(844) 815-9632

Fourth Amendment

Nurse Arrested for Not Drawing Coma Patient’s Blood for Police

National news outlets have been reporting the sensational story of a Salt Lake City, Utah nurse who was arrested after refusing the command of a police officer to draw the blood of a comatose patient for an investigation. Fortunately for Alex Wubbels, the nurse involved in the incident, police body cameras recorded the entire event. The nurse cited the hospital policy of requiring a patient's consent, a warrant, or an intent to arrest, before drawing blood for police. When the officer insisted on getting the blood draw done despite not satisfying any of these conditions, Wubbels refused and was then arrested on the spot. What Happened Here? Surprisingly, the coma patient, a truck driver, whom the police were seeking a blood draw from is an innocent victim. Police were chasing a fleeing suspect, when that suspecting crashed head on into the truck driver's big rig, resulting in a fiery crash. The suspect died at the scene, while the truck driver survived, but fell into a coma. The police, in conducting a thorough investigation, were seeking a blood sample from the truck driver to rule out any liability on his end (note: police may not have a legal right to this sample thanks to the Fourth Amendment's protections). The body camera footage clearly shows nurse Wubbels explaining the policy to the officer in charge, and then the officer losing his cool, grabbing her, cuffing her, and forcefully pulling her out of the hospital. During the ordeal, Wubbels can be heard yelling that she did nothing wrong, and that the officer is hurting her. Fortunately, when the superior officer arrived at the scene, she was released. It was explained to the officer that the hospital already took a blood draw, but that they would not release it without proper legal authorization. The city's administration has been extraordinarily embarrassed, issued apologies, and has stated that it is committed to changing policies to prevent this from happening again. The arresting officer has been placed on paid administrative leave pending the investigation into his actions (though the report he filed asserts his superior instructed him to arrest Wubbels). What's the Claim? When officers of law cross the line in performing their duties, both the officers, individually, and the municipality, state, or other government entity can be held liable. Generally, under federal law, 42 USC 1983 protects individuals from police misconduct, including false arrest or excessive force. There may also be claims under state laws, depending on the state where the incident occurred. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) How Does the iPhone's New 'Cop Button' Work? (FindLaw Blotter) NY DMV Busts 4k Fraudsters With Facial Recognition Tech (FindLaw Blotter) Criminal Charges Following Violence, Death in Charlottesville (FindLaw Blotter)
continue reading

Can the Feds Force You to Unlock Your Phone With Your Fingerprint?

You might've thought enabling Touch ID on your iPhone made it more secure. After all, it's harder to fake your fingerprint than to guess a passcode. But when it comes to the law enforcement searches, your smartphone might've gotten a lot more vulnerable. According to Forbes, federal law enforcement officers recently served a warrant on a California home which gave them "authorization to depress the fingerprints and thumbprints of every person who is located at the SUBJECT PREMISES during the execution of the search and who is reasonably believed by law enforcement to be the user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant."Essentially, cops could force everyone in the residence to open their phones. Is this really legal? Fourth Amendment Concerns The Fourth Amendment protects people "against unreasonable searches and seizures," and generally requires law enforcement officers to get a warrant before searching someone's home or personal effects. In order for the Fourth Amendment to apply, a person must show that he or she has a "reasonable expectation of privacy" in the place being searched or thing being seized. But courts have consistently found that a person has no expectation of privacy in physical characteristics like fingerprints, and that a police may therefore require that a person give fingerprint samples. So requesting a fingerprint to open a phone likely doesn't violate the Fourth Amendment's reasonableness requirement. In terms of search warrants, they must be based on probable cause, and "particularly [describe] the place to be searched, and the persons or things to be seized." This has generally been interpreted to mean the warrant must be narrow in scope, but, as Electronic Frontier Foundation staff Andrew Crocker told the Washington Post, a warrant that "extended to include any phone that happens to be on the property, and all of the private data that that entails" could stretch those limits. Fifth Amendment Concerns The Fifth Amendment, on the other hand, protects people against self-incrimination and could apply to warrants for biometrics in certain circumstances. In general, courts have not found fingerprints, by themselves, to be self-incrimination because they aren't "testimonial" in the sense that they don't amount to a statement about something. But does that necessarily mean that officers can force you to use your fingerprint to unlock your phone? Law professor and blogger Orin Kerr looked at three such scenarios and opined that, as long as the officers already know that the phone is yours, the answer is probably yes. At that point your fingerprint would not be telling officers anything they didn't already know, or, as Kerr put it, "No testimonial statement from the person is implied by the act of placing his finger on the reader." But when -- as in the case above that involves a search of a residence with multiple phones and multiple people -- cops don't know which device belongs to whom, being forced to unlock a phone could be testimonial: It amounts to testimony that says, "yes, this is my phone," or at least, "yes, this phone was set to recognize a part of my body as a means of access." It further says: "I am familiar enough with this phone to know that the fingerprint reader was enabled and which part of me was used by me to program the fingerprint reader." According to Forbes, the warrant in this case is "unprecedented," but we may see similar warrants as more people use their fingerprints to secure their smartphones. If you've been subject to a similar search, you should contact a criminal defense attorney as soon as possible. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) Do You Have to Let Cops Search Your Cell Phone? (FindLaw Blotter) Cell-Phone Fingerprint Ruling: 5 Things You Should Know (FindLaw Blotter) Geo-Tracking: Should Phone Location Info Require a Warrant? (FindLaw Blotter)
continue reading

