THE CAPTAIN REPORTS:
OPEN YOUR MOUTH WIDE AND SAY AHHHH ......
Because our humble lead scribe Horace Rumpole is in parts unknown and cannot manage to garner broadband service, we post today the latest in the erosion of our beloved Fourth Amendment from SCOTUS.
To be fair, our fellow blogger, DOM, has the post up on the new case and you can go read his post at http://sdfla.blogspot.com/. It includes a link to the case, but if you're lazy then go here: http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf
The case is Maryland v. King, and it was decided by a decidedly split 5-4 vote. But, the five and the four are not whom you thought they might be. Justice Kennedy wrote the opinion and Justice Scalia wrote the Dissent, and boy what a Dissent it was. Certainly one worth reading. Of note, Justice Thomas and Justice Scalia did not vote on the same side here.
From NACDL:
Washington, DC (June 3, 2013) – Today, the U.S. Supreme Court ruled in
Maryland v. King (12-207) that “When officers make an arrest supported by
probable cause to hold for a serious offense and they bring the suspect to the
station to be detained in custody, taking and analyzing a cheek swab of the
arrestee’s DNA is, like fingerprinting and photographing, a legitimate police
booking procedure that is reasonable under the Fourth Amendment.” (at 28) The
5-4 majority opinion of the Court was delivered by Justice Kennedy and joined by
Chief Justice Roberts and Justices Thomas, Alito and Breyer. Justice Scalia
filed a dissenting opinion joined by Justices Ginsburg, Sotomayor and
Kagan.
In his dissent, Scalia wrote:
"The most regrettable aspect of the suspicionless search that occurred here is that it proved to be quite unnecessary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations."
And he concluded:
“ ... I doubt that the proud men who wrote the charter of our liberties would have
been so eager to open their mouths for royal inspection. I therefore dissent,
and hope that today’s incursion upon the Fourth Amendment, like an earlier one,
will some day be repudiated.”
And in other news:
Big Game Seven at the AAA tonight between the Miami Heat and the Indiana Pacers. Nothing like a Game Seven and we wish we could be there but we'll have a front row seat watching on our 60" Samsung. I'm sure Rumpole will have something to say about the results of this game if the Pacers should manage to pull off the game seven upset. I'm picking the Heat to win and return to a third straight Finals appearance.
UPDATE:
We received an email after the game tonight. Here is what it said:
Summer is here so enjoy the Heat and the rain. Look at the bright side; at least the traffic should disappear for about the next ten weeks.
CAPTAIN OUT .....
captain4justice@gmail.com
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. Fourth Amendment to the Constitution.
Which leads us to the following age-old question:
Can a police officer take my cell phone and look at naked pictures of my girlfriend?
Not anymore. Well, not without a warrant. So said the Florida Supreme Court yesterday with their decision in Smallwood. Smallwood v. State of Florida. (SC11-1130, May 2, 2013).
Here is the link to the text of the decision: http://www.floridasupremecourt.org/decisions/2013/sc11-1130.pdf
Smallwood was a small time robber who apparently hit it big with an alleged armed robbery of a convenience store in Jacksonville, Florida. The day after the robbery, the police issued an Arrest Warrant for Smallwood. Eleven days after the robbery, the police arrested Smallwood and confiscated his property, including his cell phone. (The cell phone was NOT listed on the property receipt). Thirteen months later, and on the eve of trial, the arresting officer told the trial prosecutor about the cell phone for the first time. The officer had accessed the contents on the phone and discovered five photos that he thought could be related directly to the crime charged. The prosecutor sought to use these photos in the trial and the defense objected to the admission of the photos found on the phone. (The prosecutor had actually obtained a search warrant before seeking to use the photos at trial).
Defense counsel filed a Motion To Suppress which was heard by the trial court judge. The defense argued that Smallwood had a reasonable expectation of privacy in the data and information stored within his mini-computer cell phone. "During a hearing on the motion, defense counsel reiterated that people have an expectation of privacy in their technologically advanced phones, which are small electronic data sources, and that the Officer's search of the cell phone, data, and images constituted an invasion of that constitutional zone of privacy. "
The trial court denied the motion to suppress, specifically relying upon the decision in New York v. Belton, 453 U.S. 454, 460-61 (1981). Smallwood was convicted.
On appeal, the First District Court of Appeal Affirmed. "In rejecting Smallwood’s Fourth Amendment challenge, the district court relied upon United States v. Robinson, 414 U.S. 218 (1973), in which the United States Supreme Court held that the search-incident-to-arrest warrant exception permits a search and inspection of the contents of personal items found on the arrestee, even if it is unlikely that the arrestee has a weapon or evidence related to the crime on his person."
