No Phone Zone – Jurors Must Log Off Says Florida Court

jurors, Cell Phone, iPhone, computer, cell phones, smartphones, tablets, laptops, computers, electronic devices
No Phone Zone for Jurors
In a mere 43 pages, the Florida Supreme Court has told judges, civil, and criminal defense lawyers how to address widespread use of electronic devices by jurors in courts. We now have guidance on what is meant by turning off these devices. There are very specific instructions to be given during trials. The instructions now tell jurors what to do with computers, tablets, and cell phones during breaks and recesses. Jurors also receive an explanation of why they are to be disconnected with the outside world during jury service.

What has Florida told lawyers and Judges about use of electronics by Jurors?
“The rule provides that electronic devices will be removed from all members of a jury panel before jury deliberations begin.  The presiding judge may remove the jurors’ electronic devices at other stages of the trial.  If electronic devices are removed from members of the jury panel during trial, the judge may order them returned during recesses.  If a jury panel is sequestered, the judge may decide whether to remove electronic devices during the entire period of sequestration.  The rule also makes clear that during court proceedings, jurors cannot use their electronic devices to take photos or videos, or to transmit or access data or text.  At all times, jurors are prohibited from using the devices to research information about the case or to communicate with others about the case or jury deliberations.” 
What does the Court mean when Jurors are told to turn off electronic devices?
“All cell phones, computers, tablets or other types of electronic devices must be turned off while you are in the courtroom. Turned off means that the phone or other electronic device is actually off and not in a silent or vibrating mode.” 
What are Jurors told about use of electronics in Court? 
“Many of you have electronic devices such as cell phones, smartphones, tablets, and laptops, computers, and other electronic devices.  Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers.”
   
“When you are called to a courtroom, the judge will give you specific instructions on the use of electronic devices.  These rules are so important that the judge may tell you that you must turn off your cell phone or other electronic devices completely or that you cannot have your cell phone or electronic devices in the courtroom.  If someone needs to contact you in case of an emergency, the judge will provide you with a phone number where you can receive messages.”
     
“If the trial judge allows you to keep your cell phones, computers, or other electronic devices, you cannot use them to take photographs, video recordings, or audio recordings of the proceedings in the courtroom or your fellow jurors.  You must not use the many device to search the Internet or to find out anything related to any cases in the courthouse.”
Why are Jurors told to log off of cell phones, smartphones, tablets, and laptops, computers, and other electronic devices.?
  
“Why is this restriction imposed?  This restriction is imposed because jurors must decide the case without distraction and only on the evidence presented in the courtroom.  I know that, for some of you, these restrictions affect your normal daily activities and may require a change in the way you are used to communicating and perhaps even in the way you are used to learning.”
“If you investigate, research, or make inquiries on your own, the trial judge has no way to make sure that the information you obtain is proper for the case.  The parties likewise have no opportunity to dispute or challenge the accuracy of what you find.  Any independent investigation by a juror unfairly and improperly prevents the parties from having that opportunity our judicial system promises.” 
“Between now and when you have been discharged from jury duty by the judge, you must not provide or receive / discuss any information about your jury service to / with anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes face-to-face, phone or computer communications.”
  
“In this age of electronic communication,I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all.  Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.”   
“After you are called to the courtroom, the judge will give you specific instructions about these matters.  The / A judge will tell you when you are released from this instruction.  Remember, these rules are designed to guarantee a fair trial.  It is important that you understand the rules as well as the impact on our system of justice if you fail to follow them.  If it is determined that any one of you has violated this rule, and conducted any type of independent research or investigation, it may result in a mistrial.  A mistrial would require the case to be tried again at great expense to the parties and the judicial system. The judge may also impose a penalty upon any juror who violates this instruction.  All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case. ” 
What happens with electronics when jurors take a break or recess?
“We are about to take [our first] [a] recess. Remember that all of the rules I have given you apply even when you are outside the courtroom, such as at recess. “
“Remember the basic rule:  Do not talk to anyone, including your fellow jurors, friends, family or co-workers about anything having to do with this trial, except to speak to court staff.  This means no e-mailing, text messaging, tweeting, blogging, or any other form of communication.”
“You cannot do any research about the case or look up any information about the case.  Remember to observe during our recess the other rules I gave you. If you become aware of any violation of any of these rules at all, notify court personnel of the violation.”
“After each recess, please double check to make sure [that your cell phone or other electronic device is turned off completely] [that you do not bring your cell phone or other electronic device into the courtroom or jury room].”  
Cell Phone, cell phones, computer, computers, electronic devices, iPhone, jurors, laptops, smartphones, tablets,
Read the Complete Criminal and Civil Instruction for Jurors and Cell Phones Here

Cell Phone Searches – Supreme Court to Rule on Warrant Requirement

The Supreme Court granted certiorari review in two similar cases, both used with evidence obtained by means of a warrantless search of a cell phone during a lawful arrest.

