Your Phone and Your Rights Today

In the advent of the age of the mobile phone, the proliferation of the functional uses of such have created a conundrum for law enforcement who seek information during investigations.  The issues surrounding the Constitutional rights of citizens versus the necessity of law enforcement to gain quick access to information is nothing new; however, the right to privacy has most recently come into direct clash with the efforts of police to gain access to information that is contained on mobile devices.  Increasingly, mobile phone manufacturers have come up with new and innovative ways to preserve the privacy of their consumers by including features to secure devices using biometric processes in addition to numerical codes.  Now your fingerprint or even your face can be used to secure your mobile device.  With such new technology comes challenges to determine the line in the sand between a person’s rights and what a law enforcement officer can ask in order to gain access to your phone.

In a previous blog post, the need for a search warrant in order to gain access to a mobile phone was considered.  The Supreme Court in Riley v. California, No. 13–212, 728 F. 3d 1 (2014) and its companion case United State v. Wurie, wrestled with the decision as to whether a search warrant was needed to conduct a search of a person’s mobile phone.  The long-standing ruling in Chimel v. California, which afforded police the ability to search items on a person based on the premise of officer safety and the preservation of evidence, was overturned when the item was a mobile phone.  In Riley, Justice Roberts distinguished a mobile phone from any other types of evidence by saying, “[T]he United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items… That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.  Both are ways of getting from point A to point B, but little else justifies lumping them together.”  The concern of the Court was the vast amount of information on a mobile phone.  A warrant would necessitate language narrowly construing what law enforcement could look for, as opposed to a fishing expedition. Cell Phone search warrant

So now that warrants are required, the question that remains is how can law enforcement circumvent the security protections that mobile phones come integrated with to protect the information thereon?  At the inception of the smart phone, the security measures were limited to a passcode, a user provided set of four to six numerical digits that, when entered, provided access to the contents of the phone.  As technology progressed, fingerprints and facial recognition have provided an even greater and more expedient way to protect a phone’s contents, albeit with a passcode back up option should the other methods fail for whatever reason.  In recent times, once a warrant was secured, police would force an individual to reveal the passcode, perhaps invoking Miranda issues that have largely been struck down by as the passcode was not a statement against interest intended to be used against them in court.  Ultimately, however, a person could refuse to state their passcode and little could be done to force their compliance.  In order to combat the reluctant party, law enforcement turned to technology to break the encryption on mobile devices.  At one point, a company developed a tool called GrayKey, that could actually break the encryption on the most secure of devices, the Apple iPhone.  The box cost $15,000 and was sought after by the legal powers that be everywhere.  Apple’s answer to GrayKey was to develop a new technology that turned off the data/charging port after one minute, disallowing access by anyone who did not have the passcode to access the phone.  In a short matter of time, Apple made the $15,000 GrayKey an expensive paperweight.

The other methods of phone encryption, namely fingerprint and face id, provided another venue for law enforcement to gain access to a phone if the accused chose to remain silent.  Police would simply force a detainee to use their fingerprint or face to unlock the phone and the owner would not have to say a word.  This issue recently came to the United States District Court in the Northern District of California.  In In the Matter of the Search of a Residence in Oakland, California, Case no. 4-19-70053, the government was investigation an extortion matter whereby the suspects were using Facebook Messenger to threaten the release of an embarrassing video of the victim.  A search warrant was issue for the home and the phones of the suspects, but also request for the authority of the officers to compel any individual present to “press a finger (including a thumb) or utility other biometric features, such as facial or iris recognition, for the purposes of unlocking the digital devices found in order to conduct the search.” Id.  The Court found that probable cause existed to search the premises, that the search warrant was over-broad in that it did not identify particular persons, as well as over-broad to search the devices of anyone present.  The Court ruled,

Even if probable cause exists to seize devices located during a lawful search based on a reasonable belief that they belong to a suspect, probable cause does not permit the Government to compel a suspect to waive rights otherwise afforded by the Constitution, including the Fifth Amendment right against self-incrimination.^ The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. The proper inquiry is whether an act would require the compulsion of a testimonial communication that is incriminating. See Fisher v. United States, 425 U.S. 391, 409 (1976). Id. 

