A video at LiveLeak of Rehoboth Beach, Delaware, Police Officer Robert Whitman repeatedly tasing an unknown man, referred to as “Jeremy” in a video taken by his wife who said she was pregnant, frames a question of whether the use of a Taser should be permissible as a tool of compliance.



Clearly, the individual had no weapon and presented no threat of harm to the officers, though he wasn’t sufficiently complying with their commands.  At Delaware Online, the specter is raised that something preceding the video might justify the use of force.

What viewers don’t see, according to one witness who called the police, is that previously the man had been physically fighting with his wife, then wrestled with arriving officers for several minutes before they subdued him.

25. ECWs should be used only against subjects who are exhibiting active aggression or who are actively resisting in a manner that, in the officer’s judgment, is likely to result in injuries to themselves or others. ECWs should not be used against a passive subject.

One of the great curiosities of search and seizure law had long been the assumption that if a police officer knocked on the door of a place thought have drugs inside and announced he was a cop, that alone would create an exigent circumstance sufficient for the police to burst in without a warrant.  The rationale was simple, that whoever was inside would destroy the evidence before a warrant could be obtained.

Flush. Drugs gone. Nothing to see here, officer.

What made it curious was that exigent circumstances, if any, were created by the actions of the police. It was their knock, their announce, that started the assumed chain of events in motion that justified ignoring the warrant clause.  Nice work if you can get it.

But the Texas Court of Criminal Appeals, of all courts, held that this will no longer be tolerated.  Via John Wesley Hall’s Fourth Amendment Blog , the CCA held in Turrubiate v. State  that even if officers smell pot outside the door, they can’t presume their knock and announce to create exigent circumstances.

Nothing in King supports the State’s contention that a police officer who has probable cause to believe that there are illegal narcotics in a home may enter that home without a warrant after he has identified himself as an officer and made his presence known to the occupant if there is a noticeable odor of marijuana emanating from the home. The State’s approach would abandon the requirement that the record affirmatively show facts that reasonably indicate exigent circumstances that a defendant was attempting to, or would attempt to, destroy evidence, a requirement vital to the Supreme Court’s holding in King. 

The State’s interpretation would permit a presumption that an occupant will attempt to destroy illegal narcotics merely because he possesses them and is aware of the presence of police, and there is an odor of marijuana. The State’s proposed approach is ultimately premised upon generalizations regarding the behavior of individuals who are in possession of illegal narcotics, namely, that they will take immediate action to destroy evidence if the police are at their door and an odor of marijuana fumes is present. (Internal cites omitted, and paragraph break added.)

Is it fair to presume that given the option of holding marijuana, while the cops are off getting a warrant, so that the evidence is preserved or flushing the drugs down the toilet, the latter is probable?  The Court says not enough to do away with the need for a warrant.

The State contends that, given the strong odor of marijuana emanating from appellant’s home, it was reasonable for the trial court to conclude that appellant was aware that the police were on his trail when he opened the door. Despite the lack of furtive movements, the State contends that these circumstances, alone, gave the officer reason to believe that appellant would attempt to destroy the marijuana absent immediate intervention. We disagree.

We can conceive of many instances in which an occupant possessing contraband would not attempt to destroy it after a police officer has identified himself at the occupant’s door. For example, a police officer may have probable cause to believe that a high-school student is in possession of marijuana that he sells from his bedroom in his parents’ home. The student’s parents, knowing that the officer is on the student’s “trail” for the marijuana in their home, would not necessarily attempt to destroy the contraband. But the State’s proposed approach would permit the warrantless search because an officer has probable cause and there is a presumed exigency that someone in possession of contraband will destroy it when he knows a police officer is on his trail. Or an occupant may know that it would be futile to attempt to destroy the illegal substance, such as someone in possession of 100 kilos of well-packaged cocaine. Or an occupant may decide to risk keeping the illegal substance despite the police presence, such as someone who believes he has successfully concealed the substance against police search. A reviewing court should not presume, therefore, that a showing that an occupant possessed contraband and that an officer with probable cause knocked and announced himself also shows that destruction of evidence was imminent.

