Articles Posted in Constitutional Rights

You are hanging out in a park with a couple of friends. Two police officers show up and ask you and your friends what you are doing in the park. You walk away, which is within your rights.  If you do attempt to walk away and the officers prevent you from doing so, you are legally detained. Or you don’t walk away because you believe you are not free to walk away due to an articulable intimidating presence of the officers. In either case, you are being detained.

You may ask the officers: “Am I being detained?” and, indeed, you should. It is important to establish whether you are detained on not. (If the officer says you are not being detained, then you are free to walk away.) The reason it is important to establish whether you are detained or not is because of what may come next. If you end up getting arrested subsequent to the detention, you may be able to suppress the evidence if the court determines that the detention was unlawful.

You find out from the officers that they received a report of suspicious activity in the park and that you and your friends fit the description of the individuals who are suspicious. In this case, or under other circumstances where an officer can establish reasonable suspicion that you are engaged in or about to engage in criminal activity, the officer can legally detain you for a brief investigation. This is known as a Terry stop, named after the Supreme Court case, Terry v. Ohio (1968) 392 U.S. 1., where that court held that an officer may conduct a brief investigative detention when there is reasonable suspicion that the individual stopped is armed or where the officer suspects criminal activity is afoot.

No doubt you have heard the news that Alec Baldwin is to be charged with involuntary manslaughter after fatally shooting a cinematographer on set. I won’t recount the alleged series of events leading up to this charge as most everyone is familiar with the story. What is important to know is that Mr. Baldwin was handed the gun on set and according to Mr. Baldwin believed it was not loaded with live bullets. In other words, according to Mr. Baldwin, the shooting was, though tragic, an innocent mistake.

After the incident, Mr. Baldwin was questioned by detectives. He was cooperative and eager to help the investigation, voluntarily answering their questions.  Before his sit down with the detectives, he was read his rights, which included the right to remain silent, his right to have an attorney present, and the admonition that anything he told the detectives could be used against him in a court of law. Mr. Baldwin confirmed with the detectives that he was not charged with any crime and then proceeded to “spill the beans.”

He told all because he wanted to help and he honestly believed he was not guilty of any crime, since the shooting was an obvious mistake. As Mr. Baldwin and the detectives knew, guns are used all the time on movie sets, there are special experts on set, called armorers, whose job it is to make sure the guns are either not loaded or loaded with blanks. Mr. Baldwin explained to the detectives that when the armorer handed him the gun, she told him it was “safe” but asked him if he wanted her to double check. Having never had a problem with a “hot” gun on set before, and this being routine, Mr. Baldwin told the armorer, “I’m good.” This seemingly innocent statement to the detectives is what led to Mr. Baldwin being charged with involuntary manslaughter: this statement indicated that Mr. Baldwin was criminally negligent because he had a responsibility to check the gun before firing it on set.

A person convicted by a judge or jury of a misdemeanor or a felony has a right to appeal that conviction. However, it is not enough to be unhappy with the verdict or think the trial was unfair, there are specific grounds upon which the appeal may be made.

Appeals must be grounded on a legal error made during trial. Common examples include:

• The prosecution withheld exculpatory evidence.

Did you see the 2002 movie Minority Report? Back then, it was science fiction; now it’s getting close to reality. In Minority Report, police departments had “PreCrime” units where “precogs” (strange psychic bodies that lived in liquid pools) were able to predict when a person was going to commit a crime. Based on this knowledge, the police would arrest the individual before they had the chance to commit the crime.

Today, police departments are utilizing predictive policing technology to pre-empt criminal activity. They don’t employ precogs, but they do use algorithms. And they aren’t arresting people before they commit a crime – at least not yet, but they do plan policing day-by-day based on software predictions. Utilizing algorithms, the Los Angeles Police Department’s program PredPol (the title itself sounds dystopian) identifies 150 square-meter areas where certain types of crime are more likely to occur on any given day. The PredPol technology got its start when then LAPD Chief, Bill Bratton, went to UCLA researchers seeking a way to use the historical data compiled by the LAPD to pre-emptively deploy the police force wherever crime was likely to occur.  Using the PredPol algorithms the LAPD sends units to patrol these “hotspots” based on the predictions.

This is not a matter of just beefing up the police force in high-crime areas, it’s way beyond that. Data is continuously fed into the model resulting in ever-changing predictions. The algorithms predict the highest risk areas for any particular crime on any particular day and at any particular time, thereby theoretically (and perhaps factually) stopping the crime before it happens, or at least being there when it does.

Many of my clients are surprised at the amount of information law enforcement has gathered about them. I wrote awhile back about how ubiquitous law enforcement surveillance is in our everyday lives.   Many of my clients learn the hard way. Not only is it impossible to hide from the police these days unless you go live in the woods (well, not even that), but past crimes that many think they have escaped often come back to haunt the present because technology has conquered our “secret” world.

One of the “gifts” to law enforcement is the cell phone. Cell phones make it so much easier now for law enforcement to track down a suspect, discover a suspect’s plans or activity (although this usually will require a search warrant or consent in California), and learn much more about a suspect just by reviewing cellphone or cell tower data. We want to believe law enforcement conducts their cell phone surveillance lawfully but in this age of whistle blowers, we know that is not always the case.