Your Significant Privacy Interest in Your Phone Doesn’t End at Border

Your phone now contains more information than ever before, more even than your home, and the courts recognize this. You do have a significant privacy interest in your phone and you can challenge a search of your tech just as you would a search of your car. Two years ago, the Supreme Court acknowledged the significant role of technology in our lives in Riley v. California. A recent case out of the Eastern District of Virginia, US v. Kolsuz, illustrates this, saying specifically that search of a smartphone at a border requires reasonable suspicion, according to legal analyst Orin Kerr. Let's consider what it means for you. Attached to our Phones Chief Justice Roberts, writing for a unanimous court in Riley v. California, was cognizant of the role that cell phones play in contemporary life, and our significant attachment to our tech. The phone are, he said, "such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy." In the more recent case, US v Kolsuz, the court rejected prosecutors' attempts to distinguish between two kinds of searches -- an extensive cell phone search from a very extensive one. The court found that either type of forensic search of cell phone data invades privacy and requires a warrant. It noted that the government can reconstruct an individual's private life by putting together the data in the phone and wrote, "Thus although the forensic search of defendant's iPhone did not involve the copying of every bit of data contained on the phone's hard drive, it nonetheless implicated significant privacy interests. To suggest otherwise is like suggesting that a strip search does not implicate a significant privacy interest so long as the government does not look between the person's toes." Search and Seizure The courts are increasingly finding we have a significant privacy interest in our technology, and recent rulings indicate that police must treat personal items like smartphones as they would your home or person. But remember that these cases arise when someone is challenging what already happened. This means that in reality when you are at the border, authorities may ask to search your phone and it is up to you to say no. Even if your phone is taken, you significantly improve your chances of successfully challenging the search by clearly refusing to consent to it. Accused? If you have been accused of a crime, don't delay. Speak to a criminal defense attorney today. Many lawyers consult for free or a minimal fee and will be happy to assess your case. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) Probable Cause (FindLaw's Learn About the Law) Police Misconduct and Civil Law (FindLaw's Learn About the Law) The Fourth Amendment Warrant Requirement (FindLaw's Learn About the Law)
continue reading

Top 9 Search and Seizure Questions

Now that the FBI has been caught bugging two California courthouses, many people are wondering about the limits of police surveillance. Recording conversations falls under the Fourth Amendment, which prohibits "unreasonable searches and seizures." So what's considered unreasonable? It's been a long time since the Constitution was written, and society and technology have changed quite a bit since then. Here are some of the limits of police search and seizure today: 1. Valid Search Warrant? 3 Things to Look For If police have a warrant, the search or seizure will almost always be reasonable. But how do you know if the warrant is legit? 2. When Are Warrantless Searches OK? While police need a warrant to search, seize, or conduct surveillance in most instances, there are quite a few exceptions to the warrant requirement. 3. Can Police Read or Search Through Your Mail? The privacy of written communication was one of the leading interests behind the Fourth Amendment. But it only protects the contents of the letter, and only until you throw it away. 4. Legal for Police to Read My Text Messages? State law on electronic searches can vary, and many allow searches of cell phones if you've been arrested, but the Supreme Court has ruled that police will need a warrant to do so. 5. When Can Police Search Your Home? Police almost always need a warrant to search your home, but can come in without one if you give them permission, if they see something in plain sight, if you've been arrested at home, or there's an emergency. 6. Can My Home Be Searched If I'm on Parole or Probation? Some states require that parolees and probationers sign an agreement giving officers permission to search their homes for contraband. 7. Is it Legal to Search Based on The Smell of Marijuana? Is every officer a K-9? It may depend on whether police smell marijuana in your house or in your car. 8. Can Police Follow You Without a Warrant? What if cops are really searching you, but just keeping an eye on you? What kind of surveillance requires a warrant? 9. When Can Police Conduct a Strip Search? Strip searches and cavity searches are extremely invasive and can be humiliating and embarrassing as well. But they are allowed in some cases. In most cases, if police perform an illegal search or seizure, that evidence can't be used against you. To find out if a particular search was legal, you should ask an experienced criminal defense attorney about your case. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) What are my Rights During a Traffic Stop? (FindLaw Blotter) Can Cops Pose as Cable Repairmen and Search My Home? (FindLaw Blotter) Wrongful Arrest? ...
continue reading