The Court observed the truth of the matter, that “technology is outpacing the law.”  They discussed the passcode issue as the first hurdle to jump when accessing a phone,

Courts that have addressed the passcode issue have found that a passcode cannot be compelled under the Fifth Amendment, because the act of communicating the passcode is testimonial, as “[t]he expression of the contents of an individual’s mind falls squarely within the protection of the Fifth Amendment.” See Doe v. United States, 487 U.S. 201, 219 (1988) (Stevens, J., dissenting) (citing Boyd v. United States, 116 U.S. 616, 633-635 (1886); Fisher v. United States, 425 U.S. 391, 420 (1976)); see also United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (citing Doe, 487 U.S. at 208 n. 6); Com. v. Baust, 89 Va. Cir. 267, at *4 (2014). Id.

The Court extended the 5th Amendment protection of testimony against oneself past verbal and written communications to acts; however, distinguished certain acts whereby blood samples or submitting to fingerprinting, as those that make the “suspect or accused the source of the ‘real or physical evidence’ does not violate it.” Schmerber v. California, 384 U.S. 757, 764 (1966).  In the case of mobile phones, the person is not the source of the evidence, the phone is.  Forcing an act to reveal information from a phone is distinguished from forcing a person to reveal information about oneself.  As in any case, the Court suggests that the government use warrants to obtain the information in a way that does not “trample on the Fifth Amendment.”  In the instant case, the Court suggested that the messages could have been obtained by issuing a warrant to Facebook for the Messenger communications.

In an increasingly technological age whereby innovation is outpacing the law, courts are now tasked with increasing invasions on the rights of the people to their privacy.  The impossible task is making rulings that foresee the future to avoid the incremental decisions that clog their dockets and take sometimes years to resolve.  It is important to understand that this ruling is by a single Federal Court in California and that, although inevitable, the Supreme Court has yet to rule on this matter.

If you need legal representation or consultation related to a search of your cell phone, call us right now at 605-338-9711. Together, we can evaluate and discuss your legal rights and responsibilities and options.

Got Half? Marital Property

In any action for divorce, it is necessary to make a property settlement. Traditionally, it is believed that the couple will split their assets evenly. But is this always the case?

The law in several states has been trending towards the adoption of a “community property rule.” In 2018, there are nine such states. The reason for the trend is that it is very difficult for courts to decide what is and is not property that should be divid-ed in a divorce. Community property rules attempt to make this process easier by pre-supposing that all assets and debts acquired during the course of the marriage are split 50/50 with exceptions for student loans, personal injury, or misdeeds. However, most states including South Dakota, are “all property” or common law property states.

In South Dakota, the statute controlling the division of property is SDCL §25-4-44, which reads:

When a divorce is granted, the courts may make an equitable division of the property belonging to either or both, whether the title to such property is in the name of the husband or the wife. In making such division of the property, the court shall have regard for equity and the circumstances of the parties.

This statute is very general in nature and has been defined over time in case law that has changed little since the 1950’s.

If South Dakota were a “community property” state, a judge would be presumed to consider a 50/50 split in property obtained during the course of the marriage. However, South Dakota is an “all property” state that the Court de-scribes as, “[a]ll property is subject to division in divorce action regardless of its origins or title.” Kolbach v. Kolbach, 877 N.W.2d 822, 2016 S.D. 30..

Property in a divorce action is divided into marital and non-marital property. How that property is divided is not always as equal shares to both parties.

The awarding of property or money in a divorce action is not a problem in fractions and should not be treated as such. The problem is what is a fair and just award considering all of the material factors.
Kressly v. Kressly, 87 NW 2d 601 – SD: Supreme Court 1958.

