CELL PHONES PROTECTED FROM WARRANTLESS SEARCHES

The Supreme Court of the United States in a unanimous decision ruled that the police may not search your cell phone without a warrant simply because you have been arrested. FACTS The decision involved two separate cases. In the first case David Riley was stopped by a police officer for driving with an expired tag. During the stop the officer learned that Riley’s license had been suspended and the car was impounded. An inventory search of the car was then conducted and Riley was arrested for possession of concealed and loaded firearms. During the search of Riley incident to his arrest, his “smart pho, Riley was charged with additional crimes. Prior to trial Riey’s attorney moved to suppress all evidence that the police had obtained from his cell phone. In the second case, an officer performing routine surveillance saw Brima Wurie make a drug sale from a car. Wurie was arrested. At the police station her two cell phones were taken. The officers noticed that one of the phones was repeatedly receiving calls from a particular number. They used the an online directory to trace the number to an apartment where after executing a warrant crack cocaine and other drug related items were found. The lawyer for Wurie moved to suppress the evidence arguing that it was the fruit of an unconstitutional search of the cell phone. OPINION The Fourth Amendment provides that people have the right to be secure from unreasonable searches and seizures. Generally for a search to be reasonable, a warrant is required. Without a warrant a search is only reasonable if it falls within a...

MISSISSIPPI SUPREME COURT TO REVIEW IMPORTANT PRIVATE PROPERTY RIGHTS DECISION

Our firm has had the privilege of representing the owners of the Cleveland Mobile Home Community (“Cleveland MHC”) against the City of Richland’s attempt to amortize the mobile home park out of existence. Cleveland MHC is a mobile home community consisting of 138 concrete pads which are rented to mobile home owners. Cleveland MHC also has spaces for seventeen campers or recreational vehicles (RVs). The Cleveland Mobile Home Community Because the Cleveland MHC property is located in an industrial zone, the use of the property as a residential community is a legal nonconforming use. Cleveland MHC had operated as a legal nonconforming use for more than 50 years until the City of Richland decided to prohibit Cleveland MHC from continuing to use any concrete mobile home pad once it became vacant. The purpose of the City of Richland’s action was to eliminate the residential use of the property without paying any compensation to the private property owner. On behalf of the owners of Cleveland MHC, our firm appealed the action taken by the City of Richland to the Circuit Court of Rankin County. The Circuit Court ruled in favor of the City of Richland. Thereafter, Cleveland MHC appealed that ruling to the Mississippi Court of Appeals. In the subsequent briefs filed for Cleveland MHC, we argued that: (1) Cleveland MHC had a vested right to continue its nonconforming use of the property; (2) Cleveland MHC’s continued placement of mobile homes on the property is a permissible continuation of the nonconforming use of the property; (3) the City of Richland’s interpretation of its zoning ordinance was arbitrary, capricious, and illegal;...

LIMITING CIVIL FORFEITURE

Civil forfeiture cases across the country have drawn increasing scrutiny because of a combination of the financial incentives which encourage abuse, and the lack of due process. The Mississippi Court of Appeals recently issued an opinion protecting individual due process rights, and specifically the right to speedy trial/hearing in any forfeiture case. The case began when Eric Jones was arrested after being caught with 6.2 grams of cocaine in May 2002. The Lawrence County Sheriff’s Department gave notice of its intent to forfeit Jones’s 1984 Chevy Camaro. Jones timely filed an objection contesting the forfeiture. The forfeiture was stayed pending disposition of the criminal charges. It is unclear why the case languished but the forfeiture hearing did not take place until more than 9 years later. For unknown reasons Jones did not show up for the hearing. When Jones did not appear at the hearing, the County made a tactical mistake. Because Jones timely filed his objection to the forfeiture, the County had the burden of proof. However, rather than put on their proof, the County moved to dismiss the case. In response, the trial court issued an order dismissing Jones’s objection with prejudice for failure to prosecute. Jones appealed the decision claiming that his right to a speedy trial had been denied, and that the trial court erred in dismissing his objection. The Court of Appeals reversed and remanded the case for an initial determination as to whether Jones’s right to a speedy trial had been violated. The Court of Appeals also reversed the trial court and remanded the case because the County failed to put on the...

EPA CLAIMS RIGHT TO UNILATERALLY GARNISH WAGES

According to an article from the Washington Times, the Environmental Protection Agency has given itself the power to unilaterally garnish wages of persons accused of violating EPA rules. this was accomplished by putting a notice in the Federal Register stating that the EPA can garnish non-Federal wages to collect delinquent non-tax debts owed the United States without first obtaining a court order. This rule change was fast tracked and not subject to review because the EPA classified the changes as not as “significant regulatory action.” The EPA does say that it will give the debtor prior notice and give the debtor the opportunity to “review, contest or enter into a repayment agreement.” The process being used by the EPA is an “Administrative Wage Garnishment” under the Administrative Procedure Act. There appear to be a number of legitimate criticisms of this process. One criticism of this new rule is that it shifts the burden of proof on the alleged debtor to prove by a preponderance of the evidence of the correctness of the debtor’s position. Another is that the rule lets the EPA decide if the debtor will actually get a chance to appear in person or have the case decided on a paper record. A third criticism is that the EPA gets to chose the site of the hearing. Perhaps the biggest cause for concern is that if the debtor gets a hearing at all it will be before a hearing officer hand picked and paid for by the EPA. As with most administrative hearings, the ability of one side to select and pay for the hearing officer unquestionably...

CHANGING THE RULES

We came across this interesting Washington Post article yesterday that illustrates some of the problems with our bloated federal bureaucracy. The story starts with Congress lifting the 10 year statute of limitation applicable to the Government’s right to pursue old debts. As a result, the US Treasury Department and other agencies are now able to go back forever to pursue old debts. State of the Union While we are troubled at our Government retroactively changing the rules, in our view that is just the tip of the iceberg. Not only did this change allow the government to go back and attempt to collect old debts, but it expanded the number of potential people responsible for that debt. In one collection action discussed in the article, 58 year old Mary Grice had her tax refund seized without notice. The Social Security Administration claimed that back in 1977 it overpaid someone in the Grice Family. In 1977, Mary Grice was 4 years old and her father had died leaving her mother with five children. Until the children were 18, the government paid them Social Security survivor benefits. Although the Social Security Administration today can’t actually prove who received the over-payment, it still seized Mrs. Grice’s refund. The Social Security Administration has taken the position that the money can be recovered from anyone in the family who “indirectly” received any benefit or assistance from public dollars. Another concern with this process is the fact that the Social Security Administration is using a private contractor to handle the collection efforts. This is likely to create perverse enforcement incentives. Also not surprising is the...