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LEGAL BRIEFS: Asset Forfeiture and Cell Phone Privacy On February 20, the US Supreme Court ruled unanimously that the Constitutional ban on excessive fines applies to states as well as the Federal Government. The unanimous decision was written by Justice Ginsburg and involved an Indiana case in which a man who had pleaded guilty to selling heroin to an undercover police officer had his Land Rover confiscated. This was the first case in which the Court explicitly indicated the Eighth Amendment clause about fines applies to the states. In previous cases, the Court ruled that the other restrictions of the Eighth Amendment forbidding cruel and unusual punishment and excessive bail applied to the states as well (NBC, February 20). In a somewhat related case, Mark Patrick Johnson of Portland, who had his 2014 federal drug conviction thrown out in May 2018 by a three Judge panel of the Ninth Circuit Court of Appeals, found the Portland police no longer had any of his confiscated property. His cellphones, bags and a small safe were scrapped, and the $7,100 removed from his pocket had been forfeited years ago under order of a Multnomah County Judge. The Police Bureau's evidence warehouse destroyed the property in mid-2017 while the appeal was still pending. Property is supposed to be kept as evidence until a judge, prosecutor or legal investigator in the case says it can be disposed of. In early March, a federal judge decided not to order the government to make good the losses suffered by Johnson (Oregonian, March 7). Judge Kandis Westmore from the U.S. District Court for Northern California ruled police officers cannot force people to unlock a cell phone with their face or finger. The ruling, declared a potential landmark decision, further protects privacy from government searches. The order came in the form of a denial of a search warrant for unspecified property and was part of an investigation into a Facebook extortion crime. In addition to a property search, police wanted to open up any phone on the premises. Westmore agreed there was probable cause to search the property but they did not have the right to open up all the devices by forcing unlocks with biometric features. Judge Westmore said the government did not have the right, even with a warrant, to force suspects to incriminate themselves via this unlocking. Other courts had decided body parts were not deemed testimony similar to passcodes, so the biometrics were not subject to Fifth Amendment protections against self incrimination. Westmore wrote, "if a person cannot be compelled to provide a passcode because it is testimonial communication, a person cannot be compelled to provide one's finger, thumb, iris, face or other biometric feature to unlock that same device" (Forbes, January 14). |
May, 2019
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People's Police Report
#77 Table of Contents
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