Fingerprints- Reasonable Expectation of Privacy?

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It wasn’t too long ago that a story hit the papers about a woman who used her sleeping husband’s fingerprint to unlock his phone. As she suspected, he was cheating on her- and on finding proof of his affair in his phone, she had such an enraged fit that the plane they were on had to make an emergency landing.

Link: Flight Diverted After Passenger Discovered Husband Was Cheating

Intrusion of Privacy

Although they were married, and in spite of the fact that the husband was actually cheating on his wife, the wife’s use of her sleeping husband’s fingerprint seems to fit all of the elements of the classic civil tort, Intrusion of Privacy. Intrusion of privacy occurs when (1) the defendant intrudes into the private affairs of the plaintiff; (2) a plaintiff has a reasonable expectation of privacy; and (3) the intrusion is highly offensive to a reasonable person. Considering the husband and wife have greater concerns (and the event did not take place in the United States), it’s unlikely that there would be any such action in court. However, this story helps us to think about privacy: do we have a reasonable expectation of privacy in our cell phones and the content inside, even from our spouse?

Reasonable expectation of Privacy from Government eyes

What about privacy from the government? Should the police be allowed to go through your phone, read your emails and texts, look at your photos (even those you deleted), and sift through your private messages on social media? The Supreme Court has firmly held that we do have a reasonable expectation of privacy in the digital contents of our cell phones, and that police must have a warrant in order to search them. Link: Riley v. California (2014) 134 S.Ct. 2473.

Warrant requirement

A warrant allows the police to search possibly all of those things on your phone, but here’s why a warrant is important. First, a warrant is issued by an impartial magistrate- one who has an overriding interest in both our individual Constitutional rights and in promoting legal justice and peace as a whole. Second, the warrant request by the officer to the judge must state probable cause. Probable cause requires the officer to have sufficient facts and circumstances as would lead a reasonable person to believe that evidence relating to criminal activity will be found in the location to be searched. There must be enough evidence to lead to a belief that criminal activity has or will take place.

Compelling a defendant to decrypt digital information

The 5th Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” The issue is whether compelling a defendant to decrypt his digital content (by supplying a password or passcode) is requiring a defendant to be a witness against himself. Courts make a leap from witness to testimony and never look back: witnesses provide testimony, oral or written, and cannot be compelled to do so.

Last year, the Third Circuit Court of Appeals in Pennsylvania held that compelling a criminal defendant to decrypt his iPhone, Mac computer, and external hard drives was “a necessary and appropriate means of effectuating the original search warrant,” and that “for the purposes of the Fifth Amendment, any testimonial component of the production of decrypted devices added little or nothing to the information already obtained by the Government” Link: United States v. Apple MacPro Computer (3d Cir. 2017) 851 F.3d 238, 246-48. It’s interesting that the Court avoids expressly stating that digital content is not testimonial in nature, and gives some small hope for the future. However, the Supreme Court of the United States denied certiori in this matter, and no clarification or stronger holding is available.

In a similar situation, a Florida case, State v. Stahl, held that compelling a defendant to surrender the passcode to his phone was not testimonial in nature because it “did not compel defendant to communicate information that had testimonial significance under the Fifth Amendment’s protection against self-incrimination, providing the passcode would not be an acknowledgment that the phone contained evidence of video voyeurism, and the state had a warrant to search the phone” Link: (Fla. Dist. Ct. App. 2016) 206 So.3d 124, 128, emphasis added. Simply put, forcing a defendant in Florida to provide his passcode is not self-incrimination so long as there is a warrant, and so long as the defendant is not also forced to “acknowledge” the evidence in the phone. 

Touch-ID fingerprints to Unlock Phones

Recently, several courts have been asked to provide warrants to allow the police to seize the use of our fingers in order to unlock touch-ID fingerprint locks on our phones. This requires forcing the defendant to temporarily surrender their finger to be placed onto the phone in order to unlock it. The California case of Paytsar Bkhchadzhyan that has been popping up in legal blogs (link here) and professional interest forums over the last year, but is still unretrievable- either because the charges are still sealed or have still not yet been filed. Also see: Link to LA Times Article

Similarly, in an unpublished but retrievable case, one Federal District court in Illinois decided in September, 2017, that fingerprints are not testimonial in nature, and therefore do not belong within the Constitution’s 5th Amendment protections. For this Illinois court, the logic again is that witnesses provide testimony, which can be written or spoken. Fingerprints, like photographs, voice recordings, and blood draws in DUI cases are said by that court to be non-testimonial, and therefore are free from the 5th Amendment’s protections. There is a leap, however: providing access to encrypted phones is also providing access to all of the defendant’s statements, by email and “private” messages.

