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CELL PHONE SEARCH AND SEIZURE ISSUES -- TWO IMPORTANT SUPREME COURT CASES TO WATCH IN THE WEEKS AHEAD

Max Rieker, Esq.

On April 29, 2014, the United States Supreme Court heard oral arguments in two cases involving warrantless searches of arrestees’ cellular phones.  For the most part, Fourth Amendment review cases by the Supreme Court do not get much attention.  Members of news media are far more interested in hot-button social issues than the minutiae of search and seizure litigation.  However, the cases of United States. v. Wurie (13-212) and Riley v. California (13-132) are of such import that every cell-phone carrying American should take notice of their outcome.  Law enforcement officers should pay particular attention as they will be bound by these Supreme Court decisions which are expected to be released in June.

When most practicing lawyers and current law enforcement professionals were trained, the warrantless search and seizure analyses were largely centered around the concepts of “stop-and-frisk,” “vehicle inventory searches,” the “Plain View Doctrine,” consent searches, the “emergency circumstance exception,” “searches incident to a lawful arrest,” and the like.  Since that time, technology has advanced both in the area of potential law enforcement capabilities and in personal electronic device capability, both of which have greatly complicated the warrantless search equation for all involved.

For instance the decision in Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038 (2001), expressly prohibited law enforcement from using thermal imaging technology aimed at a private home from a public street without a lawful warrant to do so.  In Kyllo, the Department of the Interior used a thermal imaging device to detect that a suspect was using high-intensity heat lamps to perpetuate his marijuana growing operation.  Justice Scalia delivered the holding of the split Court,

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.[1]

When Kyllo was released, 53% of American adults owned a cellular phone.[2] These devices tended to be very basic in nature.[3] In 2014, 90% of all American adults own a cellular phone.[4] Of these phones, 58% of them are sophisticated “smartphones” which are essentially hand-held computer.[5] These devices have the ability to receive, store, and transmit fantastic amounts of data.  The public uses these devices to advance any number of business endeavors, including crime.

The basic question pending before the Court is whether the government must obtain a warrant to search data on the cell phone of a person under arrest.  This is a question which must balance the legitimate concerns of law enforcement against the private interest of one’s reasonable expectation of privacy.  Where does one interest end and the other interest begin with respect to the information contained on an arrestee’s cell phone?  Should a cell phone, as a receptacle of information, be treated any differently than a common wallet, purse, brief case, or clothing pocket; or because of its nature as device which often interacts with every aspect of a person’s life, are its contents off-limits to a warrantless search?  The Court must also be cognizant that its decision on cell phones will carry far-reaching implications with warrantless searches of other electronic devices.

In the case of Riley v. California, college student David Riley was arrested in San Diego on a traffic violation.[6] He was driving with an expired registration and with a suspended license.  During the vehicle inventory search, he was found to have hidden loaded firearms under the hood of his car.  Arresting officers searched the contents of his smartphone (pictures, videos, text messages, contacts, etc.).  This data led to the realization that he was part of an organized crime syndicate and it was discovered that Riley was connected with a prior drive-by shooting.  He was convicted in state court on various offenses and sentenced to 15 years imprisonment.

In the companion case, Brima Wurie was arrested in Boston for selling crack cocaine.[7] When questioned, he gave officers a false home address.  Through searching Wurie’s flip phone, officers were able to determine his correct home address and were able to obtain a search warrant.  When his home was searched, more drugs were discovered in addition to weapons and ammunition.  Wurie was convicted in federal court and sentenced to 22 years imprisonment.

In neither case was a warrant sought to search the arrestee’s phone.  Riley’s conviction was upheld.  Wurie’s was overturned in a divided decision by a federal Court of Appeals on the basis of the cell phone search.  The Supreme Court accepted both cases to resolve the conflicting judicial interpretations of the Fourth Amendment.

During oral argument, the justices seemed to be divided on how to reconcile the primary issues at play.  Responding to Riley’s attorney who argued in favor of limiting police authority, Justice Kennedy pointed out that criminals too “are more dangerous, more sophisticated, more elusive with cell phone” than they previously have been.[8] Conversely, Justice Scalia opined that the idea of allowing law enforcement officers to search a cell phone without a warrant after a seat belt violation is “absurd.”[9]

As a practical matter, what observers of this important issue wonder is whether the Court will create a bright-line rule that cell phone content is off-limits to warrantless search; whether the Court will create a bright-line rule that says the ability for a law enforcement officer to search cell phone content is just as permissive as the ability to search the contents of an arrestee’s wallet; or whether the Court will craft a rule somewhere between these two extremes.[10]

Some justices appear to favor a complete prohibition of such phone searches.  Some seem to favor permitting nearly unfettered access to law enforcement searches.  In light of his questions during oral arguments, it appears that Chief Justice Roberts would be inclined to create a new rule which would permit a warrantless search incident to arrest if the potential content of the device is somehow relevant to the purpose of the original arrest.   It will be interesting to see whether he can persuade a majority of his colleagues toward that position.  If Chief Justice Roberts’ apparent inclination comes to pass, it may be the fundamentally correct Fourth Amendment analysis, but would undoubtedly complicate an already complex issue.

