Daily Archives: December 12, 2014

The Fourth Amendment Of The Constitution Is Under Attack

By: Yawauniah Jerusalem

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The Fourth Amendment Of The Constitution Is Under Attack - Video

The Fourth Amendment ( goverment class Project)
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By: Duy Phan

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The Fourth Amendment ( goverment class Project) - Video

With law school exam season finishing up, heres a new Fourth Amendment decision with facts that seem straight from a law school exam: United States v. Camou, authored by Judge Pregerson. In the new decision, the Ninth Circuit suppressed evidence from a 2009 search of a cell phone taken from a car incident to arrest at the border. The new ruling might not be the final word in the case. But the court does decide an important question along the way: The Ninth Circuit rules that if the police have probable cause to search a car under the automobile exception, they cant search cell phones found in the car.

I. The Facts

In 2009, officers arrested Camou at a border inspection checkpoint for hiding an undocumented immigrant in his truck. Minutes after the arrest, Camous phone rang several times from a number known to be from one of Camous co-conspirators. When Camou invoked his right to remain silent, officers decided to search the phone for evidence without a warrant. The phone search occurred 80 minutes after Camous arrest. The officer who searched the phone first searched through the call logs, then turned to the videos and photos. The officer scrolled through about 170 photos and saw that about 30 to 40 were child pornography. The officer stopped looking through the phone at that point and alerted authorities about the child pornography. Four days later, a warrant was obtained to search the cell phone for images of child pornography, leading to child porn charges against Camou.

The issue before the court is whether to suppress the fruits of the initial warrantless phone search as a violation of the Fourth Amendment. The Ninth Circuit rules that the cell phone search violated the Fourth Amendment and that the evidence must be suppressed.

II. The Ruling

Judge Pregersons analysis has five steps.

First, the search cannot be justified as a search incident to arrest because it occurred too late after the arrest and after too many intervening events had occurred. Eighty minutes had elapsed, and Camou and his co-defendants had been arrested, processed, and brought to interview rooms. According to Pregerson, that made the search too far removed from the initial arrest for the search-incident-to-arrest exception to apply.

Second, the exigent circumstances doctrine cannot apply because Riley v. California establishes that exigent circumstances generally wont justify a cell phone search and in any event, the scope of the search went beyond the exigency.

Third, the automobile exception cannot apply because the automobile exception does not apply to cell phones. This is an important legal ruling. Here, the Ninth Circuit extends the cell phones are different rationale of Riley to the context of automobile searches. This is an interesting and unsettled question I blogged about before, so its worth pausing to give a taste of Pregersons reasoning:

Given the Courts extensive analysis of cell phones as containers and cell phone searches in the vehicle context, we find no reason not to extend the reasoning in Riley from the search incident to arrest exception to the vehicle exception. Just as [c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestees person, so too do cell phones differ from any other object officers might find in a vehicle. Id. at 2489. Todays cell phones are unlike any of the container examples the Supreme Court has provided in the vehicle context. Whereas luggage, boxes, bags, clothing, lunch buckets, orange crates, wrapped packages, glove compartments, and locked trunks are capable of physically holding another object, see Belton, 453 U.S. at 460 n.4, [m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse, Riley, 134 S. Ct. at 248889. In fact, a cell phone search would typically expose to the government far more than the most exhaustive search of a house. Id. at 2491 (emphasis in original).

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Volokh Conspiracy: Cell phones exempt from the automobile search exception, Ninth Circuit rules

Dollree Mapp, the appellant in a groundbreaking case, Mapp v. Ohio, which fundamentally strengthened our Fourth Amendment rights, has passed away.

Despite being in a landmark Supreme Court case, it took about a month after Mapp's death for the media to take notice. The New York Times reports that Mapp was believed to be 90 or 91 when she died October 31 in or near Conyers, Georgia.

In remembrance, let's review the Mapp case and all it has done for civil rights.

Mapp Defied Police Wanting to Search her Home

More than 57 years ago, police officers showed up at Dollree Mapp's home in Cleveland, Ohio, demanding that they be let inside. Authorities believed that there was a bomber hiding inside the home, and they requested that Mapp let them in. She refused, asking for a search warrant which police never really produced. The whole incident ended with police forcing their way into Mapp's home, searching her and her daughter's room, and eventually arresting Mapp based on some sexually explicit materials they found.

Four years later, Mapp had appealed her obscenity conviction all the way to the U.S. Supreme Court, perhaps hoping to get it thrown out on the basis of a First Amendment free speech argument. But lo and behold, the Supreme Court took a significant look at the police searches in Mapp's case and determined that they violated her Fourth Amendment rights.

And even more importantly, they determined that the exclusionary rule applied, throwing out the evidence gained from the illegal search of Mapp's house.

Warrantless Search Evidence Excluded in All Courts

Prior to Mapp, the exclusionary rule had only been successfully used to exclude evidence that was the fruit of an illegal search or seizure in federal court. The rule came out of a 1914 case, Weeks v. United States, which, prior to Mapp, did not apply to state police or state courts.

With state police and prosecutors now threatened with the thought of losing their cases as the result of Fourth Amendment violations, more care would be taken to safeguard suspects' rights -- at least hypothetically. Future courts would carve out exceptions to the exclusionary rule that were seen as eroding Mapp (inevitable discovery, good faith on a defective warrant, etc.)

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Mapp v. Ohio: Plaintiff in Landmark Civil Rights Case Dies