posted this on the national board

[Capt. Lincoln F. Stern]

Originally Posted by LexusLover

The problem I have at times with some of the postings on this board about "the law" is what I call "Reader's Digest law" blended with a lot of wishful thinking.

The initial statement that began this thread was based on EDNY case that is not on point for a hobbyist or provider in Houston, Texas. Period.

I believe that the United States Supreme Court will continue to uphold the concept of "officer safety" and provide LE with the privilege of searching for weapons and taking into their possession any thing that can possibly be a weapon or concealing one. Terry vs. Ohio allowed that privilege without probable cause and without an arrest. Just a contact.

This is not a constitutional law class, if you want one go to law school. And until you graduate from law school and criminal practice law for awhile, I would not be giving people legal advice that they might rely upon, which is wrong. I just quoted a Fifth circuit case which is a Federal case and which was re-affired by a 2011 Federal case ... Texas law is consistent with it. Dragging up philosophy won't carrey the day.

Ever seen one of these? Cell phone with a four shot pistol built into it?

First it was pagers. Now its cell phones.

Your cell phone is going to be taken when you are arrested. If it's not, the officer ought to be fired.

If the officer is engaged in a "Terry stop" he should take your cell phone until it is over, just like he should take your concealed handgun until the "contact" is complete. It is a matter of officer safety and the U.S. Supreme Court gives it the green light. See Terry vs. Ohio, et seq.

My only interest in this discussion (or similar ones) is to attempt to correct some bad information, so some idiot won't go out here believing his "phone" cannot be "searched" by the police, because some judge in EDNY says there is an "expectation of privacy" in a cell phone. Which does not mean what is on the cell phone is protected .. it only means that 4th amendment protections are in play WITH ALL of the case law exceptions to a search warrant .... that have been developed for the last 80 years.

So how does a case in Ohio affect Texas? If the EDNY court has no say in Texas I see the relevance of Terry Vs Ohio..



you are re-affirming my suspicions that you are affiliated with the law in some form.

as for the "Terry stop" if a cop stops you and you are busy yacking on your phone, it would be wise to hang up, and turn it off and put it in your pocket. If he takes it away from you then he has a reason.

Keep in mind that unless you give a cop a reason to get suspicious of you, most won't hassle you.

[LexusLover]

Originally Posted by Spirit13

So how does a case in Ohio affect Texas? If the EDNY court has no say in Texas I see the relevance of Terry Vs Ohio..



you are re-affirming my suspicions that you are affiliated with the law in some form.

You are affirming that you don't know about which you write.

#1: Terry vs. Ohio is a "famous" United States Supreme Court case. That has "something to do with Texas." And Texas appellate opinions mention Terry vs. Ohio on a regular basis, including the Texas Court of Criminal Appeals. Terry vs. Ohio appears beginning on Page 1 of the volume of the United States Supreme Court Reporter in which it is published, On the same day was decided by the United States Supreme Court the case of Sibron vs. New York, which discusses Terry and explains what the United States Supreme Court meant in the Terry opinion, because Sibron involves combined cases that were put together in the same opinion so that they can be contrasted. Sibron is the opinion in that volume that immediately follows Terry. Unfortunately, not enough people read Sibron, and I am including judges and their briefing attorneys.... and obviously you, who has read or seen neither.

And parenthetically if you are not familiar with Terry vs. Ohio, the last thing you need to be doing is giving your "legal" opinions about "street" contacts by LE, who do more "Terry stops" than anything else.

#2: EDNY = The United States District Court for the Eastern Disrict of New York, which is a Federal trial court. The United States Court of Appeals for the Fifth Circuit (in which Texas is located) "trumps" the EDNY in Texas.

I "assume" you are in Texas, and I "assume" most posters in here are also.

One reason I do not cut red lights is so that I can avoid being "affiliated" with law (enforcement?) in ANY "form"! Your "suspicions" have as much basis as your statement (rhetorical question):

"So how does a case in Ohio affect Texas? If the EDNY court has no say in Texas I see the relevance of Terry Vs Ohio.." (I am "assuming" you meant a "don't" in there somewhere)

Take a look at http://eccie.net/showthread.php?t=280699&page=2 , Post #22 and keep your baseless, groundless opinions to yourself. I am beginning to perceive where all this "rumor mongering" begins with some paranoid providers. FYI: Your "suggestions" don't work.

