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After seizing a cell phone incident to arrest, get a warrant prior to searching it!

The Supreme Court of the United States recently examined how the search incident to arrest doctrine applies to modern cell phones. The Court noted that cell phones are “a pervasive and insistent part of daily life.”

In reaching its decision, the Court weighed the degree to which such a search intrudes on an individual’s right to privacy against the degree to which it is needed to promote legitimate governmental interests.  The Court determined that the interest in protecting an officers’ safety did not justify dispensing with the warrant requirement for searches of cell phone data, nor did the interest in preventing destruction of evidence justify dispensing with the warrant requirement for searches of cell phone data. Accordingly, the Supreme Court held that a law enforcement officer must obtain a search warrant before searching a cell phone that is seized incident to arrest, except under limited exigent circumstances.   Riley v. California, --- S.Ct. ----, 14 Cal. Daily Op. Serv. 7045, 2014 Daily Journal D.A.R. 8220, 24 Fla. L. Weekly Fed. S 921, U.S.Cal., June 25, 2014 (NO. 13-212, 13-132).

For law enforcement officers, this decision means that a law enforcement officer may still seize a cell phone during a search incident to arrest and the officer may secure the cell phone in order to prevent the destruction of evidence. In addition, for officer safety, prior to getting a search warrant, the officer may inspect the phone to see if there is any physical threat, such as a razor blade between the phone and the case.

However, before searching the phone’s digital data, the officer must either obtain a warrant or satisfy an exception to the warrant requirement, such as showing that there was an exigent circumstance. Exigent circumstances will be very limited because they will require that an officer demonstrate that he was faced with a ‘now or never’ situation, such as a circumstance where the arrestee’s cell phone was the target of an imminent remote-wipe attempt.

The Court concluded that, once a law enforcement officer has secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone. The Court acknowledged that there are additional forms of destruction unique to digital data, such as remote wiping and data encryption, and offered some suggestions. Law enforcement officers can fully prevent remote wiping by disconnecting the phone from the network, which can be done by either turning off the phone or removing the battery. Law enforcement can prevent encryption or other potential problems by leaving the phone powered in an enclosure that isolates the phone from radio waves, known as a “Faraday bag.”

In light of this recent decision, law enforcement officers must obtain a warrant to search the digital data contained within a cell phone, with limited exceptions. After seizing the phone, the officer should take appropriate actions to ensure that digital data from the phone is not destroyed via methods such as remote wiping or data encryption.

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

Sherri Bevan Walsh

Summit County Prosecuting Attorney

 

The Hopper Act: An Added Protection for Officer Safety

By:  Sherri Bevan Walsh

In January 2011, Clark County Sheriff’s Deputy Suzanne Hopper was shot and killed responding to a call at a trailer park. The shooting suspect had a history of mental illness and had been declared criminally insane in 2002. Deputy Hopper would have radioed for back-up had she known that the suspect was unstable, but she had no way of obtaining this information. Her death did not go unnoticed. It spurred new legislation that requires a defendant’s history of mental illness to be disclosed in the National Crime Information Center (NCIC).

The new legislation, known as the “Deputy Suzanne Hopper Act” (or “Hopper Act” for short), became effective on September 4, 2013. The act amended O.R.C. 2945.402 and added O.R.C. 2929.44 to require courts to report information concerning a criminal’s mental illness. There are three items that must be reported to the original law enforcement agency involved.

First, mental health evaluations or treatment orders for a person convicted of a violent offense must be disclosed. If a person pleads guilty or is convicted of an offense of violence, the court may order that a mental evaluation be conducted. The evaluation results and any corresponding treatment must be reported to NCIC Supervised Release File through LEADS. The information reported and entered must include: (1) the name of the court providing the information, (2) the offense or offenses of violence to which the offender pleaded guilty or of which the offender was convicted, and (3) any other information required for the entry of information into the NCIC Supervised Release File.

Second, the conditional release of a person found incompetent to stand trial must be reported. If a court approves a conditional release for a person found incompetent to stand trial, the court must report to the local law enforcement agency all information pertaining to the release. This information must be entered into the NCIC Supervised Release File through LEADS. The information entered must include: (1) the name of the court providing the information, (2) the offense or offenses with which the person was charged, (3) whether the person was found Not Guilty by Reason of Insanity or Incompetent to Stand Trial with no substantial probability of becoming competent even with a course of treatment, (4) the reason for the conditional release, and (5) any other information required for the entry of information into the NCIC Supervised Release File.