In making an equitable division of property, a trial court is not bound by any mathematical formula but is to make the award on the basis of the material factors in the case, having due regard for equity and the circumstances of the parties.
Fink v. Fink, 296 NW 2d 916.

In making an equitable distribution of property, the Court will consider several factors that have not changed over time.

Under the language of our statute and the caselaw, it is not important whether the court creates “marital” and “nonmarital” estate pots or whether it places all of the property of the parties, whether individually or jointly held, in one pot. What is important is that the court, before it sets aside certain properties as “nonmarital,” consider the seven principal factors we have repeatedly held must be considered in making an equitable property division. Voelker, 520 NW2d at 907. The factors are: (1) the duration of the marriage; (2) the value of the property owned by the parties; (3) the ages of the parties; (4) the health of the parties; (5) the competency of the parties to earn a living; (6) the contribution of each party to the accumulation of the property; and (7) the income producing ca-pacity of the parties’ assets. Id. at 9078 (citations omitted).
Billion v. Billion, 1996 S.D. 101, ¶ 20, 553 N.W.2d 226, 232.

One factor curiously missing from those cited in Billion is “fault.” In several states a person is barred from alleging fault as a reason for seeking a divorce and determining a settlement of property. South Dakota is not a “no-fault” divorce state and fault is not considered with regard to property settlement, except in certain circumstances. “Except in certain limited circumstances, fault is no longer to be considered in making a division of marital property. SDCL §25-4-45.1. The only time fault is considered is when the actions of one party either inhibit or diminish the value of the property of the other.

Assuming no fault can be assessed, property obtained during the course of marriage may be considered non-marital when,

[o]ne spouse has made no or de minimis contributions to the acquisition or maintenance of an item of property and has no need for support that a court set it aside as non-marital property.
Kolbach v. Kolbach, 877 N.W.2d 822, 2016 S.D. 30.

This means that despite the fact that one spouse has made little or no contribution to the payments on the house or done anything to upkeep the property, a Court may still consider his or her need for support in determining how to split the equity. However, if the spouse did make contributions or increased the value of the property the Court in Halbersma v. Halbersma, 2009 S.D. 98, 775 N.W.2d 210 ruled, “When the value of separately held property increases due to the joint efforts or contributions of the spouses, the circuit court should make an equitable division of that increase in divorce.” Examples of contributions include maintenance, upkeep or even caring for children while the spouse works on the property.

What is clear from case law is that the Court can and will consider all as-sets of parties in making an equitable distribution and that equitable doesn’t always mean equal. When seeking a divorce for a lengthy marriage or one with sizable or complex assets it is always advisable to seek the help of knowledgeable attorney well versed in divorce law.

If you need help navigating the complexities of a divorce call the attorneys at Wilka and Welter for a no cost consultation regarding your situation.

Statute of Limitations

If you’ve been in a car accident, there is a time limit for a lawsuit to be commenced.

This time limit is called the statute of limitations.  The statute of limitations is the legal rule that limits the time for a party to commence a lawsuit. If you have a lawsuit, you must bring it within a certain amount of time; otherwise you lose the right to bring the lawsuit.

The statute of limitations (i.e. the time within which to commence the lawsuit) can start running from the time that the injury is discovered, or from the time of the incident that gave rise to the injury, depending on the nature of the lawsuit, and the substantive state law applicable to your legal matter.  The statute of limitations for a personal injury negligence car accident claim likely will differ from a claim for wrongful death, intentional tort, property damage, breach of contract, or claim against the government or other public entity.

The statute of limitations may also depend on where the accident occurred, or which state’s laws apply. Civil lawsuits and statutes of limitations differentiate largely from state to state.  Generally you have three years to commence a car accident personal injury negligence lawsuit in South Dakota against a private person or business.  In Minnesota, it may be six years.  In Iowa, it may be only two years.

The time limit to bring a personal injury, or damages, lawsuit depends on many factors. It is important that you do not sit on your rights.  A personal injury trial attorney, like the lawyers at Wilka & Welter, LLP, have the special knowledge, skill and experience to guide you on all aspects of bringing a personal injury claim or lawsuit.

