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Police Must Have Warrant to Search Cell Phone Data

POLICE CAN NOT SEARCH YOUR CELL PHONE WITHOUT A WARRANT (WITH EXCEPTIONS AS ALWAYS)

On June 25, 2014, The Supreme Court of The United States issued its opinion in the case of Riley v. California.  The court combined the cases of Riley v. California and United States v. Wurie as the two cases presented identical issues.

Both cases involved the police searching an individual’s cell phone after the individual had been lawfully placed under arrest.  The police did not just physically search the cell phones, but rather searched the data inside the cell phones in furtherance of their investigation and in order to find potentially incriminating information.  In the Riley matter, the search of the cell phone revealed that the defendant was a member of a street gang and also involved in a shooting.  Riley was convicted of the shooting and received a sentencing enhancement for being a member of a street gang based off of the information police obtained from his cell phone.  In the Wurie matter, the police accessed the call log on the defendant’s telephone and traced certain numbers with suspicious activity.  As a result, Wurie was charged and convicted of several drug and firearms offenses.

The Fourth Amendment of the United States Constitution protects an individuals right to be secure in their person and property.  It prohibits searches without a warrant signed by a neutral and detached magistrate specifically stating the items to be found and where the items are to be found.  There are limited exceptions to the “warrant requirement.”  A warrantless search, and the information derived therefrom, is only admissible if the warrantless search falls within a specific exception to the warrant requirement.

One specific exception to the warrant requirement is “search incident to lawful arrest.”  However, the search is limited to the area within the arrestee’s immediate control.  The search is justified for the purposes of officer safety and to prevent the destruction of evidence.  When asked to extend the search incident to lawful arrest to cellular phones, the Supreme Court ruled that a search of the digital information on the phone does not serve the government’s two purposes for warrantless searches.  The search of the digital information on the phone is not justified as a means to protect officer safety.  While it could possibly be argued that there is a potential for the destruction of evidence, that is balanced against the individuals privacy interest which, when it comes to the search of the data on a phone, is significantly greater than a brief physical search.  Nevertheless, the Supreme Court found that the data stored on cell phones does not present a threat to officer safety or a potential for the destruction of evidence.

While the digital data stored by a cell phone does not present any imminent threat to an arresting officer’s safety, the officer is still free to examine the physical features of the cell phone in order to ensure that it cannot be used as a weapon.  While the destruction of evidence via “remote wiping” is certainly a possibility, the Supreme Court does not rule out the ability of the police to disable a telephone in order to prevent remote wiping and secure the scene.  The court also provides for the police to search an individual’s telephone without a warrant under the exigent circumstances doctrine.

For additional information, please contact

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

The Ambien Defense in Florida | DUI | Drugged Driving

DUI and the Ambien Defense in Florida

Ambien is the trade name for Zolpidem which is one of the most frequently prescribed sleep medications in the United States. Ambien is in a class of drugs called sedative hypnotics. Often referred to as “tranquilizers”, sedative hypnotic drugs have the effect of slowing down the bodies functions. Other drugs included in the sedative hypnotic category are benzodiazepines such as Xanax, Valium, Ativan and Rohypnol. While certain sedative hypnotics are approved to be used therapeutically for multiple reasons reasons such as anxiety disorder or seizures, the only approved use of Ambien is as a sleep medication.

Ambien has a fast onset of action. Generally, from the time a patient ingests Ambien until the point where the patient loses consciousness is less than 15 minutes. However, unconsciousness can occur in 5 minutes or less. Accordingly, it is advised that an individual only take Ambien when he or she is ready to go to sleep. The Ambien Defense in Florida Florida’s DUI Statute is Florida Statute Section 316.193. The State must prove all of the following, beyond any reasonable doubt, in order for an individual to be convicted of DUI in the State of Florida:

  1. The defendant must be in “actual physical control” of a motor vehicle within the State of Florida;
  2. The defendant, at the time of being in actual physical control, is under the influence of (1) alcohol; or (2) a chemical compound listed in Florida Statute 877.111; or (3) a controlled substance listed in Chapter 893 Florida Statutes;

Alcohol and chemical compounds in Florida Statute 877.111 do not need to be address for this discussion.

DUI Drug Impairment Pursuant to Florida’s DUI Statute

Pursuant to Florida’s DUI statute, the state bears the burden of proving the specific drug that caused the defendant’s impairment. The state must be able to identify the specific drug because it must be listed in Chapter 893. It is not a crime for a person to operate a motor vehicle in the State of Florida while impaired by a substance that is not listed as a controlled substance in Chapter 893.

There are both federal and state drug laws and these laws are not necessarily the same. For example, marijuana is still illegal under federal law, but not under the law in Colorado. So while marijuana is a Schedule I controlled substance under federal law, it is not a controlled substance under Colorado Law.

Likewise, Ambien is a Schedule IV Controlled Substance pursuant to federal law. However, Ambien is not listed as a controlled substance under Florida Statutes Chapter 893. Therefore, driving under the influence of Ambien alone is not a crime since it is not a controlled substance under Florida Law.

Other Issues to Consider

It is very common for individuals with a prescription for Ambien to have prescriptions for other controlled substances. Many are prescribed benzodiazepines for anxiety disorder. Others may have a prescription for a benzodiazepine for use as an anticonvulsant or a prescription for an opioid pain medication. Although rare, some individuals may even have a prescription for some type of barbiturate.

We almost always end up with a urinalysis as the test for DUI drug cases in Florida due to the statutory restrictions on blood draws. The Ambien defense is much harder to assert when there are multiple metabolites for other controlled substances in an individual’s urine sample. The defense attorney needs to remember that there is no correlation between what substances are found in the urine and what substances are found in the blood. The state will typically attempt to rely on a “co-administration” theory when there are multiple controlled substances detected in the urine. However, absent non-scientific evidence identifying the times of ingestion, it is essentially impossible for the state to prove co-administration. Typically the drugs that appear in conjunction with a positive urinalysis for Ambien are other types of sedative hypnotics. Accordingly, the two will have similar symptoms. As an example, it is essentially impossible for the state to prove that an individual was under the influence of Xanax when the urine sample tested positive for both Xanax and Ambien because the pharmacodynamics are the same, although a much larger than normal dose of Xanax.

In addition to other controlled substances, there are numerous over-the-counter, non-narcotic prescription drugs and even foods that have been proven to inhibit the metabolism of Ambien and/or resulting in blood levels far in excess of a therapeutic dosage.

Disclaimer: The above is not intended to be construed as legal advice. Each case is different and you should discuss the facts and circumstances of your case with your attorney. In addition, the above is not intended to be a scholarly article on analytical chemistry. Statements regarding urine testing included above are dramatically simplified and do not include any discussion of the testing procedure or methodology. Significant additional reading and study is necessary prior to attempting to cross-examine the State’s expert. Read more about Bronx slip and fall accidents lawsuits.

For additional information or to discuss the details of your case, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286