Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

Woman’s Death in Sober Living Facility Allegedly at Hands of Ex Prompts Closer Look at Drug and Alcohol-Free Housing

 

An allegedly abusive relationship came to a tragic turning point this week, culminating in death and criminal charges under Massachusetts law, when 33-year-old Melissa Hardy was found lifeless in her ex-boyfriend’s home. According to The Boston Herald, Ms. Hardy’s body was found in a South Boston sober home for recovering drug and alcohol abusers, where Martin E. Jiminez had a room. According to her father, she had gone to Mr. Jiminez’s residence to collect her belongings after ending her relationship with him once and for all. Her father recounts that he had warned her to not go near Mr. Jiminez alone, and believes that Mr. Jiminez abused his daughter during their relationship. Ms. Hardy reportedly had decided to leave Mr. Jiminez after a physical altercation with him, in which he allegedly punched her in the face. She had been missing for several days, and family finally asked law enforcement officers to check Mr. Jiminez’s apartment for her, where she was finally found. According to prosecutors, Ms. Hardy’s body showed signs of trauma.

The horrific incident involving Ms. Hardy is not Mr. Jiminez’s first brush with the law. Mr. Jiminez was convicted of rape in 1989 and had done jail time, however, since his release, he had not registered as a sex offender. Before Ms. Hardy’s body was found on Wednesday, Mr. Jiminez had been arrested for violating Massachusetts DWI laws, when he was driving a car registered to Ms. Hardy’s father, high on drugs. The Boston Globe reports that on Monday, Mr. Jiminez was arrested for the DWI incident, and was taken to a nearby hospital. Incidentally, officials had issued a warrant for Mr. Jiminez’s arrest that same day, for the failing to register as a sex offender. Mr. Jiminez was arrested once again, on Wednesday, in connection to Ms. Hardy’s death. On Thursday, Mr. Jiminez was charged in South Boston District Municipal Court with murder. He pleaded not guilty to the charges and was ordered to be held without bail. He is apparently scheduled to appear in court again in early August.

In addition to drawing attention to the deadly, and unfortunate, consequences of abusive relationships, the case of Hardy and Jiminez has also brought attention to unregulated sober homes in Massachusetts. In Massachusetts, sober homes are usually owned privately, and, therefore, are not registered with the city or state. The sober living home in which Mr. Jiminez resided is owned by Nonbue Investments, LLC, a corporation based in Missouri. That particular facility had been the subject of neighborhood complaints, including concerns about drug abuse at the property. While many sober living homes in the Boston area are responsibly run and do provide a sober living environment, authorities believe that some sober homes offer no services to their residents, and can exacerbate problems.

In the wake of Ms. Hardy’s death, Massachusetts lawmakers are taking a closer look at regulating sober living facilities. Lawmakers Martin J. Walsh and Nick Collins have taken up the cause, cosponsoring legislation that would require certification for alcohol and drug-free facilities.

If you have been charged with violating criminal laws in Massachusetts, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact the offices of Edward R. Molari today for a confidential consultation.

 

Suit Tests Limits of Copyright Fair Use as Applied to Online Listicles

One of the protections copyright law affords to a work’s copyright holder is the ability to exclude others from using the work. Under the Copyright Act, a “derivative work” is one that is basically derived from the original work—these types of works are protected, and, in general, only the holder of the copyright has the right to control them. Unauthorized derivative use of a work is considered to be copyright infringement. Transformative works are different. These works fall under the exception in copyright law that allows for fair use of copyrighted material, meaning that people other than the copyright holder may use the work for the transformative purpose. Four factors guide courts in determining whether a use of a work is fair use:

1.     The purpose of the use;

2.     The nature of the work;

3.     The amount of the work used; and

4.      The effect of the use upon the potential market value for, or value of, the work.

While courts use these factors to guide them, there is no hard and fast rule dictating what is fair use and what is infringement. This tension is brought to light in a new case filed this month by a photographer against the website BuzzFeed.

