Author: James Sanchez

U.S. Supreme Court – Warrant Required for Cellphone Search

Although we don’t practice criminal law, as a proponent of privacy rights I think everyone needs to be aware of the U.S. Supreme Court’s unanimous decision that requires a warrant to search cell phones during an arrest.

Today’s cell phones & tablets store entire histories of our lives. Pictures, passwords, bank accounts, financial records, social security numbers; not to mention our calendars, notes, phone numbers and things we store in Evernote, Facebook, and Dropbox. Our “smart” devices aren’t just a treasure trove to thieves but also to law enforcement who may or may not have a valid right to access them.

Search and Seizure and Miranda Rights

If you’re arrested or detained by a law enforcement officer, your rights under Miranda allow you to remain silent.  But your cellphone in your pocket or on the seat next to you, can do a lot of talking!

Police were using historical exceptions to perform searches without a warrant to search your phone as far back as 2010. Stop & frisk – where police can search you before questioning you, public school searches, or searches of cars during arrest and detainment, were all used by the police as excuses to search through smart devices. The police could peruse and find anything they could on cell phones. That data could create really damaging results.

As far back as 2011, attorneys have been advising people to add passwords and other access controls to their smart devices. Under Miranda, your right to remain silent protected you from having to answer questions about your password. The police couldn’t force you to tell them the password or access control without a warrant and your right to remain silent was your greatest tool.

Riley vs California (U.S. Supreme Ct 13-132 6/25/2014) and Wurie vs California (U.S. Supreme Ct 13-212 6/25/2014)

Police in two separate California cases used data from cellphones to convict or seek more serious convictions against the owners. During both trials the defendants tried to suppress the use of the cellphones as illegal searches, but the California Courts held that the cellphone data was admissible.

Now, The Supreme Court has ruled that search warrants should have been required to search through smart data.

The Court clearly stated its understanding that modern cellphones with their vast amount of storage can store years worth of data. That data doesn’t stand alone. Like a letter or picture found in a wallet it interrelates with other material. A picture may be just a picture. But on a smart device that picture along with emails, texts, stored documents and the like provide a much more correlated picture than just a single item.

The Court also recognized that data visible on a smart device can be stored on a remote server. Although not specified by the Court, clear recognition that the phone is an access point for storage sites like Evernote, Facebook, Dropbox, SkyDrive for example, creates a far greater extension of the limits of the data available.

The Court held that the police can’t generally search digital information on a cell phone seized during an arrest without a warrant. “The warrant requirement is an important component of the Court’s Fourth Amendment jurisprudence, and warrants may be obtained with increasing efficiency.” (Justice Roberts).

It is notable that in an emergency or exigent case that SCOTUS did reserve the right to permit the cell phone’s search without a warrant. The same requirement for the police to prove the exigent circumstance will still apply.

Although we’d still recommend using passwords and access controls to your smart devices, it’s a very welcome recognition by SCOTUS that the importance of privacy rights have to be balanced against the needs of law enforcement.


Featured Image: Arrested by Nathan Rupert on Flickr

1280px-Dictionary_through_lens

Word Soup – Settlor, Grantor, or Trustor

This is the first in a new series of articles titled “Word Soup”, dedicated to the Hon. Patrick T. Meyers, Judge of the Los Angeles Superior Court. In my opinion a fine judge and also a lexophile – someone with an interest in the meaning and origins of words.

Judge Meyers and his court reporter had the unenviable luck to to draw a libel case a few years ago. The case involved some very horrible social media statements made by old fraternity brothers on a public alumni forum. The challenge involved deciphering at least five different Filipino dialects, and a proposed list of over twenty native speakers as “lay-experts”.

During the case, the good judge emphasized to all the importance of precision in words. It was that precision that in the end decided much of the case in my opinion. I think it’s fitting that a series on word origin and meaning should be named in his honor.

Settlor, Grantor, or Trustor – What’s my line

Clients may often hire lawyers amend trust documents prepared by other attorneys. Last week I was asked the difference between the use of “Settlor” and “Trustor” in the trust.

I explained that these were treated, for most intents and purposes, as the same thing. She asked if there was then a Settlee, Grantee, and Trustee. I replied, “Yes”, but that there are actual subtle differences.

SETTLOR: (n) the grantor or donor in a deed of settlement. 1, a writing. Although the use has fallen away from other areas outside of probate law and trust planning, a settlor could be any person who settles his ownership rights. With regard to trust planning, the creator of the trust is settling the ownership of property placed into the trust.

GRANTOR: (n) the person by whom a grant is made.2 A grant was a transfer of property that could not be transferred by a simple ceremony of handing it to the grantee, the recipient. In modern speech, it refers to the transfer of property that, by law, requires a transfer of title in writing. Real property fits this bill, as do certain financial accounts.

