paulhunterjones

Today’s Smartphones

The police use various tactics for obtaining useful information once a person is detained or taken into custody. We are familiar with these tactics by reading about them in the news or seeing them acted out on Law and Order. Police officers and investigating detectives usually follow a script that includes a complete search of the suspect’s body for weapons. Separate and distinct charges maybe filed based on the discovery during the search of contraband. As part of police detention or arrest procedures the suspects personal property is inventoried and inspected. Federal and states’ laws allowed these searches to take place without the police having to secure a corresponding search warrant. As to these classes of searches the law is, more or less, established.

Law enforcement officers gleefully trolled through the suspect’s personal belongings, looking for incriminating evidence. Before cellular telephones became hand-held miniature computers the police routinely checked a detainee’s phone’s call log without there being a violation of the 4^th amendment. Yet constitutional law experts and criminal defense bars raised concerns that the police were treading on problematic 4^th amendment grounds The evolution of the Smartphone was a call to arms for privacy advocates who believed that the police should be constrained by the 4^th amendment’s prohibition against unreasonable searches and seizures. This week the United States Supreme Court (the Court) agreed with these advocates. A January Pew Research Center survey found more than 90 percent of Americans now own or regularly use a cellphone, and 58 percent have a more advanced Smartphone.

In Riley v. California and the United States of American v.Wurie the Supreme Court considered convictions based upon warrantless searches of defendants’ Smartphones. Basically the issue before the court was whether the police could search the defendants’ phones without first applying for and obtaining a warrant. Both defendants had been convicted based upon information (evidence) that was discovered while searching their Smartphones. Some lower courts had held that the police could legally search a cellphone as it if were pictures in a wallet, a cigarette pack, or the like. During oral arguments in April it seemed like the Justices were wrestling with the proper balance between effective police work and the privacy of suspects. Most legal experts and commentators were surprised that the Court ruled unanimously that the police had to first obtain a search warrant before searching a suspect’s Smartphone.

Well, not everyone was caught off guard by the Court’s decision. Brianne Gorod, appellate counsel at the The Constitutional Accountability Center wrote an interesting post on April 29, 2014 for CNNOpinion. The piece – “What Scalia Knows About Illegal Searches” – dealt with the court’s shifting alliances on the interpretation and extend of the Fourth Amendment’s protection in criminal cases. Ms. Gorod analyzed the Court’s recent 4^th amendment cases in light of Justice Scilia’s growing influence on his colleagues. He had become an advocate for the privacy rights of criminal suspect over police officers efforts to collect evidence of criminal activity. In my opinion Ms. Gorod subtly suggested that the Court might be ready to issue a sweeping decision in the Riley and Wurie privacy cases.

The opinion, by Chief Justice Roberts, rejected law-enforcement arguments that no legal distinction existed between Smartphones and pocket litter. He wrote about the distinction as “…saying a ride on horseback is materially indistinguishable from a flight to the moon…modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet or a purse.” The Court understood that sometimes privacy rights could impede official police work, but constitutionally protected privacy comes a cost. Overall the Court’s decision is a privacy advocates for privacy advocates.

I voted for Michael Bloomberg each time he ran for office and don’t regret having done so. I thought that he governed with the right mixture of conservative and liberal initiatives. Like most New Yorkers I believed (hoped) that terms limits would have permitted an earlier change of the occupant of the mayor’s office. Bloomberg’s running for a third term in 2009 upon heals of the repeal of terms limits was a tribute to his political clout, though his continuance in office was not in the best interests of the City. Everyone will agree that he left his mark on the City.

New York City’s former billionaire mayor had his supporters, especially health advocates. They championed his efforts and initiatives to limit smoking in public areas and reduce the high incidence of obesity in the five boroughs. Many liberals saw him as a sentinel for protecting New Yorkers from unhealthy habits that robbed them of the chance to live better lives. His ban on smoking in public areas has been imitated in domestic and foreign jurisdictions. I can live with this ban though I respect others’ rights to smoke.

Mayor Bloomberg’s ban on the sale of extra large sugary drinks was almost universality denounced by everyone except for die hard health advocates. A person drinking a large sugary drink does not pose the same health risks as does secondary smoke in a public

Picture from Rueters

areas. Before this initiative became law the beverage industry attacked the proposed ban and promised legal challenges. I never thought that the ban if it became law would survive legal challenge, and I was right.

The American Beverage Association challenged the law in State Supreme Court. On March 11, 2013 Justice Milton Tingling ruled that the City had created an administration leviathan in violation of the separation of powers. Justice Tingling ruled that the law was illegal and could not go into effect.

No sooner had the decision been rendered, Mayor Bloomberg had held a press conference denouncing the decision. He framed the entire issue and decision in terms of politics over the strict adherence to the law. The Bloomberg administration promised an appeal of the decision to protect City residents’ health.

The City’s appeal was decided on July 30, 2014 by the Appellate Division of the Supreme Court, First Judicial Department. The appeals court upheld the lowers court’s invalidation of the ban on large sugary drinks. According to the Justices the New York City Department of Health did not have the power to promulgate the rule that would ban the large drinks. The board “overstepped the boundaries of its lawfully delegated authority.” Unable to accept the decision knocking down his band Bloomberg appealed to New York State’s highest court.

Yesterday the New York State Court of Appeals issued its decision on the City’s appeal. It did not come as a surprise to members of the legal community that the City’s appeal was denied. The news media outlets immediately reported the decision. The 4-2 ruling upheld the lower courts’ decision striking down the law. In writing the majority opinion for the Court Judge Eugene Pigott stated that “by choosing among competing policy goals, without any legislative delegation or guidance, the Board engaged in law-making and thus infringed upon the legislative jurisdiction of the City Council.” The law was really an attempt to regulate commerce and never designed to address a specific health issue. I agree with the majority of the legal experts and commentators that the ban was completely arbitrary.

Mayor Bill De Blasio was elected based upon his support for the ban. During the election he stated that it was critical for the city to fight the obesity epidemic and said he wanted the policy to go forward. At a news conference held today, Mayor De Blasio stated that his administration would review the decision afterward it would then consider its options. Clearly the current mayor does not have the support of the progressive-liberal establishment that he had during his election. New York City Council Speaker, Melissa Mark-Viverito has already announced her support for the Court of Appeals decision. Even the very progressive Letitta James, the City’s Public Advocate, does not support the ban. I think it highly unlikely that there will be no further efforts made to legally ban large sugary drinks.