Third, a finding of not guilty by reason of insanity must be disclosed. Similar to the second reporting requirement, if a court approves a conditional release for a person found Not Guilty by Reason of Insanity who has been committed, the court must report all information stated above pertaining to the release.

If the defendant has contact with law enforcement after the information has been entered into NCIC, law enforcement shall report the contact to the Department of Mental Health and any agency, person or office providing medical treatment. The mental health information added to the databases should remain on file until termination of the conditional release or commitment.

Beginning Jan. 1, 2014, courts are to use Form 95: NCIC Mental Health Notice to report this information. The original law enforcement agency is then responsible for entering the mental health information into NCIC so that local officers can access it when needed. Law enforcement must access NCIC information through LEADS.

The Hopper Act’s goal is to provide law enforcement with potentially life-saving information. By providing law enforcement with a violent offender’s mental health issues, responding officers can take appropriate precautions to ensure everyone’s safety.

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

Sherri Bevan Walsh

Summit County Prosecuting Attorney

Last Updated (Saturday, 07 June 2014 13:47)

 

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.

 

The Case for a Facility Dog Program

At the National District Attorneys Association (NDAA) Victims Committee meeting in November 2011, I attended a fascinating presentation by Courthouse Dogs on the use of facility dogs in the courtroom. I had never heard of using a dog to calm victims and witnesses.

As I listened to the presentation, I thought about how having a facility dog in my office would improve not only the experience of victims and witnesses, but our success in trials as well. We decided to apply for our own facility dog.

While the application was pending, we researched case law to guide our facility dog program and determine the level of support for the use of dogs in the courtroom

I learned that courthouse dogs are used around the country to support victims of crime both in and out of court. These specially-trained dogs assist witnesses who may be frightened or nervous about talking about the crime or testifying in court. According to the Courthouse Dogs Foundation’s website, there are 49 courthouse dogs in 21 states. In some states, county or district prosecutor’s offices use these courthouse dogs to provide emotional support to victims and witnesses.

There is currently no case law about the use of facility dogs in Ohio. However, there have been encouraging rulings in other states. Most recently, the Supreme Court of Washington determined that the trial court did not abuse its discretion in allowing Ellie, a facility dog provided by the prosecutor’s office, to accompany a dependent, child-like victim while he testified in a burglary case. Ellie’s conduct during the trial never disrupted the proceedings.  State v. Dye, --- P.3d ----, 2013 WL 5406430, Wash. (No. 87929-0), September 26, 2013. The Court noted that the trial court instructed the jury not to make any assumptions or draw any conclusions based on the presence of the dog.

This past July a New York appellate court addressed, as an issue of first impression, a trial court’s decision to permit a 15-year old victim to have Rose, a therapy dog, assist her while testifying against her father, who had sexually abused her for four years. State v. Tohom, 969 N.Y.S.2d 123 (July 2013). The Court held that the presence of the therapeutic comfort dog did not violate the defendant’s due process right to a fair trial, nor did it violate his right to confront witnesses.

In December 2012, a California appellate court supported the use of a therapy dog at the trial of a defendant who sexually abused a 10-year old girl. People v. Spence, 212 Cal.App.4th 478, 151 Cal.Rptr.3d 374.

In the handful of court rulings regarding the use of facility dogs, courts have held that there is no prejudice in allowing a facility dog to accompany a child to court or even sit with the child while he or she testifies. The key to court support appears to be ensuring that the trial court judge instructs the jury to disregard the dog’s presence and not allow themselves to feel increased sympathy for the victim because of the dog.

In Summit County, the judges have reacted favorably to our facility dog program thus far. We anticipate adding Ohio to the growing number of states that support the use of facility dogs in the courtroom.

Canine Companions for Independence provided us with our facility dog Avery free of charge in mid-August. Since joining our staff, Avery has met with several child victims. All of the children say how much better they feel when Avery puts his head on their laps or curls up on an oversized chair with them.