One friend has said, “Wow, the Supremes are taking a serious look at cell phone searches! There’s been talk for a while now about the problems courts have applying old standard to modern technology.   We may get a sea change in S&S law. Of course, we may not, too, but it’s really worth watching.  If you have a cell phone search case now, for goodness sake make your 4th Am motion and/or objections (track the language in these 2 cases).” Thanks DE for your thoughts on this issue.


In Riley v. California, No. 13-132, a state case, the question presented is: 
Whether evidence admitted at petitioner’s trial was obtained in a search of petitioner’s cell phone violated petitioner’s Fourth Amendment rights. 
In United States v. Wurie,No. 13-212, the Feds appealed, the question presented is: 
Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested. 
 The cases are Riley v. California, No. 13-132, and United States v. Wurie,No. 13-212.

Search Warrant | Cell Phone Update

Wurie, Cell Phone, Search, Warrant
Florida Criminal and DUI Defense Attorney notes a Federal Court has lined up with the Florida Supreme Court in condemning warrantless cell phone searches “on a cell phone, carried on the person. Allowing the police to search that data without a warrant any time they conduct a lawful arrest would, in our view, create “a serious and recurring threat to the privacy of countless individuals .” Gant, 556 U.S. at 345; cf. United States v. Jones, 132 S.Ct. 945, 950 (2012)(“At bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’ “ (quoting Kyllo v. United States, 533 U.S. 27, 34 (2001))). We therefore reverse the denial of Wurie’s motion to suppress, vacate his conviction, and remand for further proceedings consistent with this opinion.”

Federal Court Cell Phone Search Opinion here:

http://centrallaw.com/Cell%20Phone%20Search%20Wurie11-1792P-01A.pdf

The Florida Supreme Court ruling is here:

http://centrallaw.blogspot.com/2013/05/police-officer-not-authorized-to-search.html

Defense Attorney on Cell Phone Search | Evidence Suppressed

Cell Phone Search Suppressed
Criminal Defense Attorney / Lawyer notes a recent Cell Phone Search ruling on a Motion to Suppress Evidence, filed pursuant to Rule 3.190(h), Florida Rules of Criminal Procedure. Search and seizure law can apply to cell phones. Lately cops have been searching the phones and calling them a Search incident to arrest. Sometimes cops claim they need to search a phone for the safety of the officer. One court just ruled that a cell phone seized incident to defendant’s arrest posed no risk to officer safety. The scope of a search has been limited, since a cellular telephone is not a container that could hold weapon. Sometimes police justify a search claiming that evidence will be destroyed. A court just ruled that once a phone was seized, there was no longer risk that defendant could destroy evidence in phone. The court concluded that a warrantless search of contents of cell phone was unlawful and a Motion to Suppress was granted.

Cell Phone Search Questions? Call Me Toll Free 1-877-793-9290.

Defense alleged an unlawful search of the Defendant’s cellular telephone including: texts, pictures, the call history, and/or observations made by Officer. Testimony showed cop “found the Defendant’s cell phone while searching his person at the scene, but then later examined the cell phone further at the police station while the Defendant was still being processed. Officer Clark testified that he found text messages regarding the sale of cocaine while he was looking through the Defendant’s phone.”

Court ruled, “When an officer arrests someone who has a cell phone in their possession, here may very well be reason to suspect that the phone contains valuable information, particularly in drug-related arrests. The call logs and address books could help link a defendant to a particular drug transaction and could provide the identities of other persons involved in the illegal activity; however, these are exactly the types of situations where probable cause could be used to obtain a warrant. The reality is that most information stored on a cell phone will remain there long enough for a warrant to be secured and that numbers “lost” from recent call lists are readily obtainable from the service provider. Cell phones are outside the ambit of the search incident to arrest exception‘s reach because of their capacity for storing vast quantities of intimately personal data. If courts continue to allow the unfettered exploration of this personal data, then courts are permitting the government to execute an unwarranted search of the cell phone user’s life and habits. This intrusion cannot reasonably be justified by the rationales of officer safety and evidence preservation; therefore, a simple seizure of the cell phone must suffice until a warrant can be procured.”

The Court’s Ruling on the Cell Phone Search is Here.

Cell Phone Search Questions? Call Me Toll Free 1-877-793-9290.

Source: FLWSUPP 1805GLAS


Criminal Defense Attorney / Lawyer

Cell Phone Surveillance | Cell Tower Data | Judge’s Opinion

ECPA
Electronic Communications
Privacy Act
Author’s Comment: Your cell phone tells police a lot about you. A Judge recently provided written testimony about about the impact of the ECPA (Electronic Communications Privacy Act — that is a law that appears to be about anything but ensuring privacy of electronic communications). Title I of the ECPA 18 U.S.C.A. § 2510 allegedly protects wire, oral, and electronic communications while in transit. It was enacted to set down requirements for search warrants that are more stringent than in other settings. If you have issues or questions about this sweeping federal law, call me toll free at 1-877-793-9290.

Excerpts from the written testimony are below. We will be posting the complete testimony and will link to that for our readers.

“ECPA was passed in 1986 as a laudable attempt to balance the privacy rights of citizens and the legitimate interests of law enforcement, given the communications technology of that day.”