The authors of the Fourth Amendment could not have possibly contemplated the concept of an iPhone when drafting the Bill of Rights, but they certainly understood expectations of personal privacy and the need for government to thwart crime.  The centuries-old debate moves forward into a new uncharted era.


[1] Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038 (2001)

[2] Pew Research Center, The Web at 25 in the U.S. (Released February 27, 2014), citing Internet Project Surveys, 2000-2014 (http://www.pewinternet.org/files/2014/02/PIP_25th-anniversary-of-the-Web_022714_pdf.pdf)

[3] The first basic Blackberry model was released in 1999, but did not achieve wide-spread circulation for many years.  The first iPhone was released in 2007.

[4] Id.

[5] Id.

[6] Riley v. California, 134 S. Ct. 999, 187 L. Ed. 2d 847 (U.S. 2014).

[7] United States v. Wurie, 728 F.3d I (1st Cir. 2013).

[8] http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-132_h315.pdf at 26.  Another issue to consider is law enforcement’s ability to retain, record, or otherwise preserve whatever evidence may be contained on a smartphone.  Today, phones can be remotely locked, wiped clean of content, or otherwise rendered useless.  Some savvy law enforcement agencies have taken to using Faraday Bags, which prohibit remote access to the electronic device placed inside the protective bag.  Many Faraday Bags have windows so that content may be visually accessed without compromising the security of the device.

[9] Id at 43.

[10] Interestingly, the California legislature passed a bill (Senate Bill 914) in 2011 which would have required police to obtain a search warrant before searching content of any portable electronic device.  Governor Jerry Brown vetoed the bill and deferred to the courts as the best avenue to resolve case-specific issues related to search and seizure.

 

IN RE CITY OF GREEN: SERB AGAIN TAKES ON THE PART-TIME QUESTION

By:  Mark Volcheck, Esq.

An employer’s attempt to utilize part-time workers to perform work traditionally done by full-time bargaining unit workers can be the source of significant tension and dispute.  Full-time bargaining units generally take the position that their work and potential for overtime should be protected from being contracted out to lesser paid non-union employees.  Among safety forces, full-time units additionally oppose the introduction of part-time employees on the basis of officer safety, as similarly experienced and dedicated personnel are vital to confronting the profession’s dangers.  In the case of In re City of Green, SERB No. 14-01, 2014 OH SERB LEXIS 1 (2/20/14), the State Employment Relations Board held that the City of Green committed unfair labor practices by unilaterally reassigning bargaining unit work performed exclusively by full-time firefighters to part-time non-bargaining unit firefighters and by refusing to bargain collectively with the Union over such reassignment.  The Board’s holding effectively warns employers that any intention to reassign the work of a full-time safety service bargaining unit to part-time employees must be subjected to the procedural protections of fact-finding and conciliation.

Prior to June of 2001, the collective bargaining agreement between the City of Green and its full-time firefighter bargaining unit referenced part-time, non-bargaining unit employees, but as the City moved to an exclusively full-time firefighter staff, the parties agreed to delete part-time references in the agreement.  Since June of 2001, the City’s Fire Department has been staffed exclusively with full-time firefighters/paramedics (firefighters) and the emergency response and related safety-service work performed in the City’s Fire Division has been performed exclusively by full-time bargaining unit members.

In 2010 and 2011, the parties negotiated a successor collective bargaining agreement.  During the first bargaining session for a successor agreement, the City presented the Union with a proposal to eliminate a minimum staffing clause in the collective bargaining agreement that required the City’s Fire Department to be staffed each shift by ten (10) on-duty, full-time firefighters.  Additionally, at this session, the City handed the Union a “Notice of Intent” wherein the City announced its intent “to establish and utilize part-time firefighter/medics to assist in avoiding overtime, covering time off, meeting its service needs and performing duties that it otherwise determines necessary.”

The parties proceeded to fact-finding where the City proposed to eliminate the minimum staffing clause and proposed to add language allowing the City to establish part-time firefighter positions.  The fact-finder rejected such proposal.  At conciliation, the City abandoned such proposals.  Instead, it proposed that minimum full-time staffing be reduced from ten to nine under certain circumstances.  The parties agreed to such language in mediation prior to the conciliation hearing.  Thus, the successor agreement included no language allowing the City to use part-time personnel.

