Miami Herald | US magistrate OK's video surveillance of Overtown store Miami Herald Otazo-Reyes said the ordered surveillance does not violate Bradley's right to privacy, and that her claim under the Fifth Amendment's Takings Clause is not ripe for review by a court because she hasn't been denied all reasonable use of her property. |
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US magistrate OK's video surveillance of Overtown store - Miami Herald
PORTSMOUTH
A prosecutor violated the rules of evidence and caused a mistrial when she asked a murder suspect Thursdaywhether he had told police the man he killed tried to rob him.
Deputy Commonwealths Attorney Teressa Murrell knew Carl William Holder had invoked his Fifth Amendment right not to speak to police so she should not have questioned him in front of the jury about his choice to remain silent, a judge ruled.
"Nothing was done intentionally, but it was done," Circuit Judge Kenneth Melvin said as he dismissed the jury on the fourth day of Holder's trial.
Prosecutors immediately announced plans to retry Holder in the August 2015 death of 40-year-old Elvin Elliott near the Farm Fresh at 4000 Victory Blvd.
A new trial date will be picked early next month.Holder will remain incarcerated until at least that time.
Outside the courtroom, Elliott's father said he was satisfied with how prosecutors were handling the case.
"I've got great confidence in the commonwealth's attorney," Eddie Elliott said.
Neither Commonwealth's Attorney Stephanie Morales nor a spokeswoman for her office immediately returned requests for comment.
Holder, 34, is charged with one count of first-degree murder. Prosecutors say he bought a kitchen knife at the Farm Fresh, walked outside and cut Elliott's hand during an argument. Murrell said Holder then chased Elliott into a Zero's sub shop and fatally stabbed him in the abdomen.
Holder took the stand Thursday morning in his own defense. He said Elliott approached him at a bus stop and when Holder refused to give him some of an alcoholic drink he was making demanded he empty his pockets. To appease Elliott, Holder offered to buy him a beer.
Holder said he walked into the Farm Fresh with Elliott and started to yell for help. No one responded, though. And when he asked customer service to call 911, a woman asked whether he was serious, Holder said.
That, Holder said, was when he decided to buy the knife.
Holder said he walked outside and called two friends to see whether they could pick him up, but neither were available. He said he then started walking to a different bus stop, but Elliott, who had a blood-alcohol content of .184, confronted him again in search of the free beer he was promised.
Holder said he cut Elliott's hand when the man moved toward him. He said he then chased Elliott down because he noticed Elliott's backpack was missing. He said he was afraid Elliott was going to get a weapon or find a friend.
On cross-examination, Murrell tried to poke holes in Holder's story. He admitted to leaving his drink behind at the bus stop when he went into the grocery store and to never using his cellphone to call police.
Holder maintained he feared for his safety, though, prompting Murrell to ask if he had told police someone had tried to rob him.
Before Defense Attorney Andrew Sacks could object, Holder responded that he invoked his Fifth Amendment right to remain silent.
Sacks then moved for the mistrial.
While arguing against the request, Murrell said she did not intend for Holder to tell the jury about his decision not to grant detectives an interview. She said she was referring to what happened when the first officers arrived.
Melvin countered that she didn't say that when she asked her question, and he ruled the trial could not go forward.
In an interview Thursday, Sacks said he didn't want a mistrial in Holder's case. He said he believed the trial had been going well for his client and argued that several government witnesses appeared to offer contradictory versions of events.
But, he said, he didn't think he could gamble with his client's freedom and not request a mistrial when he believed one was legally appropriate.
"I do not have a crystal ball," he said. "There is no way to know how the jury would react to that information."
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Portsmouth prosecutor's question leads to mistrial in deadly stabbing near Farm Fresh - Virginian-Pilot
This article first appeared on Reason.com.
A circuit court judge in Broward County, Florida, sent 41-year-old Christopher Wheeler to jail for 180 days on May 30 because he wouldn't give police his iPhone password.
Wheeler, who is charged with aggravated child abuse, insisted that he did give them his password. But the cops say the password he provided doesn't work, and that Wheeler therefore hasn't complied with their request. This, the judge decided, put him in contempt of court.
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Meanwhile, another Florida circuit court judgethis one in Miami-Dade Countyissued a rather different ruling in the case of a couple accused of extorting a social media celebrity over a sex tape. They would not be held in contempt of court for failing to share a phone's password, the judge decided, because there's no way to prove that they couldn't remember their password.
These are just the latest episodes in a broader debate about how Fifth Amendment rights apply to a relatively new technology. Do passwords count as "testimonial evidence," where protections against self-incrimination apply? Or is it more like a field sobriety test or a DNA swab?