Conclusion

The issue has not yet been completely resolved, but so far American Courts have been leaning towards allowing warrant-carrying police to force defendants to decrypt their devices and to force defendants to unlock them with their own fingers. The Framers of the Constitution could not have imagined modern technology with fingerprints unlocking iPhones, or with password encryption of computer data. If they had, they may have worded the Fifth Amendment’s prohibition that no person “shall be compelled in any criminal case to be a witness against himself” in a way that would protect our rights more strongly.

I am keenly interested in this subject, and have only given a brief overview here. If you are interested in this area and would like to explore more, please see Wiki’s article on “Key Disclosures,” which gives a world wide overview of legal viewpoints.

 

 

 

New laws affecting vehicles in California

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It’s only three more days until 2018, and the California Department of Motor Vehicles (DMV) has shared the following regarding new laws and changes to existing law. Unless stated below, these changes take effect January 1, 2018. 

Cannabis Use in Vehicles  

(SB 65, Hill) 

This law prohibits smoking or ingesting marijuana or marijuana products while driving or riding as a passenger in a vehicle. The DMV will assign negligent operator point counts for this violation. In addition to the California Driver Handbook, the DMV also will revise the Motorcycle Handbook and the DMV’s website to include information relating to marijuana violations. 

Buses and Seatbelts  

(SB 20, Hill) 

Beginning July 1, 2018, this law requires a passenger on a bus equipped with seat belts to be properly restrained by a safety belt. This law also prohibits a parent, legal guardian, or chartering party to transport on a bus, or permit to be transported on a bus, a child who is at least 8 years of age but under 16 years of age, unless they are properly restrained by a safety belt or an appropriate child passenger restraint system that meets federal safety standards. A violation of these provisions is an infraction punishable by a fine. 

DUI – Passenger for Hire  

(AB 2687, Achadjian) 

Beginning July 1, 2018, this law makes it unlawful for a person to operate a motor vehicle with a blood alcohol concentration of 0.04 percent or more when a passenger for hire is in the vehicle at the time of the offense. This will mean that drivers of passenger for hire, in their personal vehicles, will be held to a higher standard of safety while transporting people. The DMV will suspend a person’s driver license if a conviction is added to their record. Commercial driver license holders will receive a disqualification. 

Parking Violations for Registration or Driver License Renewal  

(AB 503, Lackey) 

This law makes changes to a requirement under which vehicle registration renewal and driver license issuance or renewal is not granted for having unpaid parking penalties and fees. The law creates a process for low-income Californians with outstanding parking violations to repay their fines and penalties prior to the parking violation being reported to the DMV. The law also allows the registered owner of a vehicle to file for Planned Non-Operation status when unpaid parking penalties are on the vehicle’s record. It also allows for someone with outstanding parking penalties and fees, to obtain or renew a driver license. 

 

 

New laws affecting juveniles in the criminal justice system 

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From the initial point of questioning to whether there is a possibility of parole, the California State Legislature has passed new laws will affect the two crucial beginning and end points in the juvenile court process. For minors who were acquitted or had their cases dismissed, an additional bill allows for the sealing of their juvenile records. Governor Brown has signed six of these bills into new law, effective January 1, 2018. While none of the changes in the law will affect actual sentencing, each of these bills recognizes that juvenile offenders are children, with children’s levels of understanding, and that each has entire lives and potentials ahead of them.

 

Interrogation and arrest stage for juveniles age 14 and younger

SB 395 (Lara)

First, at the interrogation and arrest stages, children under the age of 15 years old will now be required to consult with an attorney before waiving their rights and before any custodial interrogation. This law is crucial in that children are taught from very young ages to trust the police and to always be completely forthcoming and submissive to authority figures- and especially to the police. Many adults, and most or all children, do not understand the full impact of their Miranda rights, or that the police are trained in sophisticated interrogation techniques- including lying to suspects- in their interrogation training courses. Sadly, many children, in order to please the questioner, to cover up for a friend, to feel important, or merely from stress and hoping to avoid further questions, will falsely confess to crimes they did not commit when they are subjected to interrogation from authority figures. These children do not understand the serious legal consequences of their confessions.

This new law will help children ages 15 or younger receive professional legal guidance before giving up their rights, and before the police interrogate them. These young minors will consult with legal counsel in person, by telephone, or by video conference prior to a custodial interrogation or waiver of the right to remain silent. There are particular nuances and limits to this new legislation, including an exception when necessary to protect life or property from imminent threat, but this could be a good start in the right direction. The new law requires that a small panel reports to the Legislature the relevant data on the effects and outcomes associated with its provisions, and further: the law automatically self- repeals on January 1, 2025.

 

Fees waived for juveniles under age 21

SB 190 (Mitchell)

Currently, correctional administrators (authorized by Counties) may assess administrative fees and charge application fees to participants in home detention programs or work furlough programs, whether the participants volunteered for the programs or not. Further, probationers must pay for any required drug testing when ordered. Also currently, parents of children accused of crimes must pay for the transportation, food, shelter, and care at juvenile facilities, and for the costs of required programs, such as alcohol or drug programs. Parents must also pay for the costs of probation supervision, home supervision, or electronic surveillance of the minor.