After the successor agreement was executed, the Fire Chief issued a memorandum announcing that the City “will begin using part-time fire medics to supplement (their) response shift staffing in the very near future. . . .”  The Union requested to bargain the issue, but the City refused.  Approximately (3) months later, the City hired part-time firefighters to perform emergency response work.  Thereafter, the Union filed an unfair labor practice charge with SERB alleging that such refusal to bargain and unilateral action constituted violations of R.C. 4117.11(A)(1)&(5).

The Board’s analysis finding the unfair labor practices is plain and clear-cut.  Pursuant to R.C. 4117.08(A), all matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement are subject to collective bargaining between the public employer and the exclusive representative.  Citing an extensive trail of SERB and court precedent, the Board reiterated its consistently held ruling that “the reassignment of work previously performed by members of a bargaining unit to persons outside the unit is a mandatory subject for collective bargaining under R.C. 4117.08(A) & (C).”  In re City of Green, 2014 OH SERB LEXIS 1, 10-11; quoting Lorain City School Dist. Bd. of Educ. v. State Employment Relations Board, 40 Ohio St.3d 257, 262 (1988).  Accordingly, the City’s unilateral reassignment of bargaining unit work and refusal to bargain over such reassignment constituted unfair labor practices.

As a remedy, the Board ordered that the City return to the status quo ante the bargaining unit work of full-time firefighters in the City of Green Fire Division prior to the City’s hiring of part-time firefighters.  By such order, the City must return to utilizing only full-time bargaining unit employees to perform the work of the bargaining unit.  Additionally, SERB ordered that the City of Green cease and desist from interfering with, restraining or coercing employees in the exercise of their rights by such unfair labor practices.  R.C. 4117.11(A)(1)&(5).

The Board made a point in its decision to refute the City’s argument that this case renders the management rights set forth in R.C. 4117.08(C) meaningless.  However, the Board’s decision does place the issue of reassignment at the negotiating table.  If the subject is brought up at the table as part of a negotiation for a successor agreement or initial agreement, the matter will ultimately be decided by a conciliator if the parties are unable to reach agreement.  If it is brought up as a proposal by the employer during mid-term bargaining, such can only be imposed by the employer after bargaining to impasse in the extraordinarily rare circumstance where such immediate action is necessary due to: (1) exigent circumstances unforeseen at the time of negotiations or (2) legislative action taken by a higher level legislative body after the agreement became effective that requires a change to conform to the statutes.  In re City of Toledo, SERB No. 11-01, 2011 OH SERB LEXIS 22.  It is most difficult to conceive a scenario where either of those conditions can be met relative to the subject of reassigning bargaining unit work.

The heavy-handed tactics of the City to impose its own sense of industrial justice irrespective of its duty to bargain under the Ohio Collective Bargaining Act was deservedly shot down by the Board in City of Green.  Such decision highlights the importance of the Act’s protections and the necessity of each bargaining committee to be prepared to successfully negotiate and/or block reassignment of work proposals at the table.



 

Education is Key in Managing Member Expectations

By: Daniel J. Leffler

With regard to collective bargaining, historically in the public sector, employees could expect general wage increases in the 3-4% range for each year.  A review of the SERB Wage Settlement Report indicates that statewide wages increased an average of 2.94% from 2000-2008.  The average Consumer Price Index (CPI-U) or annual inflation rate during that period was 2.82% according to the Bureau of Labor Statistics.  As a former firefighter in 2001, our local saw wage increases in the 4-5% range following 9-11.  Many groups probably saw increases greater than 3% during that period with an average wage increase of 3.7% in 2001 according to SERB.  The CPI rose 3.73% in 2001.  It is, at least anecdotally, fair to say that wage increases were directly related to inflation in order for employees to maintain the value of their purchasing Dollar.  For healthcare, the percentage of employees actually contributing toward healthcare premiums was about 50% and, of those contributing, employee contribution rates were well under $100/month.  Ancillary Benefits, such as longevity, bonus pays, holiday pay, and vacation accrual were fairly stable and one could expect to seek increases in benefits each year.

Then the economic issues in 2009 came, followed by Governor Kasich’s attack on public sector bargaining through SB5.  At least for public safety forces, which were once thought of as recession and layoff proof, a hard reality started to hit.  Although SB5 was defeated at the state level, what we started to see was local governments taking the same approach; i.e.: reducing or eliminating ancillary benefits, demands that employees pay 15% of their healthcare cost, minimal wage increases, wage freezes or worse wage reductions and layoffs.

