Cell phones are increasingly becoming a primary component of any encounter between police and civilians. Along with that comes the warrantless seizure of cell phones. After all, they hold great evidentiary value from a law enforcement perspective. Neither the Fourth Circuit, nor the U.S. Supreme Court, has yet taken a position on whether there is a First Amendment (and therefore Fourth Amendment) right to videotape police officers. This isn’t exactly the same issue, since it mostly deals with seizing and searching cell phones incident to an arrest. But, the issue is the same when the person filming is arrested, at which point their phone will be seized.
When the phone is seized can the officers go through the phone without first obtaining a warrant? There is a very well written post on this topic from the Alabama Civil Rights and Civil Liberties Law Review blog, written by Lacy Triplett. She opined that:
The Court may take the approach of the majority of circuit courts and find that a cell phone is a container, which can be searched incident to arrest so long as the search is limited in scope and contemporaneous to the arrest. Or, the Court may take the approach of the First Circuit in Wurieand find that the privacy interests in an individual’s cell phone greatly outweigh the government’s need to immediately search a cell phone without first securing a warrant.
In any event, you know that right now across the country, police officers go through the cell phones of arrestees, where they find valuable information such as, every text message conversation the person had in the last year – or even their email history. They also contain photos, videos – you name it. Those practices, and law enforcement training, is going to depend on the outcome of Wurie.
Former Prosecuting Attorney of Pocahontas County Indicted. Update: Kanawha Prosecuting Attorney also charged and currently “embattled”.
I don’t usually post many news headlines anymore, unless they involve my cases. But, here goes.
The former prosecuting attorney of Pocahontas County, West Virginia, Donna Price, was just indicted. She joins another now-former elected prosecuting attorney in West Virginia in recent prosecutor indictments (Michael Sparks out of Mingo County). Prosecutors all over the state are probably loosening their collars.
Apparently she is being charged with embezzlement. I have no idea what actually happened, so I’ll just point out that she is innocent until proven guilty.
And I have posted about her before. In one of my most popular posts ever – from back in 2009 – Cops and Prosecutors Part Deux.
Just as a side note: the former assistant prosecuting attorney of Pocahontas County mentioned in the “Part Deux” post, J.L. Clifton, was also indicted last year, as per this article.
Edited to add: Also, if you didn’t get your fill of reading about West Virginia prosecutors who are being prosecuted, check out these articles about Kanawha County Prosecuting Attorney Mark Plants. Yes he is being prosecuted. No he won’t resign.
Maybe it’s time for Cops and Prosecutors Part III – 2014 Update.
I just went back through the Sawyer v. Asbury opinion in this post on the Use of Force Source. If you have followed the case on this blog, it’s interesting to take a step back and analyze the Court’s ruling as it finds its place in Fourth Circuit excessive force case law.
On the Use of Force Source, I just posted my write-up on a fairly recent Fourth Circuit case involving a homeowner who was shot by police while investigating a disturbance outside his home. If you’re interested:
I also recently posted a write-up on another recent Fourth Circuit opinion involving excessive force and bystander liability (e.g., where a group of officers allegedly beat someone and the victim doesn’t know who did what):
I started a new website called “Use of Force Source” at UseofForceSource.com. The purpose is to establish an online resource to discuss and compile Fourth Circuit federal case law, and U.S. Supreme Court case law on the use of physical force – both police situations and self defense situations. I have already listed a bunch of black letter law on excessive force in the Fourth Circuit (so Virginia, West Virginia, Maryland, North Carolina and South Carolina). It will be a blog format, and will be specific to use of force cases. My intention is to post about specific cases, going over the facts, as well as the law. I also like to listen to the oral argument audio since it gives you much more insight into the case and the reasoning behind the Court’s decisions.
I already posted my first post today, discussing the November of 2013 Fourth Circuit opinion from Ayala v. Wolfe, which was a police shooting case.
I am co-presenting a legal seminar on April 28, 2014 in Charleston, West Virginia on “Advanced Police Liability Claims.” I will be the only plaintiff’s attorney presenting. I will be discussing some interesting areas of the law, including the current hot topics of videotaping police officers, the rights to medical care for those in police custody, and police inaction.
Especially for lawyers who need those CLE credits, this is going to be a good one to attend. Would you rather learn about subrogation and underinsurance claims, or the law of police/citizen interactions?
You can learn more and register here.
For those of you who like to follow cases and not just read headlines about the allegations, I wanted to provide an update on the Matthew Cole case. It was recently settled, having just been finalized yesterday. It was originally filed in December 13, 2012. That is about average from filing to settlement/trial. It was scheduled to go to trial on March 13, 2014.
All discovery had been completed, including many depositions. And all dispositive motions, and pretrial motions, had been briefed. So anyone thinking that these are quick and easy cases to settle would be mistaken. Most of these cases (and this one was certainly no exception) are hard-fought and highly contested.
Apparently a West Virginia lawyer was charged with being an accessory after-the-fact in relation to a New Year’s Eve shooting in Charleston, which is a felony. This was reported by WCHS, as well as the Charleston Gazette. Allegedly, after his friend shot a guy after an argument over ordering a pizza, the lawyer took the guy’s cell phone and instructed him to run. And then he was allegedly uncooperative with police when they asked him the identity of the shooter.
It was reported that all of this can be viewed on surveillance footage:
“Conrad is in trouble, because police said he can clearly be seen on surveillance video taking Underwood’s cell phone, which is considered evidence, from the scene and telling the suspect to run.”
So my initial thought is, how can you view what someone is saying on surveillance footage? You can’t. We pretty much know the footage does not contain audio – since that in itself would constitute felony illegal wiretapping in West Virginia, since it would be capturing conversations for which no party has consented.
The police are the first to complain about surveillance footage when they are accused of misconduct, noting that you can’t tell everything from the video. Well you certainly cannot tell what someone is saying to another. How does a video prove that the lawyer was instructing the shooter to flee? And if you can view the cell phone being handed to the lawyer, how can you tell that the lawyer asked for it. And if a cell phone is handed to you in such a situation, does that make you a felon? What if you are a lawyer potentially representing the individual. Can you preserve evidence yourself? Are you compelled to turn over your own evidence to police at their demand? The West Virginia Rules of Criminal Procedure don’t provide for that. In fact, a criminal defendant is not compelled to provide discovery to the prosecution until and unless he or she requests discovery from the State.
As with any of the decaying “cities” in this country where you have arrogant and hypocritical leadership, the City of Charleston was quick to jump into attention-whore mode and to engage in their first attempts at poisoning the jury pool:
“It’s really surprising that someone in a position of authority, and all that he is responsible for, to participate in this criminal conduct,” Lt. Steve Cooper, with Charleston police said.
. . .
Charleston Mayor Danny Jones said he plans to file an ethics complaint with the state bar, against Conrad.
What ever happened to “innocent until proven guilty”? Is it ethical for a police officer, or mayor, to go onto TV and tell the public that an individual who has been charged, and who is presumed innocent, has committed criminal conduct? Or that the individual has abused a position of authority? Or that the person is unethical?
I’m not passing judgment on the lawyer’s actions one way or the other since I don’t know all of the facts. After all, isn’t that what police say when one of their own are accused of misconduct? Well, it’s under investigation and we don’t know all of the facts. So what if he did take the guy’s cell phone and told him to run? What negative consequences did that have? Who is a victim to the lawyer’s alleged crime? None and nobody.
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