Is Hiring a Personal Injury Attorney Worthwhile?

Every year people are involved in car accidents that cause personal injury to themselves or personal family. Many are unaware that they can receive compensation for accidents that are not their fault. A car accident attorney in Sioux Falls can provide valuable assistance in helping accident victims receive the compensation they need to pay for property damage, medical expenses and loss wages due to being unable to work during recovery. Here are some ways in which a personal injury attorney can contribute toward a favorable settlement in a car accident case.

Property Damage

In a serious accident, vehicle damage can be great. In some instances, cars may be declared total losses. People who rely on their vehicle for daily transportation will need to get it replaced right away. In accidents that are not their fault, a driver’s insurance company should cover the cost of repairs or loss. Sometimes, however, the insurer’s settlement is insufficient to cover all the damage that has been done. This leaves victims with no option but to pay out of pocket to complete repairs, even though the accident was not their fault.

A qualified attorney can help victims recover their losses. By filing a claim against the insurance company of the person who caused the accident, an attorney can help victims reach a favorable settlement to compensate for property damage done to the victim’s car.

Personal Injury

In the event of serious personal injuries, having an attorney will be an asset in getting compensation for medical bills and loss of wages that extend beyond the victim’s car insurance policy. An experienced attorney can help accelerate a victim’s claim against the perpetrator of the accident so he or she can get the medical services he or she needs. Accident victims should also get reimbursement of the funds they spend out of pocket to pay for medical costs.

An attorney can also help victims receive compensation for “general damages” a victim may suffer due to the accident. Sometimes a single injury can have repercussions that remain long after the injury is healed. Victims deserve to be compensated for pain, suffering and any other negative repercussions that result from an accident caused by someone else.

Working with a qualified car accident attorney will make a tremendous difference in reaching a favorable settlement for a vehicle accident claim and getting the compensation victims seek for car accidents that are not their fault.

A Personal Injury Attorney Helps Clients Receive Monetary Compensation

No one wants to experience an injury requiring the services of a personal injury attorney in Sioux Falls. But a person may suddenly experience an accident caused by negligence. When another person or business is responsible for a person’s injuries, the victim has a legal right to receive representation by a qualified lawyer. Many people experience accidents caused by others but they neglect to consult with a lawyer about the situation.

An Accident Victim Should Not Rely on an Insurance Claim

Victims may think that receiving a settlement from the other party’s insurance agency is the only way to receive proper compensation. Personal injury victims should never rely solely on the determinations of an insurance agent who has ulterior motives. The insurance company is not going to compensate a victim in the same way that a court provides compensation. When a person wants to make sure he or she has explored all legal avenues, speaking with a personal injury lawyer is of paramount importance.

Personal Injury Representation Does Not Require Retainer Fees

While some lawyers demand retainer fees before representing clients, personal injury attorneys walk on different legal pathways. Instead of asking for a retainer fee, the personal injury lawyer will ask a client to sign a contract in which the injured party agrees to compensate the attorney upon winning the lawsuit. If the lawyer fails to win the case, the client is not required to pay back any of the monies used during the legal process. In the meantime, the client may receive funds to help pay for pressing bills. A victim should never miss out on the chance to receive legal representation because of financial worries.

Hesitation is the Enemy of Winning a Successful Legal Claim

The person who does not hire an attorney will never receive money other than the amount given by an insurance company. On the other hand, contracting with a qualified lawyer may entitle the injured person to additional funds that far surpass those provided by the negligent party’s insurance policy. A person who hesitates too long after incurring a personal injury risks exceeding the statute of limitations time limit for filing a lawsuit. A victim should make an appointment with a lawyer right away. A personal injury attorney in Sioux Falls will provide the prospective client with a free consultation.

