OMG! R U 4 Real? 

That furious tapping sound in the Golden State?  It might be the collective sounds of thousands of stored text messages meeting their fates courtesy of the delete button.

In a 5-2 decision, the California Supreme Court recently ruled that police can search an arrestee’s cell phone and its text messages without a warrant.

According to NPR:

The justices determined a Ventura County deputy had the right to conduct a warrantless search of the text messages of a man he had arrested on suspicion of participating in a drug deal… The state court ruled 5-2 that U.S. Supreme Court precedent affirms that police can search items found on defendants when they are arrested.

 The San Francisco Examiner provides some context:

Sheriff’s deputies seized Diaz’s cell phone along with six tabs of Ecstasy. One and one-half hours later, a detective, who did not have a search warrant, looked in the text message folder of the phone and discovered a coded message that referred to Ecstasy sales.

You can pull up State v. Diaz using the citation 2011 WL 6158.  (I found the case by running “co(high) & text-message” in California cases.) It is worth noting one cool, step-saving difference between using Westlaw or WestLawNext to retrieve this case.  When viewing the document on WestlawNext, you can click on the filings tab to access a transcript of the oral argument.  You would need to search the California Oral Argument Transcripts (CA-ORALARG) for the transcript. 

Also worth noting?  This is not the first time we’ve seen cases dealing with warrantless searches of cell phones.  In 2009, the Supreme Court of Ohio in State v. Smith (920 N.E. 2d 949) found the other way – ruling that warrantless cell phone searches violate 4th Amendment rights. 

I imagine we will be reading more about this when the Supreme Court gets around to reviewing it all. 

Until then?  B2W,TTYL.

Last Week, Meredith Whitney (“The Woman Who Called Wall Street’s Meltdown”) suggested on 60-Minutes that U.S. municipalities – loaded with debt and suffering from anemic revenue streams – could begin defaulting in record numbers during 2011.

This week, we learn of Hamtramck, Michigan.  This small town believes it may not be able to meet its obligations (debt, pension payments, city services) beyond March 1.  After that?  The city has been asking the state for permission to declare bankruptcy.  The Hamtramck city manager says:

“The state is concerned that if they yes to one, if that door is opened, they’ll have 30 more cities right behind us…But anything else is just a stop gap.  We’re going to continue to pursue bankruptcy until the door is shut, locked, barricaded, bolted.”

Just how does a municipality declare bankruptcy?  Chapter 9.

Research References

See chapter 90 of Norton’s Bankruptcy Law and Practice (NRTN-BLP).

For an interesting explanation of a Chapter 9 framework, see American Bankruptcy Institute Journal’s The Next Chapter for Municipal Bankruptcy, 29-JUN Am. Bankr. Inst. J. 14. (To pull the article, we searched Journals and Law Reviews (JLR) for ti(municipal! city town county /2 bankrup! insolven!).)

For filings, try starting with flt(9) in the bkr-all database. FLT = filing type.

It is worth noting that Whitney’s forecast of hundreds of billions of dollars worth of defaults has been roundly criticized as being overstated by many other market commentators.

With the New Year approaching though, we will soon know if Ms. Whitney should more aptly be referred to as Cassandra or simply be deemed to have jumped the shark.

Happy 2011!

Canned Haggis. Used soap.  50 lbs. of manure.

These return-required gifts of Christmas Present may soon be relegated to Christmas Past if Amazon.com has its way.

According to the Washington Post, “The online retailer has quietly patented a way for people to return gifts before they receive them, and the patent documents even mention poor Aunt Mildred. Amazon’s innovation, not ready for this Christmas season, includes an option to “Convert all gifts from Aunt Mildred,” the patent says.”

The gifts you would have gotten but opted out of before their delivery can be converted into gift cards.

The patent is US 7831439.  I was able to track the patent down by searching US-PAT-ALL for aunt-mildred & amazon. (Aunt Mildred makes another, unrelated appearance in this database.  Great Aunt Edna appears in an automated management behavior device. Aunts Ethyl and Agnes could not be found but Uncle Ed is in a 2009 application for a mobile multimedia management system.)

Having just survived the post-holiday crowds to make a return myself this, “System and Method for Converting Gifts” seems absolutely brilliant.

However, WaPo’s article does conclude with a helpful reminder:  Anna Post, great-great-granddaughter of etiquette-maven Emily Post, kindly extols, “Gift giving is not just about the loot. It’s about the fact that someone thought to get you something, and took the time to do it. That’s no small thing in this world.”

Ms. Post is right and I will now reconsider the return and think about un-returning it.  Perhaps a patent lies somewhere in that process.

Saudis urging the U.S. to attack Iran.  Another Royal scandal.  Hillary Clinton ordering her diplomats to spy…

The Wikileaks saga continues with the latest “dumping” of over 250,000 diplomatic cables.  The fallout – and its impact on the individuals caught up in these missives – will be immeasurable.

The fallout for one individual though is fairly certain: Private First Class Bradley Manning.

