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July 2, 2015 By vincerabagolaw

ARIZONA COURT LIMITS SEARCHES OF CELL PHONES

Court limits cell phone searches without warrant or consent

In a case of first impression in Arizona, the Arizona Court of Appeals tossed out an unlawful police search of a suspect’s cell phone. Applying Supreme Court precedent, the Court held that police cannot search the cellphone of someone they have not arrested without either a warrant or the owner’s consent.

In State v. Feliciano Ontiveros-Loya, the court of appeal rejected arguments that Pima County sheriff’s deputies had a right to look through the cell phone during their investigation of whether the suspect threatened a woman who said he had a weapon.

Officers found a picture of a silver handgun on the phone. Although officers never found a gun, the evidence was used to convict Ontiveros-Loya on charges of illegal firearm possession. He was sentenced to eight years in prison.

But the Court of appeals held that deputies had no legal reason to look at the phone. Although officers did eventually obtain a warrant, evidence suggested that pictures on the phone — to which the police had no lawful right to access — were improperly used as the basis for the search warrant.

The Court explained that although police can take possession of a cell phone to prevent suspects from erasing incriminating information, the court concluded this was not a threat here because the suspect was placed in a patrol car and the cell phone was in his motel room.

Even if the phone was properly seized to prevent deletion of evidence, the police would have to obtain a search warrant based on a showing of probable cause before a judge.

The Court cited to U.S. Supreme Court precedent in Riley, which pointed out the significant role that such electronic devices play in people’s lives:

In Riley v. California, the Supreme Court considered “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” ___ U.S. ___, ___, 134 S. Ct. 2473, 2480 (2014). There, officers searched each arrestee’s person incident to arrest and found cell phones, which the officers also searched. Id. at ___, 134 S. Ct. at 2480-81. The Court observed that the two risks identified in Chimel—harm to officers and destruction of evidence—do not exist when the search is of digital data. Id. at ___, 134 S. Ct. at 2484-85. The Court also reasoned that “[a] search of the information on a cell phone bears little resemblance to [a] brief physical search” because “[c]ell phones . . . place vast quantities of personal information literally in the hands of individuals.” Id. at ___, 134 S. Ct. at 2485.  Thus, the Supreme Court held that “officers must generally secure a warrant before conducting” a search of a phone found on the person of an arrestee. Id.

The Deputies denied using the photos to get the search warrant that they obtained, but prosecutors never produced the affidavits used for the warrant.

As such, the Court held: “There was no testimony that would allow the court to conclude the officers could have obtained the warrant to search the cell phone without the photographs found in the initial search.”

The appellate court also concluded that there was no evidence that the suspect’s consent to search the motel room necessarily included the right to search the phone, and remanded the case for a limited hearing on whether the suspect consented to search the phone, a contention which Ontiveros-Loya’s attorney, Pima County Public Defender Erin Sutherland-Martinez, disputes.

Here is the Court’s  decision.

Filed Under: News

July 2, 2015 By vince@vincerabagolaw.com

ARIZONA COURT LIMITS SEARCHES OF CELL PHONES

Court limits cell phone searches without warrant or consent

In a case of first impression in Arizona, the Arizona Court of Appeals tossed out an unlawful police search of a suspect’s cell phone. Applying Supreme Court precedent, the Court held that police cannot search the cellphone of someone they have not arrested without either a warrant or the owner’s consent.

In State v. Feliciano Ontiveros-Loya, the court of appeal rejected arguments that Pima County sheriff’s deputies had a right to look through the cell phone during their investigation of whether the suspect threatened a woman who said he had a weapon.

Officers found a picture of a silver handgun on the phone. Although officers never found a gun, the evidence was used to convict Ontiveros-Loya on charges of illegal firearm possession. He was sentenced to eight years in prison.

But the Court of appeals held that deputies had no legal reason to look at the phone. Although officers did eventually obtain a warrant, evidence suggested that pictures on the phone — to which the police had no lawful right to access — were improperly used as the basis for the search warrant.

The Court explained that although police can take possession of a cell phone to prevent suspects from erasing incriminating information, the court concluded this was not a threat here because the suspect was placed in a patrol car and the cell phone was in his motel room.

Even if the phone was properly seized to prevent deletion of evidence, the police would have to obtain a search warrant based on a showing of probable cause before a judge.