TRUSTOR: (n) a word occasionally though rarely used [then], as a designation of the creator, donor, or founder of a trust.3 The Trustor, a very common word now, refers to the person who creates the trust itself, placing something of value in the hands of the Trustee, the new owner who holds the property for the benefit of a Beneficiary.

Serving Up The Soup

When creating a revocable or irrevocable trust, you actually are a Settlor, Grantor, and Trustor, all in one. You are settling the rules of your ownership rights by granting the ownership of the property and its benefits through the process of creating the trust and entrusting the property to the Trustee. Although we normally use only one name to refer to you in the trust document, all of these actions are taking place.

Dessert

So are there then Settlees, Grantees, and Trustees? Well, yes, in a manner. A settlee is someone for whose benefit a settlement is made. A grantee, on the other hand, is the recipient of the property in the grant, and may not necessarily be for his benefit. And finally, a trustee is the person who holds property for the benefit of another.

Trusts normally only name Beneficiaries, and Trustees. The Beneficiary is named to define what benefits from the trust are given. The Trustee is the other party to the trust who has all of the duties stated. While there may be different roles involved, these are the persons, businesses, or things, who need to be named as they have active parts to play.

References
  • 1“Settlor” Black’s Law Dictionary Third Edition. Third Edition 1933. Print
  • 2“Grantor” Black’s Law Dictionary Third Edition. Third Edition 1933. Print
  • 3“Trustor” Black’s Law Dictionary Third Edition. Third Edition 1933. Print
  • Note: Old School Dictionary Used On Purpose
    • Feature Image: Dictionary Through Lens by Booksworm on WikiCommons

Weekender – Your Newlywed Go-Bag

I know it seems odd to hear marriage advice from a lawyer. What the hell, it’s the first of our Weekender Series where I get to take a break and share more fun stuff.

Go-Bags are supposed to be backpacks you fill with emergency supplies you might need in a pinch.  I think that you should fill different bags with everything you need for whatever you’re doing.

A Go-Bag For The Newlywed

1. Food – Learn how to cook at least two dishes well.  Barbecue, spaghetti, meatloaf, your choice.  You will look like a hero being able to give your significant other a break and take your turn at the campfire.

2. Shelter – Ok, so living in your parent’s basement or spare bedroom may have worked as a bachelor (or bachelorette).  Free rent was great, but really, do you want to run to the kitchen for a snack after snuggling and run into your Dad looking for a glass of warm milk?  Better get this one handled before you get married.

3. Recording Devices – Fancy words for a camera and a journal.  You’re starting out on a road that hopefully has a few great adventures and many firsts.   You’ll want to share those with posterity (or your future kids, whatever).  You only get to be newly married once, and believe it or not, you actually may want to remember some of those carefree times before your days are taken up by soccer games, PTA meetings, and what not.

4. Candles –  No not the birthday kind or cans of Sterno.  The kind you can light and place over that great dinner you cooked in the shelter over your heads, and take pictures of to remember later.

5. Communications – Cell phones, text, email, whatever suits your fancy.  The tools are one thing.  To survive in a marriage, actually communicating with each other, by whatever means, is vital.  Not just the usual “How are you doing”, but actually “how are you doing”.  If you were willing to marry them, your spouse should be the one you can open up to and who can open up to you.  Its not easy at first, but it gets far easier every time you do it. Kind of like using Facebook.

6. Navigational Tools.  In the wild, or that post-zombie apocalypse, you may need to navigate the rough countryside.  In a marriage, you’ve got a more complicated road to travel.  You need to work with your partner to plan together for your future.  Spend time using those communication skills to talk about where the two (or more) of you are going, where you want to get to, and how you want to get there.  It also doesn’t hurt to know the locations of favorite restaurants, bed-and-breakfasts, and vacation spots around the globe.

7.First Aid – You know what that is, emergency supplies to fix the boo-boos in life.  I recommend a really good set of contacts for sending flowers, favorite candies, last-minute dinner arrangements, and every other thing needed to say “I’m sorry I forgot your birthday”, or “How was I supposed to know you cut your hair”.

8. Fire Starter – I’m certain you don’t need me to stress what this is for.  Might I suggest your spouse’s favorite romantic movie, a place to watch the sunset, even a vacation to Jamaica or Hawaii (Paris at Christmas anyone?)  Sometime you just need to reignite that spark to create a new bonfire.

What’s in your Go-Bag?