Pfc. Manning is the U.S. military member allegedly responsible for illegally downloading these and other classified files (onto a CD-rom disguised as a Lady Gaga album) and making them available to Wikileaks.org.

Pfc. Manning. 23, is currently detained and awaiting court martial for his role in these leaks.  He stands charged with “transferring classified data” and “delivering national defense information to an unauthorized source.” He faces 52 years in jail if found guilty.

RESEARCH REFERENCES

The Uniform Code of Military Justice can be found on Westlaw searching in FMIL-USCA.  Search for pr(“uniform code of military justice”).  A natural language search of “leaking information” in Shanor and Hogue’s National Security and Military Law in a Nutshell (NSMILLAW-NS) retrieves 17 articles.  A broader plain language search through all secondary sources on WestlawNext for the phrase “leaking classified military information” results in 125 documents – including articles entitled Prosecuting the Press:  Criminal Liability for the Act of Publishing and The Classified Information Protection Act:  Killing the Messenger of Killing the Message?

According to the New York Times, Manning once wrote, “I wouldn’t mind going to prison for the rest of my life, or being executed so much if it wasn’t for the possibility of having pictures of me plastered all over the world press.” Given these words, perhaps it is safe to assume he understood the life-altering implications of his alleged actions.

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Quantitative Easing.  Russian droughts.  Growing China.  The pressures pushing crop prices upward have been doing just that.

This Forbes article on a potential food crisis (and the upswing it could represent for ag-producers) got me thinking about a recent research project.

We were looking for any information  on cropland valuation.  Damage had been done to a client’s tillable acreage.  The client needed a price put on that harm.  Rising crop prices may have altered that final number.

Part of the solution lay in our Expert Witness materials. Searching PROFILER-EW for experts with a practice area of “agricultural economist” or “agriculture and valuation” does bring back profiles, biographies, contact info and trial/deposition transcripts for experts who have testified on the matter of ag-land, ag-business or ag-production valuation.

One hopes that the ag-experts tracking the above news stories are also keeping their eyes on the increasing concern that farmland has entered its own speculative bubble.

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Since the U.S. owes British courts for the much of its common law, it is refreshing to see the British take a page from our book.  For better – or for worse – it appears that a common American legal tool is gaining in importance in British courts – The Pre-Nuptial Agreement.

According to the New York Times:

A ruling by the Supreme Court here on Wednesday gave pre-nuptial agreements more weight in divorce case, bringing British law closer in line with that in the United States… The discretion of courts in Britan to decide on a case-by-case basis whether pre-nuptial agreements are binding has contributed to the country a reputation for awarding huge payouts in divorce cases, including recently to the ex-wives of singer Paul McCartney and Russian billionaire Roman Abramovich.

This new legal development in British courts, coupled with last week’s article about how more American women are securing pre-nups prior to their wedding date piqued my interest.

Searching in the Family Law Forms on WestlawNext for the phrase “Pre-nuptial agreement” brings back close to 200 results.  Many of the results clauses to insert into pre-nup agreements while many others results are themselves entire agreements.

I leave others to ponder whether a pre-nuptial agreements would have help to avoid this War of the Roses or that War of the Roses.

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Don’t Ask, Don’t Tell *may* just have been made a thing of the past.

On Tuesday, U.S. District Judge Virginia Phillips issued an immediate injunction against the U.S. government’s further enforcement of its Don’t Ask, Don’t Tell (DADT) policy.  The government was additionally ordered to immediately cease all active discharge proceedings and investigations. The order can be found on Westlaw at 2010 WL 3960791.

Judge Phillips, at the end of a two week trial initiated by the Log Cabin Republicans and Service Members United, ruled the law to be unconstitutional as it violates service members’ free speech rights, due process rights and the right to petition the government for redress of grievances.

All eyes are now on the Obama administration.  Should the administration appeal the ruling, DADT may continue on as a policy.  If not, DADT may be done.  According to Fox News:

If the government does not appeal, the injunction cannot be reversed and would remain in effect. If it does, it can seek a temporary freeze, or stay, of her ruling. An appeal would go to the U.S. Court of Appeals for the 9th Circuit. Either side could then take it to the U.S. Supreme Court.

The administration has 60 days (and no legal obligation) to appeal Phillip’s ruling. If the November elections result in a Republican Congress, the likelihood of Congressional action to end DADT drops significantly,  making Obama’s campaign promise to end DADT unreachable but through his refusal to appeal this ruling. 

The clock is now ticking on the fate of this policy.

UPDATE: According to Reuters, the Obama administration has decided to request the judge stay her ruling pending appeal. //

On the heels of last week’s story that the world’s largest windmill farm has begun operation, comes this New York Time’s article detailing how many of those who live near wind farms are suing the operators of the windmills for the resulting noise pollution.

According to NYT:

They are among a small but growing number of families and homeowners across the country who say they have learned the hard way that wind power — a clean alternative to electricity from fossil fuels — is not without emissions of its own… Lawsuits and complaints about turbine noise, vibrations and subsequent lost property value have cropped up in Illinois, Texas, Pennsylvania, Wisconsin and Massachusetts, among other states.