While the examples may be fair, it’s quite shocking for a court to embrace the fact that the presumed norm doesn’t eviscerate the requirement for a warrant.  Of course, it may be that this is based on the fact that we’re talking about a person’s home, which has long been given greater protection than any other place, and this is Texas, where the sanctity of the home is particularly strong.

One member of the CCA, Presiding Judge Sharon “Killer” Keller, found the holding unacceptable.  She wrote in dissent:

If there is no reason for the occupant of the home to believe that an officer would be aware of illegal activity, exigent circumstances are not established because there is little to no risk that the contraband will be destroyed. The examples the Court gives to support its point, however, are distinguishable from a situation like the one in the instant case because, unlike in those examples, here there was a “very, very strong smell of marijuana coming from the home,” which was testified to by both Lopez and Deputy Chavarria. On this record–where Lopez returned within an hour with a police officer, and both Lopez and Deputy Chavarria immediately smelled a very strong odor of marijuana–it was reasonable for the deputy to believe that appellant knew that the deputy was aware of his marijuana possession. Thus, Deputy Chavarria’s belief that destruction of the contraband was imminent, and that he needed to act quickly to prevent its destruction, was reasonable. Therefore, the evidence in this case supported the trial court’s ruling.

Of course, the majority opinion acknowledged that the officers claimed that there was a strong smell of marijuana, as compared with Keller’s “very, very strong smell,” and even in Texas, adding two “verys” creates a substantive change in the fact pattern, as in “very, very guilty” being a good reason to close the courthouse doors at five o’clock.

Despite her laser-like olfactory focus, the majority didn’t deny that the assumption that the occupants might destroy the evidence to be unreasonable, but rather that it could not be presumed for the purpose of excepting the warrantless search from the 4th Amendment.

But the majority’s admonition is worth remembering:

When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time. Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

So even if the police can no longer presume that the occupants will flush the drugs down the toilet to evade the seizure of evidence, failing to destroy evidence and standing on one’s constitutional rights remains a game of chance. 

When I saw that Bruce MacEwen of Adam Smith, Esq., had posted “Reinvent Law:” You have spoken, I was ready to hate it.  I was geared up to argue why it was more nonsense, more of the same old new normal future of the law fluffery that’s been the darling of the game-changers. I was stoked.

Except that in reading Bruce’s post, I realized that he made a critical distinction that few before him had done.  Bruce’s blog is directed to the economics of Biglaw.  He doesn’t speak in overly vague or grandiose terms about how “The Law” is changing, but instead focuses on the aspects that differentiate Biglaw from the rest of the law.  He wasn’t saying that my law was changing. He wasn’t saying that all law was changing. He was saying that Biglaw was changing.

But second, and for my money far more importantly, those who think the fundamental premise of the partnership model cannot support investment outnumber those who think it can by 2:1. Truth be told, I think this cohort has the better of the argument.

So, if you agree that investment is needed (90%) and that our structure can’t support it (2 out of 3), we have some serious self-examination in our future.

As Bruce breaks up the results of a survey taken of his readers, and I doubt he and I share many readers if any, his use of the words “our” and “we” speaks to the white shoe guys, the thousand plus lawyers firms, the model that involves the problem of huge behemoths that lumber slowly, expensively, and without any individual sense of responsibility among the thousand partners to run their shop lean and smart.

In his “takeaways” from the survey, the focus becomes quite clear:

The bonus question seems a bit too broadly phrased; it seems likely that some law firms (e.g. top-end boutiques) will be able to glide along nicely by sticking to their current model, albeit tweaked a bit when necessary. By contrast, those firms outside this charmed group will really begin to struggle as their business model falls apart at the seams for all the reasons you set out in Growth is Dead, and it’s not clear to me that they have any realistic prospect of re-inventing themselves. [This posits what I’ve called the “Hollow Middle,” which forecasts very challenging times for firms not delivering utterly superb top-of-market service (think Audi/BMW, or even Ferrari/Bentley) or else unquestioned value for money (think H&M or Zara)–Bruce.]

