How many of us have admitted that our phone is our life?  Well, on June 25, 2014, the United States Supreme Court agreed, and, relying on that phrase, held that search of a cell phone generally requires a warrant.  See Riley v. California, June 25, 2014, 573 U.S. ____ (June 25, 2014).

The Riley decision involves appeal in two related cases.  First, in Riley v. California, David Riley was stopped for having an expired registration, and in the course of the stop, the officers learned his driver’s license had been suspended.  The officer impounded the vehicle, according to department policy.  In the course of another officer’s inventory search of the car, the officer found two concealed and loaded handguns.  Riley was then arrested for possession of concealed and loaded firearms.  When the officer searched Riley, properly, incident to the arrest, he seized a smart phone from Riley’s pants pocket.  The officer accessed information on the phone, and saw photographs and videos which indicated Riley was a member of the “Bloods” street gang.  Contacts also had initials by them, indicating membership in the gang.  More importantly, officers saw a photograph of Riley standing in front of a vehicle that police believed was connected to a drive-by shooting.  Based on those photographs, at least in part, Riley was arrested for, and convicted of, firing at an occupied vehicle, assault with a semiautomatic firearm, and attempted murder.  His sentence was enhanced because he was convicted of committing those crimes for the benefit of a criminal street gang.  Riley moved to exclude the cell phone evidence, but the motion was denied, and the California Supreme Court affirmed that denial.

In the second case, United States v. Wurie, Brima Wurie was observed making a suspected drug sale from his vehicle.  When he was taken to the police station after being arrested, officers confiscated two “flip phones”.  Shortly after arriving at the station, one of the phones began repeatedly ringing from a number identified as “my house.”  The officers opened the phone and saw a photograph of a woman and child on the wallpaper.  Officers pressed two buttons only, and were able to obtain the phone number for “my house.”  Using an on-line directory, the officers found the associated physical address and went to the apartment building.  Officers secured the apartment and waited for a warrant to search it.  In searching, they located crack cocaine, firearms, and ammunition.  Wurie moved to exclude the evidence found in the search because it was obtained by a warrantless search of the cell phone.  The district court denied the motion, but the First Circuit Court of Appeals reversed.

The Court analyzed the question of whether a warrant was necessary before a search of cell phone data takes place using much of its previous case law discussing searches incidental to arrest, including Chimel v. California, 395 U.S. 752 (1969); United States v. Robinson, 414 U.S. 218 (1973); and Arizona v. Gant, 556 U.S. 332 (2009). After a review of those cases, the types of searches involved in them, and the principles regarding warrantless searches, the Court stated, “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”

The Court began its analysis by reviewing that familiar case law to remind everyone of the purposes for the exception to the rule stated in the Fourth Amendment requiring warrants – officer protection and to prevent the destruction of evidence.  Looking at data within the cell phone did not meet either of those purposes.  Data itself does not constitute a weapon.  (However, the Court noted the officer may search the physical aspects of a phone to ensure no hidden razors or weapons are present to ensure the item itself does not constitute a weapon.)

The Court also recognized that destruction of data could, conceivably, be a concern.  Once officers take possession of the cell phone, though, the suspect/arrestee has no more ability to delete incriminating data.  Additionally, if officers have a reasonable and legitimate concern that someone else may remotely wipe date from the phone, once the officer properly takes physical possession of the cell phone (for instance, as property inventoried after an arrest), the officer can remove the battery from the phone or take other steps to prevent a remote wipe of data, including use of a “Farady bag” in which to place the phone.

The Court stated that “exigent circumstances” could still be applied, if such existed, to search data.  “To the extent dangers to arresting officers may be implicated in a particular way in a particular case, they are better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances.”  Exigent circumstances can include situations in which “police are truly confronted with a ‘now or never’ situation,’ – for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt.’”  Also, if data from a phone is needed to assist persons who are seriously injured or are threatened with imminent injury, the exigent circumstances exception would apply.  One example used was the potential of a remotely accessed bomb.  Officers must ensure, though, that the circumstances are objectively reasonable under the Fourth Amendment.