Author’s Comment: The ECPA provides that many of the requests and records are to remain secret. Title II of the ECPA, the Stored Communications Act (SCA) 18 U.S.C. §§ 2701 to 2712 protects communication held in electronic storage, most notably messages stored on computers. 

“By contrast, the SCA does not require $ 2703(d) orders to be sealed, and allows for “preclusion of notice” to others only if there is reason to believe the investigation would be jeopardized or other adverse consequences would result. 18 U.S.C. §§ 2705(b)(l)-(5).” 

“There are over 500 federal magistrate judges serving in district courts around the country. In addition to civil matters, our responsibilities on the criminal side generally include almost everything except conducting felony trials.”

“One of our chief functions is to issue search warrants and other orders in aid of criminal investigations. These include electronic surveillance orders for pen registers, trap and trace devices, tracking devices, 2703(d) orders for telephone and e-mail account records and activity.”

“With rare exceptions, ECPA orders pertain to ordinary crimes and criminals, not national security or terrorism cases.”

“The process is exparte, meaning only one party – law enforcement – appears before the magistrate judge. Since this is at the criminal investigation stage, no defendant has yet been charged so no defense counsel is there to challenge the government’s request. Likewise, no representative of the electronic service provider or the target phone’s subscriber is present. In fact, the orders routinely contain gag orders precluding the service provider from advising their customers that the government is accessing their cell phone or e-mail account records. The public rarely learns about these orders, even long after issuance, because they are routinely placed under indefinite (i.e., permanent) seal.”

“A reasonable estimate is that the total number of electronic surveillance orders issued at the federal level each year substantially exceeds 10,000”

“The application sought “the location of cell site sector (physical address) at call origination (for outbound calling), call termination (for incoming calls) and, if reasonably available, during the progress of a call,” in addition to “the strength, angle, and timing of the caller’s signal measured at two or more cell sites, as well as other system information such as a listing of all cell towers in the market area, switching technology, protocols, and network architecture.” 390 F. Supp. 2d at 749. “

“Under ECPA, secrecy is achieved in two-ways: (1) gag orders preventing service providers from informing customers about law enforcement monitoring of their cell phone and e-mail usage; and (2) sealing orders denying public access to judicial orders. Typically, electronic surveillance orders contain both types of provisions, but rarely impose an expiration period; instead, those orders remain in place “until further order of the court.”29 The catch is that there is no mechanism in place for the judge to revisit the sealing order. She does not retain jurisdiction over the case, which is not a “case” at all but an investigation that may or may not ripen into a real case.” 

“The brunt of such secrecy is not necessarily borne by the surveillance targets who are ultimately charged with a crime. After all, they are entitled to discover the nature and source of the prosecution’s evidence, including electronic surveillance orders leading to arrest. Suppression motions are available in the event of a constitutional violation. But not everyone caught up in the web of electronic surveillance is ultimately charged with a crime. Any target is likely to call or be called by family, friends, associates, or even total strangers who have no connection to a criminal enterprise. Yet by the fortuity of a single call, these by-standers may be swept up in a criminal investigation, their cell phone use monitored and their location tracked in real time. Unlike criminal defendants, however, these presumably law abiding citizens will never find out. The phone company cannot tell them, and courthouse records will disclose nothing. Ordinarily, a citizen whose house or office is searched is provided a warrant duly signed by a judicial officer, giving notice of the particulars of the search.33 When a citizen wishes to challenge the legitimacy of a law enforcement search of his home pursuant to a warrant, the law affords due process for that purpose. But when searches are shrouded in permanent secrecy, as in most cases of electronic surveillance, due process becomes a dead letter. Such secrecy also has a pernicious impact on the judicial process . . . .”

Author’s Comment: There are proposals to restrict the scope of this federal law, but as of today, November 22, 2010, the law and its ability to gather a diverse array of data about your cell phone usage remains a frequently used tool of federal law enforcement, including DHS (Department of Homeland Security) , DEA (Drug Enforcement Administration), FBI (Federal Bureau of Investigation), State, and Local Law Enforcement.

If you have issues or questions about this sweeping federal law, call me toll free at 1-877-793-9290.


Cell Phone, Surveillance , SCA, Stored Communications Act , ECPA , 18 U.S.C.  § 2510, 18 U.S.C. § 2701, ,  Electronic Communications Privacy Act


Cell Phone Surveillance | Cell Tower Data 

Cell Phone Tower Data Admissible

Cell Phone Tower Data Admissible
Historical cell phone records of the tower sites used by a defendant were deemed admissible and efforts to suppress the records were for naught. The Florida Court found that the user of cell phone has no expectation of privacy in cell phone records of the cell towers used during phone calls. An affidavit by law enforcement stated that the cell site location would show where the defendant was located at the time he was using the phone within a half hour of the alleged crime.

Cell Phone Evidence in Question? Tell Me  Your Story Toll Free 1-877-793-9290 .

Source: 35 Fla. L. Weekly D63a


Cell Phone Tower Data Admissible

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