criminal law | The Health Law Firm Blog

Criminal Law: Warrantless Search of Cell Phones

Our guest author of this is article is Doug Plank, a legal research attorney with National Legal Research Group in Charlottesville, Virginia.

In what some commentators have described as the most important criminal law decision of its 2013-2014 Term, the U.S. Supreme Court ruled unanimously in Riley v. California, 134 S. Ct. 2473 (2014), that before police may search the contents of a cell phone seized after an arrest, they must first obtain a search warrant. In reaching this determination, which is a departure from the Court’s general rule that a person’s belongings may be searched without a warrant incident to an arrest of that person, the Court found that “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” Id. at 2489. In fact, the Court noted, many cell phones are actually minicomputers that also happen to have the capacity to be used as a telephone, and they could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. The Court found that because cell phones are both a repository of sensitive personal data, with immense storage capacity, and a portal to private records stored on remote servers, they simply could not fairly be said to be analogous to physical containers under the search-incident-to-arrest rule.

The Court recognized that its decision will have an impact on the ability of law enforcement to combat crime, but it noted that some case-specific exceptions to the warrant requirement would still be applicable to the search of cell phones, such as the presence of exigent circumstances that would require an immediate search to prevent the imminent destruction of evidence or to locate an immediately dangerous instrumentality, such as explosives.

About the Author: The author of this is article is Doug Plank, a legal research attorney with National Legal Research Group in Charlottesville, Virginia. This article appeared on The Lawletter Blog.

This article was originally published in The Lawletter Vol 39 No 6.

CRIMINAL LAW: Search and Seizure—Probable Cause for Search in Light of—Enactment of Medical Marijuana Law

The guest author of this article is Mark Rieber, Senior Attorney, National Legal Research Group.

In Commonwealth v. Canning, 28 N.E.3d 1156 (Mass. 2015), the court held as a matter of first impression that with the Commonwealth’s new medical marijuana law (“the Act”) in effect, if the police seek a warrant to search a property where they suspect an individual is cultivating or possesses marijuana, then they must first offer information sufficient to provide probable cause to believe that the individual is not properly registered under the Act to possess or cultivate the suspected substance. The court rejected the Commonwealth’s argument that any cultivation of marijuana remained illegal even under the Act. That argument further asserted that to the extent that the Act permits a limited class of properly licensed or registered persons to grow marijuana, the existence of a license or registration is an affirmative defense for a defendant charged with unlawful cultivation to raise at trial—the Commonwealth is not obligated to disprove such a status in, or to conduct a search at the outset of, the investigation.

The court found, however, that the Act effected a change in the statutory and regulatory landscape relevant to establishing probable cause for a search targeting such cultivation. After discussing the purpose and terms of the Act, the court held that a search warrant affidavit setting out facts that simply establish probable cause to believe the owner is growing marijuana on the property in question, without more, is insufficient to establish probable cause to believe that the suspected cultivation is a crime. “Missing are facts indicating that the person owning or in control of the property is not or probably not registered to cultivate the marijuana at issue.” Id. at 1165. Because the affidavit in the case before it did not set forth such facts, the court affirmed the order allowing the defendant’s motion to suppress.

About the Author: The author of this is article is Mark Rieber, Senior Attorney with National Legal Research Group in Charlottesville, Virginia. This case summary originally appeared on The Lawletter Blog. It is republished here with permission.

This article was originally published in The Lawletter Vol 38, No. 1.

By The Health Law Firm|2024-03-14T10:01:05-04:00May 15, 2018|Categories: Health Law, Medical Marijuana, Search and Seizure|Tags: attorney, criminal law, cultivating marijuana, health care attorney, health care law, health care lawyer, health law, KeyWords: search and seizure, lawyer, marijuana, medical marijuana, medical marijuana law, probable cause, warrant|Comments Off

Administrative Final Orders Must State Findings of Fact Based on the Evidence Presented

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by the Florida Bar in Health Law

Following is a summary of a recent appellate case on an issue relevant to health law:

Borges v. Dep’t of Health, 143 So. 3d 1185 (Fla. 3d DCA 2014).
Gustavo Borges (Borges) appealed a final order of the Florida Board of Dentistry that revoked his license to practice dentistry based on a conviction of the knowing receipt of child pornography under a federal statute.

At hearing, eight lay witnesses and four expert witnesses testified. In the recommended order’s discussion of the evidence presented, which was the basis for the Board’s final order, the administrative law judge (ALJ) discussed the testimony of only one witness-Borges-after concluding that a statement by Borges constituted a concession that established that his conviction was related to his ability to practice dentistry. No other testimony was discussed in the order, or even acknowledged.

On appeal, the appellate court concluded that the ALJ’s recommended order adopted by the Board did not comply with one of the requirements of section 120.57, Florida Statutes-that an ALJ’s order must contain “express findings of fact.” The court was quick to point out that, while the findings of fact did not have to address the testimony of every witness (i.e., all twelve here), the order must at least address the factual controversies at issue to the extent they are relevant to the disposition, or address why the testimony is irrelevant. Having failed to do so in this case, the appellate court reversed and remanded.

The case summary above was originally published in the Administrative Law Section Newsletter, Vol. 34, No. 2 (Dec. 2014), a publication of The Administrative Law Section of The Florida Bar.

Editor’s Comments on Case Summary.

This case demonstrates an important concept in administrative law. This is, an administrative law judge is required to discuss the evidence presented at the hearing and make specific findings of fact based on that evidence. Failing to do this in the recommended order (RO) can lead to reversal by an appellate court.

Comments?

Do you think the appellate court should have reversed? Do you think it was important to discuss all testimonies in this case? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced in Handling Licensure Matters.

If you have been arrested, it is strongly recommended that you retain an experienced healthcare attorney who can advise you as to the effects a potential outcome could have on your license.

The attorneys of The Health Law Firm routinely represent physicians, pharmacists, nurses, and other healthcare practitioners in licensure matters. We frequently consult with criminal defense attorneys regarding defense strategies tailored to minimizing criminal sanctions while preserving the practitioner’s license.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
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By The Health Law Firm|2024-03-14T10:01:44-04:00May 15, 2018|Categories: Board of Dentistry, Dental Law, Dentist Defense attorney, Dentistry Law|Tags: adjudication, adjudication withheld, administrative law, administrative law judge, administrative orders, ALJ, appellate court, Board of Dentistry, conviction, criminal law, criminal trial, defense attorney, defense lawyer, dentist criminal charges, dentistry, department of health, desntist, discipline, diversion program, doh, DOH conviction, federal statutes, finding of guilt, Florida Board of Dentistry, health attorney, health care attorney, health care lawyer, health investigation, health law, license, license disciplined, license revoked, medical license, professional license, statutes, testimony|Comments Off