There is a lingering impression by employees that a 3% wage increase is still the norm and that once the local and federal economies started to emerge from the economic issues of 2009, there should be some form of catch-up (not the sauce).  Many times bargaining groups say that since they took wage freezes for three years, they now should get a 9% increase in year 1 of the CBA to make up for lost time.  However, according to SERB data, statewide wages increased by an average of 1.28% from 2009-2012 and it appears likely that the average for 2013 will be approximately 1.5%.  From 2009-2013, the CPI rose an average of 1.73%.  If we follow the same logic as the wage increases for the early 2000s, the actual wage increases since 2009 compared to the CPI are only about one-half of one percent behind the CPI benchmark.  Therefore, it does not appear that significant wage increases are likely in order to “catch-up” for previous freezes.

Further compounding the issue is the significant increase in healthcare premiums.  According to the 2013 SERB Report on the Cost of Health Insurance, healthcare premiums have increased by 115% since 2000.  As a result, employers have been attempting to shift more of the burden of healthcare to employees.  In 2013, nearly 90% of employees contributed toward the cost of healthcare premiums with a statewide average contribution rate of 12%.  The evidence suggests that neutrals have been buying into the employer demands.

Obviously, every jurisdiction has its own particular facts and circumstances.  However, as the local advocate, the bargaining committee needs to be aware of the practical difficulties in obtaining wage and benefit packages similar to those prior to 2009.  In addition to local factors and financial considerations, generally speaking, the trend continues that neutrals (fact-finders and conciliators) are more conservative than in the past.

So reality is not matching the members’ expectation and trying to educate employees is a difficult task, particularly where conciliation is an all-or-nothing outcome.  Conciliation entails a decision between two specific and often widely diverse proposals and neutrals select the most financially reasonable position.  Although the members expect and deserve 3-4% wage increases and that their cost of healthcare will remain consistent, that is not the present reality regardless of a jurisdiction’s financial ability.  When engaged in fact-finding or conciliation, the bargaining committee must fashion a final position that is reasonable and often far less than the members’ expectations.  As a consequence, members may be frustrated and perhaps angry when the outcome of negotiations do not meet these expectations.

The key for a local advocate is to first understand these constraints and second to educate members related to bargaining in the present reality.  While comparables between the local jurisdiction and surrounding employees performing similar work are vital in the dispute settlement process, they can also be useful in managing the membership’s expectations prior to the bargaining process.  Information is essential in keeping the members’ expectations well grounded and consistent with reality.



 

Tips on Interviewing Juveniles


By:  Sherri Bevan Walsh, Summit County Prosecutor

Imagine you get a call for a fight at your local mall. When you arrive, the mall security tells you that several people were involved. An 18-year-old male is en route to the hospital with an abdominal stab wound. The witnesses and suspects are between the ages of 13 and 19.

Should you handle interviewing the juveniles the same way you handle interviewing an adult? Does it matter if the juvenile is a witness or suspect?

Generally, the same rules for police interviews of adults apply to police interviews of juveniles. However, you must take extra care to ensure that the juvenile fully understands his rights. Police should consider the juvenile’s age and apparent cognitive ability to decide whether the juvenile is capable of waiving his rights and speaking with the police.

Age is not always an obvious indicator of the juvenile’s ability to knowledgeably waive Miranda rights. Certainly a 16- or 17-year-old without cognitive disabilities can be expected to competently waive his Miranda rights or refuse to speak with police. But what about someone who is 14 or 15? My office has seen many juveniles younger than 14 effectively waive their rights prior to an interrogation.

The witnesses to the mall fight in our example are free to speak with police if they choose. They are also free to refuse. This applies to witnesses of any age.

Similarly, suspects in custody are free to waive their Miranda rights regardless of their age. However, police should take steps to ensure that juveniles meet the standard of “knowingly and voluntarily” waiving their rights.

Does a parent or guardian need to be present when you interview a juvenile suspect? Like adults, juveniles have the right to request an attorney be present during an interrogation. Juveniles also have the right to request their parent or legal guardian be present.

The appellate courts have held that there is no constitutional requirement of parental or guardian presence during juvenile interviews. However, police need to ensure to the best of their ability that the juvenile thoroughly understands his Miranda rights and is voluntarily speaking with police. The presence of a parent or guardian during the interview is another factor that must be considered when determining whether the juvenile is sufficiently waiving his rights.

In general, the rights afforded juveniles and adults for interview purposes are the same. But it is important to remember that what might not be considered a custodial interview requiring Miranda warnings when an adult is questioned, may be considered a custodial interview when a juvenile is questioned. In addition, there are several additional factors that must be weighed when determining whether a juvenile suspect’s Miranda rights have been properly waived. This includes the juvenile’s age and apparent level of comprehension, as well as the presence of a parent/guardian or counsel. Police should also be on the lookout for signs that the juvenile waived his rights out of fear or because he did not fully understand those rights.

This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.