By: Timothy P. Flynn

Fresh off the press from yesterday's announced decision: the 4th Amendment warrant requirement means something after all.  In Riley v California, a case we've been tracking here at the Law Blogger, SCOTUS held that without a warrant, the police cannot seize the digital data contained in an arrestee's cell phone.

California college student and convicted gang member, David Riley, had the misfortune of having a routine "tail light" stop turn into a 15-to life weapons-n-[attempted] murder-related sentence.  Now SCOTUS has reversed that sentence in a unanimous opinion that injects new life into the 4th Amendment's search and seizure clause.

The traffic stop led to the discovery that Riley's drivers license was suspended.  When law enforcement makes an arrest, the practice of conducting a search incident to that arrest is one of the exceptions to the 4th Amendment's warrant requirement.  Well, in Riley's case, that search led to the discovery of guns in the trunk.

The cops also located Riley's cell phone in the car from which they promptly extracted digital data in its entirety.  Think for a moment about the kind of data that lies buried within your cell phone.

In Riley's case, over his objection, the cell phone data suggested to the jury that Riley may have ran with a gang, and that he knew some things about the attempted gang hit for which he was being prosecuted.  

Legal scholar Lyle Denniston of SCOTUSblog summarized the High Court decision much better than we ever could:

Treating modern cellphones as gaping windows into nearly all aspects of the user’s life and private conduct, the Supreme Court on Wednesday unanimously ordered police to get a search warrant before examining the contents of any such device they take from a person they have arrested.  Seeing an individual with a cellphone  is such a common thing today, Chief Justice John G. Roberts, Jr., wrote, “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The Court rejected every argument made to it by prosecutors and police that officers should be free to inspect the contents of any cellphone taken from an arrestee.  It left open just one option for such searches without a court order:  if police are facing a dire emergency, such as trying to locate a missing child or heading off a terrorist plot.  But even then, it ruled, those “exigent” exceptions to the requirement for a search warrant would have to satisfy a judge after the fact.

The ruling was such a sweeping embrace of digital privacy that it even reached remotely stored private information that can be reached by a hand-held device — as in the modern-day data storage “cloud.”  And it implied that the tracking data that a cellphone may contain about the places that an individual visited also is entitled to the same shield of privacy.

We here at the Law Blogger heartily agree with this unanimous decision.  We walk around with our private lives attached, literally to our hip, or our ear, or our belt.  Cell phones are miniature personal computers, and should be imbued with some modicum of privacy relative to law enforcement.

If the data is needed to prove criminal conduct, then an old fashioned warrant must be secured.  From their landmark graves, our Founding Father's would agree.

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By: Timothy P. Flynn

In law school back in the mid-1980s, I recall taking Constitutional Law with Professor Patrick Keenan [RIP] at the University of Detroit School of Law.  The class was one of the few that I looked forward to attending because of the dynamic subject matter and law professor.

One of the segments of the class was the First Amendment, and its free speech component.  The casebook profiled a series of cases in the chapter on the First Amendment that I had actually heard about in the media.

Yesterday, the SCOTUS granted certiorari in Elonis vs United States, a case destined for the constitutional law casebooks.  The roots of the case go back half a decade to a divorce court in Pennsylvania.

In 2009, Anthony Elonis, distraught over his contentious divorce proceedings, having lost his amusement park job, and perhaps considering himself "washed-up" at only 27, began to express his frustration on the Internet.  And when you are frustrated on the Internet, you probably turn to Facebook as the platform to express your views.  Elonis authored a series of posts on FB that mused about killing his ex-wife and others.  He also posted rap lyrics with such themes, insisting on FB, however, that he meant no harm.

In the end, convicted of a federal crime involving the electronic transmission of a threat across state lines, the man did nearly 4-years in the federal penitentiary.  His appeal of the conviction will now be decided by the highest court in the land.

Legal blogger Maureen Johnston of the SCOTUSblog framed the issue in her "Petiton of the Day" post:

Whether, consistent with the First Amendment and Virginia v Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

The Virginia v Black case held that a Virginia statute that outlawed cross-burning was overbroad to the extent that some cross-burning may not be performed in a threatening manner.  Really?  The SCOTUS decision to grant certiorari is even more puzzling considering their rejection last year of a petition involving a litigant that posted YouTube death threats to the judge in his child custody case.

Various lower courts have utilized different standards to assess the intent behind such threats.  Elonis asserts in his petition that the "reasonable person" standard is improper in the case of social media due to the high potential for misinterpretation by viewers that do not know the declarant.  Elonis argues that his subjective intent -merely to express his frustration, not to threaten- is the standard by which he should be judged relative to the charged federal offense.

Therefore, sometime next year, SCOTUS will decide the constitutionality of 18 USC 875(c).  We will track this case and report back.

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Novi District Judge Dennis Powers

Over here at the Law Blogger, we've dared to imagine what it's like to be a judge.  While none of our lawyers have ever been on the non-partisan ballot, we work with enough judges to marvel at the awesome responsibilities they shoulder every day, and the substantial powers entrusted to them to decide cases.