The IB Times reports that Kai Eiselein, of Idaho, filed a $3.6 million dollar copyright suit against BuzzFeed for the use of his photo. Mr. Eiselein is a photographer with over 30 years of experience, and worked as a photojournalist during his career. The photo was used on one of BuzzFeed’s “listicles”, which is essentially a shortened article in a list form, often with slides or accompanying photographs, that has enough writing to be considered an article. The listicle in question published by Buzzfeed in 2010, was called “The 30 Funniest Header Faces,” and essentially published photos of people being hit in the head with soccer balls. Mr. Eiselein’s photo was that of a female soccer player being hit in the head with a soccer ball.  

Matt Stopera is the Buzzfeed poster who created the listicle and posted Mr. Eiselein’s photo in June of 2010. Mr. Eiselein says that he first uploaded the photo to Flickr in 2009, and registered it with the copyright office in 2011. He further alleges that he sent BuzzFeed a takedown notice in May of 2011, but that the photo remained on the website for another two years. The listicle has now be renamed “The 29 Funniest Header Faces” and Mr. Eiselein’s photo has been removed.

According to Slate.com, in addition to suing for infringement, Mr. Eiselein is also suing BuzzFeed for contributory infringement, alleging that the website promotes content sharing. The photo was allegedly shared to 63 other websites, however many of those were personal online blogs.

BuzzFeed’s founder Jonah Peretti has argued that usage such as that complained of by Mr. Eiselein is transformative in nature, and therefore falls under fair use. Mr. Eiselein, predictably, disagrees with this analysis, citing that the nature of BuzzFeed’s use is commercial, among other things. Mr. Eiselein also notes that he would not have minded if his photo would have been hyperlinked within the listicle.

For copyright law scholars and other interested parties, a decision in Mr. Eiselein’s case may serve as a guidepost in the factor-intensive fair use test. Copyright suits arise out of a complex body of law, and understanding the consequences of the law requires skill and experience with copyright principles. If you are the subject of a copyright lawsuit, your best defense is to contact an experienced copyright law attorney. Call the law office of Edward R. Molari today for a confidential consultation.

Shoe Bomber Richard Reid Sentenced to Life, Plus 80 Years, Plus 5 Years Supervised Release

The following is the transcript of Judge Young's statements to shoe bomber Richard Reid, when sentencing him to life in prison plus eighty years (with five years supervised release after that).  It is worth reading.

 

Ruling by Judge William Young, US District Court.

Prior to sentencing, the Judge asked the defendant if he had anything to say His response: After admitting his guilt to the court for the record, Reid also admitted his 'allegiance to Osama bin Laden, to Islam, and to the religion of Allah,' defiantly
stating, 'I think I will not apologize for my actions,' and told the court 'I am at war with your country.'

Judge Young then delivered the statement quoted below:

Judge Young: "Mr. Richard C. Reid, hearken now to the sentence the Court imposes upon you.

On counts 1, 5 and 6 the Court sentences you to life in prison in the custody of the United States Attorney General. On counts 2, 3, 4 and 7, the Court sentences you to 20 years in prison on each count, the sentence on each count to run consecutively. (That's 80 years.)

On count 8 the Court sentences you to the mandatory 30 years, again to be served consecutively to the 80 years just imposed. The Court imposes upon you for each of the eight counts a fine of $250,000, that's an aggregate fine of $2 million. The Court accepts the government's recommendation with respect to restitution and orders restitution in the amount of $298.17 to Andre Bousquet and $5,784 to American Airlines.

The Court imposes upon you an $800 special assessment. The Court imposes upon you, five years supervised release simply because the law requires it. But the life sentences are real life sentences so I need go no further.

This is the sentence that is provided for by our statutes. It is a fair and just sentence. It is a righteous sentence.

Now, let me explain this to you. We are not afraid of you or any of your terrorist co-conspirators, Mr. Reid. We are Americans. We have been through the fire before. There is too much war talk here and I say that to everyone with the utmost respect. Here in this court, we deal with individuals as individuals and care for individuals as individuals. As human beings, we reach out for justice.

You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier, gives you far too much stature. Whether the officers of government do it, or your attorney does it, or if you think you are a soldier, you are not-----, you are a terrorist. And we do not negotiate with terrorists. We do not meet with terrorists. We do not sign documents with terrorists. We hunt them down one by one and bring them to justice.

