Tuesday, December 15, 2009

Cell Phone Search Warrant - a Must

In what could be one of the most functionally important criminal justice decisions of the year, the Ohio Supreme Court of Ohio today issued a search and seizure opinion on how and when police departments can search for cell phone data. In State v. Smith, the Court essentially held that the police must obtain a search warrant if they want to search the contents of a cell phone they have seized from an arrested person. This is somewhat of a refinement or distinction on the "search-incident-to-arrest" concept that allows the police to search a person or that person's car (and closed containers in that car) after that person has been arrested. The Court stated that given the "unique nature" of modern cell phones, they are more akin to a laptop computer (which clear case law says requires a search warrant) than closed containers found in a car (which clear case law says does not require a search warrant). This case will not prevent police from eventually searching a cell phone if they really want to, because all they will have to do is obtain a quick search warrant (very easy to do these days) and THEN search the phone. Further, remember that police can also obtain a call history by issuing a properly prepared subpoena or search warrant to the cell phone service provider (e.g. Verizon, AT&T, Sprint). Thought: If you are going to be involved in a criminal enterprise, delete all of that incriminating data on the phone in case you are arrested.

Saturday, December 5, 2009

The Interest Rate in Contracts

The Ohio Supreme Court issued another business litigation decision this past week concerning the interest rate that a company or person must pay when they fail to pay on a contractual obligation. The case of Mayer v. Medancic concentrated on whether that interest rate can be a "simple" interest rate or an interest rate that allows for the "compounding" of interest. If it is a "simple" interest rate, then all the unpaid amount generates is interest only. If it is a "compounding" interest rate, then interest runs on the original unpaid amount - plus the previously unpaid and accrued interest. For example, if the unpaid amount is $10,000.00, and the contract between the parties just states that the interest rate is 8% (i.e. it does not specify whether or not it is a simple interest rate or a compounding interest charge), then the unpaid amount generates only $800.00 in interest per year. However, if the contract in this example specifically states that the interest rate on the unpaid amount is 8% to be compounded annually, then at the end of each year, the $800.00 interest incurred is added to the $10,000.00 principal, and 8% interest thereafter is earned on a now increased principal amount of $10,800.00. Obviously, a written agreement that calls for a compounding interest rate is going to generate a much larger overall amount of interest than a written agreement that either specifically calls for a simple interest rate or is silent on the matter. Suggestion, read your contacts and loan agreements very carefully on how interest is to be charged if a party defaults - especially of the compounding language calls for the interest to be compounded quarterly or even monthly.
It must also be pointed out that the interest rate statute has a number of specific provisions on what the statutory or limited interest rate may be for any specific written agreement. The amount of interest rate to be charged under the statute can very depending on what type of written document is involved. That topic is for another post and is not specifically discussed here.

The Spousal Privilege - Revisited

The Ohio Supreme Court has issued a new opinion involving a doctrine the law calls "spousal privilege." The old doctrine basically holds that a wife cannot testify against her husband in a court of law unless the husband permits her to do so (and, further, that a husband cannot testify against his wife in a court of law unless the wife permits him to do so) - if that testimony involves "confidential communications." For example, if a husband tells his wife in confidence that he committed a crime, the prosecutor cannot compel that wife to testify against the husband at trial about that confidential conversation. In this example, it is the husband who gets to determine whether to invoke the privilege - not the wife. In this most recent opinion (State v. Perez), the Supreme Court of Ohio held that while a wife may not testify against her husband in a criminal trial, any tape recordings of those conversations may be played for the the jury at trial. The Court held that this technical bypass of the privilege was, essentially, OK with them. After all, said the Court, the wife did not testify - the prosecution just played the tapes. Suggestion, check the room for bugs when planning a crime in the presence of your wife.