I’ll be damned. I agree completely.  And this:

I don’t think any of the answers to the last question really capture my view. Law firms’ response will depend on how they are positioned and which market segments they serve. There will be room for high-end advisory services which can evolve from the existing model of delivering legal services, but there will also be volume plays for lower complexity work where LPO, technology and process will form part of successful business models.

When it comes to Biglaw, he’s right. What became abundantly clear to me as Bruce went on was that his forecast for the future of Biglaw was that the model was unsustainable and they had to become, ta da, us.  Solos. Small firms. SmallLaw. The future of Biglaw is small law. Holy mackerel!

Culture within big firms will be a barrier to change. If you want real innovation then you have to do it outside of the walls of a large law firm and start with a clean slate and hire people committed to the new vision. You will never get the majority of the partners in a large law firm to commit to serious change. As the rise of LPOs will be gradual, the level of urgency for change will not be sufficiently felt to implement radical change within law firms. [This is the “boiling frog” metaphor—Bruce.]

This was where the epiphany came to a head. The “culture” of solos, if it’s possible to call what one person believes to be a “culture,” is deliver the best quality legal representation possible without waste, either for us or our clients.  We don’t have marble waiting rooms or legal pads with our name engraved in 18 karat gold.  We eat lunch at the corner deli rather than our own cafeteria with firm branded coffee mugs. Maybe Biglaw can throw away money on such non-productive things, but we can’t. We work for a living.

Have you ever wondered how it’s possible that a Biglaw firm can manage to get paid ten times what you would charge for the same (if not worse) result?  My running joke is I could have lost that case for half the price, but the serious point is that I could provide the same or better representation for a fraction of what Biglaw charges and still been hugely profitable.  So how is it they can’t?

Bruce nails it with culture, a curious problem among what the elite call “peer” firms because  they need to believe they exist on a higher plane than the rest of the legal profession. When I spend money, it comes directly out of a pocket, whether mine or my client’s. I am acutely aware of it, and consequently don’t squander it on frivolities of no significance to the services I provide. 

This sensibility doesn’t exist in Biglaw for two reasons. First, the firms are so large and responsibility so diffused that no one feels the hand reaching into their pocket when money is pissed away like a drunken sailor.  Second, the fiction of elitism so permeates their self-image that they can’t imagine, can’t fathom, not being at the pinnacle of legal prominence. In other words, they just can’t accept the notion that the world doesn’t look at them in awe and admiration, and recognize that when it comes to excellence, there is no alternative.

If only there was a contest to see who could cross-examine a witness better, a solo or peer partner.  If the contest was to see who could do the cross for less money, there’s no question who would win.  And if there were bonus point for the flexibility to adopt to changing circumstances, it would be a slam dunk.

Perhaps the problem we’ve had in trying to mind-meld over the Reinvent the New Normal Future of the Law is that a game-changer to the Thought Leaders of Biglaw has always been the normal of solos and small firms.  There is nothing really new here, or out of our normal, but since they refused to acknowledge our existence or take what we do seriously, what they describe as “reinventing” is really just embracing what we’ve been doing all along.  Their new normal is our normal.

Remember when Dewey met Ballantine? Neither does anyone at Biglaw, but it started with a couple of guys back when running a law firm was personal.  Just like us.

The most common piece of advice given by criminal defense lawyers, even more than don’t try this at home, is that you have the right to remain silent. Use it.  But in Salinas v. Texas, scheduled for oral argument on April 17, 2013, the Supreme Court will consider whether silence in response to police questioning can be offered as evidence of guilt.  The Texas Court of Criminal Appeals held it could.

What? How can they do that? Everybody knows Miranda by heart.  It’s been enshrined in 1000 television shows. We have the right to remain silent, so how can the exercise of that right be used against us?

Well, Miranda had a little detail that somehow doesn’t make it into most lawyer shows, that it doesn’t come into play until a custodial interrogation.  That means when the police, in a non-custodial situation, ask questions, they don’t have to provide the beloved warnings and a failure to respond, silence, to a question may well be a response in itself, and available to the prosecution in its case-in-chief.

