The Cautionary Instruction: High Court rules cellphone contents protected

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 27, 2014
The U.S. Supreme just made it more difficult to continue an investigation of criminal conduct incident to the arrest of a suspect.
In Riley v. California and United States v. Wurie, the court said that with rare exceptions, the Fourth Amendment requires that police obtain a search warrant to probe the contents of cellphones in the possession of arrestees. Rejecting government assertions of the need for quick access to the contents of cellphones, the court stressed the damage to personal privacy that would result from police seizure of devices that “place vast quantities of personal information literally in the hands of individuals.”
The law prior to these decisions provided that an arresting officer may search an arrestee to discover and remove weapons and to seize evidence to prevent its concealment or destruction. Included in virtually every search is a cellphone.
“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ ” Chief Justice John Roberts Jr. wrote for the court. He added that cellphones and smartphones are “now 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.”
While the decision will offer protection to the 12 million people arrested every year, many for minor crimes, its impact will most likely be much broader. The ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies, wrote Adam Liptak of the New York Times.
“This is a bold opinion,” said Orin S. Kerr, a law professor at George Washington University. “It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”
The court also held that while the police may not search the cellphone data, they may search the cellphone itself to make sure it cannot be used as a weapon. Justice Samuel Alito filed a concurring opinion, noting that he was not convinced that the rule on searches incident to arrest is based on the need to protect the safety of the arresting officers and the need to prevent the destruction of evidence.
The justices said the police are not “without specific means” to address their concern about the remote wiping of a cellphone to remove evidence. “Remote wiping can be fully prevented by disconnecting a phone from the network,” Roberts wrote. The authorities, he said, can turn the phone off or remove its battery.
(Image: Evan Vucci/Associated Press)

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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GateHouse: The battle against impaired driving rages on

Matthew T. Mangino
GateHouse News Service
June 27, 2014
A 2012 report found that deaths resulting from impaired driving, commonly referred to as drunk driving, fell below 10,000 for the first time since researchers began tracking such numbers. Advocates for tougher impaired driving laws were thrilled. When the National Highway Traffic Safety Administration released new data in fall 2013, those same people were deflated.

The statistics reflected an increase. For the first time in six years, impaired driving deaths rose. The increase was substantial, almost 5 percent. There were 10,322 impaired driving fatalities in 2012 — compared to 9,865 in 2011.

Has a 20-year downward trend been reversed?

If it has, it is not the result of young people getting behind the wheel while impaired. Fewer teens are drinking and driving, according to researchers at the Centers for Disease Control and Prevention. The CDC found that drunken driving among teens has decreased by 54 percent over the last 20 years.

Driving while impaired accounts for about one-third of all traffic fatalities. According to the NHTSA, overall traffic fatalities increased to 33,561, which is a 3.3 percent increase.

For years researchers have believed that deaths on America’s highways are preventable, and they have adopted measures to prove it. They have identified policies that help keep impaired drivers off the road. Between 1991 — when there were 15,827 impaired-driving deaths — and 2012 — when there were 10,322 — the rate of impaired driving fatalities per 100,000 people decreased 48 percent nationally, according to the NHTSA.

Great strides have been made in combating impaired driving.

Since 1992, when the NHTSA first recommended to Congress that states reduce the legal impairment threshold from .10 blood alcohol content to .08, all 50 states and the District of Columbia adopted the lower impairment standard.

Other initiatives, like ignition interlock, have saved lives. Ignition Interlock is an in-car Breathalyzer, a device that can be installed to prevent people who have consumed alcohol from driving. They are installed after a driver has been convicted of driving while impaired. Data show that legally impaired drivers involved in fatal crashes were eight times more likely to have a prior DWI conviction than drivers who had not been drinking, reported the CDC.

Research shows that ignition interlocks can reduce the rate of re-arrest among drivers convicted of driving while impaired by two-thirds.

Another effective tool is the sobriety checkpoint. Law enforcement officers stop all drivers on a designated road to assess their level of alcohol impairment. Checkpoints deter impaired driving by increasing the drivers’ perceived risk of arrest if they choose to get behind the wheel impaired.

Research has shown that checkpoints reduce impaired driving crashes and deaths by as much as 20 percent, according to the CDC.

What is on the horizon in the battle against impaired driving?

Researchers are currently trying to develop a breath test to detect marijuana use for purposes of investigating impaired driving. Technology exists to use roadside testing for alcohol. Preliminary breath tests, or PBTs, are frequently employed by law enforcement agencies.
Researchers in Poland have developed a new tool that employs lasers to detect alcohol in moving vehicles from the side of the road. The technology was developed by the Military University of Technology in 2013.

When alcohol is detected in a vehicle, the device sends a message to police along with a photo of the suspected vehicle and the license plate number. This gives law enforcement the ability to pull over a vehicle and determine whether a driver is intoxicated.