Additionally, the Court found that cell phones contain an implicit concern of privacy, far beyond a cigarette pack in a pocket (Robinson) or even a car, wallet, or purse, both because of the amount of data that can be contained on them and because of the type of personal data (health information; banking records; telephone records; photographs; location tracking information) that is routinely stored in a cell phone.  The court analogized the search of a cell phone to the search of a house, stating “a cell phone search would typically expose to the government far more than the most exhaustive search of a house[.]”  (emphasis in original).  The Court also noted that it is difficult to tell what information is stored directly on the phone, as opposed to “in the cloud.”  Under no circumstance could a search of data “in the cloud” be done without a warrant.  Therefore, searching data on a cell phone could not be done without the potential violation.

Finally, the Court issued its decision, noting its preference to provide clear guidance to law enforcement.  However, the Court emphasized that this holding was not that data on phones was immune from search.  Instead, a warrant is generally required before the search of a cell phone, even if seized incident to arrest.

As a training tool, this case is helpful.  First, it gives a clear-cut rule officers should find easy to follow.  Additionally, its review of how various cases should be applied provides guidance for training officers on the extent to which searches incident to arrest can be performed.  Finally, rather than a three- or four-part test, we have a simple rule.  While some people may not like it, the rule is clear and easy to follow.  Get the phone.  Hang onto it.  Get a warrant.

Stacy Moon is a shareholder at F&B Law Firm PC in Huntsville, Alabama, where she practices in the areas of municipal liability, employment law, commercial litigation, construction litigation, and personal injury defense. She is a past chair of the DRI Lawyers’ Professionalism and Ethics Committee and also active in the DRI Law Practice Management, Employment Law, Commercial Litigation, Governmental Liability, and Construction Law Committees.

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Categories: Civil Rights

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Our Role as Lawyers in the Aftermath

Posted on December 19, 2012 03:37 by Stacy Moon

As parents, or friends of parents, the last weekend has been exceptionally difficult.  Friends have debated whether to tell their children what happened in Newtown, Connecticut, and, if so, how to explain what happened.  Many of us likely have friends calling for greater gun control, and others calling for greater access to guns for protection, all referencing the Second Amendment.  I, personally, have a difficult time with both sides of the issue.   On the one hand, I do not understand why a civilian needs an automatic or assault weapon.  On the other hand, the founding fathers put the right to bear arms in the Second Amendment, even before protecting the right against unreasonable search and seizure.  And the answer to my question can be answered by the question, "Why do you have to be able to say something offensive?" Some reenacting weapons are considered assault rifles because they have sniper scopes too. I know any number of responsible and irresponsible gun owners who take weapons into entirely inappropriate circumstances, but legally. Then again, it took three seconds to reload a rifle in 1787, when the constitution was written.  The issue of original intent versus modern circumstances is one that occurs in all constitutional issues, but seems to be more intense in these discussions of gun control, or not, and gun safety.  In short, the questions and issues are numberless, and a discussion covering all of them is coming.  We will be asked questions by friends because we are lawyers.  And we will not necessarily have all of the answers.

However, because we are attorneys, we will be asked our thoughts regarding the Second Amendment; gun control; gun access; gun safety; and other issues related to forceful treatment of mental health.  And we, as attorneys, will have varied opinions and varied strength of opinions.  But, the one thing we are uniquely qualified to do, by virtue of our training and professionalism, is steer the conversation to a respectful tone, with reasoned opinions.  We can ensure that all sides are heard, rationally.  We can ensure that the discussion is held without unchallenged hyperbole.  We are in possibly the best position to analyze the data that all sides will be throwing at us, to find flaws, and strengths, in the various arguments, and to present them, calmly and professionally to other people.

We, as lawyers, will not have, and should not think we have, all the answers.  But we can and should ensure that the upcoming discussions recognize the legitimacy of the various points of view and are held rationally, without rancor.
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Apple, Samsung and Possible Sanctions

Posted on August 9, 2012 02:33 by Stacy Moon

Apple recently asked a judge hearing a patent infringement case to sanction attorneys for Samsung after those attorneys issued a press release with a link to documents that had been ruled inadmissible.  The actual quote from the press release was apparently, “"fundamental fairness requires that the jury decide the case based on all the evidence.”  Essentially, Samsung’s attorneys decided to try the case in the media, as well as in the courtroom.  Apple took the position that the press release was an attempt to influence the jury.  The attorneys for Samsung argued it was simply a press release.  The Judge has indicated additional investigation may take place after the trial, but that he would not allow “theatrics” or “sideshows” (his words, not mine) to interfere with the trial.

