This summer the Idaho Supreme Court considered the circumstances in which a law enforcement officer may make an arrest for a misdemeanor not committed in his or her presence. State v. Clarke involved an arrest for misdemeanor battery reported by a woman in a park. She claimed Clarke had harassed her and grabbed her rear-end. Clarke admitted he had touched
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People frequently ask questions about search and seizure, particularly when the search is not conducted pursuant to a warrant. The Constitution prohibits unreasonable searches. A warrantless search is unreasonable unless an exception to the warrant requirement applies. One common exception permits an officer to conduct a limited “pat-down” search of a detained person for weapons. This type of search originated
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           Will Young is an associate attorney with Peterson Lawyers. He writes today’s post:

           The Supreme Court unanimously ruled yesterday that the police must acquire a warrant before searching a cell phone seized from someone they arrest. Chief Justice John Roberts, writing the opinion on behalf of the Court, acknowledged both the individual’s right to privacy and the State’s need to investigate crime, but the decision came down strongly on the side of privacy rights.

            Roberts pointed out “[I]t is no exaggeration to say that many of the more than 90% of American adults who own a cellphone keep on their person a digital record of nearly every aspect of their lives – from the mundane to the intimate.”

            This is a fact that many people don’t consider until it is too late. Think about all the information someone would have access to if they were to search through your cellphone. Your email? Pictures? Calendar? Text-messages? This is information that can be found on a device in nearly every pocket in the United States. Roberts went so far as to acknowledge how even the term “cellphone” is itself misleading; “many of these devices are in fact minicomputers…[t]hey could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”

           Three years ago we noted that this issue was headed for the Supremes. See that post here.

            In addition to broad range of information stored on your cellphone, the Court also took into account the information that can be accessed from a cell but is stored in “the cloud.” Searching this data is “like finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house,” wrote Roberts.

            While this decision may defend against an unwanted police search of your cellphone, the real lesson of today’s ruling is password lock your phone. While technology gives us easy access to vast amounts of personal and public information, these devices are too easily lost, stolen, or searched for you not to protect yourself.

            Now what do you suppose would happen if the police seized your phone and then could not break your password? Would there be any way for that information to be retrieved? Is your password information held anywhere besides your phone?

            And just what will it take to get a warrant to search the phone those officers grabbed when you were arrested? Will a generic “based on my training and experience I know that information relating to the commission of crimes is often found on cellphones” type affidavit from a cop be enough?

            

 


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 Once again we see that our right to be free from unreasonable search and seizure finds too few friends in the United States Supreme Court. The issue in Navarette v. California, decided this week, was whether the fourth amendment requires an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate the claim of


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A former engineer has been charged with destroying over 200 emails that were requested by prosecutors and investigators in the 2010 BP Gulf oil disaster. One of those emails reported that the spill was far worse than had been reported by BP.

According to CNN, Kurt Mix faces charges that he intentionally destroyed evidence that had been requested by


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Courtney has today’s blog entry – and she looks at probable cause.

I just found out I’ve been driving around with only one working tail light and it got me thinking about reasonable suspicion and DUI. The only thing a police officer needs to pull you over is reasonable suspicion that a crime has been or is being committed. One of the most common complaints we hear when a person has been charged with driving under the influence is that their driving was fine, they can’t imagine why the officer had reason to pull them over, and it must be entrapment. Reasonable suspicion is easy. It can be as obvious as my burned out tail light or as minute as not having a turn signal on for at least five seconds after a stop sign (which is the law in Idaho, by the way). Most DUI stops occur early in the morning after the bars have closed. People cry entrapment because an officer parked near the bar and followed them after leaving. That’s not entrapment. Just leaving the parking lot of a bar is not generally enough for an officer to pull you over. They’ll just follow you for a bit and wait until you do something that gives them the right to pull you over. There’s your reasonable suspicion. Once you’re pulled over for "weaving inside the lane" or going one mile over the speed limit, they’ve got a chance to see if you’re under the influence. Stop leads to field sobriety tests, a breathalyzer demand and maybe – a DUI.

Here’s one more thought:  When a police officer pulls you over, what is the first thing he or she always asks? Even before you’re asked for your license and registration, it’s the same question every time.

“Do you know why I pulled you over?”

And do you know what you should say every time they ask you? NOTHING. Absolutely nothing. The officers are looking for an admission. They want you to tell them why they should have pulled you over. If they’ve got you for failing to use your blinker and you tell them you were speeding, how many tickets do you suppose you’ll get? My guess is two.

Have a question relating to a traffic stop?  DUI?  Reckless or inattentive driving?  Give us a call.

Charged with a DUI and wonder if the stop was legit? Give us a call.

 


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 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


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 Did you know that a person can be seized? Of course you knew that – you’ve undoubtedly heard of "arrest." But what about that seizure that is somewhere between arrest and "no where to run." All of this matters because if you have been "seized" there is a duty to advise you of your right to remain silent if the


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