Posted on April 25, 2011 by Chuck Peterson

Back to Defending People - And the Business of Federal Cases

 Thanks again for the nice thoughts about my Dad - but even he would want me back in the saddle and getting ready for trial. Before I get deep into trial mode (two weeks and counting), I wanted to take a minute and answer a question about federal criminal sentencing. A prospective federal client asked me about the use of the federal sentencing guidelines.  How might a sentence differ under the guidelines from a state proceeding?

The guidelines used in federal court work off a grid system.  Each offense gets a numerical score that is reflective of the perceived severity of the crime.  You can expect that an illegal re-entry by an alien has a lower score than an assault on a federal agent.  The second component of the grid has to do with calculating the criminal history of the defendant.  A person with more crimes in his or her past will be treated more harshly under the guidelines than a first time offender.  The combination of the two factors - severity of the offense and the criminal history of the defendant - result in a "guidelines sentencing range." The Court is not bound by that range and it may increase or decrease the punishment based on the circumstances of the crime and the offender. That ability to increase or decrease punishment makes the system more like the state system than during the years that the guidelines range was followed without consideration of other factors.

So the difference now - after the Supreme Court ruled that the guidelines range is not mandatory - is not, perhaps, as great as it was ten years ago. In Idaho state courts there is no sentencing grid to start the calculation, rather the courts focus on protecting society, the need for rehabilitation, deterrence of others from criminal conduct and society's need for retribution or punishment. 

If you are charged in federal court, sit down with a lawyer who is familiar with federal criminal practice and go over the guidelines calculations as you consider your future. The sentencing guidelines make it possible to know where the court will start its sentencing consideration, but your past and the nature of the crime will ultimately decide what sentence is imposed. 

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Posted on April 6, 2011 by Chuck Peterson

Does A Search of Your Cell Phone's Text Messages Require A Warrant? California Says No.

 Let's just say that your are leaving the parking lot of your favorite convenience store.  Slurppy in one hand, cell phone in the other. An unmarked car stands by and hidden from view an officer watches your moves. You get into your car and back out. The unmarked runs interference and a couple of squad cars appear.  

"Do you know why I stopped you," the officer asks.

"No...."

"You've got a broken tail light. Please step out of the car."

You do and the officer asks if you have anything in the car that might be a "problem."  You read that as drugs and remember that there is a little bit of pot hidden in a glove box.  Better to take the hit then extend the contact you reason, so you admit to the pot and the cop retrieves the marijuana and your cell phone.  He taps the text message icon and sees "1lb 4 1000" flash across the screen. Later the cops find that there is a pound of marijuana hidden in the spare tire in your trunk.  Can the text message be used as evidence at trial? The officer says the text translates to "one pound for $1000."

The California Supreme Court says it can in a case (People v. Diaz)  decided in January. The text on the phone read "6 4 80" referring to six ecstasy pills for $80.  Ohio has come to a different conclusion in Ohio v. Smith, decided in 2009. There the State's highest Court held that unless the officer's safety is at stake or there is an emergency, the Fourth Amendment prohibits a warrantless search of a cell phone seized during a lawful arrest.  

The general rule is that officers may search a person incident to arrest. Assuming they get the cell phone lawfully, they may be required to wait for a warrant (Ohio) or may be able to search immediately (California).  The matter is likely headed to the Supreme Court for consideration.

Two things seem clear to me: first, the search of a cell phone has nothing to do with the original exception to the warrant requirement for the search incident to arrest. Officer safety is not the issue when the police are going through your phone. Second, there is so much data on our "smart" phones that a search will really get to potential "private" information.  

What would our Idaho Supreme Court rule? Hard to tell but increasingly it seems that they are writing decisions that more strictly follow the constitutional requirements for search and seizure. 

And if you are a lawyer - think about all the stuff we have on our phones that comes from clients. Email, photos, text messages and documents relating to our cases are all there for the taking. Time to get careful with the way we store information.

Have a phone story? Send me your comment.

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Posted on April 5, 2011 by Chuck Peterson

Guns On Campus - What do you think?

 A reader of this blog sent me a link to a post on matchcollege.com that identifies ten colleges that permit students to show up for class "armed and dangerous."  This is an interesting reminder that the debate has been resolved in some locales. 

I grew up in Montana. Every male student took shop class and nearly everyone built two projects as part of the class:  a gun rack for home (neatly cut from wood, stained, and trimmed in felt to protect your hunting rifles) and a gun rack for use in your truck (metal shop variation).  I never had a truck but I made both racks just in case. I tried to fit the truck rack into my Mazda 1200 wagon but it never quite fit. My point, though, is that guns were just part of life. During hunting season there might have been a hundred guns safely tucked away in trucks and cars in the Sentinel High parking lot.  

They would never have taken the home of the Spartans alive.

So are guns on campus a big deal? In the west? How about Philadelphia or Chicago? Apparently not at the ten schools identified in the post.

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