37 Fla. L. Weekly D716a
Police can search cell phones without a warrant?
Filed Under : Uncategorized by danriemer
Mar.3,2012The Seventh U.S. Circuit Court of Appeals out of Chicago has ruled that police may search a cell phone for its number without obtaining a warrant. The phone number on the cell phone, which is effectively a computer, was seized from the defendant at the time of arrest in a narcotics bust. It was used to subpoena the owner’s call history, revealing conversations with co-conspirators. Judge Richard Posner, writing for the three-judge panel hearing arguments in this case on January 25 and which was decided February 29, compared a cell phone not only to a computer, but to a pocket diary. He wrote: “If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cellphone to learn its number.” Furthermore: “If allowed to leaf through a pocket address book, as they are … , they should be entitled to read the address book in a cellphone. If forbidden to peruse love letters recognized as such found
wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cellphone.”
Citing cases going back to the 1981 decision in New York v. Belson and the “Robinson Rule” it would be wise for professional investigators to take time to read Judge Posner’s 15-page decision. Many factors were considered, such as whether inspecting a cellphone is greater than the searching of a “container” or if such might actually be a “stun Gun.”
Although the actual make and model of the cell phone was never identified the decision noted “that an iPhone application called an iCam allows one to access a home computer’s webcam, thus allowing one to survey inside a home while a thousand miles away. Thus at the touch of a button a cell phone search becomes a house search, and not a search of a ‘container’ in any normal sense of that word, though a house contains data.”
Judge Posner’s decision ends: “But these are questions for another day, since police did not search the content’s of the defendant’s cell phone, but were content to obtain the cell phone’s phone number. – Affirmed”
Expect this Fourth Amendment issue to eventually be decided by the U.S. Supreme Court. It will have ramifications as controversial as the recent GPS tracking case of U.S. v. Jones.
The decision in USA v. Flores-Lopez is available at:
http://www.abajournal.com/files/CellPhones.pdf
5th District of Florida Ruling on Process Service
Filed Under : Uncategorized by danriemer Feb.4,2012Below please find a case issued today wherein service of process on a private mailbox was quashed. The court found that the substitute service was improper as the address of the defendant’s registered agent was available through public records.
37 Fla. L. Weekly D316a
How to Investigate Coroners and Medical Examiners
Filed Under : Uncategorized by danriemer Jan.25,2012How to Investigate Coroners and Medical Examiners
by A.C. Thompson ProPublica, Feb. 2, 2011, 11:33 a.m.
(Andres Cediel/Frontline)
Reporters covering the criminal justice system rarely look at coroners or medical examiners — instead we focus on cops and prosecutors and defense attorneys and defendants.
I began to look more closely at the Tyvek-clad doctors who staff America’s morgues when I started finding cases in which they made repeated errors, or failed to document obvious injuries or reached conclusions challenged by their peers.
The coroner or medical examiner in your area may merit the type of examination that could lead to stories.
Here are a few things I’d encourage you to scope out:
1. Look at the type of system in your area.
Death investigation systems falls into two broad categories. There are offices overseen by coroners, typically laypeople, who are often elected.
Coroners who don’t have medical training rely on doctors to do autopsies for them. When the autopsy is complete, the coroner makes the final call on how somebody has died and signs the death certificate.
The other type of system is run by medical examiners. They play the same basic role as coroners, but are usually trained forensic pathologists who are appointed to their position by county or state government officials. Typically, chief medical examiners have experience doing autopsies.
If you’re dealing with a coroner who doesn’t have any medical experience, check if he or she is overruling or ignoring the doctors who do the actual autopsy work.
If you have an elected coroner, who supports the coroner come election time? Who does he or she rely on for endorsements, fundraising and getting out the vote?
It’s important to remember that “controlling the determination of the cause and the manner of death gives you political power,” as Jeffrey Jentzen, the author of Death Investigation in America: Coroners, Medical Examiners, and the Pursuit of Medical Certainty, told us.
2. Find out if your local morgue is accredited.
The National Association of Medical Examiners, a nonprofit group dedicated to improving the field of death investigation, inspects and accredits coroner and medical examiner facilities.
NAME has a long list of requirements for accreditation — among them, that the morgue facilities have to be clean and functional and the doctors need to be properly trained.
Check to see if your local coroner or medical examiner operation is accredited. If it isn’t accredited, find out why. Did the office fail its inspection? Does it have shortcomings that have kept it from even seeking accreditation?
For more information on accreditation, check NAME’s site, at thename.org.
3. See how many cases doctors handle at your coroner or medical examiner offices.
A key concern of NAME is how many autopsies doctors are doing. The worry is that doctors start making errors start when they try to work too fast, or for too many hours in a row. The association recommends that doctors do no more than 250 autopsies per year, and 325 at the absolute maximum.
But there are doctors who do 400 or more autopsies on an annual basis. Find out if doctors in your area are taking on more cases than NAME says is advisable.
Caseload information should be public record in your jurisdiction, but be aware: Some offices can’t — or don’t — track autopsies on a doctor-by-doctor basis. That could be worth exploring, as well.
4. Check if the doctors at your coroner or medical examiner’s office are board certified.
Board certification is like accreditation for doctors. To become a certified forensic pathologist, a doctor must complete a three-to-four year residency, do a year-long fellowship in a coroner or medical examiner office, and pass the forensic pathology board exam administered by the American Board of Pathology.
There are competent doctors who aren’t certified, but experts in the field say certification helps to ensure that those doing autopsies understand the finer points of forensic pathology, the area of medicine that focuses on the mechanics of death. Some coroner and medical examiner offices won’t employ physicians who lack certification.
