criminal

Subscribe to criminal

On Monday, the California Supreme Court ruled that the Fourth Amendment to the United States Constitution did not prohibit a deputy sheriff from conducting a warrantless, post-arrest search of the text messages of an arrestee. Specifically, the Court affirmed the decision of the Court of Appeal that the cell phone was “immediately associated with [defendant’s] person at the time of his arrest” and was therefore “properly subjected to a delayed warrantless search.” 

In People v. Diaz, filed on January 3, the Court considered whether the trial court properly denied Diaz’s motion to suppress evidence gathered during a search of his cell phone, which occurred approximately 90 minutes after he was arrested for being a coconspirator in the sale of drugs. Diaz denied knowledge of the sales. A deputy sheriff accessed Diaz’s cell phone, which had been seized from Diaz’s person, and found a coded text message that, based on the deputy’s training and experience, indicated Diaz knew of the transaction.

The California Supreme Court’s ruling hinged on its finding that the cell phone “was an item [of personal property] on [defendant’s] person at the time of his arrest and during the administrative processing at the police station.” People v. Diaz, S1666000, slip op. Majority Op. at 8 (Cal. Jan. 1, 2011). As such, the case was controlled by the United States Supreme Court’s holdings in United States v. Edwards, 415 U.S. 800, 802-803 (1974) and United States v. Robinson, 414 U.S. 218, 224 (1973), in which the High Court affirmed seizures of paint chips from clothing and a cigarette package containing heroin from a coat pocket (respectively).

The Ohio Court of Appeals, in State v. Wolf, No. 08-16, slip op. (Ohio Ct. App. 5d April 28, 2009), recently upheld application of Ohio’s computer crime law to an employee who used his work computer to engage in criminal conduct (solicitation of a dominatrix-prostitute). While this holding may seem uncontroversial, another aspect of the decision might open the door to imposing criminal liability on employees for violating employer computer use policies.

Wolf was a Shelby City Wastewater Treatment Plant employee. The plant superintendent discovered nude photographs on Wolf’s work computer while performing routine maintenance. The superintendent notified police, who discovered that Wolf used the city-owned computer to solicit a prostitute, visit pornographic websites and upload nude photographs of himself during work hours.  At trial, the jury found him guilty of soliciting prostitution, theft in office and unauthorized use of a On appeal, Wolf challenged the trial court decisions overruling his motion for acquittal on both the charge of theft in office and the charge of unauthorized access to a computer. The Court of Appeals agreed that the trial court should have acquitted on the theft in office charge, but ruled that Wolf’s use of the office computer was unauthorized under Ohio law.

Several Google executives, including the Company’s global privacy counsel, Peter Fleischer, will face criminal charges in Italian court stemming from Italian authorities’ two-year investigation of a video posted on Google Video showing a disabled teen being taunted by classmates. The video, posted in 2006, depicts four high school boys in a Turin classroom taunting a classmate with Down syndrome and ultimately hitting the young man over the head with a box of tissues. Google removed the video on November 7, 2006, less than twenty-four hours after receiving multiple complaints about the video. Nonetheless, Fleischer and his Google colleagues face criminal charges of defamation and failure to exercise control over personal information that carry a maximum sentence of three (3) years.
…