Contact a Disability Attorney in Sioux Falls For Legal Counsel

A person who has experienced a traumatic brain injury may require the legal services of a disability attorney in Sioux Falls. A traumatic brain injury can leave the person with short-term memory loss that interferes with learning tasks at a job. If the person gets hired to work at a company and loses the job as a result of the deficit, the individual has a right to apply for Social Security disability benefits. A person on a limited budget who does not have a great deal of savings may qualify for Supplemental Security Income (SSI) benefits. The individual who has managed to work for several years may have earned enough quarters to qualify for Social Security Disability Insurance (SSD or SSDI) benefits. In either case, the application process is often lengthy and complex. A person who is having difficulties meeting the governmental demands for qualification may need to consult with a disability lawyer.

Things to Expect When Applying for a Disability Benefits

The applicant first needs to fill out an application. The person can fill out and submit the forms online or visit a local Social Security Administration office in person. Next, the Social Security Administration employee will instruct the applicant about things he or she needs to do to satisfy the initial requirements. The person may need to fill out a form showing all earned income for the past several years. The applicant is asked to provide recent medical records from a physician confirming the disability and its deficits. But this paperwork is not the end of the process.

Requirements to Undergo Psychological and Memory Tests

Unless the applicant can provide copies of written medical records occurring during the previous three months, the person will need to visit designated physicians for previously arranged medical examinations. The applicant must keep the examination appointments or risk being denied benefits. The only exception is if the person has a serious emergency situation or a medical appointment with his or her own personal physician. After visiting the doctors for mandated Social Security Administration medical tests, the Disability Determination Service department (DDS) will make a determination as to whether the applicant is qualified to receive benefits. An applicant who has concerns about possible denial of benefits should consult with a disability attorney in Sioux Falls for a professional opinion and possible legal representation.

Caution, Child Custody Under Construction: Gender Equality at Work

If one were to take an exit poll at the doors of most family courts at the turn of this century, the results would have been largely skewed in favor of mothers, and statistics would back it up. USA Today reports that from 1994 to 2007, 83% – 85% of women were awarded custody of their children, and 57% – 64% of them were awarded child support. Over the same fifteen year period, a scant 15% of men won custody, with only 36% – 40% of them being granted child support.

Since then, a four-way tsunami has changed outcomes in family court cases.

Stay-at-Home Husbands

The recession that began in December of 2007, and the resulting rise of unemployment that impacted men harder than women due to the hit it took on traditionally male jobs in construction and the building trades. At the lowest point of the decline, only 80% of men were employed, down from 88% before it began. Unable to find any sort of unemployment, the previously two-income families became dependent on the mother’s income while the father became the primary care giver, with the result that men found that not only did they take to the role, but did an excellent job as their children adapted and thrived.

Equal Rights and Gender Equality

As the recession began to recede, women who had lost their jobs returned to the workplace at a faster rate than men. It should also be noted that this was a workplace that had already been affected by more mothers choosing to return to their executive positions after the birth of their children. Many of these women earned salaries equal to, if not greater than their husband’s.

Today’s Respect For the Father’s Role

One of the greatest impacts on men’s chances of being awarded custody has been more and more family courts’ abandonment of the “tender year’s doctrine”. Today’s family court judges are acknowledging that fathers can be equally equipped to care for children under the age of seven, as are mothers.

The Men’s Rights Movement

A generation of men who have come of age, and are employed in a world of equal rights in the workplace, and whose wives earn paychecks comparable to their own are insisting that the court’s abandon outdated role stereo types and acknowledge the economic equality of their dissolving marriages and the fact they are equally capable in the area of child rearing.

A relatively new type of child custody cases is springing up in family court as a growing number of unmarried fathers seek to remain actively involved in the raising of their children. One group of men in Utah went so far as to sue the state over allowing mothers to give babies up for adoption without the father’s consent. One of the plaintiffs testified that the courts treated them “like they’re scum – like they don’t have any rights at all as far as having a relationship with their children.” This sentiment seems to be felt by many fathers, married or not, with the result that activists are arising and airing their opinions on websites like A Voice for Men, Men’s Rights, and The Red Pill.