Now, if you did not mean "the law" to = "law enforcement" then my apologies, because you have done so in the past, which I had thought had been pretty much dispelled on here as a rumor you started in order to create a hostile environment to stop me from posting responses to your uninformed posts.

Like I said: Until you graduate from law school and practice criminal law for an extensive period of time, you might want to go back to ..... (insert what ever you actually do for a living) ...

... and void engaging in giving legal advice or posting your legal opinions. Some people on here might actually take your opinions as being valid on the subject, and get themselves in some trouble they cannot afford, or would rather not afford in lieu of enjoying the money elsewhere.

[Capt. Lincoln F. Stern]

Ya know LL, my opinion I can speak any time I wish.. check out something called the 1ST AMENDMENT. My opinion of you is you affiliated with the LAW... be it a cop, a lawyer, a law clerk, a judge but thats just me.

If you have not noticed one thing about the laws of our land is that most come about from a small start.... or the grass roots movement.

Put simply I believe that this is the BEGINNING of something that can be good and you went off an had to NEGATE because once a law is passed that states a cop cannot just "look at your phone because he WANTS to" that makes it tougher for a cop to gather evidence against you on a whim

In the past you have always appeared to give cops more leeway when it comes to what they can and cannot do. I on the other hand would like to see them have to have "defined probable cause" for searching me or my car. Like they smell drugs or booze. If they run my plates and see that I have a CHL they can ask if I have the weapon to which I can say yes or no. If he wants to "pat me down" for his safety that is one thing. But a NORMAL cell phone has no weapons and he should not have any right to go through its history, He can ask me to hang up which is the polite thing to do.

[LexusLover]

Originally Posted by Spirit13

In the past you have always appeared to give cops more leeway when it comes to what they can and cannot do.

#1: I don't "give cops" anything! Period.

In Texas the Code of Criminal Procedure does, the Texas case law interpretation of the CCP, and the U.S. Supreme Court does.

Your "wish list" means absolutely nothing. Just a bunch of hot air.

My concern is: Some folks on here might actually believe your hot air has substance and value for the purpose of making life altering decisions.

And you are correct: You have first amendment rights. You also have 5th amendment rights. IMO you ought to concentrate a little more on the 5th, particularly when it comes to your legal analytical activities. They are wanting.

FYI: Telling someone not to step off a curb in front of bus is not "negative"!

Telling a cop he can't have your cell phone and trying to erase the data real fast so he cannot see it, is a good way to end up in jail on a legitimate criminal charge of "resisting a search" (which BTW includes a Terry vs. Ohio "pat down"!) and if you try to keep the officer from getting the phone he can add resisting a arrest .... and the list just simply goes on ... until you finally get an assault on a peace officer, which becomes a felony. But you got your 1st amendment rights, and hope you have $10,000 to $15,000 for an attorney, plus a few thousand for the bond. Go back an read your thread starting statement, and quit practicing law without a license, which is also a crime.

#2: Don't want to drag anyone else into your gutter, but CK on your "national" thread on the issue suggested the same as I, that the EDNY opinion might not mean anything to other federal courts (e.g. those in Texas as I mentioned) ....

did you "suspect" him of being LE?

[LexusLover]

Originally Posted by Spirit13

But a NORMAL cell phone has no weapons and he should not have any right to go through its history, He can ask me to hang up which is the polite thing to do.

Guess who is going to determine if the cell phone is "NORMAL"? Not you!

(Why do you think you have to turn on devices at the security check point? Or do you exercise your "1st amenment rights" and tell them they cannot see it, because it is "NORMAL"..... )

"NORMAL" cell phones are used to set off explosive devices. "NORMAL" cell phones are used to assist in perpetrating crimes. "NORMAL" cell phones can be destroyed or otherwise "emptied" of information that is evidence of crime, which includes text messages to and from co-conspirators and accomplices.

United States vs. Finley (5th circuit 2007)
"here no warrant was required since the search was conducted pursuant to a valid custodial arrest, see Robinson, 414 U.S. at 235. Special Agent Cook was therefore permitted to search Finley’s cell phone pursuant to his arrest.”

