Posted On: May 31, 2010

United States Court of Appeals for the Third Circuit Holds No Right to Privacy When One’s Hard Drive is Installed in Someone Else’s ComputerWithout Password Protection

A recent appellate holding by the United States Court of Appeals for the Third Circuit in U.S. v. Richard D. King, Jr. establishes that one gives up the right to privacy when sharing the use of a computer with others. The Supreme Court of the United States had established that a present co-tenant could refuse police search of a premises regardless of the consent of other tenants. The Court, however, never established whether said holding applied to personal belongings once police were allowed entrance to the premises.

Richard D. King, Jr. was charged with violations of Federal Child Pornography and Sexual Assault statutes when police discovered child pornography on his girlfriend’s home computer. King, who lived with his girlfriend, installed his own hard drive into his girlfriend’s computer. Police obtained an arrest warrant for King relating to his child pornography activities and executed said warrant at the couple’s home. While at the home, King’s girlfriend consented to the search and seizure of her computer. Upon search, police discovered multiple images which were subsequently used against King in his criminal proceeding. King’s attorney attempted to suppress the evidence obtained from King’s hard drive, arguing that King’s girlfriend did not have the authority to consent to the search and seizure of King’s hard drive; although she owned the computer itself. The suppression motion was denied; King was convicted and appealed to the Circuit Court.

Upon hearing King’s appeal, the Circuit Court held that the Supreme Court’s previous holding in Georgia v. Randolph did not apply to the case at bar. Here, King did not oppose entrance to the premises as the police had a sufficient warrant. The Court held that the holding in Randolph does not apply to personal belongings and effects, rather dwellings only. Further, King did not have his hard drive password protected. Since anyone using the computer was free to access the images without King’s consent via password, the Court determined his motion to suppress was properly denied and upheld King’s conviction.

Suppression of Evidence
In a criminal trial, the burden is on the prosecution to prove guilt beyond all reasonable doubt. The prosecution builds their case with evidence; some evidence stronger than other. There are rules regarding evidence, both State and Federal, which govern what evidence is admissible and what is not. Often, some or all of the evidence the prosecution wishes to use was obtained illegally, either by police or third party. An experienced criminal defense attorney is an expert in the field of evidence. Upon reviewing a defendant’s case, a criminal defense attorney will determine if some of the evidence can and should be suppressed, and will take the appropriate actions to do so.

If you have been charged with a criminal offense, contact the Law Offices of Marc Neff via phone at (215) 563-9800 or e-mail Marc@nefflawoffices.com for a confidential consultation.

Posted On: May 27, 2010

Supreme Court of the United States Holds Failure to Inform Defendant of the Potential for Deportation Prior to Entering a Plea of Guilt Amounts to Ineffective Assistance of Counsel

In a recent decision by the Supreme Court of the United States, the Court held that an attorney who fails to inform his client of the potential for deportation associated with a plea of guilty amounts to ineffective assistance of counsel. The case captioned Padilla v. Kentucky involved a defendant, Jose Padilla, who was a permanent resident of the United States for over forty years. In that time, Padilla had honorably served the United States as a member of the Armed Forces during the Vietnam War. Padilla was arrested and charged with transporting a large amount of marijuana via tractor-trailer while in Kentucky. As a permanent resident of the United States, a finding of guilt associated with said charges carries an automatic deportation. Nevertheless, Padilla’s counsel advised him to plead guilty to the charges, further indicating that he should not worry about deportation since he has lived in the country for so long.

Upon pleading guilty to the charges, Padilla faced a deportation hearing and appealed his guilty plea to the drug charges for post-conviction relief. Padilla alleges that had he been advised deportation would be a consequence associated with his plea, he would never have pled guilty, choosing instead to go to trial. The Kentucky Supreme Court denied Padilla’s post-conviction relief, citing that deportation was a collateral consequence associated with the drug charges and that Padilla’s counsel was effective under the Sixth Amendment. Under the test set forth by Strickland v. Washington, ineffective assistance of counsel under the Sixth Amendment must fall below an objective standard of reasonableness, and the defendant must show that, but for the erroneous advice of counsel, the result would have been different. The Court further stated that neither Strickland nor the Sixth Amendment differentiate between direct and collateral consequences when determining constitutional effective assistance of counsel.

Based upon Padilla’s drug trafficking charges, a presumption of automatic deportation should have been obvious simply by reading the removal statute. Therefore, Padilla’s claim for ineffective assistance of counsel satisfied the first prong of the Strickland test. The Court mentioned that cases in which deportation would not be automatic would only require an attorney to warn a defendant of the potential for collateral consequences. Padilla’s claim was then examined under the second prong of Strickland; but for the erroneous advice, the result would have been different. The Court found that in the case of a collateral matter such as deportation, both parties would actually benefit by informed decisions as to pleas of guilt. Therefore, the Court reversed Padilla’s plea of guilty and remanded his drug trafficking case to trial, and/or informed plea negotiations.

Effective Assistance of Counsel
A defendant in a criminal proceeding is entitled to the effective assistance of counsel under the Sixth Amendment of the United States Constitution. Effective assistance of counsel is defined as diligent, competent legal representation that meets the minimum standards of due care expected of an attorney. A defendant should be informed of the potential consequences associated with the charges and/or acceptance of a plea bargain, prior to negotiations or proceeding to trial. The Law Offices of Marc Neff has been successful in representing clients charged in criminal matters for over twenty years. If you have been charged with a criminal offense, contact the Law Offices of Marc Neff via phone at (215) 563-9800 or e-mail Marc@nefflawoffices.com for a confidential consultation.