In Salinas, the defendant was approached by police about the murder of two brothers by shotgun.  Via the ABA Journal :

When the police approached Salinas at his home, he was generally cooperative, according to the briefs. He consented to a search of the residence. Asked about the presence of any guns, he told the officers that his father, who lived in the same home, owned a shotgun. The elder Salinas turned over the shotgun to the police, and Salinas agreed to go to the station house, ostensibly to provide fingerprints that might eliminate him as a suspect in the slayings of Juan and Hector Garza.

At the police station, Salinas was neither handcuffed nor placed in custody. He answered questions for nearly an hour about his relationship with the two victims and about his activities around the time of the slayings. Salinas answered every question but one—when the police asked him whether the shotgun from his home would match the shell casings found at the murder scene.

At that point, Salinas “looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, [and] began to tighten up,” an officer later testified.

After a mistrial, the prosecution hit silence hard in the retrial. In summation, the prosecution argued . “An innocent person is going to say: ‘What are you talking about? I didn’t do that. I wasn’t there.’ He didn’t respond that way. … He wouldn’t answer that question.” Bang. Twenty years.

In the merits brief, defendant argues that it makes no sense to distinguish the exercise of 5th Amendment right not to bear witness against oneself based on whether the silence happens in custody or before.

The prosecutorial use of such silence compels the defendant to be a witness against himself because it leaves him no avenue to avoid to avoid incriminating himself. If he speaks, his words can be used against him; and if he refuses to speak, the prosecution can argue that his silence is evidence of guilt.

The argument is as valid in the pre-arrest, pre-custodial phase as later. Indeed, though the defense neglected to make the point, it may well be argued that it’s more inquisitorial (rather than adversarial) to allow the prosecution to use silence as a weapon, given the pervasive knowledge and appreciation of the Miranda warnings.  Everyone knows that a person, having been warned, is entitled to exercise the right to remain silent. To the extent anyone isn’t prejudiced by the invocation of rights, this would be it.

On the other side of the equation, however, people expect an innocent person to speak to police, to freely answer questions.  As the Texas prosecutor argued in closing, that’s what innocent people do. The suspect is then placed in the position of specifically invoking his right to remain silent, pre-arrest, pre-custody, something that few people know how to do correctly at any time.  To the suspect, as well as the police, this is tantamount to a neon sign saying “arrest me, I did it!” 

In response, Texas latches onto the Supreme Court’s  misbegotten decision in Berghuis v. Thompkins, holding the silence isn’t the invocation of 5th Amendment rights, but merely the absence of sound.  It didn’t take long for the Berghuis decision to come around and bite the Court in the butt. 

Texas then argues that silence wasn’t merely silence, but the lack of a response coupled with physical cues, nonverbal response, which was in fact a response to the police questioning, even if not in so many words.  But the respondent’s best trick is the rhetorical characterization of Salinas’ silence as “selective, transitory silence.” 

Having seized the opportunity to extensively answer questions to the extent it served to exculpate him from the murders, Texas argues that his “selective, transitory silence” in the face of a question Salinas, knowing that he had no good answer, was itself damning.  And indeed, the cops happened on a question with no good answer, and his silence was heard loud and clear.

The problem with Texas’ argument is that Salinas’ silence is precisely the nature of self-incrimination that the 5th Amendment is designed to protect.  While it may well be “unfair” to the prosecution that a suspect can have it both ways, providing answers when it serves his interest and silence when it doesn’t, the Constitution isn’t a guarantee of fairness to the prosecution, but a reservation of rights to the individual.

The defendant’s argument, on the other hand, that pre-custodial interrogation silence creates a dilemma ignores that it’s a dilemma of his own making. No one made Salinas answer questions happily before his sudden silence. No one prevented him from expressly invoking his right to remain silent. It may be counterintuitive to do so, as it begs for arrest, but then the invocation of constitutional has long been held to require a clear and unequivocal expression.

