Michigan State Police Extracting Cellphone Data During Traffic Stops

Since 2008, the Michigan State Police apparently have used devices in their patrol cruisers capable of extracting data from a driver's cell phone.  The troubling part is that it may be possible to tap your cell phone during a routine traffic stop.

The data extraction device, Cellbrite UFED, can pull existing, hidden, and deleted phone data, including your call history, text messages, contacts, and images; even your geotags. It can also extract ringtones which can be highly incriminating in some situations. These devices can crack into more than 3000 cellphone models and easily blow-thru passwords.

All this, of course, raises some legitimate concerns under the Fourth Amendment's "search and seizure" clause.   Do you have a reasonable expectation of privacy in the data contained in your cell phone once you take that puppy on the road?

Along these lines, the Michigan Chapter of the ACLU has filed a freedom of information act request with the MSP seeking detailed information on how the device is used.  In response, the MSP has issued their own press release asserting that they do not use the data extraction device during routine traffic stops, do not use the device without a prior search warrant, and cannot extract data from the phone without first having possession of the phone.

The MSP has also asserted that compliance with the ACLU's document request would be costly but they would be delighted to produce the records in exchange for a half million dollars to cover the costs.

Stay tuned for the law suit.  In the meantime, to protect your privacy when the lights and sirens erupt behind you on your next traffic stop, you should probably power down your phone.

Cellbrite UFED

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Nice Try: Mich Supreme Court Takes a Pass on Constitutionality of Appointed-Attorney System

Last March, we posted on the ACLU's constitutional challenge to Michigan's court-appointed attorney system. Duncan v Michigan was then heading for oral argument before the Michigan Supreme Court and it looked like the challenge was going to acquire some legs.  Here is an update.

After hearing arguments in the case in April, the Supreme Court at first affirmed the 2-1 decision of the Michigan Court of Appeals, sending the matter back to the Ingham County Circuit Court (the trial court) for further trial proceedings to determine whether our court-appointed criminal defense system supplied criminal defendants their constitutional right to legal counsel. The Supreme court held that it was too early to dismiss the case below and the Ingham Circuit Judge did so prematurely.

The Supreme Court reversed course in July, granting the Attorney General's motion for reconsideration, vacating its previous order, and expressly adopting Judge William C. Whitbeck's 35-page dissent in favor of dumping the case at the summary disposition level.

What changed? What happened?

The high court was divided 4 justices to 3 on this reversal, with Justices Corrigan and Young joining Justice Markman's statement of concurrence. The majority simply pronounced that their prior order was wrong.  Four justices held that allowing the case to proceed further would amount to having the judiciary inappropriately determine Michigan's system of local funding and control of legal services to indigent people.

Justices Cavanagh and Hathaway joined Justice Marilyn Kelly's dissent, claiming that the certified class of litigants did have a "justiciable" action; that nothing new had been raised on reconsideration to justify reversing the high court's prior order; and that, "[t]oday's order slams the courthouse door in plaintiffs' face for no good reason."

Among others, we here at the Law Blogger eagerly anticipated seeing how the proofs would have developed regarding the delivery of legal services to the poor people of neighboring Genesee County. For the moment, however, and probably forever, the appellate courts have passed on deciding the issue.

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ACLU Tests Constitutionality (i.e. Quality) of Court-Appointed Criminal Defense

Prior to the Civil War, Michigan was one of the first states to get in on the ground-floor of providing legal defense to the poor and the accused.  The constitutional right of the accused to an attorney was enshrined in the seminal case of Gideon v Wainwright, 372 US 335 (1963).

Things have changed.  Michigan has gone from the "first-floor" to the cellar in terms of the quality of court-appointed criminal defense; at least as measured in terms of compensation.

The ACLU is challenging the public defender system in the case of Duncan v State of Michigan.  The ACLU's brief argues that the quality of court-appointed legal defense in Berrien, Muskegon and Genesse Counties falls below the Sixth Amendment's guarantee of effective legal counsel.

The case was filed in the Ingham County Circuit Court where the trial judge certified Plaintiff's case as a class-action.

Defendants Governor Jennifer Granholm and the State of Michigan are represented by the Michigan Attorney General, Mike Cox.  The AG's brief asserts that the duty to appoint and compensate public defenders falls to the local circuit court judges.

The AG brought a motion for summary disposition which was denied by the trial court.  The court, however, granted the AG's motion to stay further proceedings until appeals from the decision were decided.  The Court of Appeals affirmed the Ingham Circuit Court's rulings granting class certification and denying summary disposition.  In a lengthily dissent, Appeals Judge William C. Whitbeck asserted that the case, which he described as a "fundamental challenge to Michigan’s system for operating and funding legal services for indigent criminal defendants" essentially could result in an unconstitutional violation of the separation of powers doctrine.

The case is scheduled for oral argument before the Michigan Supreme Court on April 13, 2010.  Meanwhile, the state legislature is considering HB 5676 which seeks to establish a state-wide public defender system, along with the essential funding.  The sponsors of the proposed legislation, Bob Constan and Justin Amash acknowledge they will have a very tough time to get this type of funding approved in the midst of the sustained economic downturn.

Never short on resources, however, the ACLU is bringing their game, on this same issue, to the United States Supreme Court in the case of Vermont v Brillon.

The ACLU's suit, and the proposed legislation have attracted national attention.  (The Law Blogger picked-up on a National Public Radio feature that addressed the critical state of Michigan's court-appointed criminal defense.)  The most likely result of all these efforts will be, "more of the same".  The defense bar will continue to soldier on, as underpaid under-resourced champions of the constitution.

Defendants, for the most part, will continue getting convicted.  No tears shed here, unless the accused is truly innocent.  Then it's a real tragedy as well as a threat to our individual rights and the criminal justice system.

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