Featured Image: BNRadio1 by Leonce49 at de.wikipedia

10 Things About Premarital Agreements Other Than Divorce

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(Republished and reposted 2/25/2017)

Premarital agreements also called prenuptial agreements can cause a good deal of stress and anger between soon to be spouses.  They can cause your fiance to believe that you don’t trust them or that your not “all in”.  Unfortunately, people see premarital agreements as divorce planning, sort of a downer from the start.

But really, premarital agreements have just as much to do proper planning for the marriage rather than the outcome of divorce.

Here are 10 purposes served by planning a premarital agreement that have nothing to do with splitting the couple up:

  1. Premarital agreements can protect one prospective spouse from the premarital debts of the other.  This can be useful where bad credit and debts are still haunting one of the partners coming into the marriage.
  2. Blended families, those with children from previous relationships, can use premarital planning to give clear distribution instructions to children from earlier relationships.
  3. Premarital agreements can be used to create a life estate for spouses-to-be to care for them after the death of one spouse and preserve inheritances to beneficiaries other than the spouse.
  4. Couples can avoid financial disputes during their marriage by specifying how community and separate property is defined between them.
  5. Self-employed spouses can use a premarital agreement to protect family assets or the assets of the working spouse in case of business bankruptcy or suits.
  6. Medi-Cal (California’s Medi-caid), ignores premarital terms that attempt to avoid the duty to support one spouse by the other.  But, in the case of divorce to avoid Medi-Cal support obligations, a premarital agreement can insure that the non-hospitalized spouse retains ownership of their property.
  7. Ownership interest and voting rights in LLCs and closely held corporations can be manipulated within premarital plans satisfying membership agreements and investment requirements.
  8. Premarital agreements can establish property ownership of real estate acquired during the marriage with pre and post-marital assets.  This is extremely important where one or the other spouse engages in business that can be a victim of lawsuits that might endanger community property.
  9. Rental property income from premarital acquired rental property can be defined as separate, community, or transferred to the non-owning spouse.
  10. Premarital agreements can provide terms and designations for one spouse’s preference for guardianship and conservatorship in proper contexts.

Talk to a qualified attorney before you begin working on your premarital agreement.  A proper agreement can enhance and protect the marriage rather than be an plan only for divorce.


Featured Image: CA Bride and Groom by debaird at Wikimedia Commons

Serving the 3-day notice to pay rent or quit

COSTLY 3-DAY NOTICE MISTAKE

Your worst nightmare as a landlord runs something like this.  You are losing rent due to a tenant’s non-payment.  You spend a few hours looking online to figure out how to write a proper 3-day notice, and you actually get it right.  You send it to the tenant, who still doesn’t pay.

Several days pass and you’ve paid $200 in filing fees for your unlawful detainer complaint, and possibly even attorney fees.  The judge then informs you in front of the tenant or at court, that your service of the 3-day notice was defective and you are now blessed with the chance to start all over again, poorer and with even more rent lost.

PROPERLY SERVING THE 3-DAY NOTICE

There are three avenues to serve a notice to quit or pay rent:

  1. personal service on the tenant;
  2. substituted service and mailing; or
  3. “nail and mail”.

Done right, service of a 3-day notice is quick, easy and cheap.  Done wrong and the nightmare begins.

Unlike litigation, where service must be done by a non-party, a landlord can perform service themselves. If the property is managed by a manager, then allowing the manager to serve the notice may reduce the tension with the tenant.

The landlord or manager should first attempt personal service on the tenant by delivering the 3-day notice directly to the tenant or in case of a sublet, the sub-tenant.  If there are multiple tenants on the lease or rental agreement, then each named person on the lease should be appear on the notice.

If personal service can’t be had because you can’t find the tenant or he’s not at home, you may serve someone of “suitable age” on the property as substituted service.  Unlike the eventual litigation, you do not have to repeatedly attempt personal service before you can use substituted service.  You need only give the 3-day notice to anyone who appears to be of suitable age and then mail a copy of the notice to the tenant in his or her name (or both if multiple) to the tenant’s home or place of business.

Suitable age can be a tricky question.  Case law has held that a 16 year old child can be found of suitable age.  You may, however, be far safer to find someone who appears to be at least 18.

Finally, if all else is unavailable (no adults to take service and you cannot find the tenant at home or at his work), you may “nail and mail”.  Service by posting, as it is properly called, requires that you affix the notice to the property; a nail is not really required.   The posting is followed up by mailing the notice to the tenants residence.  Service by posting does require the person serving the notice to declare that substituted service was unavailable and that the tenant could not be found at his home or residence.

PROOF OF SERVICE

The final requirement is for the server to complete a proof of service of the 3-day notice.  The proof of service original can be given to the landlord for later filing if the tenant refuses to pay.  You may find a proof of service form here for the server to complete.

Reprinted from www.jvslegal.com