Cops Track Suspects Using Spotify and Netflix Accounts

Do you think you're being sneaky? Think again. Big Brother is always watching. In the old days, police tracked debit and credit cards to find the bad guys. Now, that most on the run criminals know not to use their credit cards, the authorities have a new tactic. They're tracking your Spotify and Netflix accounts! Mother on the Run In a case of parental kidnapping, Brittany Nunn, of Wellington, Colorado, allegedly abducted her six- and four-year-old daughters, skipping town during a contentious custody dispute with the children's fathers. Nunn and her husband Peter Barr managed to elude authorities for eight months. The family was finally found in Cabo San Lucas, Mexico, after the Larimer County Sheriff's Office, with a warrant, tracked Nunn's IP address through her Spotify and Netflix account. Mexican authorities arrested the couple and deported the whole family back to the United States. Nunn and Barr were arrested in Colorado on charges of violation of custody, and the two girls were placed in their fathers' custody. Privacy Rights Are you worried about the government tracking you now? Unless you've committed a crime, you probably don't have to worry. Police need a search warrant to search and track your private accounts. Warrants The Fourth Amendment of the U.S. Constitution states, "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." To search your home or private information, including your Netflix account, police, generally, must have a warrant. To get a warrant, police must show that they have probable cause. Probable cause exists if the facts currently known to the police give them a reasonable belief that a search will reveal relevant evidence. Ideally, warrants specifically describe what will be searched and what police expect to find. According to reports, the Sheriff's Office had a warrant to search and track Nunn's Spotify and Netflix accounts, and the courts don't just give out warrants willy-nilly. Learn from Nunn and Barr's mistake. If you ever do go on the run, leave your credit and debit cards at home and your Spotify and Netflix accounts signed off. Related Resources: Spotify account leads cops to alleged child abductors (Engadget) Valid Search Warrant? 3 Things to Look For (FindLaw's Blotter) Probable Cause (FindLaw's Learn About The Law) Woman Gives Cop Fake Name, Gets Arrested on Warrants (FindLaw's Legal Grounds)
continue reading

Police Dashcam Video Can Be Key to Your Case

Police dashcams are tiny eyes on almost all law enforcement encounters, and they may be key to winning your criminal case. In the past, police misconduct might go unreported because there was no evidence -- like the classic "your taillight is busted" scenario. Now officers who act illegally are being caught by their own dashcams, and defendants are using them to dismiss cases. How can a dashcam video affect your defense? Here are three ways they can potentially be used in litigation: 1. To Prove No Law Was Broken. Especially in DUI cases, it is important for the prosecution to prove that a suspect's car was pulled over on reasonable suspicion of criminal activity. If the officer states that a defendant was pulled over on suspicion of breaking a traffic law (e.g., changing lanes without signaling), then a dashcam video should confirm that. However, if the dashcam video shows that a defendant made no traffic violations before police pulled him or her over, any charges may be dismissed. If a traffic stop was performed illegally, any evidence which was obtained after the stop can be excluded from trial. If the evidence which would be excluded is the primary evidence in the case, a defense attorney can move for dismissal. 2. To Illustrate Police Misconduct. Dashcams can be useful to clear a defendant of wrongdoing and also to prove that the cops did do something wrong. In a New Jersey case, Marcus Jeter, 30, was cleared of resisting arrest and assault charges after a dashcam video revealed that two police officers were the actual aggressors, ABC's "Good Morning America" reports. Not only can dashcam evidence of police brutality and excessive force be key to getting your own criminal charges dismissed, it can be the smoking gun in a police brutality lawsuit. 3. To Highlight Problems With Your Case. Obtaining a dashcam video may also help your criminal defense attorney to better understand the flaws in your defense. If the dashcam video shows you drunk and belligerent, your attorney may attempt to file a motion to exclude that evidence. Failing that, you and your attorney can strategize about how the prosecution will use the dashcam footage -- possibly painting you in a poor light -- and can plan accordingly. For better or for worse, dashcam footage is compelling evidence and may make all the difference in your case. Related Resources: Dashcam Clears Bloomfield Man Of Resisting Arrest; 2 Officers Charged (New York's WCBS-TV) Family Releases Video of Man Being Run Over by Cop (FindLaw's Blotter) N.M. Cops' Minivan Shooting Comes Under Fire (FindLaw's Blotter) Randy Travis Sues Over DWI Dashcam Video (FindLaw's Celebrity Justice)
continue reading

Warrantless Home Search OK If 1 Occupant Consents: Sup. Ct.

