The Florida Decision
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thejeffersonian February 2011 Thomas Jefferson School of Law tjsl.edu/sba After interviewing Diaz, who denied having knowledge of the drug transaction, Fazio CA Supreme began to electronically search Diaz’s phone. Fazio admitted to having to navigate a few screens and folders on the cell phone in order to Court OK’s eventually access Diaz’s text messages. Fazio’s search ultimately revealed a text message that contained the numbers “6 4 80.” Fazio Warrantless interpreted this message to mean “four pills of ecstasy for $80” and used this discovery to elicit a confession from Diaz within minutes. Search of Diaz was subsequently charged with selling a controlled substance (in violation of Health and Safety Code § 11379 subd. (a)). Eventually Cell phones Diaz pleaded not guilty, and moved to suppress the text message from evidence. The trial court The Recent Decision That Left denied his motion, stating that whatever a search of his person turned up is “really fair Your Fourth Amendment Rights game in terms of being evidence of a crime or in Shambles instrumentality of a crime…And under these circumstances I don’t believe there’s authority Lindsey-Shannon Lee that a warrant was required.” Diaz withdrew his 1L Staff Writer guilty plea then pleaded guilty to transportation of a controlled substance. The Court of Appeal On January 3, 2011 the California Supreme affirmed and the Supreme Court granted Diaz’s Court made a startling ruling that challenges Public Domain Photo petition for review. Fourth Amendment rights. In a 5-2 decision, Mobile devices such as these are at the center of a dispute involving the 4th Amendment. In an opinion written by Associate Justice the justices established a scary federal precedent Ming Chin, (www.courtinfo.ca.gov/opinions/ that cell phones on a suspect’s person are subject arrested by Ventura County Senior Deputy as the sale took place in the backseat. Deputy documents/S166600.PDF) the majority likened to a warrantless police search. This decision Victor Fazio in connection with the sale of Fazio heard the sale via a wireless transmitter the search of Diaz’s cell phone to searches brazenly departs from a recent Ohio Supreme six tabs of Ecstasy, a Schedule 1 controlled and immediately arrested Diaz for being a co- conducted in precedent cases from the 1970s. Court ruling that held police do not have that substance. According to court documents, conspirator in the sale of drugs. However, the distinctions between the facts are right. Diaz drove the Ecstasy’s seller to the location Fazio transported Diaz to the sheriff’s On April 25, 2007, Gregory Diaz was of the sale and remained in the driver’s seat station where he seized Diaz’s cell phone. Fourth Amendment, Continued on pg. 2 The Florida Success on Decision Different Scales Jonathan Cooper with Different 3L Managing Editor The Constitution is a document that sets Measures limits, and its very purpose is to restrain power. Through the 10th Amendment, the Constitution Deciphering what the Bar declares that powers, which are not granted Results really mean to the federal government, are reserved to the states and people therein, so whereas the powers Jonathan Cooper of the states are unlimited, the powers of the 3L Managing Editor government are certainly constrained. Each semester I inform you, the students The premise of the Constitution is that of Thomas Jefferson, of our bar results. I it is a living, breathing document. However must sadly say that each time I report this the power which Congress utilizes to achieve information I have the glimmer of hope that its end results is granted from within the four things will change and that our fates will turn. corners of the document. As such, the question Unfortunately, our results for July 2010 fell regarding Health Care and its reform was not where they typically do, below the California whether the principle is right, or if the country ABA approved law school average, behind Cal is in need of reform (which we certainly are), Wikipedia user Ebyabe Western, and behind every one of our personal but whether the powers to obtain the end result The United States Courthouse in Pensacola, Fla. expectations. were constitutional. This past July was no exception to our Flexing your muscle when you are not at a while looking in the mirror is precisely what health insurance minimum by forcing its people dismal performance history on the California sculpting contest may seem arbitrary. However, occurred with the Florida decision. The into a stream of commerce. Bar Exam. The state average for all California the constant practice and reformation, which government, through Congress, sought a novel ABA approved law schools, first time takers, occurs as you adjust your posture, and position