U.S. Supreme Court | paulhunterjones

Today’s Smartphones

The police use various tactics for obtaining useful information once a person is detained or taken into custody. We are familiar with these tactics by reading about them in the news or seeing them acted out on Law and Order. Police officers and investigating detectives usually follow a script that includes a complete search of the suspect’s body for weapons. Separate and distinct charges maybe filed based on the discovery during the search of contraband. As part of police detention or arrest procedures the suspects personal property is inventoried and inspected. Federal and states’ laws allowed these searches to take place without the police having to secure a corresponding search warrant. As to these classes of searches the law is, more or less, established.

Law enforcement officers gleefully trolled through the suspect’s personal belongings, looking for incriminating evidence. Before cellular telephones became hand-held miniature computers the police routinely checked a detainee’s phone’s call log without there being a violation of the 4^th amendment. Yet constitutional law experts and criminal defense bars raised concerns that the police were treading on problematic 4^th amendment grounds The evolution of the Smartphone was a call to arms for privacy advocates who believed that the police should be constrained by the 4^th amendment’s prohibition against unreasonable searches and seizures. This week the United States Supreme Court (the Court) agreed with these advocates. A January Pew Research Center survey found more than 90 percent of Americans now own or regularly use a cellphone, and 58 percent have a more advanced Smartphone.

In Riley v. California and the United States of American v.Wurie the Supreme Court considered convictions based upon warrantless searches of defendants’ Smartphones. Basically the issue before the court was whether the police could search the defendants’ phones without first applying for and obtaining a warrant. Both defendants had been convicted based upon information (evidence) that was discovered while searching their Smartphones. Some lower courts had held that the police could legally search a cellphone as it if were pictures in a wallet, a cigarette pack, or the like. During oral arguments in April it seemed like the Justices were wrestling with the proper balance between effective police work and the privacy of suspects. Most legal experts and commentators were surprised that the Court ruled unanimously that the police had to first obtain a search warrant before searching a suspect’s Smartphone.

Well, not everyone was caught off guard by the Court’s decision. Brianne Gorod, appellate counsel at the The Constitutional Accountability Center wrote an interesting post on April 29, 2014 for CNNOpinion. The piece – “What Scalia Knows About Illegal Searches” – dealt with the court’s shifting alliances on the interpretation and extend of the Fourth Amendment’s protection in criminal cases. Ms. Gorod analyzed the Court’s recent 4^th amendment cases in light of Justice Scilia’s growing influence on his colleagues. He had become an advocate for the privacy rights of criminal suspect over police officers efforts to collect evidence of criminal activity. In my opinion Ms. Gorod subtly suggested that the Court might be ready to issue a sweeping decision in the Riley and Wurie privacy cases.

The opinion, by Chief Justice Roberts, rejected law-enforcement arguments that no legal distinction existed between Smartphones and pocket litter. He wrote about the distinction as “…saying a ride on horseback is materially indistinguishable from a flight to the moon…modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet or a purse.” The Court understood that sometimes privacy rights could impede official police work, but constitutionally protected privacy comes a cost. Overall the Court’s decision is a privacy advocates for privacy advocates.

For more than 12 years the Republic of Argentina has battled so-called vulture funds in US federal courts. This litigation grew out of the country’s massive sovereign debt default in 2001. At that time most investors did everything possible to unload their portfolios of the country’s debt. Yet, there were courageous investors who were willing to speculate on the country’s debt rising up from the financial abyss. A few funds invested billions into purchasing Argentina’s junk bonds. Though Argentina has renegotiated much of its 2001 debt with bondholders and has paid these “exchange bondholders” pennies on their original debt, the funds who took the risk of investing in the junk bonds have refused to renegotiate the contractual terms of their bonds. These funds want to be paid what they were promised and not a penny less. Who can blame them for demanding full payment.

Most legal experts and financial advisers close to the litigation have little sympathy for the former South American economic powerhouse. Don’t Cry for Me Argentina is their response when Argentina demands justice that it does not deserve. On October 26, 2012 the United States Court of Appeals for the

Second Circuit decided the case of NML Capital v. the Republic of Argentina. The Court affirmed in part and remanded in part the lower court’s decision of Federal Judge Griesa of the Southern District. In the case Judge Griesa ruled against Argentina in granting the applications of the Plaintiffs. Much to the chagrin of Argentina; its fiery pronunciations of sovereign integrity and legal (quasi political) arguments that it had a sovereign right to force restructuring upon debt holders were judicially debunked by the District Court.

It did not surprise anyone that Argentina appealed the court’s decision to the Supreme Court. While Argentina was litigating its case before the Supreme Court Argentinians in high office were waging a battle to wind public opinion. Clearly Argentina was (is) looking to negotiate a settlement with the non-exchange bondholders. Yet the country’s last formal offer of settlement was rejected on or about March 27, 2013 by the U.S. Court of Appeals for the 2^nd Circuit as being inadequate. I wrote at that time that Argentina was heading for another debt default. The U.S. courts are not going to let politics trump the law or their decisions. Argentina’s total disregard for the judicial decisions and judgments makes a mockery of America’s judicially system and the sanctity of the law.

The high court next considered and disposed of Argentina’s (its banks’ claim) that its foreign assets were not subject to discovery by the non-exchange bondholders. The Justice’s were almost unanimous in deciding against the Latin America country. Justice Anthony Scalia writing for the court held that the Foreign Sovereign Immunities Act did not limit the scope of discovery available to a judgment creditor in a federal post-judgment execution proceeding against a foreign sovereign. In the well written decision Justice Scalia specifically alluded to the fact that Argentina had waived part of its immunity by choosing to litigate in the U.S. courts. The Republic of Argentina stands properly before the court like any other person. Argentina’s dreaded “vulture funds” are now positioned to discovery the Republic’s assets worldwide. What follows next is rather obvious; the non-exchange bondholders will seek to attach the discovered assets in hopes of satisfying their judgments.

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