Even without advanced technologies, the war wages on. According to FBI statistics, every year police officers across the country arrest about 1.4 million motorists for driving while impaired.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com, and follow him on Twitter at @MatthewTMangino.

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Book Review: Dignity Rights: Courts, Constitutions, and the Worth of the Human Person. By Erin Daly

This review by Matthew T. Mangino appeared in the April, 2014 edition of The Champion a national publication of The National Association of Criminal Defense Attorneys.

Erin Daly tells us that law is a practical enterprise that deals with a real problem in real peoples’ lives.  With that as a backdrop, Daly takes off on an ambitious journey to explain the evolution of dignity in American, and the world’s, jurisprudence.  Dignity Rights: Courts, Constitutions, and the Worth of the Human Person is worth the effort.

There was a  “cavalcade” of constitutional dignity rights after World War II. There was no denying that phenomenon as policymakers came to terms with the horrors that occurred in Asia and Europe. In 1948, the Universal Declaration of Human Rights (UDHR) inspired the postwar constitutional drafting.

By the end of World War II the U.S. Constitution had been examined, reviewed, analyzed, interpreted, expanded, restricted, revered and condemned countless times.  With that being said, the U.S. Constitution never mentions dignity.

Maybe that’s why the concept of human dignity has been a late-comer to American jurisprudence.

 Daly, a professor at Widener University Law School wrote, “The influence of World War II on dignity jurisprudence in America is visible, though less pronounced than in some other countries.”

            The U.S. Supreme Court’s first mention of dignity as an individual right is a fleeting reference in Skinner v. Oklahoma in 1942. In a 1945 dissent in U.S. v. Screws, Justice Frank Murphy wrote, “The right was his…because he was a human being. As such he was entitled to all the respect and fair treatment that befits the dignity of man.”

From the mid-twentieth century up through the present, Daly points out that the concept of dignity arose “most clearly in the context of the police state, as defendants and inmates argued forcefully that the investigative, prosecutorial and punitive practices of the government violated their individual dignity.”

In Miranda v. Arizona the Supreme Court wrote of oppressive interrogations as “destructive of human dignity.” In Roper v. Simmons, the court outlawed the execution of juveniles.  The Court wrote, “The basic concept of the Eighth Amendment is nothing less than the dignity of man.”

Although dignity has seeped into high court decisions, Daly writes, “It cannot be denied that the U.S. Supreme Court has so far declined to embrace human dignity with the ardor of its global peers.” In fact, 95 percent of the opinions from the Roberts Court do not mention dignity and half of those that do mention dignity in connection with inchoate ideas.

Daly explains there is more to the story of the U.S. Supreme Court’s inattention to human dignity. The court has sparred over exactly what dignity means and what dignity is.  In a controversy over the right of self-representation at trial, Justice Stephen Breyer wrote that such action “will not ‘affirm the dignity’ of a defendant who lacks the mental capacity” to defend himself.   Daly wrote that Breyer “holds that the state can limit a person’s choice in order to enhance his or her personal dignity.”

Justice Antonin Scalia unabashedly takes another approach.  He wrote, in dissent, in Indiana v. Edwards, “the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the state—the dignity of individual choice.”

Daly reminds us of what Lincoln said more than a century and a half ago, when vital questions are left to the Supreme Court, “People will cease to be their own rulers.”  Daly doesn’t see it that way.

The dichotomy on the court with regard to dignity is a product of conservative and progressive agendas of the respective jurists.  There are fundamental differences as to the state’s role in supporting dignity.

As the role of government in promoting dignity evolves around the world there is no denying that the commitment to democracy is on the rise.  Daly asserts, as democracy spreads a new version of the judicial role it allows the people, their government and courts to work together to develop policy with constitutional values.

Daly suggests that dignity jurisprudence promotes democracy by recognizing that “[E]ach person has one very important, very valuable asset that is inalienable and irreducible and infinite”—dignity.  The concept of dignity also permits democracy to thrive, especially in the middle class.  Judicial pressure on political branches of government can promote worthy causes such as eradicating “extreme poverty.”  Finally, jurisprudence of dignity invites people into public discourse.