The Court cited to U.S. Supreme Court precedent in Riley, which pointed out the significant role that such electronic devices play in people’s lives:

In Riley v. California, the Supreme Court considered “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” ___ U.S. ___, ___, 134 S. Ct. 2473, 2480 (2014). There, officers searched each arrestee’s person incident to arrest and found cell phones, which the officers also searched. Id. at ___, 134 S. Ct. at 2480-81. The Court observed that the two risks identified in Chimel—harm to officers and destruction of evidence—do not exist when the search is of digital data. Id. at ___, 134 S. Ct. at 2484-85. The Court also reasoned that “[a] search of the information on a cell phone bears little resemblance to [a] brief physical search” because “[c]ell phones . . . place vast quantities of personal information literally in the hands of individuals.” Id. at ___, 134 S. Ct. at 2485.  Thus, the Supreme Court held that “officers must generally secure a warrant before conducting” a search of a phone found on the person of an arrestee. Id.

The Deputies denied using the photos to get the search warrant that they obtained, but prosecutors never produced the affidavits used for the warrant.

As such, the Court held: “There was no testimony that would allow the court to conclude the officers could have obtained the warrant to search the cell phone without the photographs found in the initial search.”

The appellate court also concluded that there was no evidence that the suspect’s consent to search the motel room necessarily included the right to search the phone, and remanded the case for a limited hearing on whether the suspect consented to search the phone, a contention which Ontiveros-Loya’s attorney, Pima County Public Defender Erin Sutherland-Martinez, disputes.

Here is the Court’s  decision.

Filed Under: News

May 13, 2015 By vincerabagolaw

Consumer law issues? Vince Rabago will be on the Buckmaster Radio show in Tucson on KVOI AM – May 14, 2015

Consumer law issues? Tune in tomorrow! Vince Rabago, Esq. is invited to be on the Bill Buckmaster radio show Thursday May 14th to discuss Consumer Affairs with Tom Collier, former head of the local Better Business Bureau, KVOI AM 1030.

Our segment airs at 12:30 pm but you can tune in early at 12 to hear the whole show. In Arizona, listen live or live stream the show. If you have a consumer legal issue or have questions, the call number is 520-790-2040. http://kvoi.streamon.fm/

http://www.buckmastershow.com

Filed Under: News

May 13, 2015 By vince@vincerabagolaw.com

Consumer law issues? Vince Rabago will be on the Buckmaster Radio show in Tucson on KVOI AM – May 14, 2015

Consumer law issues? Tune in tomorrow! Vince Rabago, Esq. is invited to be on the Bill Buckmaster radio show Thursday May 14th to discuss Consumer Affairs with Tom Collier, former head of the local Better Business Bureau, KVOI AM 1030.

Our segment airs at 12:30 pm but you can tune in early at 12 to hear the whole show. In Arizona, listen live or live stream the show. If you have a consumer legal issue or have questions, the call number is 520-790-2040. http://kvoi.streamon.fm/

http://www.buckmastershow.com

Filed Under: News

May 1, 2015 By vince@vincerabagolaw.com

Local bars may not score knock-out with Mayweather-Pacquiao bout.

Rabago tells bars: Comply with federal law and pay the business licensing fee to broadcast the fight or get sued later by the sports promotion company.

KVOA | KVOA.com | Tucson, Arizona

Vince Rabago Law Office was on the news earlier tonight about the Manny Pacquiao v. Floyd Mayweather fight on Saturday with some advice for local restaurants and bars airing the fight. Make sure you comply with all federal laws and pay the proper business licensing fee to broadcast the fight… so you and your business don’t get sued later by the sports promotion company with a potentially bankrupting lawsuit! Enjoy the fight. If you or your company need legal advice or a fighter in your corner, contact Vince Rabago Law Office!

Filed Under: News

May 1, 2015 By vincerabagolaw

Local bars may not score knock-out with Mayweather-Pacquiao bout.

Rabago tells bars: Comply with federal law and pay the business licensing fee to broadcast the fight or get sued later by the sports promotion company.

KVOA | KVOA.com | Tucson, Arizona

Vince Rabago Law Office was on the news earlier tonight about the Manny Pacquiao v. Floyd Mayweather fight on Saturday with some advice for local restaurants and bars airing the fight. Make sure you comply with all federal laws and pay the proper business licensing fee to broadcast the fight… so you and your business don’t get sued later by the sports promotion company with a potentially bankrupting lawsuit! Enjoy the fight. If you or your company need legal advice or a fighter in your corner, contact Vince Rabago Law Office!

Filed Under: News

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