Thursday, April 14, 2011


In a major setback for Arizona and Gov. Jan Brewer, the 9th Circuit Court of Appeals recently concluded there was sufficient evidence to believe that provisions of SB 1070 are an unconstitutional infringement on the exclusive power of the federal government to regulate immigration. The Ninth Circuit upheld a lower court's block of much of Arizona's controversial SB 1070 law aimed at illegal immigration.
The judges agreed with U.S. District Court Judge Susan Bolton, who issued a preliminary injunction in July preventing sections of SB 1070 from being enforced. The three-judge panel ruled that the lower court "did not abuse its discretion" in blocking parts of the law from taking effect last year.
The court specifically rejected Arizona’s argument that it could make it a state crime for an undocumented worker to seek employment in Arizona. The judges noted that Congress, in approving federal regulations, chose not to make looking for work a criminal act.
The court found that the relevant provisions of S.B. 1070 facially conflict with Congressional intent. The decision rejected Arizona's contention that it could enact a state law against undocumented workers seeking employment, citing Congress' affirmative choice not to criminalize work as a method of discouraging unauthorized immigrant employment. By imposing mandatory obligations on state and local officers, the court held that Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents. The opinion stressed that the question was not, as Arizona claimed, whether state and local law enforcement officials can apply the statute in a constitutional way. The court found that there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause.
The court also upheld Bolton's injunction against Arizona law enforcement arresting suspected illegal immigrants without warrants based on a belief that they could be subject to civil removal from the United States.
The decision, a victory for the Obama administration and immigration activists who filed suit to block the law, means the SB 1070 case will likely find its way to the Supreme Court.

Tuesday, March 1, 2011


Recently, the California Supreme Court expanded the authority of the police to search items taken from a person at the time of arrest.
In the case of People v. Diaz , California Supreme Court , Case #S166600, it was held that the police do not need a warrant to search a cell phone carried by someone who has lawfully been arrested.
Mr. Diaz was arrested on suspicion of selling drugs. The police then searched the text message folder on his cell phone. When confronted with a text message that implicated him in the sale of drugs, he admitted participation.
He then filed a motion to suppress the evidence seized from his cell phone, arguing that it was an unlawful search. The trial court denied his motion to suppress the warrantless search of the phone, finding it was lawful since the property had been seized and searched incident to a lawful arrest.
The California Supreme Court granted review to decide if the search fell within the "search incident to arrest" exception which is usually justified by a search for weapons for officer safety or to avoid the concealment or destruction of evidence. Mr. Diaz argued that the search should not have been upheld based on this exception because it was too remote in time and police had exclusive control over the phone at the time.
The court reviewed U.S. Supreme Court authority, including U.S. v. Robinson (1973) 414 U.S. 218, U.S. v. Edwards (1974) 415 U.S. 800, and U.S. v. Chadwick (1977) 433 U.S. 1. The court held that items immediately associated with the person arrested can be searched without a warrant even if the search is delayed, but items not associated with the person, but rather just in his or her immediate control at the time of the arrest, will require a warrant when too much time has elapsed. The majority held the cell phone was immediately associated with defendant's person because it was on his person at the time of arrest, and so the search was lawful. The majority rejected the notion that the nature of the character of the item seized should determine whether a warrant is required to search it.
(Editorial Note: As a word of advice, if you don’t want anyone to access your phone in the event you are arrested, you should use a lock feature with a password.)