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Legal Blog

Cell Phone Location Data Usage in a Criminal Search

Anyone who carries a cell phone should be happy about this ruling, which protects the right to privacy:

 

The US Supreme Court ruled last week in a 5-4 decision in Carpenter v. United States, the first case about phone location data used in a criminal search. This overruled the Sixth Circuit Court and made an argument based on the constitution and protecting the Fourth Amendment rights of an individual concerning people’s ‘digital’ location information.  This precedent could be the most important new warrant precedent in 25 years. 

 

The Carpenter case involved a 2011 robbery in Detroit.  After the robbery, police gathered months of phone location data from Timothy Carpenter’s phone provider, about four months’ worth, without a warrant.  The data gave about 12,900 locations Carpenter (or at least his cell phone) was over 127 days.  The question considered was whether or not Carpenter had the right to expect his cell phone location data was private or whether police needed a warrant to access it.

 

The Sixth Circuit Court of Appeals decided that it wasn’t private, and the police did not need a warrant from the company stating the Fourth Amendment didn’t cover cellphone location data, and therefore the police didn’t need a warrant.

 

However, Chief Justice John Roberts said that the government’s search of Carpenter’s phone records was considered a Fourth Amendment search and the government’s position in the case failed to account for “seismic shifts in digital technology” that made it possible for individuals’ locations to be tracked for years. He stated that allowing the government to access historical GPS data is an infringement on the reasonable expectation of privacy, as it would provide the government and law enforcement with an “all-encompassing record” of anyone’s whereabouts and suggested the historical data was a greater threat, constitutionally speaking, than real-time location monitoring.

 

Carpenter’s legal team, which included lawyers from the American Civil Liberties Union, argued the cellphone location data should be held as ‘sensitive digital records,’ protected under the Fourth Amendment.  

 

Nathan Freed Wessler, an ACLU attorney who argued the case said it a “groundbreaking victory for American’s privacy rights in the digital age" and said the Court's decision updated the privacy laws bringing them better in line with modern reality and undermines the government’s tendency to claim that merely using technology eliminates Fourth Amendment protections.

 

U.S. Deputy Solicitor General Michael Dreeben, who argued the case for the government, argued when people sign up for a phone plan, they essentially hand their information to providers in exchange for service and the providers own the data records.

 

Before the trial, major tech companies including Google, Apple, and Facebook filed amicus briefs, urging the Supreme Court to come down on the side of the making it harder for law enforcement groups to obtain data without a warrant.

 

While the decision does set a precedent concerning the use of historical GPS data, it does not apply to real-time location tracking, or to security cameras or business records.


Our Jury System is Dying

Our Jury System is Dying

By Clay S. Conrad, Attorney

There is a decline in the percentage of cases going to jury trial  Attorneys have gradually adapted to measures that reduce the viability or availability of jury trials – from acceptance of responsibility credits for those who plead guilty, to judges who require expensive, time-consuming mediation prior to trial.  As the jury trial becomes rarer and more difficult to attain, we adapt to our environment. 

Too often we fail to recognize or object to procedures that raise the risk or cost of a jury trial.  These mechanisms (and there are more being added practically daily) have become part of our legal system.  Many legislators are not aware of the fact that the jury system is dying and many actually respond positively once aware of the facts. 

In the meantime, if we don’t make ourselves aware (and spread that awareness among others), we become part of this seemingly intractable problem.  It is time to break out of this rut and to object to those rules and procedures that act as a tax on the right to a trial by jury – while there are still those who remember why it is important.


Jury Trial or Court Trial in Justice of the Peace Court

Jury Trial or Court Trial in Justice of the Peace Court

By Richard Senasac, attorney

How do you try a Justice of the Peace case?  Whether you are having a jury trial or trial to the court, you need to remember that just saying something is so doesn’t mean the judge must believe it.

The court will inform you if you attempt to subpoena someone who you cannot.  You should arrange for this well ahead of time with the court.

There are also limits to the questions you can ask of witnesses.  You can’t have anyone testify about what someone else said.  If the other side tries to do this, you should object (point it out to the judge).  However, the judge’s ruling on things like this is final – do not argue with the judge.  “Contempt” is the power of the judge to have you thrown in jail.  You cannot talk about things not related to the lawsuit, no matter how angry something the defendant did makes you.  The court will make the Rules of Evidence and Rules of Civil Procedure available for review, though you are not expected to be as familiar with these as an attorney.


Which JP Court to File in and How to Complete Paperwork

Which JP Court to File in and How to Complete Paperwork

By Richard Senasac, Attorney

Which Justice of the Peace court should you file in?  If you file in the JP Precinct where the defendant lives or the business you are suing has its’ primary office, you should be okay.  You can also file in the Precinct where the “cause accrued.”  This means the place where the accident happened, the contract was signed or the issue being sued over occurred.  If this means there is more than one Precinct where the suit would be filed, you have your choice.  Once again, talk to the JP’s office to make sure you are in the right place.

When you file suit in JP court, the court will generally give you forms to fill out.  Do this as legibly and completely as possible.  There will be some charges from the court but these are much less than what is charged in other courts.  The court will set a trial date.  As opposed to the dozens of motions often filed in other courts, this is generally the next step in JP court.  Jury trials are available if you request it from the court but you must do this well ahead of time.  Make the court aware of your intent when you file or as soon after as possible. 

The next step is to have the defendant served.  The court will arrange for this (and charge you for it).  Service is the way the court officially makes sure the defendant knows he or she is being sued.  You can take no further action until this happens. 

Once the defendant has been served, he or she must file an answer.  An answer is a response to the suit denying the allegations and forcing the plaintiff to prove his or her case.  Even a letter to the court stating, “I did not do that,” or “That is not correct” is sufficient to serve as an answer.  You should always try to find the proper form of anything filed and adhere to that.  The answer must be filed with the court and a copy given to the plaintiff.  If no answer is filed, the case can be set for default judgment. 


What to do if you lose in Justice of the Peace Court

What to do if you lose in Justice of the Peace court

By Attorney Richard Senasac

If you lose your case in Justice of the Peace court, you can appeal.  You have 21 days from the date of the judgment to appeal.  Before you leave the court, you should ask the clerk for your appeal date.

The judge can require a $500 bond if the plaintiff appeals or twice the amount of the judgment if the defendant appeals.  You can make a cash deposit with the court, file a bond with a surety or a statement of inability to pay if you cannot afford the bond (note that the court will review statements of inability to pay and may deny them).

If an error is made in the appeal, you have seven days from the date of notice of the error to correct it.  If the appeal is perfected, meaning you have done everything needed, the case is transferred to the county court or county court-at-law.

The trial in the county court is a “trial de novo.”  This means there is no record from the JP court and you will be starting all over again.  If you do appeal, you should seriously consider hiring an appellate lawyer.  Contact a Hempstead Appellate Lawyer at 979-826-8484 or a Houston Appellate Lawyer at 281-597-8818.


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