You are just trying to safe face, now. Give it up. It just gets worse for you.

[Capt. Lincoln F. Stern]

Normal cell phones bought at a normal store do not contain explosives.. a MODIFIED cell might however.

Your claim of a "Normal" cell phone is used to perpetrate crimes, hmmm a NORMAL car can be used to transport drugs, a NORMAL HOUSE can be used to hide weapons, a NORMAL writing instrument like a pen can be used to KILL someone (jab in the eye) so your argument would mean a cop can pull you over for driving your NORMAL car, have it dis-assembled looking for evidence of a crime, and if he does not find it, the cops are not required to re-assemble it.


It is called PROBABLE CAUSE!!!! and if you do not give them PC, they usually do not jack with you.

Oh.. one more thing.. a NORMAL person can kill you with his bare hands..... even more so if they were trained in martial arts... so take your NORMAL argument and shove it!

[LexusLover]

Originally Posted by Spirit13

but it bears reposting

Phone data offlimits without a warranrt

Cops just cannot grab the phone from you and look at the data. They have to have a warrant to collect it and access it.

If you willingly give to them, then no warrant needed.
So do not hand it over when they ask.

And if they ask and you refuse.. WIPE the data as soon as you can.

Really?

United States vs. Finley (5th circuit 2007)
"here no warrant was required since the search was conducted pursuant to a valid custodial arrest, see Robinson, 414 U.S. at 235. Special Agent Cook was therefore permitted to search Finley’s cell phone pursuant to his arrest.”

You are not suggesting you are "trained in the martial arts" are you, when you get aggressive when you start looking bad?

[Sarunga]

Guys, let me interject here a little bit....obviously I don't know about the history of you two.

I don't think anybody's looking bad here....well, nobody has to. It's also clear what LL's affiliation is....which is on the GOOD side of the law. In fact, I'm happy that somebody with his knowledge/experience is here to advise us about the law.

Like I mentioned earlier this is a very interesting discussion....well, certainly to me...and demonstrates both sides....how a professional interprets the law...and how a lay person does.

In my most humble opinion....I think...both view points are important....because not everybody is a law professional....and at the "street level"....it's most of the time the lay person that is involved. So, it's good to know these "law points"....but at the same time to use our common sense when handling situations at the street level.

And please....I'm not trying to take anybody's side here....but it has been very informative. So, if you can keep this civil....maybe we can learn some more.

[LexusLover]

Originally Posted by Sarunga

...and demonstrates both sides....how a professional interprets the law...and how a lay person does.

In my most humble opinion....I think...both view points are important....because not everybody is a law professional....and at the "street level"....it's most of the time the lay person that is involved.

It will be civil as far as I am concerned ... I've pretty much addressed the issue.

Sarunga, if I may civilly address a point you have raised, practicing law is the application of a factual situation faced by a client to the existing bodies of law that address the issues "raised" by the factual situation. There should be on distinction between "the book" and "the street" ... they are intertwined. I am old enough to have experience in both.

Our jails and prisons are full of essentially three groups of people:
1. those who thought they knew the law
2. those who thought they were smarter than cops
3. those who did not care or did not think about #1 and #2, above.

[Sarunga]

Originally Posted by LexusLover

Sarunga, if I may civilly address a point you have raised, practicing law is the application of a factual situation faced by a client to the existing bodies of law that address the issues "raised" by the factual situation. There should be on distinction between "the book" and "the street" ... they are intertwined. I am old enough to have experience in both.

Our jails and prisons are full of essentially three groups of people:
1. those who thought they knew the law
2. those who thought they were smarter than cops
3. those who did not care or did not think about #1 and #2, above.

All very good points LL. Thanks.

I'm not saying that there is a distinction between the "book" and the "street".

My feeling is, until the professionals "arrive at the scene" a lot could happen to the lay person. So, knowing a few law points may turn out to be pretty useful.

For example, let's take the "right to remain silent...." concept. I'm sure there are a lot of people who don't know about this. But knowing this point of law could be very useful to the lay person, right?

