From: legal_reality
Subj: Fwd: Federal [magistrate] Judge: Only Powered-Off Cell Phones Deserve Privacy Protections
Subj: Fwd: Federal [magistrate] Judge: Only Powered-Off Cell Phones Deserve Privacy Protections
5 July A.D. 2013
In the "land of the free and home of the brave," cell phones not turned off are not worthy of privacy sufficient to warrant a warrant.
So says a magistrate judge in New York.
Stay tuned. Surely the issue will go through the system.
We've come a long way from the days of the origin of a nation of people intending to exist outside the shadow of tyranny (and the compelled worship of man that comes with that).
On issues that are "new" to the judicial system, the thought that comes to mind is from the Gonzalez v. United States ruling specifically on the matter of the authority of the magistrates. That ruling opens with these words: "If the parties consent, …."
It's been a knock down, drag out affair in some particular U.S. District Courts on this issue of the scope of authority of a magistrate. The basic reality is that the magistrate is not a § 451 judge. A § 451 judge comes pre-consented to, for it is the § 451 judge who has the Title 28 authority to act as a trial judge. To initiate a matter in a U.S. District Court is to expect to have a § 451 judge signing the paperwork. A magistrate is a different type of decision-maker. It's a hired position, not a presidentially-nominated, senate-confirmed, presidentially-appointed position. It's a limited term position, not a "during good behavior" position. Since the magistrate is not a § 451 judge, no one may be compelled to present his/her case to a magistrate, at any time, for any reason. This applies from the instant the matter is initiated, which is contrary to both popular thinking and popular practice. Such compulsion does, genuinely, raise issues of sedition (use of force, which the exercise of judicial power is, to overthrow the present system, which system presently looks to presidentially-nominated, senate-confirmed, presidentially-appointed, § 451 judges), but only if there's something in the way of an objection by the adversely affected party regarding the matter of consent or not to magistrate participation.
It may be that this magistrate is correct. It may be that only when the phone is on (and in use?) that one is "consenting" to being violated in one's privacy without the need for a warrant. It may be that getting instant GPS location information where there's an existing warrant constitutes "exigent circumstances" such that a warrant truly isn't required. If so, then the commercial remedy is turning out to be along the lines of simply not having a cell phone.
Either way, and it's totally up to the parties with the dispute, it's material to this author to note that this warrantless search perspective is the perspective of a magistrate judge, not a § 451 judge. There are some gifted magistrates in the system. It happens that where the issues are "new" to the judicial system, some of us feel that the matter should be addressed by a § 451 judge. To obtain that status of affairs for any particular matter, it really helps to object to decision-making by those who are not § 451 judges, which list includes both magistrates and clerks, starting with the very first document filed, whether as the plaintiff or as the defendant, and perhaps in every document filed throughout the matter. Magistrate participation, at all phases of the matter, not just who conducts the trial, but rather from the instant the matter is initiated, is 100% dependent on unanimous consent of the parties.
We'll find out, in time, what the warrantless search of phone date for cell phones is, at least for that (type of) case. It may be that this magistrate will have just shaped federal policy on the matter. Just know that decision-making by magistrates and clerks is 100% dependent on the parties to that dispute.
Harmon L. Taylor
Legal Reality
Dallas, Texas
Subscribe / unsubscribe : legal_reality@earthlink.net
In the "land of the free and home of the brave," cell phones not turned off are not worthy of privacy sufficient to warrant a warrant.
So says a magistrate judge in New York.
Stay tuned. Surely the issue will go through the system.
We've come a long way from the days of the origin of a nation of people intending to exist outside the shadow of tyranny (and the compelled worship of man that comes with that).
On issues that are "new" to the judicial system, the thought that comes to mind is from the Gonzalez v. United States ruling specifically on the matter of the authority of the magistrates. That ruling opens with these words: "If the parties consent, …."
It's been a knock down, drag out affair in some particular U.S. District Courts on this issue of the scope of authority of a magistrate. The basic reality is that the magistrate is not a § 451 judge. A § 451 judge comes pre-consented to, for it is the § 451 judge who has the Title 28 authority to act as a trial judge. To initiate a matter in a U.S. District Court is to expect to have a § 451 judge signing the paperwork. A magistrate is a different type of decision-maker. It's a hired position, not a presidentially-nominated, senate-confirmed, presidentially-appointed position. It's a limited term position, not a "during good behavior" position. Since the magistrate is not a § 451 judge, no one may be compelled to present his/her case to a magistrate, at any time, for any reason. This applies from the instant the matter is initiated, which is contrary to both popular thinking and popular practice. Such compulsion does, genuinely, raise issues of sedition (use of force, which the exercise of judicial power is, to overthrow the present system, which system presently looks to presidentially-nominated, senate-confirmed, presidentially-appointed, § 451 judges), but only if there's something in the way of an objection by the adversely affected party regarding the matter of consent or not to magistrate participation.
It may be that this magistrate is correct. It may be that only when the phone is on (and in use?) that one is "consenting" to being violated in one's privacy without the need for a warrant. It may be that getting instant GPS location information where there's an existing warrant constitutes "exigent circumstances" such that a warrant truly isn't required. If so, then the commercial remedy is turning out to be along the lines of simply not having a cell phone.
Either way, and it's totally up to the parties with the dispute, it's material to this author to note that this warrantless search perspective is the perspective of a magistrate judge, not a § 451 judge. There are some gifted magistrates in the system. It happens that where the issues are "new" to the judicial system, some of us feel that the matter should be addressed by a § 451 judge. To obtain that status of affairs for any particular matter, it really helps to object to decision-making by those who are not § 451 judges, which list includes both magistrates and clerks, starting with the very first document filed, whether as the plaintiff or as the defendant, and perhaps in every document filed throughout the matter. Magistrate participation, at all phases of the matter, not just who conducts the trial, but rather from the instant the matter is initiated, is 100% dependent on unanimous consent of the parties.
We'll find out, in time, what the warrantless search of phone date for cell phones is, at least for that (type of) case. It may be that this magistrate will have just shaped federal policy on the matter. Just know that decision-making by magistrates and clerks is 100% dependent on the parties to that dispute.
Harmon L. Taylor
Legal Reality
Dallas, Texas
Subscribe / unsubscribe : legal_reality@earthlink.net
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