Still One of My Favorite Videos on How to Refuse a Search of Your Car

June 18, 2013

How Can I Defend Someone If I Know They’re Guilty?

June 18, 2013

By Collin County Criminal Lawyer Jeremy Rosenthal

(972) 369-0577

If you practice criminal defense you are invariably asked questions by people who simply don’t understand what it is you do.  The questions don’t bother me.  We are all naturally programmed to think in terms of good and evil.  We all view ourselves on the side of good and can’t understand how anyone can cross the imaginary boundary we’ve established in our mind.

1.  How Can You Possibly Defend Someone You Know is Guilty?

When I defend a guilty person, I defend everyone.  If I can make it difficult for a guilty person to be treated unfairly then I’m making it extremely difficult for an innocent person to be treated unfairly.

Besides, not everyone is guilty.

2.  What This Person Did Was Awful.  How Can You Defend Him?

I don’t defend crime or criminal acts.  I defend human beings and their rights.

I defend people whose imperfection is making bad choices and/or hurting people from people whose imperfection is being judgmental.

Another fun way I respond to either of these questions is, “Well let’s just lop their hand off like they do in other parts of the world.”

That usually drives the point home.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about this or any other situation you should contact an attorney directly.

Does a DWI Ruin Your Life?

June 18, 2013

Can Police Confiscate My Cell Phone During an Arrest?

June 14, 2013

By Collin County Criminal Lawyer Jeremy Rosenthal

(972) 369-0577

It’s becoming more and more frequent where I have clients arrested for drug charges (and even intoxication charges) who are telling me the police simply took their phone and started thumbing through it.  Sometimes the police even keep the phone.

Can Police Search a Cell Phone?

This is an extremely hot legal topic.  As of the writing of this article (June, 2013) the answer simply depends on where you live.  

We currently have what we call in the legal profession “splits” between Federal Appellate Courts and between State Courts.  This means Courts on many levels simply can’t agree.  Splits like these are usually resolved by the U.S. Supreme Court when they feel the issue is ripe enough.

What Texas Courts Currently Say about Cell Phone Searches

In United States v. Finley, 477 F.3d 250 (5th Cir. 2007) the Federal Appeals Court for the 5th Circuit (Texas and Louisiana) allowed a search of a cell phone during a drug arrest.  The Court took the position a cell phone was no different than a container found in the car.  The rationale was because police can search a container for evidence after an arrest in a car — they can search a phone too.

As a historical note — the first iPhone was released in June, 2007.  Smart phone technology and usage was comparatively in its infancy compared even with today.

Many courts have grown wary and even antagonistic of the logic of Finley.  In State v. Granville, 373 S.W.3d 218 (Tex.App.– Amarillo, 2012, pet. granted) the Amarillo state court of appeals held the search of a cell phone illegal and discussed the many personal things we have on phones including pictures, calendars, web browsing etc., etc., etc.  

The Texas Court of Criminal Appeals has agreed to hear the Granville case which means Texas law will become more clear on the issue one-way or the other.

What Will Ultimately Happen With the Law?

It’s hard to imagine Courts will not draw more privacy distinctions between a smart phone and a glove-box in a car.  In a society where everyone essentially has a smart-phone, the expectation these things are private greater and greater.  Merely because you take one with you in your car doesn’t mean you want the whole world to thumb through it.

What Do I Do if My Cell Phone Was Taken By Police?

Fight it.  

Police are on very shaky legal ground when they take a phone and begin to search through it as if it was their own.  Even if some Judge’s think this is okay for them to do — it’s doubtful juries will comfortable with the practice.

Getting the phone back from the police is a different issue.  If it’s technically “evidence” seized in the case you may be without it for a while.  You can always ask the Judge in the case to have the police return your property but it may not be until after the case is resolved.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should always contact an attorney directly.