[ness]

Originally Posted by Spirit13

but it bears reposting

Phone data offlimits without a warranrt

Cops just cannot grab the phone from you and look at the data. They have to have a warrant to collect it and access it.

If you willingly give to them, then no warrant needed.
So do not hand it over when they ask.

And if they ask and you refuse.. WIPE the data as soon as you can.

Reading is fundamental:

The US government should have to obtain a warrant before mobile phone providers have to hand over multiple geolocation data records about customers, a US judge has said.

[LexusLover]

Originally Posted by ness

Reading is fundamental:

The US government should have to obtain a warrant before mobile phone providers have to hand over multiple geolocation data records about customers, a US judge has said in a United States District Court for the Eastern District of New York.

There I fixed it for you.

[LexusLover]

Originally Posted by Sarunga

.... until the professionals "arrive at the scene" a lot could happen to the lay person. So, knowing a few law points may turn out to be pretty useful.

For example, let's take the "right to remain silent...." concept. I'm sure there are a lot of people who don't know about this. But knowing this point of law could be very useful to the lay person, right?

Factually, I will take issue with you on the "a lot of people" .... I would say that the vast majority of adults (and juveniles) are aware of "taking the 5th" .... from television shows, if nothing else. The problem is #1 and #2 in my list.

Martha Stewart is a perfect example that was well publicized. She was convicted of talking to Federal investigators. Had she kept her mouth shut she would have walked, or never been charged. My guess is, without actually knowing her, but observing her demeanor, she is a "know-it-all" that perceives herself to be more intelligent than those "little people" asking her questions.

She exercised her "1st amendment rights"! And went to prison.

Teddy Roosevelt used to buy his sporting equipment in a store in St. Louis that had a large Kodiak bear in the store front window that was stuffed in the attack position with his fangs and claws extended.

He had a sign around his neck that read:

"He was talking when he should have been listening."

Case in Point: This thread.

In April
http://www.eccie.net/showthread.php?t=210990&highlight

and then before that I posted the following:

No. 13-10-00216-CR

Court of Appeals of Texas, Thirteenth District, Corpus Christi - Edinburg

February 17, 2011

“A Nueces County jury convicted appellant, Heriberto Saenz, of one count of murder, a first-degree felony, and three counts of aggravated assault, a second-degree felony. See Tex. Penal Code Ann. 19.02 (Vernon 2003); id. 22.02 (Vernon Supp. 2010). Saenz was sentenced to seventy years’ imprisonment for the murder count and twenty years’ imprisonment for each of the aggravated assault counts, with the sentences ordered to run concurrently. By a single issue on appeal, Saenz argues that the trial court abused its discretion by permitting certain expert testimony and that the error affected Saenz’s substantial rights. We affirm.