So war talk is way out of line in this court. You are a big fellow. But you are not that big. You're no warrior. I've known warriors. You are a terrorist. A species of criminal that is guilty of multiple attempted murders. In a very real sense, State Trooper Santiago had it right when you first were taken off that plane and into custody and you wondered where the press and the TV crews were, and he said:

'You're no big deal. '

You are no big deal.

What your able counsel and what the equally able United States attorneys have grappled with and what I have, as honestly as I know how, tried to grapple with, is why you did something so horrific. What was it that led you here to this courtroom today?

I have listened respectfully to what you have to say. And I ask you to search your heart and ask yourself what sort of unfathomable hate led you to do what you are guilty, and admit you are guilty, of doing? And, I have an answer for you. It may not satisfy you, but as I search this entire record, it comes as close to understanding as I know.

It seems to me, you hate the one thing that to us is most precious. You hate our freedom. Our individual freedom. Our individual freedom to live as we choose, to come and go as we choose, to believe or not believe as we individually choose. Here, in this society, the very wind carries freedom. It carries it everywhere from sea to shining sea. It is because we prize individual freedom so much that you are here in this beautiful courtroom, so that everyone can see, truly see, that justice is administered fairly, individually, and discretely. It is for freedom's sake that your lawyers are striving so vigorously on your behalf, have filed appeals, will go on in their representation of you before other judges.

We Americans are all about freedom. Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties. Make no mistake though. It is yet true that we will bear any burden; pay any price, to preserve our freedoms. Look around this courtroom. Mark it well. The world is not going to long remember what you or I say here. The day after tomorrow, it will be forgotten, but this, however, will long endure.

Here in this courtroom and courtrooms all across America , the American people will gather to see that justice, individual justice, justice, not war, individual justice, is in fact being done. The very President of the United States through his officers, will have to come into courtrooms and lay out evidence on which specific matters can be judged and juries of citizens will gather to sit and judge that evidence democratically, to mold and shape and refine our sense of justice.

See that flag, Mr. Reid? That's the flag of the United States of America . That flag will fly there long after this is all forgotten. That flag stands for freedom. And it always will.

Mr. Custody Officer. Stand him down.

BitTorrent Copyright Infringement Suit Securing Verdict Changes BitTorrent Suit Trends

 

Whether you are an adamant opponent of Internet Trolling, or a copyright holder trying to protect your work, a case tried earlier this month in Pennsylvania may change the climate of bittorrent copyright lawsuits altogether, shifting the online infringing environment. The case of Malibu Media v. Does, is the first case of its kind to go to trial, and will most likely set the pace for future claims brought under copyright law. While bittorrent cases, as in the Prenda Law cases, which received great attention last month, have entirely settled out of court, the verdict in Malibu Media stands as a symbol that bittorrent suits can and will be litigated from start to finish. The suit is also a wake up call for copyright law defense  attorneys, and their clients.

According to the Nashville City Paper, bittorrent lawsuits start with BitTorrent software, which is a platform for users to search for entertainment-based files, such as movies and music, and share them on a peer-to-peer network. BitTorrent software allows large files to be shared in segments from individual computes, rather than from one central server. Plaintiff copyright holders can find the Internet Protocol (IP) address connected to the shared copyrighted work and file lawsuits against the IP address owner, either in single defendant suits or in batches of defendants. After suit is filed, plaintiffs can then determine the identity of the IP address owners by subpoenaing internet service providers, who are required to notify the IP address owners that they have 30 days to either settle or quash the subpoena, or their identities will be released. If the IP address owner does not settle, or quash the subpoena, the plaintiff will then amend his or her complaint to add the name the IP address owner. In the case of the Prenda Law suits, the nature of the allegedly infringed work was pornographic. Thus, Prenda lawyers were able to secure a high volume of settlements, which later garnered much attention.

Likely due in part to the “hush-hush” nature of the Prenda Law cases, a bittorrent suit had never secured a verdict until now. According to a post by Jordan Rushie (counsel for Malibu Media) on Philly Law Blog, a Pennsylvania Judge ordered Malibu Media to take one of its copyright infringement cases to trial, to test whether it was an abusive bittorrent trolling case or not. Earlier this month, on June 10, Malibu Media lawyers proved that a bittorrent case could go all the way to a verdict when they secured a $112,500 verdict against one of the John Doe defendants named in the suit. This amount would be increased to around $500,000 after attorney’s fees.