The tie-breaker between these positions seems to come from the  amicus argument by the ACLU, that if the Supreme Court backs Texas’s position, it creates an incentive for police to manipulate the custodial setting in order to avoid having to give Miranda warnings and keep the defendant in an untenable position for as long as possible, hoping to either get a confession or silence to be used as evidence of guilt. 

In conjunction with the low probative value of silence, and rhetorical and usually ridiculous contention of how “innocent people behave,”  and the societal benefit of respecting constitutional rights, the defense position that no distinction should be drawn between pre-custodial silence and post-Miranda silence ought to take the day.  But given the Court’s opinion in Berghuis, I wouldn’t bet the farm on it.

Thinking how much fun it must be defending those poor souls held in Guantanamo Bay, Cuba? You get to wear cool uniforms and have access to all the high tech the government has to offer, right?  Well, sure, though the government still has its own idea about how this whole defending the enemy combatants thing works.

From the  Washington Post via the ABA Journal :

The military justice system at Guantanamo Bay, Cuba, which has been dogged by charges of secret monitoring of proceedings and defense communications, became embroiled in a fresh controversy Thursday when it was revealed that hundreds of thousands of defense e-mails were turned over to the prosecution.

The breach prompted Col. Karen Mayberry, the chief military defense counsel, to order all attorneys for Guantanamo detainees to stop using Defense Department computer networks to transmit privileged or confidential information until the security of such communications is assured.

Assured? That’s a curious word to use, given that some government agency, suspected to be the CIA but no one can be “assured” since they aren’t talking, accessed 540,000 emails in the defense lawyers’ directories. How exactly does one assure much of anything here?  Because the CIA says it feels really bad about what it did and will never, ever, do it again?

And then there’s this:

In February, a military lawyer acknowledged that microphones were hidden inside devices that looked like smoke detectors in rooms used for meetings between defense counsel and their clients. The military said the listening system was not used to eavesdrop on confidential meetings and had been installed before defense lawyers started to use the rooms. The government subsequently said it tore out the wiring.

So they place mikes in the defense lawyers’ meeting rooms, but it wasn’t to overhear confidential meetings? Was it for a new reality series, Stuff Enemy Combatants Say?  But not that the government says it tore the wiring out, is everything fine again and privacy “assured”?

Or what about this?

That same month, Pohl learned that the soundproofed courtroom at Guantanamo was wired with a “kill switch” that allowed an unknown government entity, thought to be the CIA, to cut audio feed of the trial to the public gallery. Pohl ruled that in the future only he could turn off the audio feed to protect classified information. But defense lawyers questioned whether the audio equipment in the courtroom had been manipulated to allow the government to monitor attorney-client conversations.

You can never be too careful with what the public hears about court proceedings at Gitmo. After all, there could be discussions of water boarding, and that would make public feel bad.

And this too:

In another controversy, defense counsel recently complained that huge volumes of work files were lost when the Defense Department tried to upgrade its network and mirror at Guantanamo the computer system that is available to defense lawyers handling detainee cases in the Washington area.

“Entire files, months of work was just gone,” said Navy Cmdr. Stephen C. Reyes, an attorney for Nashiri. “I have no evidence of any nefarious conduct, but it demonstrates again that we don’t have confidence that our files and communications are secure.”

Tech is great, except when it’s not.  Remarkably, while the defense lost its files, the government didn’t lose any of its evidence against the enemy combatants. How lucky is that?

Just because these efforts are a mere prelude to indefinite detention of people who the government is certain are bad and evil shouldn’t make anyone feel badly for the military lawyers charged with defending them under these conditions. After all, they still get to wear cool uniforms and it’s not like these Gitmo detainees are going anywhere anyway. So what if the tech isn’t working so great down there. Heck, the Cuband are all driving around in ’57 Chevy Belairs held together with duct tape, and they don’t even have FM radio. 

I just thought you ought to know.

First there were agents. They were virtuous and true, and they made television shows and movies about them.  Remember Eliot Ness? He led the Untouchables, and that’s not a name one gets for being easily compromised. Violent, sure, but never on the take.

