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Matt Kaplan prevailed on behalf of his client in a criminal case decided yesterday by the District of Columbia Court of Appeals. The Court’s opinion, which reverses the murder conviction of Mr. Kaplan’s client, addresses two fundamental issues of constitutional law—the application to mobile phones of the Fourth Amendment’s guarantee that citizens are not to be subject to unreasonable government searches and seizures and, separately, an accused’s right to confront witnesses against him or her under the Sixth Amendment. The case is United States v. Burns.

The Court of Appeals held that the warrants issued in the case, which allowed law enforcement to review every piece of information on Defendant Burns’ cell phones, were unconstitutionally overboard.  It rejected the U.S. Department of Justice’s contention that, because there had been probable cause to believe that there was some evidence on Mr. Burns’ phones relating to a crime (such as certain text messages and call logs), the warrant could properly authorize the police to review all information on his mobile phones.  As a practical matter, it is exceedingly difficult to exclude from evidence the fruits of a defective search warrant.  This is because, when it comes to search warrants, the Supreme Court has established a “good faith” exception to the normal rule that unconstitutionally obtained evidence is not admissible.  The reasoning is that warrants are issued by judges or magistrates, who presumably know the law and are acting in good faith.  But here the Court found that the affidavit submitted by a police detective in support of the warrants “was so lacking in indicia of probable cause” that no reasonable police officer could believe that the warrants were constitutionally valid, even though a judge had signed off on it.

Though this decision is binding law only in the District of Columbia, it is well reasoned and will likely influence courts throughout the country.  This is because there have been few decisions in state or federal courts on search warrants that target cell phones and many such warrants, like the warrants in this case, purport to allow law enforcement to search all data on a phone, even data which there is no reason to believe is connected to any crime.  Courts will increasingly have to grapple with this issue given the ubiquitous nature of cell phones and the enormous trove of highly personal data that they contain. 

Separately, the opinion also sets an important precedent regarding the Sixth Amendment’s Confrontation Clause.  That clause, which is a fundamental aspect of our criminal justice system, gives those accused of crimes the right to personally confront and to cross-examine witnesses against them.  In Mr. Burns’ case a medical examiner who did not perform the autopsy of the deceased testified as to the results of that autopsy.  There was no way to effectively cross-examine this medical examiner about what was found during the autopsy because he had not been present.  The Court held that this violated Mr. Burns’ Confrontation Clause rights and that this testimony should not have been admitted.  This case too should have a nationwide impact.  Courts have split on whether evidence from autopsies can be admitted through the testimony of a medical examiner who was not personally present. 

Matthew B. Kaplan is The Kaplan Law Firm‘s Principal Attorney. The District of Columbia Court of Appeals is the highest “state” court in the District of Columbia.