Friday, June 27, 2014

Fourth Amendment Protects Your Cell Phone

“These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which 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.” – Chief Justice Roberts.

1789: introduced by James Madison: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

2014: Madison’s Fourth Amendment to the Constitution has been brought into the digital age by the United States Supreme Court.

Stemming from two separate criminal cases, the nation’s highest court unanimously ruled that police must almost always get a search warrant to look at your cell phone data after your arrest.

I say “almost always” because the High Court, as it often does, gave police an exception. For instance, if they believe your cell phone will lead to another suspect getting ready to detonate a bomb, they can search it without a warrant; or, if searching a cell phone will save a kidnapped child, it’s all right as well.

But, lacking such exigent circumstances, police must obtain a search warrant based on probable cause to look at smart phone information. And, there’s obviously plenty of it.

In fact it is this vast storage capacity of a smart phone that is at the heart of why Supreme Court Chief Justice John Roberts wrote the opinion, requiring a warrant, and why all of his colleagues agreed – no easy achievement in this era of seriously split 5-4 decisions.

The Fourth Amendment guarantees that without a search warrant cops cannot waltz into your home and rummage room to room for evidence of a crime. As Justice Roberts reasons it, accessing the vast amount of information on your iPhone, such as photos, videos, private e-mails and Web downloads – even a complete digital record of your geographical movement and who you have talked to in the past 24 hours – is analogous to searching your whole house.

He goes even further: “A cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form may sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.”

In a salient paragraph, the Justice Roberts provides solid “examples” of why smart phone information is protected: “Mobile applications software on a cell phone, or ‘apps’ offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying and selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase ‘there’s an app for that’ is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.”

For historical perspective the opinion returns to a time when there weren’t any ‘apps.’ It notes that in colonial times “writs of assistance” allowing British officers to conduct surprise home searches was a “driving force behind the Revolution itself.”

Wrote Justice Roberts: “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.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protections for which the Founders fought.”

I think the ruling is spot on.

It’s accepted that the Fourth Amendment allows a police officer to search a person he arrests for weapons or to prevent destruction of evidence. For instance, a cop finding a pack of cigarettes on a suspect can open it to make sure it doesn’t contain a razor blade. Today, an officer is more likely to find a cell phone than a pack of smokes in the guy’s pocket. Today 90 percent of American adults who own a smart phone keep on their person a digital record of nearly every aspect of their lives. That is why this updating of the Fourth Amendment is important, timely and extremely relevant.

Now don’t think this historic decision means police are barred from getting incriminating evidence from your cell phone if you’re arrested. As the court’s opinion makes clear: “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”

The cops can still arrest you, impound your pretty smart phone, protect it from anyone trying to wirelessly erase information on it by putting it in a tinfoil bag, and then ask a judge for a search warrant based on probable cause. Police can get a search warrant in 15 minutes by e-mailing a judge – perhaps even before they get you to the jailhouse for booking.

And, if any of you are wondering. . . .

It will be a nutty judge indeed who doesn’t think this ruling also applies to iPads, notebooks and laptops, really any kind of portable information storage device you have with you when arrested.

I have one misgiving about this precedent-setting ruling.

In one of the criminal cases that led to this decision, a gangbanger was convicted of attempted murder in San Diego largely because of information police found in a warrantless search of the cell phone, which was taken from his pocket during the arrest. That case now has to be litigated all over, very likely without key evidence from the cell phone. It is possible this thug, who got a 15-year prison term, will go free or get a reduced sentence because of this ruling.

R.D. Byron-Smith is published by Pilar Publishing of California. His books include, Dinner With A Killer, Epitaphs, Image of Evil, Back In Saigon, The Heart Never Sleeps, Murder Under London Bridge, The Collector, Killing Socrates and 7 Stories of Flash Fiction. His books are available at Web booksellers, including Amazon and Barnes & Noble.

Friday, June 13, 2014

A Father's Story

In the 1970s fathers were staying in the hospital delivery room and “helping” their wives through the ordeal of natural childbirth. Our first child, a girl, was brought into the world using this Lamaze method, and, for our second child, my wife decided to add a little twist to Lamaze.

It was kind of like Lamaze meets the washtub.

The idea was to have me, the Dad, give the newborn – and I mean minutes old – his first warm, soothing bath. We took a refresher class in the Lamaze method, which included how to bath a newborn. Man, I was ready – tub, water and washrag.

Then came the day.

I’m not saying the old obstetrician was a medical curmudgeon. But, when he bluntly sighed a grunt upon seeing me walk into the room, it was strongly hinted at.

Getting ready, he barked an explicit order. “Don’t touch anything.” His words were stern, and his dark eyes above his surgical mask scoped me like a loaded Luger. “Anything,” he repeated for emphasis.

“Don’t worry, I won’t,” I assured him, nodding and mumbling through my surgical mask, which steamed up my eyeglasses. He glowered back as I spoke, doubting the veracity of my every word.