But reality offered too many opportunities, and some went bad.  So then there were watchers to watch the watchers. They called them Inspector Generals, and they were virtuous and true. But reality offered too many opportunities for them as well.

It was bound to happen.

From the Federal Bureau of Investigation :

A former U.S. Department of Homeland Security Office of Inspector General (DHS-OIG) special agent in charge and another special agent were indicted in the Southern District of Texas late yesterday for their roles in a scheme to falsify records and to obstruct an internal field office inspection, announced Acting Assistant Attorney General Mythili Raman of the Justice Department’s Criminal Division and Special Agent in Charge Armando Fernandez of the FBI San Antonio Field Office.

The indictment returned by a federal grand jury in Brownsville, Texas, charges Eugenio Pedraza, 49, of McAllen, Texas, with six counts of falsification of records in federal investigations, five counts of obstructing an agency proceeding, one count of obstruction of justice, and one count of conspiracy. The indictment also charges Marco Rodriguez, 40, of Mission, Texas, with two counts of falsification of records in federal investigations, two counts of obstructing an agency proceeding, and one count of conspiracy.

According to the indictment, in anticipation of the inspection, Pedraza allegedly directed Rodriguez and other DHS-OIG employees to engage in a scheme to falsify documents in open criminal investigative case files, including numerous investigations in which DHS employees were suspected of participating in the unlawful smuggling of undocumented aliens and/or narcotics into the United States.

Psst. Wanna buy a brief?

A while back, I had a debate with Peter Friedman of Case Western Reserve Law School (whose post has since disappeared down the black internet sinkhole, but whose words live on in the comments to my post) about the lawyer as plagiarist.  My argument is that a good lawyer crafts the argument, the rhetoric, the point with which we seek to persuade the court.  His was: why reinvent the wheel when you don’t have to?

There are now businesses that send blind emails to lawyers offering to do the research that clients believe they are paying us to do.  Outsource and leverage, using some otherwise unemployed kid in a boiler room to do research. Maybe the kid is a lawyer. Maybe not. Who would know, since it’s all virtual. Then charge it off to the client as if you did it yourself, and making money on the spread between what you pay the virtual research company and what you can get out of the client.

Of course, no one forces a lawyer to leverage the outsourced work, and there is no rule that the savings can’t be passed along to the client. But then, if the work is going to be done by some faceless, nameless basement dwelling drone, why does the client need you?

Another alternative has appeared in the cottage industry of business feeding off the carcass of the legal profession called Briefmine.  I was invited to give it a look by its founder, Harry Zeitlin, who, to his credit, took a big risk letting a curmudgeon like me into his shop to look around.  That said, I didn’t like what I saw.

Briefmine is a highly descriptive name. The business model is to take other people’s briefs, put them online in searchable pdf format, and sell access to them.  From my quick spin through, the briefs now in his library come out of the 9th Circuit, Supreme Court and about 14 state jurisdictions. I suspect Harry will be adding whatever he can if this pans out. If you’ve filed a brief in one of these courts, what Harry is selling is your work product, your intellectual property. Your brief.

The interface itself reminds me of searching Lexis back in ’93, neither pretty nor easy to use, but if you put in the effort, sufficient to get the job done. As with all legal searching, it suffers from the limitations of language, binary in approach and dependent on searching for the language the lawyer used in his brief.  If someone used an odd construction, then no amount of wishful thinking is going to make fuzzy wuzzy happy. But that’s the nature of searching legal databases, so it’s nothing new.

The question that kept rumbling through my mind was whether this would be used as a starting point for research and writing, or a chance to steal someone else’s work and pass it off as your own.  If the former, then it’s what lawyers have always done, whether from their own prior work, the work of friends or colleagues who shared their briefs or court opinions.

Zeitlin’s explanation of what Briefmine offers takes the high road.