Trial publicity is an issue that crosses various legal disciplines.  It affects criminal and civil cases alike.  In Alabama, a lawyer is not permitted to make “an extrajudicial statement that a reasonable person would expect to be disseminated . . . if . . . it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”  Ala. R. Prof. Cond. 3.6.  Unfortunately, the vast majority of that rule deals with publicity around a criminal case, not a civil case.

Most clients carefully control the amount and type of publicity regarding a case, recognizing that the publicity can be a two-edge sword.  In many cases, clients do not want any public statements regarding the case.  In my opinion (and my personal opinion only), it is therefore unlikely that Samsung did not approve the press release.  The question is what purpose did it serve?  If it was a backdoor attempt to get the jurors to view the inadmissible documents, the press release and link was clearly improper, and (I would argue) potentially demonstrated contempt for the rules of evidence, and Samsung’s counsel should have refused.  If it was an attempt to put public pressure on the judge to reconsider his ruling on the admissibility of the documents, it failed miserably, and has potentially adversely affected the judge’s opinion of counsel.  Save such an attempt for the appeal.  Now, at trial, if it is a close call, the judge is unlikely to give Samsung’s attorneys the benefit of any doubt.  If it was for neither purpose, it seems like a somewhat pointless exercise (akin to a temper tantrum), which has now brought the attorneys’ credibility and professionalism into question in the middle of a high-profile trial.

All attorneys should ask themselves whether the risk of damaging their credibility in front of a trial judge in such a matter is really in the best interest of their clients.  Additionally, all firms should ensure that they have a clear policy in place, including designating one attorney to respond to press requests for a statement or release regarding a case.  That person should be required to carefully analyze the pros and cons of making any statement to the press before doing so.

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Outsourcing and Offshoring Legal Activities

Posted on January 24, 2011 02:26 by Stacy Moon

As discussed in the webinar presented by the Lawyers’ Professionalism and Ethics Committee in December of 2010 (available as a podcast from DRI), outsourcing certain “legal” activities (as well as offshoring those activities) is viewed with great mistrust in the legal community.  The Connecticut legislator’s recent attempt to regulate the industry, while certainly sympathetic, fails to comprehend both the activities generally being outsourced and the responsibilities of the supervising attorney.  The activities which are generally outsourced (and sometimes offshored ) frequently involve document review – an activity frequently assigned to paralegals within larger firms.  The responsible supervising attorney must be licensed to practice law in the appropriate jurisdiction.  That licensure requirement is the same for document reviews being performed by in-house paralegals, just as it is when the review is performed by outsourced personnel.

Indeed, we are anything but unsympathetic to the plight of graduates of law schools not having jobs upon graduation.  However, some of those same graduates might be able to find opportunities in performing work, such as document reviews, on an out-sourced basis.

Worldwide, the workforce is evolving and expanding into global markets.  The relatively-recent innovations of the internet and other technological advances perhaps speed those changes.  Rather than trying to resist change, we as a profession should strive to evolve with the changes to become a more professional and more efficient resource to our clients.

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A Little Perspective

Posted on September 1, 2010 02:42 by Stacy Moon

Litigators tend to be type-A, highly-stressed sort of people.  The omission of a document in discovery is usually a source of a great deal of activity and is considered important.  Many of our clients are fighting over their livelihoods, or payments for work they did.  And they may (or may not) be entitled to recover.  We generally entered this profession because we enjoy a good argument and a good puzzle, but sometimes we lose a bit of perspective.

A little over six years ago, on Labor Day, I learned a second cousin of mine serving in the Illinois National Guard had been killed in Iraq.  At the time, I was in a mini-feud with an attorney over the scheduling of depositions; who was going to go first; which office would have the depositions – you know the entire scheme.  And it seemed very important until I received that telephone call.  Two weeks later (as Hurricane Ivan was bearing down on Alabama), we learned the funeral would be that Friday.  Having finally gotten everyone locked in for depositions on Friday, I informed my family I could not attend the funeral of our fallen cousin – one of a group of kids we called the “midget mafia” and who my grandparents babysat regularly.  I still regret that decision.  As a result of Hurricane Ivan, the other attorneys’ office did not have power that Friday, and (strangely enough) he refused to go forward with the depositions in my home (where I did have power).  Rather than attend and take an important deposition, I pointlessly missed the funeral and accomplished nothing that day in the office.

I write this as we approach the sixth anniversary of his death (and of Hurricane Ivan, for that matter), and I hope that I have learned some perspective from that event.  Being an attorney is an honorable profession, and our clients rely on us for ardent advocacy.  And we provide that advocacy.  But this profession, nor any other, should not be allowed to completely consume our lives.  Depositions can and should be rescheduled when appropriate.