Effective January 1, 2018, the parents of accused and offending minors will no longer be liable for these fees and costs, which will be absorbed by the Counties for juveniles under the age of 21. Juveniles with “dual ward status” will not be affected.

While it seems rational that parents should be required to pay for the costs of their children, one result of juvenile justice’s cost-shifting burden to parents is that charging and incarcerating youths suddenly becomes virtually free for the government- it transfers all of the direct rearing and upbringing of the youth to the government, away from the parents, without any of the associated costs. This means that when considering whether to take and incarcerate a child, the government no longer has to be concerned with the costs of doing so, because the parents pay, which creates a disturbing imbalance of judicial considerations.

 

Parole processes for Juvenile offenders

AB 1308 (Stone)

SB 394 (Lara and Mitchell)

Two pieces of newly enacted legislation will affect parole processes for juvenile offenders. First, the Board of Parole Hearings generally is required to conduct youth offender parole hearings to consider the release of offenders who committed specified crimes when they were under 23 years of age and who were sentenced to state prison. Beginning in 2018, the Board of Parole Hearings must conduct youth offender parole hearings for those juveniles sentences to state prison who were under 25 years of age at the time they committed those crimes. Because there will be a sudden backlog of necessary hearings, the new law does make time provisions to allow the Board to catch up, and sets deadlines for those hearings that will now be required.

Second, SB 394 requires that children who have been sentenced to life without parole (LWOP) be given a parole hearing after 25 years of incarceration. Thus, a 15-year-old juvenile offender who was sentenced with LWOP will receive a parole hearing when he or she is 40 years old. This law brings California in line with recent Supreme Court decisions. For example, in 2005, the United States Supreme Court held that juveniles have lessened culpability than adults because of the “fundamental differences between juvenile and adult offenders” (Roper v. Simmons (2005) 543 U.S. 551). Then in 2010, it ruled that it is unconstitutional to sentence a youth who did not commit homicide to a sentence of life without the possibility of parole. The Court explained that the Eighth Amendment, which prohibits cruel and unusual punishment, “does not foreclose the possibility that persons convicted of non-homicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society” (Graham v. Florida (2010) 540 U.S. 48, 51-52). Again, because this new legislation will require new, necessary hearings, it also makes time provisions to allow the Parole Board to catch up, and sets deadlines for the newly required hearings.

 

Honorable discharge program re-instated for juvenile offenders

SB 625 (Atkins)

Up until a budget bill was enacted in 2011, there was an honorable discharge program for juvenile offenders under the California Department of Corrections and Rehabilitation’s (CCDCR) Division of Juvenile Facilities. This program allowed juveniles who successfully completed parole after custody, and who demonstrated their ‘ability for honorable self-support,’ to clear their records and to qualify for employment or professional licensure.

Under the budget bill (AB 1628) passed in 2010, and effective 2011, the responsibility of supervision of offenders shifted from the state Juvenile Parole Board to county probation department. Due to a completely and admittedly inadvertent oversight, the new law failed to authorize anyone at the local level to issue honorable discharges. With no one authorized to issue the honorable discharges, the entire program was effectively removed.

This program was crucial for juvenile offenders to be able to make better decisions by pursuing employment and professional license educations. Without the ability to earn a dishonorable discharge, these youths were prevented from earning occupational degrees and licenses, including: barbering, cosmetology, tattoo artists, contractor’s licenses, law degrees, teaching degrees, and many other vital public service career options.

Senator Atkins authored this legislation, which was passed by the legislature and signed by Governor Brown, that reinstates this vital program by authorizing the Board of Juvenile Hearings to grant honorable discharges to those who have proven their ability to desist from criminal behavior and to initiate a successful transition into adulthood.

 

Sealing of juvenile records

AB 529 (2017) (Stone)

SB 312 (2017) (Skinner)

Two bills passed by the legislature and signed by Governor Brown relating to sealing juvenile records will go into effect on January 1, 2018. Together, they will help youths move forward in positive ways- pursuing education and employment- without the ongoing stigma of having a juvenile record hindering their progress.

Currently, a juvenile who has been arrested or who has had his or her case dismissed must petition the court within 5 years to seal those juvenile records. Under AB 529, the court will be required to automatically seal the records of minors who were either acquitted or had their cases dismissed. If, however, within six months of a dismissal, new evidence is found, or if a witness becomes available, the prosecution may ask to refile those dismissed cases.

