In The News

In The News

Friday, July 19, 2013

The Future of the 4th Amendment: Courts in States Across the Nation Begin Questioning the Ability of Law Enforcement to Collect Data from Your CellPhone - Comments from Meridian Township Forensic Evidence Attorney Mike Nichols

By Michael Nichols
Categories: Michael J. Nichols, Drunk-Driving

A New Jersey Court struck down a program used by law enforcement to collect cell phone "tracking" data without judges reviewing the basis for the move. Meridian Township DUI attorney Mike Nichols believes it was the right decision: "we are going to see more and more trial courts and intermediate appellate courts ruling on these situations on a case by case basis," Nichols says.

Links to the opinion and press coverage of the case can be found here:

http://www.nytimes.com/2013/07/19/nyregion/new-jersey-supreme-court-restricts-police-searches-of-phone-data.html?nl=todaysheadlines&emc=edit_th_20130719

http://www.judiciary.state.nj.us/opinions/supreme/A5311StatevThomasWEarls.pdf

The practice is used by law enforcement almost routinely throughout Michigan. It is a way law enforcement tries to put together a case for support of their theory of the role of an accused by trying to pinpoint his whereabouts by "connecting the dots" with cellphone tower locations where the person's cellphone may have "pinged."

Nichols is an adjunct law professor of forensic evidence at Thomas M. Cooley Law School in East Lansing. He says "the opinion in Earls does not resolve the validity of a 'pinging' theory of tracing someone's whereabouts. I question the scientific reliability based on an error rate or variance in the ability to pinpoint the location of the person." He adds - "the issue decided here is whether the New Jersey state constitution provides greater protection than the United States Constitution. The Court here said yes and that the police must have a search warrant or an exception to the warrant requirement."

Mr. Earls was convicted by plea of a theft charge after a suppression motion was denied by the trial court under what is known as the emergency aid doctrine. The emergency aid doctrine is also called the community caretaker exception. It allows for police to act without seeking a warrant to assist a person who needs help.  He later challenged the ruling in the lower court on the suppression issue. 

 It is interesting to note that the Michigan Constitution was interpreted as granting greater protection of individual rights than the United States Constitution in Sitz v Michigan. Nichols says "I have no guess as to whether this means our appellate courts will go the way of the New Jersey Court in Earls. I do think that the anger expressed by many Americans about government collection of our cell phone and other information may play a role. The history of our courts is to bend to the wind of public sentiment in major cases that interpret the constitution. The recent decision in the Defense of Marriage Act is an example."

For the attorneys who follow the law and defend the constitution and your rights by remaining committed to results, contact the Nichols Law Firm at 517.432.9000 or Mike Nichols directly at mnichols@nicholslaw.net

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.