Daly wraps the connection of dignity, democracy and jurisprudence into a neat little bow.  Constitutions and courts protect human dignity.  People feel dignity—they are empowered and increasingly participate in politics.  That power forces policymakers to listen.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. in New Castle, Pennsylvania. You can read his blog every day at www.mattmangino.com and follow him on twitter @MatthewTMangino)

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Violence Policy Center: Gun related deaths on the rise

States with weak gun-control laws and higher rates of gun ownership tend to have higher rates of gun deaths, while states with stronger policies and fewer gun owners have significantly lower rates of gun-related deaths, according to a recent Violence Policy Center study.
Analyzing 2011 data from the Centers for Disease Control and Prevention, the report found that the state with the highest gun death rate, which includes murder, accidental shooting deaths and suicides, was Louisiana, where 18.91 per 100,000 residents died by gun violence and nearly 46 percent of households owned guns, reported The Huffington Post.
Mississippi, Alaska, Wyoming and Montana had the next highest rates of gun deaths, while Rhode Island ranked as the state with the lowest rate of deaths by firearms at 3.14 per 100,000, followed by Hawaii, Massachusetts, New York and New Jersey.
Nationwide, guns killed 32,351 people in 2011 -- a 679-person increase from the previous year -- for an average gun death rate of 10.38.
On both a statewide and federal level, America’s firearm-related death rate significantly outnumbered most other Western industrialized countries. The 2011 gun death rate in Australia was 0.86 per 100,000 and in the United Kingdom it was 0.23 per 100,000.
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California's prison realignment not making the grade

Nearly 15 months after starting the "boldest move in criminal justice in decades," California Gov. Jerry Brown declared victory over a prison crisis that had appalled federal judges and stumped governors for two decades. Diverting thousands of criminals from state prisons into county jails and probation departments not only had eased crowding, he said, but also reduced costs, increased safety and improved rehabilitation. "The prison emergency is over in California," Brown said last year, reported the Los Angeles Times.
The prison population fell sharply at first, dropping from 162,400 to 133,000, but it is rising again. There now are 135,400 inmates in state custody, a number expected to grow to 147,000 in 2019.
The state Finance Department originally projected that realignment would reduce prison spending by $1.4 billion this fiscal year and that about two-thirds of that savings would be passed on to counties to cover the costs of their new charges.
Instead, the state's increased costs for private prison space and the compensation it pays out for county jails, prosecutors and probation departments adds up to about $2 billion a year more for corrections than when Brown regained office.
Without stemming the flow of prisoners into the system, the problems created by crowding continue. The Little Hoover Commission, an independent state agency that investigates government operations, said in a May report that realignment simply "changed the place where the sentence is served."Many jails are now overcrowded, and tens of thousands of criminals have been freed to make room for more. Brown insists his plan is working, although he has conceded that change can be slow. "It is not going to create miracles overnight," he said this spring. The governor's office has embraced the idea that much of the incarceration, probation and rehabilitation cycle should take place on the local level, instead of being left to the state. Putting prisoners back in local hands "is encouraging and stimulating creative alternatives," he said.
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Florida expands 'stand your ground' to warning shots

An update of Florida's controversial "Stand Your Ground" law allows Floridians who threaten to use a gun or who fire a warning shot to protect themselves the chance to avoid criminal prosecution, reported ABC News.

The change, signed into law June 20, 2014 by Gov. Rick Scott, was partly inspired by the case of Marissa Alexander who was sentenced to 20 years in prison after firing a shot during a dispute with her allegedly abusive husband.

Alexander's lawyers attempted to claim self-defense and that it was a warning shot, but the jury found Alexander guilty and she was sentenced to 20 years in prison under Florida's current sentencing rules.

An appellate court later overturned the conviction and ordered a retrial for Alexander.

Alexander's defense team said they are "grateful" for the change in the law.

"We learned today that Governor Rick Scott has signed the corrective Stand Your Ground Bill, which was advanced by the legislature as a result of concern about Marissa's case among others," read the statement. "We are of course grateful for the governor's actions."

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Florida carries out third execution nationwide in 24 hours

The 23rd Execution of 2014
In the third execution nationwide in less than 24 hours, a three-time Florida murderer John Ruthell Henry was put to death by lethal injection on June 18, 2014, according to The USA Today.
The execution of Henry was the state's 13th since April 2013 and the 18th since Gov. Rick Scott took office in 2011. The trio of executions Tuesday and Wednesday were the first since the botched lethal injection of an Oklahoma killer in April.
Henry, 63, was pronounced dead at 7:43 p.m. after being injected with three drugs at the Florida State Prison in Starke.
He was convicted in the 1985 stabbing deaths of Suzanne Henry and her 5-year-old son near Tampa. Two years earlier, he was paroled after serving seven years for brutally stabbing his girlfriend, Patricia Roddy, in 1976.
The U.S. 11th Circuit Court of Appeals and the U.S. Supreme Court rejected Henry's pleas to delay the execution. His attorney argued he had a low IQ, was mentally disabled and therefore should not be put to death under the U.S. Constitution's ban on cruel and unusual punishment.
Henry refused his last meal and was described by a prison official as being calm hours before his death.
He was injected with midazolam hydrochloride, vecuronium bromide and potassium chloride.
Murderers in Georgia and Missouri were executed late Tuesday and early Wednesday after a seven-week pause triggered by the botched lethal injection of Clayton Lockett in Oklahoma in late April.
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