Also, existing law bans juvenile offenders who have been convicted of serious crimes from sealing their juvenile records. Beginning January 1, 2018, according to SB 312, this ban will be slightly less strict. In 2018, a person will be able to petition the court to seal their juvenile records after they have completed any period of probation supervision at age 21 (if the juvenile offender was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities) or at age 18 (if he or she was not committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities). Certain serious violent or sexual crimes will not be affected.

Whether it’s automatic sealing by the court or allowing youths to have their own juvenile records sealed, young people merely accused of crimes as well as young convicted offenders will all be able to move forward into productive, valuable lives- without the lifetime barriers to jobs, education, housing, military service and other barriers that criminal records create.

People v. Prunty

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This case involves the crimes of attempted murder and assault with a firearm committed by Zackery Prunty. He is associated with a subset gang of the larger Northern Sacramento Norteño criminal street gang. Prunty committed the crimes against someone from the Sureño gang and the prosecution used this information to their advantage. They argued that the crime was committed for the benefit of the entire Norteño gang and therefore, Prunty’s sentence was subject to the enhancement under the STEP act aka Gang Enhancements. Prunty appealed to the California Supreme Court because he believed there were no “collaborative activities” or a “collective organizational structure” between his gang and the bigger Norteño gang. In addition to this, in People v Williams the court decided that various subset activities cannot be used to prove the gang’s existence. The prosecution was barred from using the evidence of common color and symbol worn, to establish a connection between the larger group and the subset. The California Supreme Court concluded that the prosecution did not provide a sufficient amount of evidence to enhance Prunty’s sentence and therefore, reversed the lower court’s decision.

This case is very important and assists the defense by showing not all subsets are acting because of a larger gangs requirements.  The DA’s will have to show how the specific smaller gang or subset benefits from a crime and not just some larger form of the gang.

Eight Common Myths about the US Justice System

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The United States Justice System is filled with flaws that are hidden by eight common myths. The first myth is that eyewitnesses are highly reliable and this is simply not true because of the stressful circumstances these people witness the crimes under. In courts throughout the country expert witnesses are called to discuss the variables surrounding the ability to identify a person.  There are several factors that exist to consider before we can trust an identification.  Individuals from different races illustrates a major factor regarding the reliability of a witness because many tend to discriminate. In fact 1/3 of wrongful convictions are due to mistaken eyewitness testimonies.

The second myth surrounds the belief that fingerprint evidence is foolproof.  There are many factors that contradict this statement. Prints left in the field are often smudged or incomplete and there is a great error rate in identifying fingerprints.  Once again, experts must be enlisted to testify in this great area of uncertainty.  When and how a print is placed is ample area for challenging this myth.

The third myth is that human memories are reliable.  Most expert witnesses use in this area will tell you that memories can be distorted. We know this from our own personal experience living or day to day lives.  Several external factors often affect how memories are retrieved and described. The stress of the situation can ultimately alter the memory because human memory is fundamentally flawed.

Number four focuses on notion that innocent people never confess.  The reality is that many people feel compelled to confess to or plead to a crime because of the emotional and financial exhaustion that a court case comes with.  Minors and adult must always remember to exercise their rights under the fourth and fifth amendments of the Constitution at all times.  The system is not kind and when mistakes are made success to reverse your actions may be slim or none.

The fifth myth surround the notion that the police are objective in their investigations. The fact is that police often decide the majority of the case and manipulate evidence to point the crime at a specific person. Being objective takes time and effort.  Unfortunately police don’t feel they have those options when beginning an investigation.  Police may create, ignore or destroy evidence early in an investigation because their attention is drawn to certain witnesses who are bias.  That bias may not be determined right away by police so any other avenues which could be taken are unexplored.  As a result, the possibility of innocent people spending time in jail or prison exist because of these wrongdoings.

Myth number six revolves around the idea that guilty pleas are proof of guilt. This does not reflect reality because often times the defendant may plead guilty to one count, but the sentence involves all of the counts brought against the defendant. This also does not account for the fear of being impeached in trial because of previous involvement with the law.

The seventh myth is that prosecutor’s play fair.  We would like to believe that the prosecutor is impartial in their beliefs and administer the pursuit of justice evenhandedly.  This can be misleading because not all prosecutors follow the necessary rules. A very common broken rule is handing over all exculpatory evidence to the defense. Not doing this vital step can greatly impact the outcome of the case and possibly put an innocent person in jail.  Courts have focused on this trend by requiring the full disclosure from prosecutors but more importantly, authorizing sanctions and penalties for violations of the rules regarding disclosure of information or the altering of it by the prosecutor’s hand.

The last myth is that long sentences deter crime. This is simply not true because crime rates have been dropping all over the world.  The United States is the only country with a crime rate 5 times that of other industrialized nations. Harsher sentences do not help get rid of crime; instead they become a burden on taxpayers to pay for.  The recent moves in California with propositions 36 and 47 show a movement towards fairer sentencing and a hope to reduce the incarceration rates which are far too high.