Police in both cases were following a precedent set in Sarasota County last year, when the sheriff's department wanted to compel a man accused of video voyeurism to give them his iPhone passcode. A trial judge had ruled that this would violate the alleged voyeur's Fifth Amendment rights, declaring that the man could not be forced to surrender "the contents of his mind."
A person points to the apps on her smartphone, November 1, 2016. ANDREW CABALLERO-REYNOLDS/AFP/Getty
But a state appeals court rejected that reasoning, citing the 1988 Supreme Court decision Doe vs. U.S. That case centered around whether the feds could force a suspect to sign consent forms permitting foreign banks to produce any account records that he may have.
In Doe , the justices ruled that the government did have that power, since the forms did not require the defendant to confirm or deny the presence of the records. The Florida court decided that the iPhone case was analogous: The password to the phone and the contents of the phone were separate subjects.
The Sarasota case is now headed to the Florida Supreme Court. Wheeler is appealing his case too, and is expected to be allowed to post bond.
Ed Krayewski is an associate editor at Reason.com.
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Is It Unlawful to Deny the Cops Your Phone Password? - Newsweek
SAN FRANCISCO (CN) A federal judge Wednesday was unmoved by accusations that hed forced Uber to fire its star engineer Anthony Levandowski for refusing to deliver evidence that could prove Levandowski and Uber stole trade secrets from its driverless car rival Waymo.
The accusation came from Levandowskis attorneys at a hearing on his motion to intervene in Waymos lawsuit, accusing him and Uber of stealing its technology to build a competing self-driving car.
Levandowski sought to interveneto request modifications to a May 15 provisional relief order from U.S. District Judge William Alsup, to clarify that Alsup had not ordered Uber to fire him if he refused to waive his Fifth Amendment rights and produce key evidence in the case.
Alsup ruled from the bench that Levandowskis May 18 motion is moot, based on assurances from Uber attorney Karen Dunn that Uber fired Levandowski on its own initiative, not based on Alsups order.
Uber told Levandowski in a May 26 letter that it had fired him from his job leading Ubers driverless car program for not cooperating with its internal investigation into Waymos allegations, and announced the firing publicly on May 30.
I issued a very fine-tuned preliminary injunction order and Im not going to take back one word on that, Alsup said Wednesday.
Fearing criminal prosecution, Levandowski invoked his Fifth Amendment rights against self-incrimination to avoid producing documents or answering questions about them at his deposition, a motion Alsup denied.
In his provisional relief order, Alsup directed Uber to make Levandowski return thousands of files he stole from Waymo before resigning to work for Uber, writing that Levandowki had likely concealed troves of self-incriminating evidence by invoking his Fifth Amendment rights.
Waymo, a Google spinoff, says Levandowski downloaded 14,000 confidential files from its server just before he resigned in January 2016 to form a competing driverless car company called Otto, which Uber quickly acquired. The files include information on Waymos secret LiDAR system, a laser-based scanning and mapping technology its driverless cars use to see their surroundings.
Waymo sued Uber and Otto in February, claiming Levandowski used its technology to set up Otto, and that Uber snapped up Otto to get its hands on Waymos technology to fast-track its floundering driverless car program. It did not name Levandowski as a defendant.
On Wednesday, Levandowskis attorney Miles Ehrlich told Alsup that his provisional relief order had forced Levandowski to choose between his job at Uber and waiving his Fifth Amendment rights, because it required Uber and Otto to exercise the full extent of their corporate, employment, contractual, and other authority to force Levandowski to produce the stolen files and tell Uber what he did with them after leaving Waymo.
Levandowski said in his motion that the judges order meant that Uber would be held in contempt had Levandowski refused to waive his Fifth Amendment rights and Uber not fired him, since it would fail to measure up to the courts command that Uber exercise every lawful power it has over Mr. Levandowski.
Ehrlich said Wednesday that Alsups order is an unconstitutional state action that requires correction. He said the state cannot force people to self-incriminate on pain of losing their jobs, but Alsup had forced Levandowski to do so by coercing, or at least providing significant encouragement to Uber to fire him if he did not cooperate.
We are required to addresses the injury that is still ongoing, Ehrlich told Alsup. The injury is not being fired; the injury is being forced by state action to this unconstitutional choice. All of us understood you to be saying that Uber fire every bullet it had against Mr. Levandowski to waive his Fifth Amendment right.
Ehrlich said that Uber had kept Levandowski on as an employee throughout the litigation, had not demanded that he waive his Fifth Amendment rights, and had not threatened to fire him if he refused to do so, until Alsup delivered his order. And that according to Alsup himself, the first of two letters Uber sent to Levandowski about his job status after Alsup issued the order blamed the judge, meaning me, and said the judge is making us do this, were going to fire you unless you cooperate with this investigation.