At the Annual Meeting this year in San Diego, Judge Karon Bowdre will be presenting “The Amazing Juristas,” regarding the juggling act we all perform – some of us with more success than others.  I hope all of you – young lawyers and more seasoned lawyers – will attend both the DRI 2010 Annual Meeting (.pdf) and the session.  It is simply too easy to lose perspective of our entire lives as we engage in daily battles with the other side, and hopefully, Judge Bowdre’s thoughts will help us regain or maintain the proper perspective.

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Categories: Annual Meeting | Life/Work Balance

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An Indecent Proposal

Posted on July 30, 2010 02:53 by Stacy Moon

Recently, the New Jersey Supreme Court suspended an attorney for making indecent proposals to at least four female clients in exchange for discounted legal fees or free legal work.  His defense, in part, was that he was “joking;” his office atmosphere was “relaxed,” allowing for conversations regarding very personal subjects; and that he never intended to insult or demean any clients.  Nevertheless, the four women who complained believed he was offering discounted legal fees in exchange for sexual favors.  Again.  To quote an ESPN football commentator, “Come on, man!”


Please do not misunderstand.  I enjoy a good joke as much (maybe more) as the next person.  In fact, I used to get a bit hacked off when I would walk in an office, and the guys would stop telling what was probably a funny joke because it was slightly off-color – out of fear of offending me.


But, really, it is past time for all attorneys (and professionals) to exercise what the military refers to as “situational awareness.”  Most people do not come to an attorneys’ office for stand-up comedy.  What might seem funny outside the office (or not funny but might result in a slap in a face in a bar), is simply not appropriate in the context of a legal consultation.  Does a state Supreme Court actually have to tell people that?


Perhaps the biggest joke is the imposition of “sensitivity training” before the attorney in question can return to practice.  Have any of you ever sat through a “sensitivity training” class?  Red lights; yellow lights; and green lights are simply not practical training tools when a person, such as an attorney or any other professional, deals with highly emotional situations such as the filing of a lawsuit; a divorce; or bankruptcy.


So, please tell me a good joke at one of the receptions at the Annual Meeting (my rules – must be funny; and I cannot have heard it before), but PLEASE do not try to joke about sexual favors to your clients.  They probably will not think it is funny.

Link to the original article:

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Full story at MSNBC, FOX News.

While Congress is not usually our venue of interest, we did find the headline about Representative Charles Rangel interesting.  We would like to hear from our members what differences and similarities they believe exist between the various rules of ethics applied to attorneys in the various states and the rules of ethics applied to members of Congress.  Should the rules applied to attorneys be stricter or more lenient?  In what ways do you think the public policies advanced by rules of ethics for attorneys are or are not advanced by the rules of ethics for members of Congress?

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Cure Your Own Perception

Posted on December 22, 2008 03:37 by Stacy Moon

Until recently, when asked to present a webinar for DRI’s LPEC and an ethics portion of a local “Last Chance Seminar,” I thought I was reasonably up-to-speed on my rules of professional conduct.  As I began researching the various topics, though, it occurred to me that, while I could find rule 26 of the Rules of Civil Procedure just by looking at the dog-eared pages of my rule book, I had to go to the index to find the Alabama Rules of Professional Conduct.

As a profession, we are facing historically poor public perception.  [Fortunately, politicians as a whole seem to be catching up to us.]  As a profession, it is hard to fight that perception when many of us have the same perception of other attorneys.  While the defense bar complains about those “evil plaintiffs’ lawyers,” [all apologies to my sister] asking intrusive discovery questions, those same “evil plaintiffs’ lawyers” complain that the “evil defense counsel” refuse to provide properly-requested, completely relevant documents.  

A renewed sense among attorneys that ethics are just as much a “practice area” as any other part of our practices ought to help restore some sense of confidence in the public and the profession that we are not “Doowe, Cheatem and How.”  I challenge you – the next time you object to discovery on the basis of the attorney-client privilege, cite to the location of that attorney-client privilege.  If you believe an attorney has acted unethically, read your rules.  Determine  whether a violation of your rules of professional conduct (or Canons, whichever your jurisdiction has adopted) has taken place and, if so, call the attorney on it.

We may not be able to cure public perception, but maybe we can begin to cure our own perception of who we are.

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