Ever since the monumental decision Miranda v. Arizona, the phrase “you have the right to remain silent” has been given epic importance, from judicial decisions to pop culture to the street level interactions between police and criminals.  And up until Berghuis v. Thompkins, that right was fairly accessible, though ephemeral, protection.  Unlike the other protected right under Miranda warnings, the right to have an attorney present during questioning, the right to remain silent did not need to be explicitly raised in order to be invoked.  However, in Berghuis v. Thompkins, the Supreme Court held that the right to remain silent is not invoked until the defendant explicitly says that he wants to remain silent.  And, thus, until those words are uttered, the police are allowed to continue questioning.  The defendant in the Berghuis had been subjected to three hours of interrogation about a murder, but he barely spoke a word.  Besides a few head nods, and answering such questions as “would you like a mint”, he was steadfast in exercising his ability to remain silent.  However, he ultimately had a moment of weakness; after three hours, he answered only one substantive question, and that answer was used against him at trial, where he was found guilty.  The Court held that the right to remain silent was not implicitly raised simply by seemingly exercising it, i.e.  his continuing refusal to answer the many questions asked to him.  They further held that by answering that one substantive question, he adequately waived his right to remain silent, and gave up his protection.

Thus, the holding seems to be that the right to remain silent must be explicitly raised, but the waiver does not.  So, the rule to take from this case is: speak to remain silent, but say one word, any word, and it will be considered a waiver.

Berghuis v. Thompkins, — S.Ct. —-, 2010 WL 2160784 (2010).

Does the plain view doctrine, a 4^th Amendment exception that police officers routinely take advantage of, apply to computer searches?  The 1^st, 4^th, and 7^th Circits have all said yes, however, the 9^th Circuit has said not.

The 4^th Amendment is a Constitutional right against unreasonable searches and seizures, and it is a right that the founding fathers of the United States held to be vital to a structured and free society.  Questions of whether an unfettered search of person’s personal computer violates this right is one that state and federal courts across the nation are grappling with, as the number of computers and the plethora of information stored on them continues to grow.  The problem often arises when investigators know that there is evidence of a crime in the data files of a computer, but don’t know where exactly.  Unfortunately, the only way to find it then involves searching for and opening most, if not all, of the files located on the computer, which may then lead to the discovery of evidence of other crimes.

The plain view doctrine is what allows an officer who is at a location legally, either by virtue of a search warrant or a warrant exception, to not have to ignore criminal evidence that he was not necessarily expecting to find in the first place.  This rule makes logical sense; if an officer has probable cause to enter the home to arrest a robbery suspect, why should he have to pretend the did not see the cocaine on the table?  The catch, however, is that the evidence must be in plain view.  It has to be a chance sighting by an officer who is only doing what he is already legally allowed to be doing.  But, does this logical rule make sense when it comes to computers?  The opening of files is necessary to find the evidence sought, but does this farther than the plain view doctrine was initially designed for?

Until the Supreme Court or Congress speaks on the issue, officers and courts across the nation must make individual decisions.  For now, officers would be best to stop the search as soon as evidence of a new crime is discovered, and get a search warrant to continue looking.

In U.S. v. Comstock, the Supreme Court held that federal officials can indefinitely hold inmates that are considered “sexually dangerous”, even after their prison terms are complete.  In overruling the lower courts decision, the court determined that the statute is a “necessary and proper” exercise of federal authority when Congress enacted the Adam Walsh Child Protection and Safety Act, authorizing civil commitment of sexually dangerous federal inmates.

In order to meet the definition of “sexually dangerous”, there must be clear and convincing evidence that, because of a mental disease or defect, the prisoner, if released, would have serious difficulty refraining from sexually violate conduct or child molestation, and there must be a showing that neither the state in which he was confined, nor the state in which he was tried is willing to accept custody over him.

The main issue in the case what whether the Constitution grants Congress the power to issue civil commitments.  Under the 10^th Amendment, the states are reserved any power that have not been granted to the federal government, either specifically or impliedly.  Implied powers arise when the federal government must take certain actions that are “necessary and proper” to effectuate one of the express powers given.

One of the express powers given to Congress is the power to imprison those convicted of federal crimes, and to establish a system of criminal justice to punish offenders.  The petitioners in Comstock argued, however, that the relevant Act is only applicable after completion of their applicable sentence, and in some cases a finding of sexual violence warranting increased confinement may arise out after a conviction for a crime that was not sexual in nature.  However, the Court determined that the power to confine prisoners in the first place also carried the implied power to take account of other safety issues regarding their release back into society.  It cited, for example, the power of the federal government to maintain custody over a prisoner who has communicated a disease that threatens others.

U.S. v. Comstock, 2010 WL 1946729.