The State also presented evidence regarding calls made by Saenz on his cellphone that evening. Raymond McDonald, a legal compliance officer employed by T-Mobile, Saenz’s cellphone service provider, testified that he is a “custodian of records for cellphone records dealing with [Saenz’s] cellphone number.” McDonald authenticated, and the trial court admitted into evidence without objection, records for Saenz’s cellphone account on the date of the shooting, as well as records for certain cell towers and call detail information for those towers.
The State then called Detective Ben Tead of the Corpus Christi Police Department. Outside the presence of the jury, Detective Tead testified that he has an associate’s degree in criminal justice and “ha[s] attended several schools in investigative techniques put on by the [Public Agency Training Council] and also by Texas [Department of Public Safety] and also considerable on-the-job training.” He stated that he is certified by the Texas Commission on Law Enforcement Officer Standards and Education and that he has received specialized training in “cell phones and their usage.” Specifically, Detective Tead testified that he attended a three-day course in March of 2009 focusing on “isolating and identifying cellular towers to be used to track individuals, actually track cell phones and the location, physical location, from which they were used.” Detective Tead explained that cellphone companies systematically keep records of (1) the locations of the various towers that transmit and receive their signals, and (2) “what cellular tower and what sector on that cellular tower a call was first placed to and what cellular tower and sector on that cellular tower was last communicated with by that cellular device.” [2] Detective Tead acknowledged that he had never before given an opinion in court “regarding information obtained from cell phones or cellphone towers” but that he has performed analyses on such records some twelve times previously.
Over defense counsel’s objection, the trial court qualified Detective Tead as an expert to testify as to the location of Saenz’s cellphone at the time of the shooting “based on the calls and the data that w[ere] provided by T-Mobile.” See Tex. R. Evid. 702. Detective Tead then testified before the jury that, at Detective Rodriguez’s request, he reviewed the T-Mobile records that were previously authenticated by McDonald and admitted into evidence. He also obtained records from T-Mobile listing the global positioning system (“GPS”) coordinates for all towers located in Texas. The records showed that a thirty-second call was placed at 10:32 on the evening in question from Saenz’s cellphone to a cellphone registered in the name of Anthony Curiel. Detective Tead stated that Curiel “is a known member of the Suicidal Barrio gang.” The prosecutor then asked:
Q. [Prosecutor] Now were you able to determine the tower usage that we can associate with the phone [call]?
A. [Detective Tead] Yes. This tower is located-the GPS coordinates place it on Leopard, near Airport Road or-yes, Airport Road.
Q. Were you able to determine which particular part of the tower was used to complete that call?
A. Yes. It was sector two. The call started and ended in sector two of cellular tower with a [location area code] of 9905 and a cellular tower I.D. of 40702 which was the cellular tower off of Leopard [S]treet. Sector two covers a serviceable area which includes the location of the murder.
Detective Tead further testified that some ten other calls were made or received by Saenz’s cellphone that evening, including four calls to and from Rebecca Mills, who was identified as Saenz’s girlfriend, and two calls placed to other Suicidal Barrios gang members. The calls which were made at or around the approximate time of the shooting were associated with towers located near 1112 Sabinas Street. According to Saenz, “[i]n essence, [Detective] Tead testified that [Saenz]’s cellphone was at or near the crime scene at the time of the shooting.”

Joshua Deon Lamb, Appellant v. The State of Texas, Appellee
No. 14-09-01007-CR
Court of Appeals of Texas, Fourteenth District
February 15, 2011
“A jury found appellant Joshua Deon Lamb guilty of murder and sentenced him to life imprisonment. Lamb appeals his conviction contending that: (1) the evidence at trial is legally and factually insufficient to support a guilty verdict; (2) he received ineffective assistance of counsel; (3) the trial court erred in charging the jury on the law of parties, and (4) the State argued outside the record during closing argument. We affirm.”


“Investigators also recovered Carter’s cellphone from his pocket and enlisted Steve Lowenstein, an inspector with the United States Marshals Service, to analyze the call records. It was determined that Lamb and Carter exchanged several brief phone calls shortly before the shooting. Lamb first called Carter at 2:51 a.m., with additional calls following at 2:58, 3:00, 3:06, 3:36, and 3:39. Espree called 911 at 3:43 a.m., and no additional calls between Lamb and Carter followed. Inspector Lowenstein was able to track the movements of Lamb’s cellphone during these calls by examining the cell towers used by the phone. He determined that up until 3:20 a.m., Lamb’s phone was in the area of his apartment but moved from his apartment to the area of Carter’s home in the 15 minutes immediately before the shooting. By 3:50 a.m., roughly seven minutes after the shooting, Lamb’s phone had returned to the area of his apartment. The phone was never used again after that morning.”

______________ End of Quoted Material_______________

[Sarunga]

Yes...I think I agree with the "Martha Stewart & the little people" observation. You are probably right LL.

Hmmm...a lot to digest with these case histories....need some time to read and think...will get back as soon as I can.

[Capt. Lincoln F. Stern]

Originally Posted by LexusLover

There I fixed it for you.

So now he has to "fix people's words" so they agree with him


Dude, get this straight... Laws start in 1 place and usually end up being adopted in others..

This is a START. If a cop wants to search my cell phone I will ask that he gets a warrant. If I am not under arrest then he cannot collect my phone with out probable cause. and if I am under arrest he will have to unlock my phone which he cannot do with out my code and 3 tries, it WIPES.

Being its a Google phone, re-activation means going to a store, showing ID then I re-install the apps... something HE cannot do with out a court ORDER.

LL... you are acting more like a lawyer or a cop again.


If a federal supreme court passes a law that requires a copy to get a warrant to search a cell phone record, then its a START.