The Malibu Media suit was a Bellwether Trial, meaning that it was essentially a sample trial to try the claims common to a large volume of plaintiffs to predict a trend in future suits brought on the same claim or theory. Mr. Rushie notes five things that he believes interested parties can take away from the Malibu Media trial:  

·         Copyrights will be enforced by courts, regardless of whether they are pornographic in nature;

·         BitTorrent lawsuits can be backed up by credible and reliable evidence;

·         IP addresses can be used as evidence that infringement occurred via that address;

·         The nature of the discovery process in civil litigation makes perjury and evidence tampering a very real concern for defendants trying to cover their tracks; and

·         BitTorrent attorneys must take BitTorrent suits more seriously now, and cannot simply advise to hide the evidence and offer a small settlement, or file a motion to sever or quash.

Whether you agree with Mr. Rushie or not, the fact remains that bittorrent lawsuits are clearly being taken more seriously by the courts, and, defendants accused of bittorrent copyright infringement must accordingly take serious steps to defend themselves against copyright infringement claims. If you have been named as a defendant in a copyright infringement suit, your best defense is to contact an experienced copyright defense attorney. Call the law office of Edward R. Molari today for a confidential consultation.

 

Commission on Theft of American Intellectual Property Proposes Malware Plan for Combating Copyright Infringement

 

Many computer users are haunted by the idea that they may be violating copyright laws. Not everyone on the web is tech-savvy, and numerous programs make downloading possibly illegal content easier than ever. Couple the ease and accessibility of illegal downloading with confusing copyright laws, and you have a recipe for illegal activity, even if the downloader is not intentionally infringing copyright laws. This week, the Internet is buzzing with news regarding a new proposal for combating infringing activity on the internet. The proposal is novel, invasive, and sounds like illegal activity in and of itself, but nevertheless has been introduced to the United States Government.

The Next Web reports that the US entertainment industry is getting behind a plan to send malware—software made to interrupt computer operation—to alleged infringers. The plan was unveiled in a proposal by the Commission on the Theft of American Intellectual Property, which was submitted to the US Federal Government. The plan would include installing software on computers that would identify whether the computer’s user was engaging in infringing activity, and would cause a “lockdown” of the computer by locking up the files until the “guilty party” turned his or herself into authorities. The proposal also includes the idea that the computer could be locked down with the condition that it would be unlocked when the user contacted authorities—effectively confessing to engaging in copyright infringement. An even more invasive part of the proposal suggests that the malware would include a program for snapping a photo of the computer user with his or her webcam.

The Next Web notes that even Japan, which is known for treating copyright infringement with a solid hand, has not resorted to the tactics in the proposal. File sharing has been illegal in Japan since 2012, and plan to crack down on infringing activity include imprisonment and “honey trap files” which are files made to look like popular television shows that contain alerts regarding the illegality of copyright infringement.

Slashgear.com has also weighed in on the Commission’s proposal, noting that the malware could enable entertainment companies and other copyright holders to do other invasive things, such as gathering, changing, and destroying data from a network, all without the permission of the computer’s user. Even with all this activity in mind, the proposal touts that it would not violate any current laws, but would rather act to stabilize a situation and get authorities involved. However, it is unclear whether the portion of the proposal designed to infect and destroy a computer falls into the “still legal” category.

In any event, both The Next Web and Slashgear.com appear to mirror the sentiment of many computer users, which is that such extensive and novel measures have come to be expected from the entertainment industry and other copyright holders. Still, the idea that downloading a movie or music might result in not only the destruction of one’s computer, but the immediate response of authorities and an instant confession to illegal activity is one that will not sit comfortably with many computer users.  

Copyright laws are constantly changing, and your activity on the web may be subject to legal action. If you have been contacted by anyone regarding a violation of copyright laws, your first line of defense is to contact an experienced copyright defense attorney. Call the law office of Edward R. Molari today for a confidential consultation.

 

"Will This Go On My Record?" Understanding CORI Access

I am frequently faced with clients trying their best to understand the potential consequences of a criminal charge, and what the outcome might mean for their future.  For such people, the question will often arise -- "is this going to show up on my record?"  It is an absolutely legitimate question, and it feels like one that should have a yes or no answer.

