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Attorney Carilyn Ibsen's Blog

about Criminal Defense in North Carolina and South Carolina

 

Monday, October 31, 2016

Search Warrants & Cell Phones


According to a Reuters survey, most people cannot live without their cell phone, and if given a choice, would rather lose their wallet than their cell phone. Verizon Wireless recently conducted a lighthearted 'would you rather' survey' to determine how attached people are to their cell phone. Four percent said they would rather lose their hair than their cell phone and nine percent said they would rather lose vacation days than their phone.

The importance of our cell phones has become paramount in today's society. Our phones contain more than a detailed snapshot of our lives with all the photos, videos, emails and text messages they hold.

Police have found them equally valuable in criminal investigations. As a result, appellate courts across the country are issuing opinions on this frequently litigated issue in courtrooms today- do the police need a search warrant  to look at your cell phone.

The Fourth Amendment prohibits the unreasonable search and seizure of a person and their property absent probable cause or a search warrant. A person's cell phone squarely falls within the parameter of the Fourth Amendment. Most law enforcement routinely seek out a warrant to search a cell phone involved in their criminal investigation. However, the situation becomes more complicated for an officer when a crime occurs while they are on duty. Once the officer believes the suspect has committed a crime, does that provide probable cause to search the person's cell phone for evidence of the crime?

The Massachusetts Supreme Court  recently addressed this issue. Commonwealth v. Onyx found that a 'nexus' must exist between the crime and the cell phone to justify the search. In the Onyx case, the Court found probable cause did not exist and found the search violated the Fourth Amendment;
Here, prior to seizing the defendant's cellular telephone, police had received information that the robbery and homicide under investigation had been committed by several people, that the defendant likely was one of those people, and that he owned a cellular telephone. They also knew from experience that coventurers often use cellular telephones to communicate with each other, and that these devices may contain evidence of such communications. According to their own statements, however, the detectives here did not have any "information that [a] cell phone was used in the crime under investigation," nor did they claim that there existed a particular piece of evidence likely to be found on such a device. In essence, then, their decision to seize the defendant's cellular telephone was made because (a) they had reason to believe that the defendant had participated with others in the commission of a robbery-homicide and (b) their training and experience in cases involving multiple defendants suggested that the device in question was likely to contain evidence relevant to those offenses.
This, without more, does not satisfy the nexus requirement. "Information establishing that a person [may be] guilty of a crime does not necessarily constitute probable cause to search" or seize the person's cellular telephone, even where the police believe, based on their training and experience in similar cases, that the device is likely to contain relevant evidence. Commonwealth v. Pina, 453 Mass. 438 , 441 (2009). Rather, even where there is probable cause to suspect the defendant of a crime, police may not seize or search his or her cellular telephone to look for evidence unless they have information establishing the existence of particular evidence likely to be found there.
Most are not involved in complicated fact scenarios such as the robbery/homicide case above. A more common scenario asked by clients is whether an officer can look at a cell phone when issuing a traffic or speeding ticket. Some have asked if a police officer can look at their cell phone for evidence of a drinking pattern after a DWI arrest.

Generally speaking, most searches of a cell phone will require a warrant. However, if an officer asks you for permission to look at your phone and you consent, you have likely waived Fourth Amendment protection. Consent is a topic for another day...

Meanwhile, criminal courtrooms continue to litigate the definition of nexus, probable cause and the overall right to privacy. And cell phones will continue to be more important to some than their vacation days....

 Charlotte Criminal Attorney Updates Provided by The Law Office of Carilyn Ibsen PLLC (888)543-2427





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Wednesday, October 26, 2016

Teens & Traffic Tickets

Last week was National Teen Driver Safety week, a week designated to remind us what we already know- the dangers of teen driving. I have represented many recently licensed teenagers who were involved in crashes, issued speeding tickets or cited with violating restricted license provisions.

It is important to understand the graduated license requirements in North Carolina. Shea Denning recently did an excellent summary in the NC Government blog. While your teenage driver may not remember their algebraic formula for the SAT, most teenage drivers I speak to can tell you exactly when, where and what time they can drive when they turn 16. The issue becomes whether they abide by the requirements. Many times young drivers were not engaging in reckless behavior when cited. Often they were only driving home from a babysitting job or a person's house. As a defense attorney handling these cases, it is important to separate these cases from the cases where reckless and careless behavior was engaged in.

Many parents ask if they should immediately enroll their teen in traffic school after receiving a traffic ticket or other traffic violation. I am often asked about Brakes traffic school in Mecklenburg County. Talk to an attorney first. Each case is different. As an attorney who handles traffic cases, I want to see the teen's driving record, speak to the driver, know how many family members are on the insurance policy and understand the circumstances around the case. Often overlooked is the teens performance in school. This is very helpful when negotiating a case.

Putting your teen behind the wheel likely ranks in the top three most anxious moments for parents. If the teen is then cited with a traffic ticket, it becomes extremely stressful for families.  As an attorney who works with teen drivers and parents regularly in North Carolina, there is often avenues that can be pursued which would prevent a license revocation or insurance increase. Talk to an attorney before going to court.

Traffic and Criminal Law Updates Provided by the Law Office of Carilyn Ibsen PLLC (888)543-2427



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Thursday, October 20, 2016

DWI on a Golf Cart?

As the Charlotte area grows and planned communities suddenly appear next to small two lane roads, so do the golf courses. However, many homeowners are investing in golf carts even when they don't play golf. Golf carts now appear at school bus stops, Harris Teeter parking lots and often times outnumber vehicles in retirement communities such as Sun City in Indian Land, SC.

However, drive with caution. In North Carolina, you can be arrested and charged with driving while impaired when operating a golf cart. If you are driving a cart on a public roadway, you are held to the same standards as if you were driving a vehicle. Surprising to many, there have even been impairment cases on bikes, lawnmowers and horses.

I recently handled a golf cart driving while impaired case in Mecklenburg County. My client was charged with DWI, reckless driving and hit and run.  The case was ultimately dismissed after I successfully argued a probable cause to arrest motion prior to trial. My client had allegedly driven a golf cart to a local restaurant, driven home and hit a parked car in an apartment complex. The court granted my motion to dismiss for lack of probable cause to arrest my client.

This case had a successful outcome for my client. However, this case was treated and argued the exact same way as a vehicle driving while impaired case. Proper motions were argued and relevant case law was utilized  to support our position.

Most importantly, police officers, the district attorney and judges do not consider it mitigating evidence that a person chose to get behind the wheel of a golf cart instead of a vehicle.

If you have been charged with a DWI or traffic case in the Charlotte area, contact the Law Office of Carilyn Ibsen for a legal consultation at (888)543-2427.





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