Despite affirming the trial court's decision on the admissibility of the cell phone images, the First District expressed great concern about its ruling and in light of those concerns, they certified a question to the Florida Supreme Court as one addressing a matter of great public importance.
Justice Lewis, writing for a 5-2 majority, quashed the decision of the First District. Canady wrote a dissent with Polston joining.
In reversing the lower court, Lewis wrote:
" ... the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices. Consistent with this conclusion, we hold that the decision of the United States Supreme Court in Robinson, which governed the search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone. "
The court went on to state that, "the United States Supreme Court has not addressed the constitutionality of cell phone searches under the search-incident-to-arrest warrant exception."
"We have carefully reviewed and considered the decisional law that addresses this unresolved Fourth Amendment issue, and we conclude that the line of cases requiring law enforcement to obtain a search warrant before accessing the data, information, and content of an electronic device cell phone that is removed from a defendant at the time of arrest is, quite simply, more persuasive. "
Finally, in responding to the Canady dissent, which asserted that the majority decision had "the potential to work much mischief in Fourth Amendment law," Lewis wrote: "Our decision actually protects the Fourth Amendment and United States Supreme Court precedent by ensuring that the exceptions to the warrant requirement remain "jealously and carefully drawn," and by mandating that there be "a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative."
Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971).
On that final note, Fox News contributor, former Judge Andrew Napolitano, wrote a must read piece yesterday he called: "Poking holes in the Fourth Amendment to let government snoop on you". You can read that at: http://www.foxnews.com/opinion/2013/05/02/more-holes-in-fourth-amendment/#ixzz2SGreZ1tI
In the words of our Executive Editor and Blog Chief, Horace Rumpole: Here's seeing you in Court. I'll be the one with the double encrypted password protected Samsung Galaxy S4.
Enjoy your sunny South Florida weekend.
CAPTAIN OUT ......
captain4justice@gmail.com
In a highly anticipated case (Maryland v. Paulino, Supreme Court Docket# 07-266)
involving the scope of a search incident to arrest and the Fourth Amendment, Supreme Court scholars are anxiously watching to see which lawyer will be achieve fame and enter legal history by being the first lawyer ever to use the words “buttocks” , “ass cheeks”, and “ass cracks” in a public legal argument with Justices Scalia and Thomas.The information is on the Supreme Court blog HERE
(scroll down to the petitions for cert on 11/15/07)
The Defendant testified at the suppression hearing:
[Mr. Paulino]: They had searched me in my pockets, didn’t find nothing, and
eventually, they came to the subject where – in my report, it states that the
officer said, Mr. Paulino, why is your butt cheeks squeezed? And in further
response, I said nothing. He said it again, and another officers come behind
with gloves and pulled my pants down and went in my ass. Well, my cheeks.
Sorry about that.
The Maryland Court framed the issue this way:
Did the search of Petitioner, which involved an officer putting on
plastic gloves and spreading the cheek s of Petitioner’s buttocks to reveal drugs
which were not visible before that time, violate the Fourth Amendment, when
the search was con ducted in the parking lot of a car wash in the presence of
individuals other than the searching officer?
This case affects Miami in many ways. Beyond the legion of leering police officers just waiting for permission to legally shove their hands downs the backsides of models sashaying down Ocean Drive, the question remains whether the “hip/hop” fashion of wearing pants below the waist is constitutionally significant? From the Maryland Appellate Court:
It remains un-clear whether Paulino ’s pants were below his waist as a result of his
removal from the vehicle in the course of the arrest, or, whether Paulino intentionally wore his pants below his waist as a part of a fad. Even if Paulino intentionally wore his pants below his waist and his undergarments were exposed , we conclude that because Paulino’s pants were below his waist he retained, nevertheless, a Fourth Amendment right to privacy in his person.
Will Justice Souter and his clerks stroll down the hallowed hallways of the Supreme Court with their pants hanging fashionably low, shouting out a “Yo! My Dog” to Chief Justice Roberts as they pass him by?
Will Miami lawyers now be able to recreate the search of their fetching clients in the private confines of their offices without fearing Bar reprisals?
There’s no “backing” away from this controversy. This case will not fall between the “cracks”. Which Supreme Court Justice will be “ass”igned the opinion?
Somehow, this whole Fourth Amendment issue appeals to our own prurient interests. See, Roth v. United States, 354 U.S. 476 (1957).
See You In Court, reading the latest cases from the Supreme Court so we don't get caught "behind" the new changes in the law.