Unfortunately, the answer is always "kind of."  You see, every time a person is charged with a crime in Massachusetts, that fact is recorded in the Criminal Offender Record Information system, referred to as CORI.  This is maintained by the Criminal Justice Information Services division of the Executive Department of Public Safety and Security.  There are other "records" that you might want to worry about, like your interstate criminal record which is compiled by accessing various states criminal records, but access to this information is very limited.  Ordinarily, when an employer runs a person's background, what they are checking is the CORI system.

Employers, individuals, government agencies and corporations all have different levels of access to CORI information, which is what makes it hard to answer the question "will it show up on my record."  The answer is -- it depends on who is running your record.  If, for example, someone is charged with larceny, and that charge gets dismissed at their first pretrial hearing, police and courts will see that the person was charged, and that the charge was dismissed, but so will assisted living facilities, camps, local counsels on aging, day car centers, in-home care organizations, nursing homes, Massachusetts schools, Religious organizations, but only when they are checking records for people applying for employment or offering to volunteer.  Other employers will only see offenses that resuled in a conviction, or which are currently pending.

With that in mind, you can find all the details by taking a look at this chart, published by CJIS explaining the various levels of access to CORI information following the recent CORI reform law.  You can also call my office to discuss your concerns and find out what can be done to keep your record as clean as possible.

Plaintiffs Seeking Class Certification in YouTube Copyright Suit Dealt Major Blow by Court

A ruling from the United States District Court for the Southern District of New York affirms at least one Judge’s view that class action status is not appropriate for plaintiffs in copyright infringement suits. Ars Technica reports that Judge Louis Stanton denied class certification to a massive group of plaintiffs seeking to hold YouTube liable for copyright infringement in Football Association Premier League, Ltd. et al, v. YouTube Inc. et al.  The proposed class would include those individuals or entities with ownership over copyrighted work that was posted without permission on YouTube on or after April 15, 2005. The suit runs parallel to a suit commenced in 2007, Viacom v. YouTube. Ultimately, Judge Stanton ruled in favor of YouTube on a Motion for Summary Judgment in that case.

In the current case, numerous plaintiffs, including the Football Association Premier League Limited, the Rodgers and Hammerstein Organization, and the National Music Publishers’ Association, among others, would be required to fit into two subclasses of victims. The first subclass would include those copyright owners who asked YouTube to take allegedly infringing material off of the site, but it remained on the site or was reposted. The second class would include music publishers whose material was allegedly infringed even though YouTube “knew or should have known” about the alleged infringement.

Under the Federal Rules of Civil Procedure, cited by Judge Stanton, there are several prerequisites to class status. First, the class must include so many plaintiffs that joinder would be impracticable. Second, there must be common questions of law and fact as to members of the class. Third, the claims or defenses of the parties representing the class must be typical to those of the class. Finally, fourth, representatives must fairly and adequately represent the members of the class.

According to NBC News, Judge Stanton ruled that copyright claims are “poor candidates for class-action treatment” due to the unique and fact-intensive analysis required for each claim. In the same report cited above,  Ars Technica further noted that Judge Stanton held that the nature of copyrightable works is that they are each unique, and that the issues of “title, assignment, waiver and fair use,” which are part of the Copyright statute, require individualized analysis. Judge Stanton also noted that economic need was not a justification for granting class status because the statutory damages scheme was put in place to give “litigation value” to each individual plaintiff. Finally, on a different note, Judge Stanton established that he had already reviewed similar issues in the Viacom case.

NBC News noted that Viacom has not completely given up and has filed to appeal Judge Stanton’s ruling. The attorney in the instant case stated that his clients are weighing their options, and may decide to appeal Judge Stanton’s decision.

The Copyright Law statute provides for serious penalties for copyright infringement. If you have been contacted by anyone regarding alleged copyright infringement, contact an experienced copyright law attorney today.

 

Porn-Trolling Empire’s Fortune may have Run Out as Court gets Wise to Lawyers’ Copyright Infringement Scheme

A group of so-called Internet “porn-trolling” attorneys received a bit of a shakedown last week in The United States District Court for the Central District of California. According to District Court Judge Otis T. Wright’s Order Issuing Sanctions, the principals of firm Prenda Law abused the statutory copyright law scheme, and the court system, in order to harass thousands of defendants to settle outright.

