Prison Break Correctional Liability Update March 2016 Susan E. Unlocking the Rules on Cell Phone Searches Coleman is By Susan E. Coleman a partner at the law firm Recently, the FBI has had skirmishes with Apple over the encryption of of Burke, the iPhone belonging to the one of the perpetrators of the mass Williams & shooting in San Bernardino at the Inland Regional Center. The court Sorensen, issued an order for Apple to unencrypt the phone, revealing its data to where she specializes law enforcement; however, the battle is not yet over. in law enforcement defense, including Not surprisingly, like the standards for evaluating use of force, the correctional litigation. Ms. standards to justify examination of a cell phone’s contents vary Coleman has 21 years of depending on whether the phone’s owner is a regular citizen, an litigation experience. She is an arrestee, or a convicted felon. And these standards have been a associate of the American moving target, with privacy rules for cell phones tightening up via the Board of Trial Advocates courts and the Legislature. (ABOTA) with over 35 civil jury trials throughout California. Of these categories, a citizen has the most protection under the law. A email: [email protected] search warrant supported by probable cause, specifically identifying direct: 213.236.2831 what is being sought in texts, emails, or social media, is required to obtain and review the citizen’s cell phone. The same standard applied to citizens now also applies to arrestees. While police and jailers used to be able to examine arrestee’s cell phones, incident to their arrest, this is no longer permitted. In June 2014, the Supreme Court unanimously held that a search warrant is required to search a cell phone belonging to an arrestee. The Court noted, “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Fortunately, when a person has been arrested, typically there is ample time to obtain a search warrant. But the warrant must be specific in identifying the information and/or data requested and not just seek “evidence of criminal activity.” What about parolees and probationers? For probationers, this search cannot include cell phones unless it is specifically listed as a condition of probation. In United States v. Lara, the Ninth Circuit decided earlier this month that a probationer had heightened privacy interests in his cell phone and that the phone could not be searched without a warrant after he missed a probation meeting because no condition of his probation implicated the phone. Lara did not have a condition of probation allowing review of his cell phone data. The court noted that a probationer, on probation supervised by the county, has more privacy interests than a parolee, on parole supervised by the State. Presumably this distinction exists because traditionally county jails were reserved for persons convicted of misdemeanors (a sentence of up to one year) and state prisons were exclusively for felons (sentences of one year or more). This distinction is no longer accurate, at least in California, after realignment. The court also noted that Lara was not convicted of a particularly serious crime and he had only missed one meeting with his probation officer, as opposed to being suspected in a current crime. Lara’s probation officer noted that Lara had been convicted of a drug crime and cell phones are often used by drug traffickers to arrange sales. However, the court found that this justification could be used for March 2016 Prison Break Page 1 nearly any criminal activity, in that any crime involving more than one person might prompt texts, phone calls, emails, or searches of various topics. It is not clear whether U.S. v. Lara would limit searches of parolees’ phones, but doubtless their attorneys would use the same rationale and balancing test to argue that a specific condition of parole is required if a warrantless search of the phone is to be permitted. What about convicted felons, residing in state prison (and county jail too after realignment)? Their privacy interests are the lowest of these categories given their conviction and incarceration for serious crimes. Burke's Correctional Litigation Further, possession of a cell phone is not allowed under title 15 Team routinely deals with the following issues: regulations and any phones found are seized as illicit contraband. Because of these factors, state prisons have been free to search cell . First Amendment phones they find in cells or other common areas, with no warrant . Fourth Amendment claims of requirement. While county jails and other law enforcement holding cells unlawful search and seizure may be restricted by a recent bill, there are some exceptions for state . Eighth Amendment excessive prisons. force and deliberate indifference to safety or medical needs On October 8, 2015, Governor Brown signed into effect the California Electronic Communications Privacy Act (Penal Code § 1546 et seq), . Fourteenth Amendment due process designed to strengthen electronic privacy against law enforcement access to data. Religious claims under the First Amendment and RLUIPA In simple terms, the bill means that a warrant is generally required for . Section 1983 claims of all types law enforcement to obtain data and metadata. Fortunately, there is an . Bivens claims exception to this provision applicable to state prisons. Under Penal Code § 1546.1(c)(7), if the phone is seized from an inmate’s possession . Torts including negligence, or an area of the CDCR where inmates have access and the phone does wrongful death, assault and not belong to a visitor, then prison officials may access electronic battery, conversion, Bane and Unruh Act claims information on the phone by physically reviewing it or by electronic means. (Of course, if they can unlock it, and many inmates delete their . Class action litigation texts and photos after receipt/sending.) . Parole and probation issues As new types of technology develop each day, it is likely that these . Employment issues rules will continue to change. It is important for law enforcement officials to know what the requirements are to do searches in order to ensure that evidence that can be crucial for investigations is properly obtained and not suppressed. Kristina Put it in Writing: The Importance of Doan Gruenberg Documentation in the Correctional Setting is an By Kristina Doan Gruenberg associate at Burke. Prior Correctional staff members know that it is a mandatory part of their job to joining duties to report incidents—whether it is a use of force incident or an the firm, she inmate’s violation of the rules. However, what many people forget is served as a how crucial these documents can end up being for litigation. Here are judicial law some tips and examples demonstrating the significance of documenting clerk in the District of Columbia, incidents, both big and small. handling civil and criminal cases, including many inmate Details, details, details: It is best to put as much detail in reports as complaints. possible early on because memories often fade. Further, the more email: [email protected] descriptive the report, the more helpful it can be later. For example, in direct: 213.236.2805 a use of force lawsuit, a judge and jury will evaluate the following factors to determine if an officer’s use of force was unconstitutional: (1) the need for application of force; (2) the relationship between the need and the amount of force used; (3) the extent of injury inflicted; March 2016 Prison Break Page 2 (4) the extent of threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of facts known to them; and (5) any efforts made to temper the severity of a forceful response. Especially for evaluating factor #4—the extent of the threat reasonably perceived by the officer—a report can convey what the officer sees and why he or she might have felt threatened. Was the inmate moving? How quickly? Did he say anything? Did his muscles tense up? How loudly was the inmate yelling? It is also important to describe the setting. Were there other inmates around who could have posed a threat, to escalate the situation? Was the incident in a confined space? Burke, Williams & Sorensen, Did the lighting make it difficult to see what was going on? LLP offers the expertise, depth, breadth, and quality service If an officer misses a crucial fact, such as a verbal threat made by an you need in the area of inmate, a jury will be more skeptical if the officer testifies to that fact Correctional Litigation through but it is missing in his or her incident report. That is also why if an the specialized knowledge of officer later remembers something, he or she should file a supplemental our featured attorneys. report if possible. There’s nothing too small: Report writing can often seem tedious, especially when an incident may seem inconsequential. As an example, staff might have to give out an informational or counseling chrono if an inmate is abusing the mail system. This may seem like nothing compared to an inmate attacking staff or hiding contraband. However, documenting all rules violations are important, and could come in handy in the future. In one case, an inmate claimed that an officer was writing him unwarranted Rules Violation Reports for using indigent envelopes. The inmate claimed that this was retaliation for him writing books about the correctional system, and that indigent envelopes don’t necessitate a Rules Violation Report. However, the inmate’s central file had numerous counseling chronos warning the inmate that if he continued to improperly use indigent envelopes, he would be subject to further discipline.