Follow up on running red light and new technology

DSDP Don wrote:
I read through this and the use of the word subpoena is wrong by several of you. A subpoena is issued by a court when a case is pending. You can't get a subpoena for something that hasn't gone to court yet.

Maybe things are different in Commiefornia...

This is Maryland's laws about subpoenas. http://law.justia.com/codes/maryland/2010/criminal-procedure/title-15/subtitle-1/15-108

Most other states follow a similar practice, which is why national disclosure policies stipulate the dispersal of information under the power ob subpoena.

DSDP Don wrote:
I read through this and the use of the word subpoena is wrong by several of you. A subpoena is issued by a court when a case is pending. You can't get a subpoena for something that hasn't gone to court yet.

If you want phone records from the telephone company, you need to write a search warrant for records. Once you take your evidence to court and file charges, then a subpoena can be issued for anything from papers/records to people for testimony.

Now if a case is active and the court wants more information, a subpoena can be issued for phone company records, but not until there is a case pending.

This is not correct. Of course, depending on the State, Federal Appeals Court District, and individual court district rules, administrative subpoenas are issued all the time for investigative purposes when no active court case is involved. This is very common in civil matters, especially at the Federal level for information gathering.

I read through this and the use of the word subpoena is wrong by several of you. A subpoena is issued by a court when a case is pending. You can't get a subpoena for something that hasn't gone to court yet.

If you want phone records from the telephone company, you need to write a search warrant for records. Once you take your evidence to court and file charges, then a subpoena can be issued for anything from papers/records to people for testimony.

Now if a case is active and the court wants more information, a subpoena can be issued for phone company records, but not until there is a case pending.

Let's clear up one other thing. A peace officer has the right to electronically check on someone (search databases) if he is actively investigating a crime. He can also release basic information in a traffic situation, such as was done with the OP (same as going to the station to get a copy of the traffic report).

Where police officers get in trouble is when they run vehicles or people that they are not actively investigating. Example....A police officer's neighbor says....can you run this license plate for me, I want to know where this guy lives. If the police officer does and releases that information, he's susceptible to punishment from his Department and civil penalties (he doesn't even need to release the info to be in violation). In order to search any databases, you as a police officer must logon with your ID. All of your activity can then be tracked. All police Departments are required to have their officers sign a form once a year indicating they understand the rules governing the use of databases. Audits are often done looking for illegal use.

Many of your smaller agencies can take Federal grants and outfit their vehicles with some of the latest technology. In the OP's case, they ran each driver for warrants, filled in the basics of a traffic collision report, got a Department Case Number assigned and was able to print out a copy for each party. It's nice when technology works, in this situation kept everyone involved from having to run down to the police department to get a copy of the report for the insurance company. Larger departments are slower developing this technology due to the increased costs because of their shear size (more patrol cars to outfit).

mgirardo wrote:

guidry wrote:
Also, FYI, the breath-a-lizer is still a "should do" because you still have a right to not submit, however, your drivers license authority (DMV) will suspend your license because when you applied you agreed to submit.

I believe breathalyzer varies from State to State. I know in NJ, if you are asked to take a breathalyzer test and do not comply, you will be arrested; source

-Michael

Same in Michigan, you get arrested and while you're getting a ride in the patrol car, the folks at dispatch are on the phone to the on-call prosecutor to get a warrant for a blood draw. sometimes the gears of justice turn fast enough, you make it to the emergency room for your blood draw before you hit the drunk tank.

guidry wrote:
Also, FYI, the breath-a-lizer is still a "should do" because you still have a right to not submit, however, your drivers license authority (DMV) will suspend your license because when you applied you agreed to submit.

I believe breathalyzer varies from State to State. I know in NJ, if you are asked to take a breathalyzer test and do not comply, you will be arrested; source

-Michael

DownTheAvenue wrote:
I think I plainly mentioned a search warrant. It is purely an administrative decision of the cell phone carrier whether to provide cell phone records with a warrant or subpoena. They are private, for profit entities, and are not bound by Constitutional mandates. There is no law, to my knowledge, that makes releasing the records criminal. From a legal position, a company would be very foolish releasing records unless compelled to do so by a subpoena or warrant because to do so without that legal protection would open them up to legal liabilities.

Fair enough. Unless you are physically searching the phone (turning it on and accessing data upon the phone) a search warrant isn't needed.

In order to retrieve basic information such as subscriber info, incoming/outgoing calls and texts, every company that provides such service in the United States requires only a subpoena to obtain that info.

In order to retrieve more specific information such as GPS or cell tower info, most companies now require a court order (similar in theory to a search warrant, but completely different in terms of the law) signed by a judge or magistrate.

You can find out from your service provider what info they obtain, what they keep, what they share, for what reasons they will share and what documentation is required in order for them to provide. I don't think there is any universal LAW that stipulates how and when they provide info. I think the policies are simply growing as technology changes. Most companies have adapted similar policies limiting their liability.

Either way... none of that information is available on the side of the road to a police officer. The rest of these details are simply semantics :).

spoon059 wrote:

DownTheAvenue wrote:
There are many different cell phone carriers, and each carrier would have to be contacted separately to ascertain if the phone was active at the time of the crash, which, by the way, was not determined definitively. Then the issue of obtaining the cooperation of each carrier without any kind of a search warrant.

You are both wrong. You need a search warrant if you are attempting to access the drivers physical phone. You only need a subpoena to obtain cell phone records to determine incoming or outgoing phone calls and messages.

I think I plainly mentioned a search warrant. It is purely an administrative decision of the cell phone carrier whether to provide cell phone records with a warrant or subpoena. They are private, for profit entities, and are not bound by Constitutional mandates. There is no law, to my knowledge, that makes releasing the records criminal. From a legal position, a company would be very foolish releasing records unless compelled to do so by a subpoena or warrant because to do so without that legal protection would open them up to legal liabilities.

guidry wrote:
OP, thanks for clarifying where the info came from. Laws on Search and Seizure don't vary from state to state because the US Supreme court rules apply.

Actually this is wrong. The 4th Amendment to the US Constitution grants freedom from unreasonable search and seizure without a warrant.....but the Federal Courts are divided into 94 separate judicial districts and 11 Federal Circuits. What may have been ruled in one district is not applicable in another. As an example, the issue of cell phone records without a search warrant may have been decided in one district or even a circuit under an appeal, but that does not make it the law of the land, just the law of that circuit. Until the Supreme Court rules, then it is the law of the land.

OP, thanks for clarifying where the info came from. Laws on Search and Seizure don't vary from state to state because the US Supreme court rules apply. Also, FYI, the breath-a-lizer is still a "should do" because you still have a right to not submit, however, your drivers license authority (DMV) will suspend your license because when you applied you agreed to submit. And, lastly to the OP, glad you and the Mrs are OK.

Sure glad I rarely even carry my cell phone :B