I felt clumsy in the pale green, ill-fitting and wrinkled surgical gown draped loosely over my Levis and T-shirt. Unlike the beloved mother, the skilled OB nurse and the old curmudgeon physician, I blended into the sanctity of the delivery room like a centipede at a snake convention.

It was almost time. The nurse helped my wife into the birthing apparatus, and like a champ, she was exhaling rapid breaths like she’d been taught in Lamaze classes. Per delivery room protocol, the nurse spread a gossamer-thin surgical cloth over my wife. I saw right away that it wasn’t done perfectly, which bugged me. A corner of the cloth hung haphazardly, raggedy-like, exposing some of my wife’s body.

No. The damned cloth just wasn’t right. At home when a floor rug is askew, I straighten it. So . . . I reached across to tidy-up the surgical cloth.

. . . Wham.

“Ow!” I yelped, recoiling my hand.

The doctor had slapped it with a steel instrument. I don’t know if it amounted to medical malpractice, but it sure in blazes hurt. The spot turned red. I felt like a kid in Catholic school who’s just had his knuckles ruler-whapped by a nun.

“I told you not to touch anything,” the doctor scowled, holding the surgical tool like a weapon, ready to strike another blow.

I backed away, rubbing my hand. “I was just trying . . .”

“. . . To touch something,” he finished my lame sentence.

With me in full retreat, he turned earnestly to the task at hand.

Remember I told you about the “twist” my wife had added to the Lamaze method? I was assigned to give the newborn his first bath, washing off birth stuff. Our Lamaze teacher had told us that this bath in warm water for five minutes helped form an everlasting “bond” between father and child. (Truthfully I figured it was to give Dad something to do. Or, maybe now I realize, so he wouldn’t touch anything before the birth.)

Well, our son arrived and it was time for me to shine.

The nurse brought a shallow stainless basin of water, and then handed the little naked guy to me. His eyes were closed and he wasn’t moving much. With my hands firmly under him, I dipped his backside into the water, like I was taught.

“My, God,” I thought. “It’s cold.”

He had come on a morning in December. It can get cold overnight in the Mojave Desert where he was born. Maybe the nurse ran the warm water too early. Maybe I was mad about getting slapped and my body temperature was still simmering, making the water feel cold to the touch.

Whatever, the water wasn’t even lukewarm!

It took only seconds for the little man to confirm my fear, and, for him to realize he wasn’t in the warmth of the womb any longer.

I watched him writhe like a twitching tadpole in the water, flailing his arms all around in protest.

“He’s shivering,” I thought.

Now his legs wriggled too in angry splashes.

“He’s turning blue,” I thought, squinting at him.

His color went from white with red blotches to white with gray blotches.

“I’m hurting him,” I thought, thinking back of ice fishing as a teen when I had fallen through the ice of Lake Huron. It took my testicles three days to come out of hiding.

In a panic I yanked him like a perch on a pole out of what, by then, I was convinced was icy water.

I frantically handed him to the OB nurse. “He’s freezing,” I exhaled, emotionally at her.

She quickly wrapped him in a blanket, back into what I imagine he thought was the kind warmth of his mother again.


All I know is that his first encounter with Dad wasn’t a warm and fuzzy affair.

And I hoped that on some future Father’s Day he would forgive me.

©2014 R.D. Byron-Smith & Pilar Publishing.

 R.D. Byron-Smith is published by Pilar Publishing of California. His books include, Dinner With A Killer, Epitaphs, Image of Evil, Back In Saigon, The Heart Never Sleeps, Murder Under London Bridge, The Collector, Killing Socrates and 7 Stories of Flash Fiction. His books are available at Web booksellers, including Amazon and Barnes & Noble.


Wednesday, June 11, 2014

VA Declares War On Veterans

Fans of television’s NCIS always expect an investigator to turn to another and proclaim, “So that’s why he killed him.”

Motive. It’s the stuff of every criminal case, and answers the question of why a person commits a crime, whether murder or fraud.

At first I was at a loss in figuring out why officials at Veterans Affairs hospitals falsified records to hide sinfully long “wait times” for veterans to see doctors. Honestly, I just couldn’t get my head around the suggestion that employees desired to harm veterans.

It just didn’t make sense.

Now, everything does, and boy was I in La-La Land.

They did it for the money, stupid. And what’s been going on at the VA amounts to declaring war on our veterans who need medical care.

In recent years Veterans health employees got $109 million in bonuses after meeting “performance standards.” At one VA facility, where lists were manipulated, the top guy got $9,000 in bonuses.

Simply put, reporting actual wait times jeopardized annual bonuses, which VA employees had become to expect. In effect, these “performance standards” had built-in incentives to lie and cheat.

And that’s precisely what employees did. VA centers nationwide misrepresented patient scheduling for 57,000 ex-military. An additional 64,000 vets weren’t even on waiting lists for doctor appointments they requested. At 731 VA facilities schedulers were pressured to “utilize unofficial lists or engage in inappropriate practices in order to make wait times appear more favorable.”