The curious legal researcher can use WestlawNext to search our filings collection for windfarms cause noise pollution and retrieve 20 filings associated with the type of litigation referenced in the NYT article.  A terms and connectors search of (wind-mill wind-turbine wind-farm /p noise ) retrieves 28 documents.   Searching Journals and Law Reviews for wind-farm & noise /2 pollut! retrieves 28 articles on the issue.  I expect these numbers to increase as more wind-farms come online.

And from the Law of Unintended Consequences (not available as a treatise, anywhere) comes news that Windfarms can change local climates.  I suppose no one ever said weaning ourselves off fossil-fuel would be easy.

If Virginia is for lovers, Nevada is for heartbreak.

At least for the tree-lovers among us.

The New York Times offers what could potentially be an obituary-in-advance.  The world’s oldest tree – Methuselah – is in a fight for its life.  At 4,800 years old, Methuselah was a mere sprout when the pyramids of Egypt were being built.  Now, Methuselah and its cohort of other Bristlecone trees in Nevada’s Great Basin National Park are under double assault:  White Pine Blister Rust and global warming.  Ecologists studying Methuselah and its brethren think the stressors placed on these trees by the encroaching fungus and increased temperatures might quickly prove deadly to these living wonders.

While Methuselah’s death would be an immeasurable loss for all of us, what does an ancient tree have to do with our law today?

A lot.

The Common Law – like those all those tree lovers – developed with a keen appreciation for the value trees bring to our lives and livelihoods.  Trees are protected pieces of property for which courts and legislatures have crafted a variety of protections.

Searching West’s Causes Of Action 2d for (tree /p damage) retrieves this:

A cause of action for the wrongful cutting of trees or timber was traditionally available under the common law as a variety of trespass. See, e.g., Bumgarner v. Bumgarner, 124 Idaho 629, 862 P.2d 321 (Ct. App. 1993); Mundell v. Perry, 2 G. & J. 193, 1830 WL 1650 (Md. 1830). The availability of such actions has been supplemented [see, e.g., Eklund v. B.R. Lewis Lumber Co., 13 Idaho 581, 92 P. 532 (1907)], or replaced [see, e.g., Mehlhorn v. Derby, 2006 ME 110, 905 A.2d 290 (Me. 2006)], by statutory actions for timber trespass. Such statutes vary in the scope of their coverage: Some extend to include the injury of trees by the spraying of herbicide [see, e.g., Worman v. Columbia County, 223 Or. App. 223, 195 P.3d 414 (2008)]…Another court has held that the “intended targets of the timber trespass statute are those tree pirates and arboreal rustlers who trespass on another’s property and remove timber to which they have no right.” Stanley v. Stanley, 181 Vt. 527, 2007 VT 44, 928 A.2d 1194 (2007).

While your firm may not be able to sue anyone for Methuselah’s ailing, you may find yourself prosecuting timber-thieves or suing for looted lumber.  Keep COA in mind.

I will be spending the next two weekends planting  apple trees, Burr Oaks and Autumn Blaze Maples.  One of which will certainly be named in honor of Methuselah.  I encourage you too to consider, in honor of the world’s oldest tree, planting a tree this fall.

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All hail the mighty bee.  While small and short-lived, the bee is essential to human civilization.  (As Albert Einstein *may have* extolled: “If the bee disappears from the surface of the Earth, man would have no more than four years left to live.”

Given their vital role in civilization (and my garden), my antennae perked up a bit when I read of the feds prosecuting “honey laundering”.  Yes, honey laundering.

According to AOL News:

Eleven Chinese and German executives and six of their food supply and honey export companies were charged Wednesday with 44 counts of conspiring to illegally import Chinese-origin honey, including honey tainted with antibiotics, into the U.S. by mislabeling it as originating in other countries to avoid paying anti-dumping fees.

Apparently, the whole honey laundering scheme was meant to avoid $80 million worth of anti-dumping duties. Dumping occurs when a foreign country exports goods for a price lower than what it would charge within its home country.  For more on the anti-dumping statutes (once 19 U.S.C.A. §§ 160 et seq., now 19 U.S.C.A. §§ 1671 et seq.), see Callman on Unfair Competition (CALLMANN § 7:30).

The problem with Chinese honey?  It contains “small amounts of the antibiotics and antibacterial drugs Ciprofloxacin, Norfloxacin, Chloramphenicol and Furazolidone.”

Delicious.

For more on the criminal side, check out  complaint, 126 DRUMS OF HONEY SEIZED ON APRIL 4, 2008…(2009 WL 2967051, docket 1:09cv05530):

This forfeiture action is brought pursuant to Title 18, United States Code, Section 981(a)(1)(C), in that the defendant goods, consisting of honey, were knowingly imported or brought into the United States in violation of Title 18, United States Code, Sections 542 and 545.

By the way, allergy sufferers might want to read up on the potentially unmatched health benefits of eating local honey.