To maintain a well-oiled docket, either at the district court or the circuit court level, is a monumental task that requires legal knowledge, wisdom and perhaps most importantly, management skills.  As either a circuit or district court judge, you are elected from the very community in which you pronounce judgment, day-in-day-out.

 Judges, even more so than our public servants in the other branches of government, must have impeccable integrity.  When a judge breaches the public's trust, it erodes the fabric of our justice system; when that breach is due to dishonesty, the damage is accelerated.

Two veteran jurists in Novi have been in the news over the past year for this type of mission-critical breakdown.  They have left their communities wondering about the brand of justice that is served at the 52/1st District Court.

Last week, the Judicial Tenure Commission filed a 58-page complaint against district judge Dennis Powers, alleging among other things that Judge Powers requested reimbursements to which he was not entitled, was frequently late to court, granted favors to his "friends", as famously detailed in a Fox News' expose, and threatened to terminate the whistle-blower on his staff after the local media reported on the story.

For his part, Judge Brian MacKenzie, in the adjacent chambers at the 52/1st, is also under scrutiny; his docket is being reviewed by a higher court; and a tape recording made in Judge MacKenzie's chambers about a questionable conversation the judge directed involving an exchange of dismissals, civil for criminal, is under review by the FBI.  We shall see where all that goes...

Our blog has already detailed some of the shenanigans sponsored by Judge Brian MacKenzie in an earlier Law Blogger post.  Since then, Oakland Circuit Judge Colleen O'Brien did find that Judge MacKenzie acted contrary to the law in at least 8 cases, and ordered part of his docket [in domestic violence cases] to be subject to her review.

Then there is the 2014 election where the allegations against Judge MacKenzie will be tested on the non-partisan ballot, first in the August primary, then in the general election if MacKenzie survives the primary; he is being challenged by two local attorneys- his former law clerk Travis Reeds, and Scott Powers, Judge Dennis Powers' son.

With the formal JTC complaint now filed against him, it is uncertain whether Judge Powers will even make it through the two years remaining on his term.  That would open-up a seat on this radioactive bench for Governor Rick Snyder to fill through a local judicial appointment.

In order to restore faith in our local judiciary, Governor Snyder needs to get that appointment right, should he have the opportunity.  Stay tuned and we will keep you posted of all significant developments happening out in Novi.

In the meantime, if you've had an interesting experience in a district court, we would like to hear from you.

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Unlike here in Michigan where the Attorney General has successfully stayed federal judge Bernard Friedman's ruling striking down Michigan's constitutional provision banning same-sex marriages, Governor Tom Corbett announced last week that Pennsylvania will not challenge a similar federal judge's ruling on same-sex marriage.

This makes Pennsylvania the 19th state, along with the District of Colombia, to allow same-sex marriages. Pennsylvania's constitutional ban has been on the books since 1996; federal judge John Jones ruled the ban unconstitutional.

Not surprisingly, politics affected the outcome in the Pennsylvania case.  Governor Tom Corbett is embroiled in a tough re-election campaign and is thought to be vulnerable to his Democratic challenger in this fall's general election. This is compounded by the fact that the Governor has a Democrat as his Attorney General who has gone on record stating Pennsylvania's ban is unconstitutional.

The interesting thing for us over here at the Law Blogger is the fast pace of the litigation now pending in nearly every state in the union.  The ultimate civil rights showdown, however, awaits the marble steps and pillars of the SCOTUS; perhaps in the term after next.

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We started this blog with the Oakland Press in March 2009.  Five years and 400 posts later, we realize how lucky we are to have support from our host, the Oakland Press, demonstrating that the First Amendment is alive and well.

Some of the topics we've been luck to follow over the past half-decade has been the rapid progression of the same-sex marriage civil rights litigation.  Another hot topic has been the gradual decriminalization, and even legalization, of marijuana; in some states and for some purposes.

Judges and attorneys are always fair game, as are our legislators and law enforcement.  These groups of professionals intersect at our legal system.

The goal of this blog is to shed some light, however small, on a portion of what goes on in this system.   We shift through local, county, state and national legal news feeds for the material we hope you find relevant, informative; occasionally even entertaining.

This blog is approaching 300k page views.  In our digital era, we get between 15 seconds to one minute of your time; we want to make it count.

Let us know how we're doing; leave a comment.

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Newly Installed Judge Tom Cameron

Congratulations to our good friend, Tom Cameron, on his recent gubernatorial appointment to the Wayne County Circuit Court.  For more than a decade, Tom served the Office of the Attorney General as the Bureau Chief of the Criminal Division, first under Mike Cox, and then for Bill Schuette.

Over these years, Tom has managed some of the best criminal prosecutors in the state; he has handled the toughest, most significant criminal prosecutions in Michigan.  His last boss, AG Bill Schuette, said that Tom, "is thoughtful and committed to the rule of law.  Most importantly, his temperament is perfectly suited to service on the bench."

This is a good thing because not every career lawyer is suited for the bench.  Like the AG, we too think Tom will do well in his new position and the people of Wayne County will benefit from his appointment.

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