For our Autopsies in the U.S.A. database, we asked large coroner and medical examiner offices whether the physicians were certified. The results were surprising — even in these organizations, 1 in 5 doctors were not.
We also asked why doctors weren’t certified. Some had just emerged from a training fellowship and hadn’t had a chance to take the exam, which is only offered once a year. Others, though, had failed the test repeatedly. Others chose not to sit for the exam.
You can also ask the pathology board if a doctor is certified.
5. Make sure those doing autopsy work have medical licenses.
To perform an autopsy, a person must have a valid medical license, but I found cases in which non-doctors performed autopsies. Run names past the state medical board.
6. Look for errors and disputes.
Cases in which forensic pathologists’ findings or diagnosis of cause of death become controversial can be great jumping off points for reporting.
There is no central place to find such cases, but there are plenty of ways to look for them. Talk to people in the legal community: prosecutors and defense attorneys, as well as civil lawyers — particularly medical malpractice and civil rights attorneys.
Look for cases where defense lawyers hire experts to review autopsies or where civil attorneys bring in their own forensic pathologists to do second autopsies.
Also, check with independent forensic pathologists, those not affiliated with a local agency. Some offer private autopsy services, either examining bodies that have never been autopsied, or doing second autopsies on bodies that have already been dissected once. These doctors also sometimes review autopsy reports, photos, and slides, looking for errors or oversights. Keep in mind that paid experts typically are brought in by those on one side of a lawsuit — their opinions should be considered in that light.
Another way to find disputes over autopsies is to check case law. If a judge or panel of judges finds fault with an autopsy, it may pop up in a search of court decisions using Nexis or Westlaw.
U.S. Supreme Court says attaching a GPS to a vehicle constitutes a search
Filed Under : Uncategorized by danriemer Jan.23,2012SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. JONES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 10–1259. Argued November 8, 2011—Decided January 23, 2012
The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle regis- tered to respondent Jones’s wife. The warrant authorized installa- tion in the District of Columbia and within 10 days, but agents in- stalled the device on the 11th day and in Maryland. The Government then tracked the vehicle’s movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking con- spiracy charges. The District Court suppressed the GPS data ob- tained while the vehicle was parked at Jones’s residence, but held the remaining data admissible because Jones had no reasonable expecta- tion of privacy when the vehicle was on public streets. Jones was convicted. The D. C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.
Held: The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, consti- tutes a search under the Fourth Amendment. Pp. 3–12.
(a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unrea- sonable searches and seizures.” Here, the Government’s physical in- trusion on an “effect” for the purpose of obtaining information consti- tutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.
(b) This conclusion is consistent with this Court’s Fourth Amend- ment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the
2
UNITED STATES v. JONES Syllabus
analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reason- able expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing an- other form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Gov- ernment’s position. Pp. 4–12.
(c) The Government’s alternative argument—that if the attach- ment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12.
615 F. 3d 544, affirmed.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. SOTOMAYOR, J., filed a concurring opinion. ALITO, J., filed an opinion concurring in the judgment, in which GINSBURG, BREYER, and KAGAN, JJ., joined.
@RevelationsPI
Videographer acquitted in federal bomb threat trial
Filed Under : Uncategorized by danriemer Dec.30,2011Daily Business Review, December 19, 2011
A jury took two hours to acquit a commercial videographer accused of threatening to blow up a downtown Miami office tower. Bill Rolland was charged with conveying a false threat to a public building based on the word of three employees at the New World Tower at 100 N. Biscayne Blvd., which houses the Israeli and German consulates. Rolland, who lives near Sacramento, California, was in Miami to shoot video for a client, Cisco Systems, when confronted by a building engineer and two security guards. All three testified Rolland threatened to blow up the building, but their testimony fell apart on the stand, defense attorney Robert Stickney said. Police barricaded downtown Miami when one of the guards reported a bomb threat to police.
Stickney maintained the call was made because Rolland refused to stop shooting his video, knowing he was within his rights to do so from a public sidewalk. The attorney said federal prosecutors should never have taken the case to trial, which was heard by U.S. District Judge Kathleen Williams. “I think they are hypersensitive about domestic terrorism issues,” Stickney said. “But this had nothing to do with domestic terrorism. It has to do with human nature.”
The U.S. attorney’s office had no comment on the acquittal, spokeswoman Alicia Valle said. Stickney said it’s a sad day in America when a law-abiding citizen with no criminal record has the full weight of the federal government out to prosecute him. “He was scared to death. This destroyed his life,” Stickney said. Rolland’s wife, Lisa, sobbed with relief after the jury verdict was read.
From Dan Riemer- this is a classic case of “he said- she said”. The three employees of the building verses the professional videographer. I was involved in this case from its inception. I did a complete background on all the building employee witnesses. The security guard, who was the main character to cause my client to be arrested had a colorful background including an arrest for Grand Theft. He had lied on two of his applications to the State of Florida, Division of Licensing, Department of Agriculture and Consumer Affairs. One lie was on his Guard license application and one was on his gun permit application. The other two employees were targets of a sexual harassment suit filed in Federal Court. A competent and thorough investigator will provide the attorney with these items which eventually were used in the defense case. For the client who should never been arrested it was a costly but needed investigation. This was a serious Federal offense that the AUSA refused to drop the charges despite the knowledge that the witnesses were shaky at best.
Bottom line is: an Investigator should be used in all cases to assist in making the attorney’s job a little bit easier
Tags : arrest, backgrounds, defense, impeach, investigator
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