Yeah, “appear more favorable” so they could get their bonuses.

The tragic result of this fraud? While they waited to see a doctor, military veterans died.

Recently Congress suspended bonuses at VA health facilities. They should also demand that bonuses be repaid immediately, until it is shown they were free of fraud. Afterwards, lawmakers should eliminate such bonuses altogether.

Congress has sought prosecutions from the Attorney General.

There’s enough crime here to keep prosecutors busy for years: manipulating public records for financial gain; theft; embezzlement; wire fraud; and I think creative prosecutors might consider manslaughter charges in egregious cases.

Looking forward you can expect scores of plea deals as low-level, pencil-pushing employees point up at VA bosses.

Also expect an abundance of litigation on the law’s civil side. Families of deceased veterans should sue for wrongful death after loved ones died while waiting to see a physician.

These VA types might think they have immunity. What I hate about government immunity is it protects officials when they screw us. The thing I like about it is it doesn’t apply when they use fraud.

Judges take into account the number of victims when sentencing criminals. In this scandal victims include veterans and families, and, indeed, all tax-paying Americans that paid for these bogus bonuses.

Which brings us back to motive. The crooked VA employees who shafted veterans to line their own pockets should be fired and in some cases serve jail time.

Tuesday, June 3, 2014

And In This Corner . . . The Judge

After covering courthouses for 40 years I understand why the judge wanted to pound the crap out of the public defender.

They used to piss me off, too.

But, when a Florida judge challenged an attorney to a brawl in court and then allegedly punched him, he gave a new literal meaning to “strong arm of the law.”

Judge John Murphy should be charged with battery by Brevard County prosecutors. If not, and the judge walks scot-free, it’s a clear message that criminals have it correct: the law has a double-standard.

I can’t tell you how many times I have seen criminals get smart-assy in court with a judge, and as a result, are clobbered by bailiffs.

Surprisingly the U.S. constitution was the initial igniter of the physical altercation in this instance. Under our constitution criminals have a guaranteed right to a speedy trial. But, that right is commonly waived in today’s over-clogged courts.

When Judge Murphy asked whether his client was willing to waive a speedy trial, public defender Andrew Weinstock refused.

“You know I’m the public defender,” he said, in comments caught on tape. “I have the right to be here and I have a right to stand and represent my client.”

Judges usually have their way in moving their court-appearance calendars at a fast pace (they don’t want to be late for lunch). Once the public defender threatened to upset the flow, it went downhill.

“If I had a rock, I would throw it at you right now,” Judge Murphy barked. “Stop pissing me off. Just sit down.”

Words followed and moments later he challenged the public defender to some old-fashioned fisticuffs. “If you want to fight, let’s go out back and I’ll just beat your ass,” said the judge.

(Sounds like something I once heard in a smoky barroom.)

The public defender left the courtroom and the judge exited the bench.

In a hallway, the judge allegedly “grabbed him about the collar” and “began punching him in the head,” Weinstock’s boss said later.

(I don’t know whether he gave him ‘three strikes’ or not.)

And I cannot say whether this was an “old grudge” or just too much caffeine. That aside, though, it has much in common with the violent gangbangers I wrote about over the years. Look at them cross-eyed, and they’d bash in your head.

I can almost hear the criminals who witnessed this incredible scene in the courtroom, saying of Judge Murphy, “Cool, he’s just like me. I would’a pounded the f**ker too for disrespecting me.”

Folks, there has got to be a brighter and wider line between them and us, and especially a very clear demarcation between criminal and judge.

By all accounts this was completely out of character for the jurist. Judge Murphy, who’s been on the 18th Judicial Circuit Court since 2007, is an Afghanistan veteran (2003-04) and retired Army Reserve colonel who has won the Bronze Star.

Whipping the public defender’s ass wasn’t in doubt. But, come on, colonel, this isn’t Afghanistan. Gong-ho judges must show judicial temperament and judgment. Yours was buck-private poor.

Hey, I can empathize. He goes to Afghanistan and puts his life on the line in a war zone for us and comes home and runs into jerks like public defender Weinstock every day in court.

You can almost hear him grumbling, “I fought for this ass?”

It’d piss me off too.

But, yes, judge, you fought for jerks like him, and for me.

This little episode should demonstrate that John Murphy remains more colonel than judge. Judges leaven justice with a firm, reasoned and steady hand. They don’t pound it into heads.

With that in mind it’s time for Judge Murphy to take his double-dip, and retire from the bench.

War hero aside, prosecutors should charge him with battery. Obviously no jail time. His life wouldn’t be worth a plug-nickel behind bars. But, terms of probation must include anger management.

At the very least – and this is no punishment at all – the state’s Supreme Court should discipline him.

As for the public defender? He should have a personality transplant. . . . And practice Ali’s rope-a-dope.

See R.D. Byron-Smith's Author's Page at Amazon.