criminal procedure

From the Supreme Court: Get a Warrant, Officer

Violent criminals are out there. I get it. A number of them have even inflicted violence on me, giving me concussions, cuts, bruises, a broken jaw, a facial scar, and a nerve-dead tooth. Some people really should be kept separate from the rest of us, for our safety, and some kind of incarceration is probably an unavoidable, if ugly, social practice. While I certainly do not espouse Hammurabi’s Code (famous for its “eye for an eye” rule, number 196), I also do not think anyone has ever accused me of being “soft on crime.” Nonetheless, before society exacts its vengeance or punishment or safety measure (depending on your theory of criminal justice), it is only fair (and constitutional) that the legal system actually makes sure the accused person is guilty. In the process of enforcing the law and determining guilt or innocence, the system also must respect the constitutional protections provided to every criminal suspect in the USA. Despite the impression one may get from TV shows, procedural protections do not exist merely as technicalities that lawyers can exploit to help guilty people get away with their crimes. They are in place to protect all of us from potential abuse of power by the government in all of its incarnations. And they protect us no matter which state we are in.

Yesterday (June 25, 2014) the US Supreme Court released a nearly unanimous decision in a major criminal-procedure case. (Actually, there were two cases combined into one decision now known as Riley v. California.) I have not read anyone’s take on it yet, but to me it looks like a strong ruling in favor of the search warrant “requirement,” not to mention privacy protection. This week the conservative Court has issued a decision that supports the Fourth Amendment demand that law enforcement officials, whether small town patrol cops or FBI agents, get a search warrant.

For those who need a primer or reminder: in general, government officials, including detectives, are required by the Fourth Amendment to obtain a search warrant, supported by probable cause to believe that evidence of a crime will be found and issued by a magistrate (usually a judge), before searching a person’s home, vehicle, body, et cetera. The Supreme Court has fashioned an impressive array of exceptions to the rule, and so, in practice, cops, jail guards, school principals, and others often are free to search without a warrant. In fact, when a sergeant from the Portland (Maine) Police Department spoke at my criminal procedure class in law school, he stated that he rarely had to fill out a warrant request. Why? In the field, a police officer is permitted to search someone in the process of arresting him or her, to ensure that he or she does not have a weapon that could be used against the officer and to preserve evidence. (This is called a search incident to arrest.) Also, it is often so obvious, prior to arrest, that someone has contraband—it may be a bag of cocaine sitting on the floor of a car that has been pulled over for a traffic violation—or other evidence of a crime—say, empty bottles visible in a drunk driver’s car— that the warrant requirement has been negated by an “exigent circumstance.”

When someone is arrested, the cops are permitted by the constitution (and, presumably, required by department policy) to search the arrestee. During that search, the officer may find and seize a cell phone or other electronic device. The officer may then wonder whether the device has evidence of crime or a lead to investigate further. Until yesterday, it was unclear whether the Fourth Amendment requires an officer who finds a cell phone to obtain a search warrant before perusing its contents for things like call histories and text messages, because the law is generally slow to respond to changing technology. Would searching someone’s smartphone be analogous to searching his pockets for weapons or to entering his home and looking around? The Court has now established that law enforcement generally must obtain a search warrant before examining the contents of a cell phone or similar device; and, in the event that a warrantless search is executed when the Fourth Amendment requires a warrant, any evidence obtained thereby is subject to exclusion from any criminal case that ensues.

Some people undoubtedly consider the exclusionary rule as something that helps criminals “get away with” violations of the law. They may be angry that, for instance, the two defendants convicted of charges including illegal possession of a firearm and attempted murder got their convictions reversed. In reality, a search warrant is not especially difficult for officers to get, and, in a case of truly exigent circumstances, evidence obtained without a warrant may still be admitted at trial. Moreover, the vast majority of criminal cases never go to trial. It makes more sense, in my opinion, to be upset at the officers who failed to get a search warrant and, thus, damaged a criminal case, than at the lawyers and judges who are upholding a constitutional protection that exists for all of us. If you get arrested for something foolish or erroneous—driving on a suspended license or an incident of mistaken identity, for example—do you really want cops looking through your iPhone?

The lesson for law enforcement from this case is clear and emphatic: when in doubt, get a warrant. For non-lawyers out there, the lesson is: do not simply allow the police to invade your privacy on the off chance that they will discover evidence that you committed a crime. And criminal defense attorneys have a bright-line rule that disincentivizes cops from overstepping boundaries on their well-intentioned mission to solve crimes.

