New Jersey Criminal Defense Attorney Blog

Warrantless Cell Phone Searches Incident to Arrest

February 19, 2014 | By James S. Friedman, LLC

The United States Supreme Court has granted certiorari in two cases that consider whether the police can conduct a warrantless search of an individual’s cell phone incident to arrest. Courts have held previously that the police can search an individual’s person and effects at the time of arrest, but cell phones often contain a substantial amount of personal data totally unrelated to the arrest or the relevant charges.

The cases are Riley v. California and United States v. Wurie. In Riley, the defendant is challenging a police officer’s search of his smartphone. In Wurie, DOJ is seeking review of an appellate decision requiring warrants to search a cell phone. These cases come on the heels of recent cases examining related issues, such as requiring a warrant to track a cell phone’s location, and to use GPS tracking devices.

Technology has progressed far beyond the point where a cell phone can be viewed as a simple communications device. A cell phone really is a pocket computer. Modern cell phones can be used to store incredible amounts of data, both internally and via remote services accessed through the Internet. This private data includes, but is not necessarily limited to, text messages, e-mails, call records, documents, photos, videos, and related items. This private material – which will almost always reveal intimate details concerning a person’s digital life – may have no relation of any kind or nature whatsoever to the arrest or the charges. Continue reading ›

Computing Restitution Awards in Child Porn Cases

February 12, 2014 | By James S. Friedman, LLC

In 1997 and 1998, an eight-year-old girl known as “Amy” was sexually abused and raped repeatedly by her uncle. Amy’s uncle received a custodial term of 10 years, and was ordered to pay $6,325.00 in restitution. The assaults were photographed, and the photos were placed on the Internet and spread around the world. Nobody really knows who photographed the assaults or placed them on the Internet, and it is impossible to know how many people viewed them or shared them with others. When Amy was older, she learned that thousands of people were viewing these images, and said that it made her feel that the abuse was re-occurring and would never end.

A federal statute requires defendants in child porn cases to pay the full amount of restitution to victims such as Amy. On its face, the statute arguably requires each defendant to make full payment notwithstanding the portion of harm they actually caused. Amy eventually retained an attorney who computed the full amount of restitution due her at $3.4 million. Her attorney began serving restitution demands for $3.4 million on child porn defendants everywhere, regardless of how many pictures of Amy were implicated in their respective cases, or whether they were convicted of simple possession, as opposed to distribution.

Doyle Randall Paroline of Texas subsequently pleaded guilty to possession of child pornography, and received a two-year term and ten years of supervised release. Two of the 300 images discovered on his computer hard drive were of Amy. As a result, Amy’s attorney served him with a demand for $3.4 million in restitution. Paroline’s attorney argued recently before the US Supreme Court that his client, who was convicted of possession, as opposed to production and/or distribution, should not have to pay that much because it was out of all proportion to any harm Amy sustained from his conduct. Amy’s attorney argued that the statute literally requires full payment from each defendant.

New US Supreme Court Case Addresses Issues Concerning Mental Health Evaluations in Criminal Cases

January 8, 2014 | By James S. Friedman, LLC

The United States Supreme Court recently decided Kansas v. Cheever, 571 U.S. _____ (12/11/13), which discusses whether the Fifth Amendment prohibits the Government from introducing evidence from a criminal defendant’s court-ordered mental health evaluation to rebut the defendant’s presentation of expert testimony supporting a voluntary intoxication defense.

The defendant was charged initially in the Kansas state courts with capital murder. In an unrelated case, the Kansas Supreme Court invalidated the State’s death penalty scheme. The State then dismissed its charges and allowed federal authorities to prosecute the defendant under the Federal Death Penalty Act. In the federal case, defendant sought to introduce evidence of his intoxication by methamphetamine at the time of the offense, asserting that this negated his ability to form the intent requisite to the offense. The District Court ordered Defendant to submit to a psychiatric evaluation to assess this issue, and a psychiatrist interviewed Defendant for approximately five to six hours.

The federal case went to trial, but was subsequently suspended and dismissed without prejudice. The U.S. Supreme Court also reversed the Kansas Supreme Court’s decision, finding that the State’s death penalty statute was constitutional. Kansas then commenced a second prosecution against Defendant who, in turn, presented a voluntary intoxication defense supported by testimony by a professor of psychiatric pharmacy. The State then sought to rebut this with testimony from the psychiatrist who previously interviewed Defendant in connection with the aborted federal prosecution. This testimony apparently included statements Defendant made during the Court-ordered evaluation. Defense counsel objected, arguing that such testimony would violate Defendant’s Fifth Amendment rights since Defendant had not voluntarily agreed to that examination. The trial court agreed with the State, but the Kansas Supreme Court reversed.