One of the supposed advantages of iPhones is that the data on the phone is encrypted. Even law enforcement cannot access information from an iPhone…or so they say. The reader may recall the outrage over the reported inability of the FBI to access the iPhone data of the San Bernardino terrorist. The FBI couldn’t crack the iPhone code and asked (well, ordered) Apple to create software that would allow the FBI access. Apple refused. Before the FBI went to court to compel Apple to crack the code, the FBI paid a third-party “hacker” to break into the phone’s data.

While every defendant has a constitutional right to a jury of his or her peers, criminal charges rarely go to trial. In fact, around 97% of criminal cases are resolved by a plea bargain. A plea bargain is when the defendant pleads guilty or nolo contendere (no contest) to criminal charges. Often the process involves the prosecutor agreeing to dismiss some of the charges in exchange for a plea to the remaining charges. Sometimes, the plea will include an offer of a low-end sentence or probation in exchange for the plea. These are called conditional pleas. An open or unconditional plea is one where the defendant pleads guilty with no promises made to him or her for the plea.

The judge has very little to do with the conditional plea process and, in fact, in California, the judge is not allowed to engage in any plea bargaining. However, at the time the plea is entered by the defendant in court, the judge can reject the plea agreement but the judge cannot change the terms of the agreement. Open pleas can be made to the court and the judge can, in that instance, indicate the sentence he or she will levy against the defendant. If that sentence is not imposed, the defendant can withdraw the plea.

Following the acceptance by the judge of the defendant’s plea of guilty or no contest, whether after a plea bargain with the prosecutor or an open plea, the court will enter judgment, that is, the judge will enter the conviction pursuant to the plea.

When a person is charged with a crime, the prosecution is bound by law to provide all the evidence supporting the charge or charges, including evidence that might exonerate the defendant. Evidence that is favorable to the defendant is called “exculpatory evidence” and back in 1963, the United States Supreme Court held that the prosecution must give all this exculpatory evidence to the defense. This case, Brady v. Maryland, 373 U.S. 83, was the seminal case on exculpatory evidence. These days, attorneys refer to Brady evidence when they are talking about exculpatory evidence.

Unfortunately, the prosecution sometimes plays fast and loose with exculpatory evidence. And if the defense doesn’t know the evidence exists, it may be hidden by the prosecution and not available in the discovery, leaving the defendant at a disadvantage. This doesn’t happen in every case, most prosecutors run an honest practice, but it happens. A few years ago, the Orange County District Attorney’s office was scandalized by allegations that it withheld material evidence from the defense and the court in a high-profile murder case. That led to a new law in California that provides for criminal punishment of a prosecutor who withholds evidence.

Sometimes, the discovery that a prosecutor has withheld exculpatory evidence does not become known until years after the trial. For example, just this year, disciplinary charges were filed by the State Bar of California against a former L.A. City Attorney who was accused of withholding potential exculpatory evidence in a murder case that took place 30 years ago. The case was a death penalty case and the defendant was convicted and sentenced to death.

We cannot walk down our streets, drive our cars, or talk on our cell phones without these activities being caught by ubiquitous law enforcement surveillance. Use a cell phone and your location can be easily discovered. Similarly, the license plates of cars everywhere are being continuously scanned and registered in a database. Facial recognition cameras are scanning pedestrians and drivers at every turn. Next time you are walking in town, look up on the light poles and other high public structures. Smile, you’re on candid camera.

This surveillance undoubtedly helps the cops catch the bad guys. I have seen how these techniques have enabled the police to discover the perpetrator of crime and locate him or her quickly. The techniques also often provide the prosecution with solid evidence. The defendant who says, “I wasn’t there” as defendants do, will often find out that the prosecution has irrefutable evidence that the defendant was there. Maybe the defendant’s cell phone signal was running off a cell tower near the location of the crime, maybe the defendant’s license plate was scanned on the street where the crime occurred, maybe the prosecution even has a picture of the defendant from a nearby surveillance camera, and soon, a law enforcement drone or small plane may capture evidence against the defendant. Defendants are often unaware that they have been surreptitiously surveilled – as indeed we all are!

This comes with a price. Every innocent citizen is caught in this web of surveillance implicating our Fourth Amendment Right to be free from unreasonable search and seizure. Many people are willing to be constantly surveilled in trade off for greater crime prevention. But, the wisdom of our Founding Fathers should not be ignored.

Sometimes a person arrested for a crime will swear he or she was nowhere near the location when the criminal incident took place., but the prosecution will allege otherwise…with evidence to prove it. That evidence: tracking of the defendant’s cell phone. Even if the defendant wasn’t using his or her cellphone at the time, the cellphone sends data to cell towers, or more commonly these days, the GPS system embedded on most cellphones does the work. All the police need is the defendant’s cellphone (assuming he or she was carrying it at the time of the alleged crime) to find the defendant’s location at the time. But what if the cellphone, say, disappeared? The authorities can still get the information from the cellphone service provider.

In California, the state authorities need a warrant (or the cellphone owner’s consent) to search any cell phone data, but that isn’t true in all states and it isn’t the case for federal crimes. So even if an individual is suspected of a crime in California, but it is a federal crime being investigated by federal authorities, those authorities do not need a warrant to search historical data held by the suspect’s cellphone service provider.

The Fourth Amendment to the United States Constitution guarantees that every person in this country is secure from unreasonable searches and seizures. How “unreasonable” is defined is the subject of many a treatise but for purposes here and ignoring the enumerated exceptions for the moment, if there is no warrant, the search and seizure is considered by law to be “unreasonable.” How would the warrantless search of historical cellphone data as recorded by the cellphone service provider fit into the cellphone owner’s Fourth Amendment guarantee?