A couple of side notes: the decision amusingly describes three precedents that cover this area of law as “The search incident to arrest trilogy” (see page 8). Also, the majority opinion contains some analysis that uses the Court’s relatively recent (and strange) habit of examining constitutional rights through the lens that the Constitution’s Framers theoretically would have used if they were looking at the same case. That is, the Court proceeds to its “balancing of interests” discussion only after determining that we lack “more precise guidance from the founding era” (see page 9) and also places the decision in the context of the colonial era (see pages 27-28). I find Originalism maddening, for a few reasons, but that would be a post for another day. And the Court manages to preserve U.S. v. Robinson, a case in which an officer, without a warrant, searched an arrestee’s cigarette pack and found drugs but was determined not to have violated the Fourth Amendment, without expanding its reach. The Court here (on page 11 and elsewhere) states that a phone can be examined to make certain it is not concealing a weapon, but its contents cannot be searched without a warrant. Finally, the decision includes a long, fact-specific discussion (on pages 12-15) that, in effect, rejects the argument that allowing officers to search a device’s contents will prevent “remote wiping” or similar means of evidence destruction.


Gary Prolman, et al

Saco lawyer Gary Prolman is in serious trouble. In April he pleaded guilty to money laundering and now faces a possible sentence of years in federal prison and a large fine, in addition to the 177 grand he already forfeited. Prolman found himself involved in—or chose to involve himself in—a fairly complicated criminal enterprise. Without getting into the details, which are mostly irrelevant for the purposes of this post, I would say that the enterprise was not as sophisticated as, say, a large-scale mortgage-backed securities scam that would bring down large firms and leave millions of people holding the bag but was clearly more complex than many a Ponzi scheme or a typical jewelry heist-and-fence plan. And everyone involved, at the very least, had a more plausible chance at getting away with it than the bank executive who used a company credit card at strip clubs.

One relevant part of the case is that Prolman, in effect, went into business with a client. The crux of his defense theory, as far as I can tell, is that he was unaware of the illegal origins of the money he got from a client who was involved in drug smuggling and related crimes. Even if he had actually been unaware of the illegal nature of his client and partner’s income, the prosecution could pursue a theory of willful blindness—essentially, Prolman could not simply turn a blind eye to the criminal origin of his income and later plead ignorance, if it would be apparent to a reasonable person that the money came from a criminal activity. Either way, Prolman does not dispute that he went from representing David Jones to making business deals with him. The government has also accused Prolman of “smurfing,” wherein someone deliberately makes many small cash transactions that, in total, would trigger a federally-required report if made all at once, with the goal of avoiding the reporting requirement. Finally, in a separate but related criminal case, a prosecution-friendly witness (Raymond Paquette) testified at the trial of alleged co-conspirator Steven Olson that Prolman was more deeply involved in, and aware of, the criminal enterprise than Prolman has admitted to thus far; that witness is not the most credible, considering that he appears to be testifying in exchange for a reduced sentence from the government. As I mentioned in a previous post, criminal informants are useful tools for law enforcement and prosecution, but many of them lie, even under oath, to save their own necks.

Prolman may not face any more criminal charges stemming from his involvement with David Jones, but he almost certainly will be suspended from the practice of law. Going into business with a client could have sufficed to bring on an investigation by the Board of Overseers of the Bar—see Maine’s Professional Conduct rule 1.8(a), which prohibits this kind of arrangement, in many situations, as a conflict of interest—but Prolman’s guilty plea to a serious crime probably makes that issue irrelevant, per M.R.P.C. 8.4(b). Also, the smurfing accusation and the accusation under oath made by Paquette could be considered by whichever panel of bar overseers hears his case, and both involve alleged violations of M.R.P.C. 8.4(b)-(c); those rules prohibit dishonest, fraudulent, deceitful, unlawful, and criminal acts by members of the Maine bar. I do not know what defense Prolman and his counsel (Peter DeTroy) have in mind when Prolman faces the Grievance Commission, but I would speculate that, because he has already admitted in court to violations of the rules of professional conduct, he will focus on the punishment. He may get a shorter suspension, rather than an open-ended one (which can take over a decade to return from) or an outright disbarment, but it seems unlikely that he will get only a formal reprimand.