Judge Wright held that Prenda Law principals John Steele, Paul Hansmeier, and Paul Duffy created shell corporations AF Holdings and Ingenuity 13, and assigned to these shells the copyrights to several pornographic movies. John Steele elaborated on the method by which Prenda Law lawyers made their millions with Forbes.com in October of 2012. Forbes reported that Mr. Steele originally conjured up the idea for porn-trolling litigation when he was a law student at the University of Minnesota. He noticed the high level of copyright infringement occurring on internet routers with music, and wanted to find a way to find the infringing persons and sue them. After law school, and a stint in family law, Mr. Steele partnered up with companies in the adult entertainment industry to do just that—except he would troll peer-to-peer network sharing platforms for users ripping off porn movies, rather than music.

Prenda Law lawyers find their defendant porn copyright infringers by monitoring (or “trolling”) peer-to-peer file sharing platforms like BitTorrent. Through these platforms, Prenda lawyers would get alleged infringers’ Internet Protocol (IP) addresses, and then name the IP addresses as “John Doe” defendants in an infringement suit. Prenda Lawyers would then obtain a court order for the Internet Service Provider (ISP) to disclose the identity of the customer account corresponding to the IP address. With an alleged infringer’s identity in hand, Prenda lawyers would then send the alleged infringer written notification of the suit, and would give the alleged infringer an opportunity to settle for a relatively low amount (around $3,000). Due to the sensitive nature of the allegedly infringed material, and the statutory copyright laws, porn-trolling became very lucrative for Prenda lawyers.  

Mr. Steele filed his first porn copyright infringement case in the year 2010, under the firm Steele Hansmeier. At the time of the Forbes article, Mr. Steele noted that he was filing twenty porn copyright lawsuits per month, and wanted to increase the number to 300. He also noted that he and his associates had made a few million dollars litigating the suits.

After Judge Wright’s Order, Prenda Law’s good fortune may have run out. Ars Technica summarized the Order, noting that, among other things, Prenda lawyers “engaged in ‘vexatious litigation designed to coerce settlement’,” and then dropped cases the minute defendants would fight back. Judge Wright also found that Prenda Law lawyers engaged in numerous other unlawful acts, such as providing misinformation to the Court, filing numerous boilerplate complaints without informing the Court, and engaging in forgery.  In fact, two defense attorneys brought the boilerplate suits to Judge Wright’s attention, which eventually lead to his findings that Prenda lawyers had used a combination of AF Holdings and Ingenuity 13 and fraud to commence the suits.

Ultimately, Judge Wright ordered Prenda lawyers to pay over $81,000 in attorney’s fees (the base amount of fees was doubled as a punitive measure). He also recommended that Prenda Law lawyers be disbarred, and is referring Prenda Law lawyers to their state bar associations. Judge Wright additionally noted that the Prenda Law scheme could be criminal in nature. To that end, Judge Wright decided to refer the Prenda Law matter to the United States Attorney for the Central District of California, and to the Criminal Investigation Division of the IRS.  Finally, Judge Wright decided to notify all judges presiding over other Prenda Law cases of this issue.

Copyright laws are complex and, as this case demonstrates, can often catch a defendant off-guard. Internet trolling presents an especially invasive method of tracking down alleged copyright infringers and suing them for copyright infringement. If you are named as a defendant in a copyright infringement lawsuit, it is important for you to seek out the assistance of an experienced attorney. An experienced attorney can help you with your case and can defend you in court. Contact an experienced attorney immediately for a confidential consultation.

Search and Seizure in the Digital Era: Warrantless Searches for Electronic Communication?

Unlike some other countries, the United States does not subscribe to the proposition that the government is entitled to intercept all of the communications of the American people. The government’s ability to use information obtained under certain circumstances is further limited by criminal procedure laws. That being said, technology has outrun the law, creating a tug-of-war between search and seizure law and handheld electronic devices that can store enormous amounts of private information. “Cloud-based” storage and sync programs and most cellular phones now allow users to obtain and store large amounts of sensitive and private information that they can either transfer to various devices, or carry with them on a handheld device, such as an iPhone. Though various software companies, for example Spideroak, and programs, such as the Apple Text Messaging Protocol, can offer higher levels of security to users, increasingly tech-savvy law enforcement officers can now pull most information from a file or phone.