A new breed of lawyer is arising as well, joining the traditional child custody lawyer in Sioux City and elsewhere in the country, fighting for all fathers, married or unmarried.  They advertise their brand on websites beneath banners of “Men Only” or “Family Law Only”. Yes, the journey toward equal rights for fathers has begun, and one thing is for certain, it does not lead to the era of Kramer and Kramer.

Getting a Disability Application Approved

When applying for disability benefits, this often requires the help of a disability attorney in Sioux Falls, South Dakota. It isn’t easy to qualify for benefits, and social security will deny applications for any number of reasons. When applying to receive social security disability benefits, the experience of a disability lawyer will help the applicant greatly.

The Application Has to be Precise

An application for disability benefits can’t be done halfway. The application must indicate what the disability is that is preventing one from working, and all treatment providers must be listed on the application. Contact information for all providers is essential, and approximate timeframes for treatment with each provider is helpful to social security when evaluating a claim. Missing information can make a claim invalid, and social security can deny the claim because of an incomplete application.

Treatment for the Disabilities Must be Clear

When applying for disability benefits, it must be clear to social security that one is in treatment for the disability. Claimants have to show that they are trying to heal, and trying to get back to work. When claimants are in treatment for their disability and they have reached a medical end result, it is up to their providers to state this effectively to social security. The more consistent the treatment is, the more a treatment provider will be able to provide useful information to the social security administration.

The Disability Has to Be Proven

While a person can have any number of diagnoses, it has to be evident to the claim reviewer that the disability is presently causing the individual problems. By going to treatment providers and asking for help, claimants have a better chance at proving they are disabled. While it can get frustrating to continually ask for help and not see any improvement, avoiding the doctor will make it nearly impossible to prove that the disability in question is inhibiting one’s ability to maintain gainful employment.

Obtaining disability benefits isn’t easy, and the help of a qualified disability attorney in Sioux Falls, South Dakota is often necessary for claimants to get the benefits that they deserve. An attorney can help one navigate the complicated waters of the disability claims process, and help fight through any appeals process that may be necessary. It is possible to gain benefits, but only after an extensive process.

An Attorney can Simplify Complex Situations

Many people do not have an attorney on retainer. Even when the time comes that an attorney is needed, it is common to still be unsure of whether legal representation is really needed. They ask themselves, “has the situation really escalated this far”. Hiring an attorney does not mean a person is looking for a fight, or out for something.  It means that a person is smart enough to know that they need a legal expert on their side. A quality attorney will protect their clients assets, time, and insure that they are treated fairly even in a bad situation.

Hire an Attorney Sooner for a Better Outcome

No one plans to get in an auto accident, to have a divorce, or to need worker’s comp. These events mean something bad has happened, and often hiring an attorney is not the first thing that comes to mind while reeling from the event. However the sooner a person has a lawyer on their case, the more likely they are to be treated fairly and taken seriously.

For example if a divorce case leads to court proceedings to figure out child custody, the sooner a person hires a quality child custody lawyer in Sioux falls, the sooner they will know exactly what they need to do for the outcome they want. It will also send the message that they are not taking it lightly. The documents required in most cases are vast, knowing what is needed sooner means no scramble on the week of the case to get everything together. Going to family court can be emotionally taxing, an attorney helps their client to get through it logically with the best outcome despite the emotions that are bound to be tied to the situation.

Many people do not like the idea of pursuing a workers compensation case against their employee. However if the situation arises where an injury has occurred on the job, it can mean not being able to pay the bills and feed the family. Hiring an attorney soon will deter employers from trying to stop the compensation and it will take the need for the employee to discuss the case with their boss, which can lead to damage to their case. The sooner an injured person hires a workers compensation lawyer in Sioux falls, the better outcome they will find.

Even a jack of all trades will not have enough knowledge about the law to protect themselves in a messy legal situation. The sooner an attorney is hired, the clearer the situation will seem.