It is difficult to imagine how the generations before us survived without the technology  available today.   I know books helped, but Google provides answers in seconds.  Data, translations, email, directions, and the answers to even the most random questions are instantaneously delivered upon request.  Now, with smartphones we carry these capabilities, as well as our private lives, with us everywhere that we go.  Our texts, emails, internet search histories, Facebook messages, videos, photos, and GPS trackings reveal a lot about our day, movements, preferences, and thoughts.  While we gain convenience with this technology, the information is also valuable to others for a number of reasons. For example, retailers already used our smartphones to track our whereabouts at the Short Pump mall.  It is an efficient way to cheaply target marketing and learn our preferences without asking us.  Luckily this experiment was shut down pretty quickly.  Not only may smartphones impact businesses, but it is inevitable (at least in the foreseeable future) that they will have a huge impact on the criminal justice system and how law enforcement agencies gain private, perhaps incriminating information, about us.   

                The United States Supreme Court and the Virginia Supreme Court have yet to determine whether it is a violation of a person’s 4th Amendment rights for the police to search a person’s smartphone incident to arrest.   Courts across the country have rendered split decisions on this very question.  As a reminder, the 4th Amendment protects a person from unreasonable searches and seizures.  So what does this mean?

                It means that until the courts hold that our smartphones cannot be searched incident to arrest, our private lives may be available to be viewed and used against us, if appropriate.  For example, under the current law, it is not clear that it would be impermissible for a police officer to search a person’s smartphone upon arresting her for trespass.  Presumably, a person’s phone has nothing to do with trespass, and there is no obvious reason in most cases as to why an officer would have a reasonable articulable suspicion that the phone contains evidence of the crime of trespass.  Today, however, a person’s smartphone might be searched under this very scenario.  What about a DUI? Let’s say a person is pulled over for swerving, alcohol is smelled, and field tests are failed. The person is arrested, and his phone is searched on the drive to the jail for the breathalyzer test.   Texts on the phone reveal that the person, who now sits silently in the back of the patrol car, told his friends not less than an hour ago that he was on his eighth beer.  In this scenario, one might feel inclined to be grateful to the police for making sure this person, who undoubtedly is a hazard to public safety, is convicted.  Law enforcement agencies, however, have other avenues for collecting evidence to convict this offender without violating his privacy rights. After all, remember that we did not have smartphones until a few years ago and people have been convicted of DUIs for decades. 

So what should you do?   Always be polite and cooperative to the police, but handing over your smartphone for a voluntary search is definitely one way to make sure that any evidence found on your phone can be used against you without a 4th Amendment violation challenge.  In addition, put a password on your phone.  It will be interesting to see how courts adapt to this ever-changing technology.

The condensed story for Hernandez is that he was charged with feloniously assaulting a police officer in violation of Va. Code § 18.2-57(C).  The lower court held that the court did not have the authority to defer disposition (even though such a result might be appropriate), as the defendant was not charged with a crime that had been specifically designated by the Virginia legislature as eligible for such deferment.  Crimes that the courts have explicit statutory authority to defer disposition of include, but are not limited to, spousal rape (§ 18.2-61), first offender drug possession (§ 18.2-251), and first offender misdemeanor property offense (§ 19.2-303.2). 

On January 13, 2011, the Virginia Supreme Court overruled the lower court in Hernandez v. Commonwealth, 281 Va. 222, 707 S.E.2d 273 (2011), holding that courts have inherent authority to defer disposition of a case after the evidence is presented and a plea is entered.  The lower court may now withhold a finding of guilty for a period of time and require a defendant to complete certain requirements.  Successful completion of the requirements results in a dismissed charge. This means something critical to defendants.  Instead of a conviction, you may now get a second chance under Hernandez.  Defendants should also take note that Hernandez squarely places the onus on them. So don’t blow it. 

Because the Virginia Supreme Court did not provide specific instructions to the lower courts about how to implement Hernandez, requirements vary from jurisdiction to jurisdiction.  For example, in Henrico, the courts will not consider a Hernandez plea unless the defendant has a clean record and pleads guilty.  In addition, the Henrico courts’ status quo conditions include: 24 hours of community service, 6 hours in jail to be served immediately following trial, regular monitoring by the Community Corrections Program (“CCP”), and a requirement to be of good behavior and keep the peace for a designated period of time.  The monitoring by CCP includes regular drug and alcohol testing, even if the charge is not drug or alcohol related.  Testing may be administered the day of trial.  A dirty drug test on a Hernandez plea in Henrico will result in a show cause, a conviction, and jail time.  Hernandez gives defendants a second chance, but if they do not comply with the conditions, the penalties ordered by the court may be more severe than had the defendant pled guilty and been convicted on his trial date. The responsibility to meet the court ordered conditions falls on the shoulders of the defendant.  While there is no promise that complying with the conditions set forth by the court will result in an absolute dismissal of the charge(s), I have yet to see a case in which the court did not dismiss the charge upon successful completion of the conditions. 

Opponents presented legislation in January 2012 to gut Hernandez, as they did in January 2011.  To date, the attack on Hernandez has not been successful.  For those fearful opponents, the judiciary has been implementing Hernandez with great caution.  As for the public at large, while CCP, I concede, may be overwhelmed at times with the influx of defendants in need of monitoring, the Commonwealth undoubtedly saves monies that would be required to fund jails in the short term.  And in the long run, (I admit this point is a little disconcerting but realistic), Hernandez could have a major impact on sentencing guidelines for the once lucky defendant who is convicted of another charge in the future, thereby reducing  his sentence and the monies required to jail him for a subsequent offense.