.S. Supreme Court has carved out “established and well-delineated exceptions” to this rule. Two years ago we discussed the exceptions as they applied in vehicle searches.
The exception relied upon by the California Supreme Court in Diaz is a search conducted “incident to a lawful arrest” as defined by the U.S. Supreme Court in United States v. Robinson in 1973. The Robinson court held this exception “has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of a crime when a person is taken into official custody and lawfully detained.” The following year the U.S. Supreme Court in United States v. Edwards added further clarification to this rule by saying:
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Ineffective Assistance of Counsel: Criminal Defense Lawyer’s Questions about Defendant’s Post Arrest Silence Opens Door to Cross Examination
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Criminal defendants have a Sixth Amendment right to effective assistance of counsel in criminal prosecutions against them. The United States Supreme in 1984 handed down Strickland v. Washington which set forth the constitutional standard a criminal defendant must satisfy in order to establish that he/she was not effectively represented by their attorney. First, the defendant must prove that the defense attorney’s performance “fell below an objective standard of reasonableness,” and, second, the defendant must prove that counsel’s deficient performance so prejudiced his/her defense that the guilty verdict is unreliable and fundamentally unfair.
Every defense attorney walking into a criminal trial does so with the explicit understanding that his/her actions throughout the trial will be the subject to second-guessing should the result prove unfavorable to the defendant. That’s why the Supreme Court underscored the Strickland decision with the caveat to all state and federal courts reviewing ineffective assistance claims that a defense attorney’s tactical and strategical choices are presumed effective and insulated from second-guessing and hindsight. The Court specifically stated that “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.”
Still, a defense attorney must recognize that he/she has a narrow margin for error. That’s what happened with the defense attorney who represented Wendell Keith White in a 1998 murder trial. In April of that year White went to Koach’s Club where a pool tournament was underway. One of the tournament’s contestants was Tracey Johnson who was at the club with a large group of friends, including Latasha Vasquez. At some point during tournament play Johnson stepped away from a pool table leaving her custom cue stick behind. Upon her return, Johnson found White using the cue stick without her permission and hitting it against the table. Enraged, she began cursing White before the bartender told her calm down and not to cause any trouble. White apologized to Johnson and bought her and her entourage drinks.
The club closed at 2:00 a.m. Shortly before closing time a sequence of events took place which were hotly contested by the parties involved. Johnson said White came up behind her and rubbed up against her as he grabbed her breasts. That groping incident triggered a second cursing outburst with Johnson calling White “just about every name in the book.” Although there was no physical contact between the two parties, one of Johnson’s friends had to restrain her by pulling her away from White. Johnson went outside in the parking lot where she was joined by a large gathering of friends.
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