Responding to Alsups concern about whether Uber fired Levandowski on its own initiative, Uber attorney Dunn told the judge that Uber fired Levandowski because he had ignored an internal deadline Uber set for him to turn over evidence.
It is very hard to look at this entire situation and pretend the court order doesnt exist, Dunn said. The courts order certainly provided substantial additional heft to what we had been urging, and the letters made clear that this has to do with our urging, in addition to the courts order.
Turning to Levandowskis state action argument, Alsup said that though a government employer cannot use the Fifth Amendment to threaten to fire employees who do not cooperate with an investigation, a private employer, like Uber, can.
Sometimes on a preliminary injunction you can order remedial relief that is something that the other side may not be strictly entitled to but is necessary in order to remedy the wrong that has been done. There is broad equitable power to carry out what is the right thing to do, Alsup said. So a federal district court surely has the authority, as part of remedial provisional relief, to order a private company to do something that it would have the authority to do on its own.
The Fifth Amendment is not a bar to the relief granted, and Im not taking back a single word of it, and its not going to be modified in any way.
Also Wednesday, Alsup heard Ubers motions seeking to staythe case while it appeals to the Federal Circuit his denial of its motion to force arbitration, and to dismissWaymos state Unfair Competition Law claim.
Ruling from the bench, Alsup denied the motion to, saying a stay would harm Waymo.
But he indicated he would grant Ubers motion to dismiss Waymos unfair competition claim based on Silvaco Data Systems v. Intel Corp. In that case, California trial and appeals courts found that using infringing software is not trade secret infringement.
Uber says Waymos unfair competition claim (UCL) and its California Uniform Trade Secrets Act (CUTSA) claim are based on the same allegations, and that the UCL claim is pre-empted by CUTSA.
I want you to know Im stuck with the Silvaco case, Alsup told Waymo attorney James Judah, though the judge said he believes Silvaco was wrongly decided. Im sympathetic to your position, but youre going to lose your motion.
I feel like youve got to go to the Legislature and get them to fix this, but I cant fix it for you.
Ehrlich is with Ramsey & Ehrlich in Berkeley; Dunn with Boies Schiller Flexner in Washington, D.C.; and Judah with Quinn Emanuel Urquhart & Sullivan in San Francisco.
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Judge Won't Budge on His Order in Waymo v. Uber Trade Secrets Case - Courthouse News Service
The law lags badly behind technology in a great many areas. One area where there is still huge uncertainty is whether the Fifth Amendment right against self-incrimination protects someone who refuses to disclose the passcode to their phone.
Weve seen conflicting rulings in the past, and a Miamireport shows that rulings may even vary between courts in the same state
TheMiami Herald reports that a child abuse suspect was jailed for six months for contempt of court after failing to reveal the correct passcode to his iPhone. Christopher Wheeler was arrested on suspicion of hitting and scratching his young daughter, with police believing that photos on the iPhone would help prove their case.
Detectives believe that his phone contains images of repeated injuries to the child, which could prove evidence in the case. A Broward judge earlier authorized a search warrant for Wheelers iPhone, but detectives had been unable to get in.
When a judge ordered him to provide the pass code, it didnt work. Rothschild held him in criminal contempt earlier this month.
Wheeler claimed he had given police the code and didnt know why it didnt work. The judge ruled that he would be released from jail if he reveals the correct code.
In a separate case in the same state, aMiami-Dade judge decided against holding a suspect in contempt of court for similarly refusing to reveal his passcode. Extortion suspectWesley Victor claimed that he didnt remember his passcode, and the judge ruled that there was no way to know given the passage of time.
[Wesley Victor was] accused of extorting a social-media celebrity over stolen sex videos. [He] and his girlfriend had been ordered by a judge to produce a pass code to phones suspected of containing text messages showing their collusion in the extortion plot. Victor claimed he didnt remember the number. He prevailed.
On Tuesday, Miami-Dade Circuit Judge Charles Johnson ruled that there was no way to prove that Victor actually remembered his pass code, more than 10 months after his initial arrest.
Back in 2014, a Virginia District Court ruledthat phone passcodes are protected by the 5th Amendment, though there is no such protection against using a suspects fingerprint to unlock a phone. Another Florida court took the opposite stance, insisting that the 5th Amendment does not apply to passcodes.
The legal position on using Touch ID to unlock a phone seems clearer, where multiple court rulings have decided that a fingerprint is the equivalent of a safe key, and police are free to use a suspects fingerprint to unlock the device. You can read a 2014 analysis of the legal position of both forms of protection here.
Via Engadget. Photo: MacWorld.
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Man jailed for refusing to disclose iPhone passcode underlines Fifth Amendment uncertainties - 9to5Mac