Police can search a shared home without a warrant as long as an occupant who is present consents to the search, the U.S. Supreme Court ruled Tuesday. In a 6-3 decision, the High Court affirmed that police don't need the permission of all occupants in a shared residence, as long as officers have the agreement of at least one resident who is physically present, The Associated Press reports. Does this ruling in Fernandez v. California erode the protection against warrantless searches offered by the Fourth Amendment? Consent to Search a Shared Home One of the founding principles of the Fourth Amendment is the warrant requirement, which obligates law enforcement to obtain a warrant before searching a person or his or her home. There are, however, notable exceptions to the warrant requirement which allow police to search even the most private of places -- like a private residence -- without a warrant. One of the more common sense exceptions to the warrant requirement is when a resident gives the police permission by consenting to the search of his or her home. But what happens when two residents disagree on letting police search their shared home? In Georgia v. Randolph, the U.S. Supreme Court recognized that when police seek to search a shared residence without a warrant, residents can disagree about allowing the search. The Court in Randolph ruled that as long as the resident was physically present and denied the officers entry, the search of the shared home would be illegal with regard to him or her. When You're Gone, No Right to Dispute This Randolph rule only applies when you are physically present to dispute consent to officers wanting to search your shared home without a warrant. In the Fernandez case, Walter Fernandez was in police custody when police asked his abused female partner, Roxanne Rojas, if they could search their home. The U.S. Supreme Court noted that it didn't matter that Fernandez had refused police access to the home moments before he was arrested. What mattered was that Fernandez was not present to object when police returned and requested to search the home -- which Rojas agreed to. The dissent, written by Justice Ruth Bader Ginsberg, worries that this ruling flies in the face of the warrant requirement, and allows police to search homes even when it would be very simple to obtain a warrant first. Related Resources: Supreme Court Allows Disputed Home Searches Without Warrant (NBC News) N.J. Court: Cell Phone Data Tracking Needs Warrant (FindLaw's Blotter) Police DNA Swabs OK Upon Arrest: Supreme Court (FindLaw's Blotter) Can You Refuse to Answer Police Questions? (FindLaw's Blotter)
continue reading

What Evidence Is Needed for a Search Warrant?

When it comes to obtaining a search warrant, what evidence do law-enforcement agents need? In general, search warrants are governed by the Fourth Amendment of the U.S. Constitution. That means there must be probable cause to issue the warrant, based on an affidavit that describes the persons or things to be searched and seized. So what is probable cause and what goes in a search warrant affidavit? Probable Cause for a Search Warrant Probable cause means that law enforcement must have a legitimate and reasonable reason to search or seize someone's property or to make an arrest. An officer who's seeking a warrant must specify his reasons for believing that: A crime was committed at the place to be searched, and/or Evidence of the crime is located there. However, police don't need to be 100 percent certain that a crime was actually committed at the place to be searched in order to have sufficient probable cause for a search warrant. Those uncertain issues can be brought up later at trial. For example, if a reliable informant told police that a house was being used to manufacture and sell drugs, and officers notice lots of foot traffic at all hours, they may have enough probable cause to ask a judge for a warrant -- even if they aren't totally certain that drug deals are occurring in the home. Search Warrant Affidavits The circumstances giving rise to the probable cause must be stated in an affidavit before a judge will grant a search warrant. An affidavit is a written statement of facts that is made under oath. The key here is that the law-enforcement officer is swearing to the court that his facts supporting probable cause are accurate to best of his knowledge. The person making the affidavit can be guilty of perjury if he knows the information he's giving is inaccurate, but proceeds anyway. An affidavit can include: An officer's own observations of criminal or suspicious activity, and/or Information from a third-party informant who may or may not be identified by name. Because this can be considered hearsay, a judge will also consider the veracity (or truthfulness) of the informant along with the informant's basis of knowledge. Based on the facts given in the affidavit, the judge will determine if there's enough probable cause to issue a search warrant. Although search warrants are needed before searching a home in most cases, police may not need one if there are exigent circumstances that require them to search the property immediately. And as mentioned above, search warrants can also be challenged in court; if a warrant is found to be invalid, all evidence collected pursuant to the warrant can potentially be thrown out. If you have questions about how a search warrant was issued in your particular case, you'll want to discuss it with an experienced criminal defense lawyer right away. Related Resources: Valid Search Warrant? 3 Things to Look For (FindLaw's Blotter) When Can Police Search Your Home? (FindLaw's Blotter) Drug Dogs Can't Sniff Homes Without Warrant (FindLaw's Blotter) Ask a Question About Investigations, Arrests, and Trials in Our Community Forum (FindLaw Answers)
continue reading