way of enacting legislation and a mandatory Florida Decision, Continued on pg. 2 was a stunning 75.2%. Thomas Jefferson School of Law, was 58%. This is 17.2% below the state average for all California ABA approved law schools, and 12% behind Cal Western (who The SOAR Program at Saint Vincent DePaul Village had 70%). The following chart is the passage My experience as a participant surprised to hear some of the heart wrenching blessed by Father Joe percentage for first-time takers of the Cal. bar: stories of our neighbors currently living on the himself. All residents All ABA in the SOAR program in streets of the East Village. must obey strict rules TJSL Deviation Approved downtown San Diego. St. Vincent de Paul Village (SVdPV), also and perform regular known as Father Joe’s Village, is a residential chores in order to July 2010 58% 73.3% -15.3% Marty Stratte facility for the homeless located just blocks from retain their highly Feb 2010 52% 56.8% -4.8% 2L Criminal Law Society President Thomas Jefferson School of Law’s new campus. sought after spot. July 2009 46% 76.5% -30.5% SVdPV began in 1950 as a small operation Recently, SVdPV It is likely that most, if not all, members Feb 2009 42% 50.5% -8.5% handing out peanut butter sandwiches. Since began participating of the TJSL community have come across an 1987, SVdPV has provided housing, counseling, in the Supplemental July 2008 76% 80.7% -4.7% individual currently calling the streets of San medical care, and educational programs to the Security Income/ Father Joe Carroll Diego’s East Village their home. One cannot Feb 2008 61% 60.1% +.9% homeless and those who are at risk of becoming Social Security help but wonder how these folks ended up on homeless in San Diego. Many TJSL students Disability Insurance Outreach, Access, and http://admissions.calbar.ca.gov/ there and how they survive day-to-day. Many regularly volunteer at holiday meals where Recovery (SOAR) program. SOAR is a national Examinations/Statistics.aspx assume that a drug or alcohol problem is a SVdPV opens its gates to non-residents and Now these results in and of themselves are prerequisite for homelessness and would be allows for guests to enjoy a proper holiday meal SOAR, Continued on pg. 2 Bar Passage, Continued on pg. 2 2 The Jeffersonian February 2011 Florida Decision, Continued from pg. 1 from the free market is “inaction,” for which a Fourth Amendment, Continued from pg. 1 traffic stops. She further states that this opinion penalty is assessed starting in 2014. allows police “carte blanche, with no showing To simplify, Congress may utilize its power The Florida court does an incredible job at nothing short of obvious. In one case, heroin of exigency, to rummage at leisure” through an over commerce according to Lopez v. United conveying just how the government is unable to was discovered hidden inside of a cigarette box arrestee’s mobile phone or portable computer. States, where the activities have a substantial force its citizens to purchase any commodity, in the suspect’s pocket during an arrest. The Her opinion artfully expressed the fears of differences between drugs discovered inside a relationship to, or substantially affect, interstate and further extrapolates on the rigidity and legal experts, defense attorneys and citizens cigarette pack and the information accessible commerce. The crux of the Plaintiff’s argument absurdity of allowing such usage through the everywhere, “The majority thus sanctions a is that, through their “inactivity” of not in a cell phone or smart phone are too vast to Constitution. It likens the housing market to highly intrusive and unjustified type of search, purchasing insurance, they are not having a be enumerated. As it stands now, this opinion this argument, asserting that we all partake one meeting neither the warrant requirement meaningful impact on commerce and they allows police officers to access information at one time or another in the housing market nor the reasonableness requirement of the are not partaking therein. The Government’s that would normally require a warrant, such and allowing the government to force us to buy Fourth Amendment to the United States contention is based on a study, which states as personal emails, client communication, homes, or levy a penalty is absurd. Constitution.” that $40 billion is lost annually to under- or photographs or even financial records. Florida is a key decision on behalf of the While the nation anxiously waits to see this uninsured individuals, thus partaking in an Justice Kathryn Werdegar’s dissent called issue addressed in the U.S. Supreme Court, it economic activity. Constitution and I urge each and every one the new rule “overly permissive” and echoed might be a good idea to put a numeric lock on The applicable portion of the law reads in of you to seek it out.