Strip Searches: The Court Of Appeals Says No, No!

Is it a common practice for police to use a search warrant to strip search every person in a location without a strong indication the place is “devoted” to criminal activity.

Recently the New York State Court Of Appeals said that drugs found on one man in 2006 during a raid of an apartment in Syracuse can not be used as evidence.  Robert Mothersel and six other individuals were stripped searched on this occasion.

The New State Court Of Appeals said broad-based search warrants are unconstitutional unless police surveillance shows every person at a particular location would have contraband or criminal evidence on them. In the case involving Robert Mothersel, the court found the strip searches were inappropriate. Mr. Mothersel was stripped searched and a body cavity search was conducted. Drugs were found in his buttocks. At the time of the search Mr. Mothersel was not under arrest. The Court of Appeals found the drugs found in Mr. Mothersel’s buttocks were illegally obtained and could not be used against him in court.

A Syracuse detective involved in the case stated at a court hearing “in the execution of hundreds of all-person-present warrants, the people were routinely stripped searched and required to facilitate the examination of their anal and genital cavities.”

Judge Libbman, writing for the New York Court Of Appeals, described circumstances wherin such broad-based strip search warrants would be approved.

He stated “we think it is clear that surveillance of a location may yield a factual basis to infer with the requisite force that the place is devoted to an ongoing illicit purpose, such as the manufacturing or marketing of narcotics, . .  . and that all those present at the time of the contemplated search will probably in possession of contraband or other specified evidence of illegality.”

Strip searches, and especially body cavity searches, can amount to the deprivation of the most basic rights of privacy a United States citizen should expect. We hope you never experience this humiliating situation. If you or a family member were improperly subject to an outrageous violation of your right to privacy feel free to call us at 1-800-344-6431 or contact us by email. We will protect your rights.

Can the Police Search Your Cell Phone Without a Warrant?

In Ohio, cell phones protected by the 4^th amendment’s prohibition against unreasonable search and seizure by the government.

In a recent decision, the Ohio Supreme Court has ruled that police officers need to obtain a warrant in order to search a cell phone. This decision by the Ohio Supreme Court takes into consideration the fact that cell phones today go far beyond the means of basic communication. They are mini computers that store large amounts of personal information. From this point forward, the personal information becomes a protected privacy right, at least in the State of Ohio.

Although most searches require warrants, police officers are allowed to search their immediate surroundings when dealing with potential arrests for their own self protection. The Ohio case involves a man named Antwaun Smith. He was arrested on drug charges. At the time of his arrest his cell phone was ceased and later it was searched. The police found information important to their investigation on his cell phone calling records.

The recent ruling of the Ohio State Supreme Court was a divided 4/3 vote. The decision indicated that Mr. Smith’s protection against unreasonable search and seizures under the 4^th Amendment to the US Constitution were violated. The court, in its decision stated that cell phones are “capable of storing a wealth of digitized information”. The court’s decision indicated that individuals using cell phones have an expectation of privacy which is protected by the 4^th Amendment to the US Constitution.　

The Ohio court’s ruling creates a new type of privacy. As hand-held devices become more and more sophisticated, they will contain more and more personal information. Individuals rights of privacy in devices that are basically hand-held mini computers should be protected by the 4^th Amendment to the US Constitution. I have every hope that when a case presents itself, the NY Court of Appeals will make a similar ruling that respects individuals rights of privacy against unreasonable searches and seizures of all types of hand-held telephones and computer devices.

Should you, a friend or a loved one be subject to what amounts to be an unreasonable search, the criminal defense attorneys at the Law Office of Elliot S. Schlissel can use their expertise and diligence to protect your rights and the rights of a friend or a loved one. E-mail or call us at 1-800-344-6431.

Picture courtesy of the Daily Iowan.

Do the Police Need a Warrant to Attach a GPS Tracking Device to Your Car? (Updated)

Right now, it depends which part of New York you live in. In Westchester and Albany, the police do not need a warrant to place a GPS tracking device on your car, but in Nassau County they do.

On March 24th, the New York Court of Appeals heard oral arguments (video here) in the case of People v. Weaver, which will probably lay out a uniform rule for all of New York State (the Supreme Court of the United States has not yet ruled on the matter). In that case, the Defendant is appealing of the affirmation of his conviction by the Appellate Division, 3rd Dept.  People v. Weaver, 52 A.D.3d 138 (3d Dept. 2008).

In this case, Albany police secretly placed a GPS tracking device on the Defendant’s car to track his movements without acquiring a search warrant beforehand. The issue in the case is whether tracking someone with a GPS device constitutes a “search.” If it does, then the police must either get a warrant first or justify their decision not to obtain a warrant under one of the established warrant requirement exceptions. If it is not a search, then the  Fourth Amendment would not be implicated at all and no warrant would be required.

The trial court and the Appellate Division reasoned that placing the GPS tracking  device on the car was not constitute a search and thus did not require a warrant because the police were not learning anything from the tracking device that they could not have learned by simply following the car. The courts held that since anyone can follow any car on the road, individuals do not have a “reasonable expectation of privacy” that the location of their cars on the roads will remain a secret.

During the oral arguments in the Weaver case,  Chief Judge Lippman asked the attorney for the government whether he would see any constitutional problem if the police decided to work with car dealerships to install GPS tracking devices on everyone’s car to watch their every vehicular movement. He elicited an admission by the government lawyer that his position was that such a practice would not offend individuals’ “reasonable expectation of privacy” under either the New York or U.S. Constitutions.

My legal e-pen pal, James Maloney, Esq., alerted me to this case and recently watched oral arguments  as well, and predicted that the new Chief Judge Jonathan Lippman will pen a majority opinion finding that surreptitiously installing a GPS tracking device on a car does constitute a search and would ordinarily require a warrant absent some kind of exigent circumstances (emergency). Or, even if he does not write a majority opinion, that he would write a strong dissent arguing that placing a GPS tracking device on a car does constitute a search.

In this case, the danger of a limitless right by the police to track individuals’ every movement justifies a constitutional requirement that they obtain a warrant before doing so in order to avoid abuses.

As always, if you need criminal defense help or feel that you are being investigated by the police for a crime, you are invited to contact our office.

Update 5/12/09: I posted one day too early. I have not gotten to read the case yet, but apparantly the Court of Appeals just issued their decision in this case, finding that the New York Constitution does indeed prohibit warantless placement of GPS tracking devices without a showing of Exigent Circumstances by police.  LINK.

Picture courtesy of consumertracking.com. As always, if you need help with any criminal matter, you are invited to contact our office.