Tagged: consent

Know Your Rights!

POST WRITTEN BY: Danielle Petretta (J.D. ’17), Pace Law School

On November 18, 2014, the Criminal Justice Society, Criminal Justice Institute and Alumni Relations Office at Pace hosted Know Your Rights symposium. This event was created by Pace Criminal Justice Clinic students under the leadership of Professor David N. Dorfman.

Students were broken into groups, and each group participated in various skits demonstrating the appropriate responses during police street stops, stop and frisks, car searches, cell phone searches and more. While extremely amusing, the skits were followed by an important presentations during which students addressed legal issues involved in each of the skits. One of the problems is that many people do not know their rights and the available appropriate responses. The students’ skits conveyed the importance of being an informed citizen.

Think of some of the following statements and ask yourself if you know the answer:

  • Did you know that if a police officer approaches and asks you general questions, in a non-accusing manner, and you do not wish to answer, you can choose not to answer and walk away? (though doing so requires a level of courtesy)
  • Did you know that you do not have to consent to a car search without a warrant if a police officer stops your car, and that 80% of people only consent because they are uninformed of their right to refuse? (assuming that the officer does not have probable cause such as seeing drugs or firearms)
  • Did you know that cell phones cannot be searched incident to arrest without search warrant that is signed by a judge?

These are few of the questions that plague our justice system on a daily basis, which is why it is important to be aware of our rights, especially as young students in the midst of a technological revolution.

It is no secret that we live in an era where technology is rapidly changing. However, the law has not yet reached the 21st century, so there are many unsettled situation. In the meantime, our court systems battle these complex issues on a daily basis that arise with the advent of new technology. Think about the issues regarding cell phones searches, GPS devices, computers, social media, etc…. How is the law to handle the use of technology and searches while not infringing on person’s expectation of privacy? This is where the difficulty lies. We know that during a car stop, a police officer is allowed to search whatever is in plain view. On the other hand, what is the protocol for searching a computer that is left open and unattended? A cell phone that is seized? Can information found on social media websites be used against a person, and if so, how? What if the social media site is set to private? Do levels of privacy differ on the Internet? Should the same procedures currently applied in searches of cars, houses or people be applied to technology? These are some of the questions presenting much difficulty in articulating new laws.

For now, Riley v. California, decided just this year, is the only precedent we have regarding cellphone searches incident to arrest. An officer may seize a cell phone from an individual after his/her arrest, but may not open the phone or search through the phone without a valid search warrant. Here is an interesting excerpt from the Supreme Court decision: “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos” Riley v. California, 134 S. Ct 2473, 2478 (2014). It is clear that new law is warranted, but it must be balanced against our expectation of privacy.

The Know Your Rights event was an eye opener. It would be interesting to see how this event can be incorporated into the public or in other schools, perhaps even high schools. I think it would be an extremely informative and fun experience for young adults to become informed about what is unfolding around them. Personally, I was made aware of the consequences of the technology that we as a society have become so obsessed with and reliant on, while also realizing that the courts face a huge task of creating new laws addressing these new issues. I would urge everyone to become informed not only as to their own rights but also about what is currently being debated in our courts, because we will be the ones who will become affected in the future by the laws that are being created at this moment.

For your convenience, take a moment to begin and read the Know Your Rights! Top Ten Takeaways compiled by Professor David N. Dorfman.

Supreme Court “Consents” To Expanding Warrantless Search Exception

For the past forty years, the United States Supreme Court has continually tinkered with the exceptions to the Fourth Amendment’s general prohibition on warrantless searches, including the allowance of warrantless searches that are conducted after the police have obtained voluntary consent from the individual whose property is being searched. In 1974, the United States Supreme Court ruled that the Fourth Amendment recognizes a warrantless search of a premises when the police obtain the consent of an occupant who shares common authority over the property. United States v. Matlock, 415 U.S. 164, 170 (1974). Thereafter, the Court expanded its decision in Matlock to include situations where a warrantless search of a premises was conducted based upon the “consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not.”  Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).  In 2006, the Court again modified its prior decisions on this issue, ruling that the consent of one co-occupant was insufficient to authorize police to conduct a warrantless search of a premises if another objecting occupant was “physically present” at the time. Georgia v. Randolph, 547 U.S. 103 (2006).

On Tuesday, the Court decided to rework its decision in Randolph, and severely limit its future application. In Fernandez v. California, the Court held that the rule set forth in Randolf was “extremely narrow,” and does not apply to situations when the police have received consent from one co-occupant after the objecting occupant had been removed from the premises. The Court explained that the co-occupant’s initial objection to the police’s entry is not everlasting, and can be overridden by the consent of a co-occupant after the objecting party is no longer present. Notably, the Court held that the consent of a co-occupant will authorize a search even when the objecting party has been removed from the premises involuntarily, including when removal occurs as a result of police conduct. The Court explained that searches occurring after the police have removed the objector will be permissible so long as the reason for removing the occupant was “objectively reasonable.” In Fernandez, the police had removed the objecting co-occupant after he was suspected of being involved in a robbery and believed to have battered his girlfriend moments before the police had arrived. Several hours later, the police returned to the residence and conducted a warrantless search of the premises based upon the girlfriend’s consent.

Three members of the Court (Justices Ginsburg, Sotomayor, & Kagan) disagreed with the majority’s decision, noting that “[i]n its zeal to diminish Randolph, today’s decision overlooks the warrant requirement’s venerable role as the “bulwark of Fourth Amendment protection.” They explained that “[r]educing Randolph to a “narrow exception,” the Court declares the main rule to be that “consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search. Such a declaration “has it backwards, for consent searches themselves are a “`jealously and carefully drawn’ exception” to “the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable per se.” (citations omitted).

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