We recently had a case set for trial against a defendant accused of violently raping two young girls. The girls, now seven and 10, are terrified of this man. They were somber and scared as they sat in our reception area prior to their first meeting with the prosecutors assigned to the case. The prosecutors brought Avery into the reception area to see the girls, who were immediately excited to meet the dog they had seen on the news.

The girls played with Avery while the prosecutors discussed the case with their guardian. The prosecutors believe that the girls warmed up quickly because of Avery. At that meeting and every meeting thereafter, the girls always asked if Avery would be able to sit with them while they faced their rapist. Although they were visibly distraught with the mere idea of sitting in the same room as that man, they seemed calmer knowing Avery would be with them.

Although this case was continued, the prosecutors say they are confident about the girls’ ability to face their attacker in court. Were it not for Avery, the prosecutors say they would have serious concerns about the girls being able to testify.

On a more personal note, Avery has had an unintended but positive impact on my employees. No matter how much you try, sometimes you can’t help but take to heart the injustice we see on a daily basis. Witnessing firsthand the violence and cruelty humans are capable of inflicting on one another eventually takes an emotional toll.

When child victims play with Avery, they are able to momentarily escape their trauma. Seeing children who have been through indescribable experiences smiling and laughing and acting like normal kids, when they were shaking and unable to meet your eyes just moments before, makes it a little easier to keep dealing with the horrible things we see every day.

Whether providing support to victims in prosecutor meetings or during trial, I believe a facility dog can help to reduce secondary victimization and improve case outcomes. I expect to continue to see positive results from our facility dog program, especially once we start using Avery in trials and our courts become more comfortable with the idea of a dog accompanying a victim to the witness stand.

If you are a member of law enforcement within Summit County and are working with an especially traumatized victim or witness who you think could benefit from the comfort of a facility dog, we’d be happy to bring Avery to your department. And if you are interested in creating your own facility dog program, my office can provide you with more resources and guidance.

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

Sherri Bevan Walsh

Summit County Prosecuting Attorney

 

A Picture is Worth… A Guilty Verdict

A few years ago, one of our prosecutors was trying a drug possession case. The drugs in question were found in the defendant’s car, under the center console of the vehicle. The defendant denied the drugs belonged to him, and even tried to blame a passenger for placing the drugs there just before the police pulled him over. The only exhibit presented at trial? A photograph of the drugs under the console, exactly as they were found by the investigating officer. After deliberating for a little less than an hour, the jury came back with a guilty verdict. They later told the prosecutor that the photograph was the deciding factor in their verdict. As the photograph depicted, it was unlikely a passenger could have placed the drugs where they were found.

This is just one of the many examples of the impact a photograph can have on a jury. Just one photograph can take a jury back to the scene of a crime, letting them see the scene for themselves. Trials often occur months or even years after the crime is committed. Despite a prosecutor’s best efforts, it is often difficult to re-create a crime scene exactly as it was at the time.

Most police departments have a dedicated crime scene unit or designated officers to process a crime scene, which includes taking photographs. While this is helpful in prosecuting serious cases, these units and officers are not often used in less serious cases like drug possession, simple assaults, domestic violence or property crimes. Such cases may be less serious than homicides, but in order to be successfully prosecuted, the evidence must still prove guilt beyond a reasonable doubt. As noted in the example above, sometimes a single picture can be a key piece of evidence.

Some police departments provide cameras for their patrol officers to use, while others may not. Regardless, just about everyone today has a phone that can take pictures, which can be quickly emailed to a work account and filed with the police report. Taking a quick shot of a victim’s injuries, where drugs are found, property damage, how a suspect looked or simply the area surrounding a crime scene can really make a difference in how the case is handled in court. Moreover, a picture can often corroborate a victim’s version of events or bolster a police officer’s testimony under cross-examination.

Being a police officer, especially on patrol, can be a stressful and demanding job. No patrol officer wants to make arrests and then later have the case tossed out of court for a lack of convincing evidence. And while evidence can come in many forms, including witness testimony, DNA and fingerprints, the saying still stands true; a picture can be worth a thousand words. So the next time you are out on patrol, remember that sometimes the nearest camera can be the most effective crime-fighting tool of all.

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

Sherri Bevan Walsh

Summit County Prosecuting Attorney

 
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