In this climate, it is not surprising that politicians, advocacy groups and judges are hotly debating the applicability requirement for a warrant when searching the phone of an arrested person. While the issue is far from being universally settled, several state Courts and the Seventh Circuit District Court have rendered decisions on warrants for cell phone searches. United States Senators have also sponsored legislation that would help to settle the issue.  

According to CNet.Com, the starting point for discussion regarding search and seizure of electronic communications is the 1986 Electronic Communications Privacy Act. Under that Act, law enforcement officers are entitled to seize e-mail messages more than 180 days old with an administrative subpoena, which does not require the probable cause element that a warrant does. In 2010, the Sixth Circuit Court of Appeals held in US v. Warshak, that Americans have a reasonable expectation of privacy in their e-mail communications. The most recent development with regards to the ECPA comes from the United States Congress. The Electronic Communications Privacy Act Amendments Act of 2013, sponsored by Senate Judiciary Committee Chairman Patrick Leahy of Vermont and Senator Mike Lee of Utah, was introduced this March. According to Senator Leahy’s website, the legislation would amend the ECPA by establishing a search warrant requirement to obtain e-mails and other electronic communications, when those communications are stored using a “cloud based” system. The legislation would also require that the government notify individuals that their e-mails and other communications have been disclosed within ten days of obtaining the warrant. Several states, such as Florida, Delaware, Maryland and Oklahoma have introduced similar legislation at the state government level.

In addition to the legislation, state courts have issued a variety of opinions on the more specific issue of warrantless cell phone searches. The New York Times reports that an Ohio court ruled that police needed a warrant to search a cell phone because it could contain much more information that the traditional notepaper carried in one’s pocket. Meanwhile, a Rhode Island judge suppressed evidence obtained from a cell phone, while a Washington court ruled that text messages are comparable to voicemail messages, and therefore do not require the protection of privacy laws. The Seventh Circuit U.S. Court of Appeals ruled on the issue this March, holding that law enforcement officers do not require a warrant to search an arrestee’s cell phone, because a cell phone is akin to a diary.

The law on the search and seizure of information on an arrestee’s cell phone, or other electronic communication is far from clear cut. If you have been arrested and your electronic information has been obtained by law enforcement officers, an experienced attorney may be able to determine whether the search and seizure was lawful. An experienced attorney can represent you in court and help you understand the charges against you. Contact an experienced attorney immediately for a confidential consultation.

Supreme Court Holds Warrant Required for DUI/OUI Blood Draw

In Missouri v. McNeely, decided on April 17th, 2013, the Supreme Court held that the police cannot force someone to give a sample of their blood during the investigation of a DUI/OUI operaing under the influence case without attempting to get a warrant, or explaining to the court why it would not have been possible to do so. 

The ordinary legal rule about searches and seizures is that the police need a warrant for any search or seizure, except where an exception to that rule applies.  For example, there are exceptions for cases where the police have a high degree of suspicion and where the only thing they are searching is a car (the 'automobile exception').  In this case, police cited the exception for cases where, if the police were required to get a warrant they could not respond in time to save the evidence they are seeking to obtain (the 'exigent circumstances exception.'). 

The argument the police made was that, if they had to take the time to get a warrant in cases where someone was arrested for driving under the influence, the time it would take them to get the warrant would allow the alcohol in that person's blood to dissipate.  What the police were asking for was a rule that in every drunk driving case, they could draw the person's blood without having to get a warrant, because every drunk driving case posed the sort of 'exigent circumstances' that justified the exception.

The Supreme Court, in an opinion written by Justice Sotomayor, held that a generalized rule to govern the whole country in every DUI/OUI case was inappropriate. Instead, in each case where the police obtain a person's blood without consent, the state will have to demonstrate that it was impractical to get a warrant.  It based this decision on the observations that blood alcohol dissipates at a relatively predictable rate, and given that police will have to transport the suspect to a medical facility, some delay is inevitable.

If you or someone you know has been charged with Operating Under the Influence (OUI) in Massachusetts, please contact my office immediately for a free and confidential consultation.

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