BriefMine provides a database of legal briefs powered by natural-language search. We focus on briefs because we believe that these documents represent the perfect medium for jump-starting the research process. Briefs highlight the main argument a lawyer makes throughout his or her case. By allowing you to find these briefs, we help you locate arguments that are highly relevant to your current work. Chances are that if you’ve found a pertinent legal brief, you’ve found a trove of other valuable information including citations, case law, and rehetoric [sic] that can be used to focus and improve the research you are creating. At BriefMine, we aim to assist you by unlocking the power of the legal brief!

Granted, few of us remember the lesson of Al Capone.  When the G-men couldn’t get him, the IRS could. While we pay a great deal of attention to some alphabet agencies who tend to spend much of their time walking about with guns, we think of the IRS more as accountants in basement offices making our lives miserable by compelling us to give up our hard-earned income so that Congress can squander it their way.

But the IRS has its own law enforcement arm, and they can be just as intrusive as anyone else.  Via Hillicon Valley :

The Internal Revenue Service (IRS) has claimed that agents do not need warrants to read people’s emails, text messages and other private electronic communications, according to internal agency documents.

In a 2009 handbook, the IRS said the Fourth Amendment does not protect emails because Internet users “do not have a reasonable expectation of privacy in such communications.” A 2010 presentation by the IRS Office of General Counsel reiterated the policy.

The IRS has now responded by sending us 247 pages of records describing the policies and practices of its criminal investigative arm when seeking the contents of emails and other electronic communications.

Luckily, the Fourth Amendment still protects against unreasonable searches by the government. Accordingly, in 2010 the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages.

Unfortunately, they are also aware of geography and jurisdictional limits.

However, the IRS hasn’t told the public whether it is following Warshak everywhere in the country, or only within the Sixth Circuit.

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

After the grandeur of the #ABATechShow, followed by the mutual admiration of Legal Marketing Association’s #LMA13 conference, I’ve been deluged with new and increasingly more curious efforts by social media gurus to get me on board the tech marketing train. As Heather Morse wrote immediately after the Vegas convention ended, what happened at LMA won’t stay there, much to my regret. 

One such effort was an email from Lucy:

Hi,

We’re currently looking for new content for our blog bloglegal.co.uk/
and wondered whether you would like to contribute any posts for free?
Blog Legal has only recently been setup and our aim is for it to become a
place for those with a keen interest in the law to express and share their
views and opinions on any high profile cases or legal matters.

If you do have any content that you would like to publish, or wish to
discuss any ideas, email across your suggestions and we can discuss them in
more detail.

Kind Regards,
Lucy

You can begin your search for a criminal defense lawyer online.  The American Bar Association is the largest voluntary professional organization and is the primary voice of the rule of law in the US and around the world. ABA recommendations can be trusted.

Using the ABA or seeking referrals from your local law school or non-profit legal center will eliminate most blunders you may make trying to find a criminal defense lawyer on your own, through a phonebook, through friend or family referrals, or through other online or prepaid legal plans.

Always do a thorough background check of the lawyer you select using the ABA, the better business bureau, other professional legal organizations, local law schools and the Chamber of Commerce.  Do not be afraid to ask lawyers you are considering to provide you with case outcomes for other clients charged with the same criminal offense you will be facing. Also ask for client references-references you can speak with in person.

San Diego Police Officer M. Reinhold, likely feeling vulnerable and angry that he was forced to go out in public wearing shorts rather than more appropriate calf-height leather boots and jodhpurs, had a peculiarly low threshold for fear.  Or perhaps cellphone phobia, an ailment that disproportionately afflicts police officers.

Via Carlos Miller at Photography is not a Crime, Reinhold, seized with fear, seizes the vicious cellphone weapon.



Never forget the First Rule of Policing:

In the video below, Reinhold tells his friend that they are trained by the police department to suspect that cell phones can be converted into guns.

He also said that “officer safety” trumps the Constitution, meaning they can claim they are fear for their lives while they throw you in jail for any lame excuse.

“There may be some issues here with this guy. He might have been getting to be a little too hostile for the cop’s liking.”

Von Helms said it does not appear that Pringle’s First Amendment rights were infringed upon and added that the officer was probably in the right.