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.

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.

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.

When You’ve Been Injured on Someone Else’s Property

When one is hurt on the property of an individual or business, determining negligence generally requires the help of a personal injury lawyer in Sioux Falls, South Dakota. While it’s possible for the individual to try and negotiate with the insurance company on their own, it is very likely that the payout will be much lower than if a lawyer negotiates instead.

Determining Liability on Private Property

If the person injured was acting outside the norms of behavior, jumping off a roof for example, then the person who owns the property is unlikely to be liable for their injuries. If the person was walking down a path that wasn’t lit properly, and they fell on something that shouldn’t be there, then liability is more likely to be proven. When a person gets hurt on a property because the property has not been kept up or maintenance has not been completed, the owner will be liable for injuries.

A Legal Right to Be On the Property

As long as one is an invited guest on a piece of private property, or visiting a public arena, the person or business that owns the property will be liable for any reasonable injuries sustained while visiting the property. If a person is tresspassing and gets injured, their claim loses its validity. It is impossible for a property owner to protect visitors from injury if they don’t know that they are going to be there. When one has a legal right to be on the property, the property owner assumes liability for any injuries that may occur.

When considering a personal injury lawyer in Sioux Falls, South Dakota, it’s important to remember to go with experience. This is a field that requires dilligence to the rules and regulations of filing a personal injury lawsuit, and an attorney without this type of experience is going to take more time to work on the case. When time is of the essence, an attorney that knows the ins and out of a personal injury lawsuit is essential.

When one has a potential case, it’s important to meet with a qualified attorney for an initial consultation. This way, the attorney can look over the case closely, and determine if the case has merit. All paperwork should be brought to this appointment in order to give the attorney adequate information.

injury lawyer sioux falls

What Is an Injury Lawyer?

An injury lawyer in Sioux Falls focuses on serving the needs of people who have fallen victim to personal injury. Typically, an injury lawyer’s clients are those who have been injured by the action, inaction or neglect of another individual or commercial entity. These are highly trained legal professionals who are skilled in their particular branch of the law.

Responsibilities of an Injury Lawyer

An injury lawyer spends his or her time taking care of all aspects of a legal case surrounding a personal injury. This begins with evaluating cases and interviewing clients to determine if a client has an argument. If a case has merit, the lawyer will identify the issues and file the complaint.

Once the complaint is filed, the lawyer will negotiate with the opposition, counsel the client about the case and provide legal advice. If the case needs to go to court, the lawyer will represent the client. However, in many cases an injury case can be settled outside of court with the right lawyer on board. The lawyer also has the responsibility to follow a strict standard of ethics when handing a case, while also conforming to state and federal law.

Certification and Education

For a personal injury lawyer to practice law, the lawyer must pass a written bar exam in the state of practice. Some states also require a law degree and a four-year undergraduate degree. For some states, a Multistate Bar Examination is required in addition to the state bar exam.

After passing the bar, the lawyer will be “admitted to the state bar.” This then requires ongoing continuing legal education courses in order to remain certified. Each state has a specific number of CLE hours required per certification cycle.

Most injury lawyers will focuses their practices entirely on injury cases, allowing them to delve deeply into the legalities of this type of law. Lawyers can then pursue certification in injury law through the American Bar Association, allowing them to claim a higher level of knowledge to potential clients.

Regardless of the level of certification chosen, injury lawyers provide a valuable service to clients suffering from an injury. These professional allow injured individuals to get the compensation they deserve, so they can move forward with life after a serious injury.

Are Parents Responsible for Auto Accidents of Their Teenagers?

Under the laws of South Dakota, parents may be liable for the acts of their children, if the children are under the age of 18-years old. In South Dakota a “parent,” is any adult with legal custody of the minor child.

Foster parents are specifically excluded from any liability for harm caused by foster children (S.D. Law section 25-5-23.1), unless the foster parents have some culpability for the actions of foster children under common law rules as explained below.

When a teenager has a serious auto accident, it is important to contact a car accident attorney in Sioux Falls right away, because parental exposure to liability may result. The same is true, for the opposite reason, if a car that a teenager was driving hits a person. They also need to contact a car accident attorney in Sioux Falls as soon as possible. The legal issues are complex, when teenagers have auto accidents. For most cases, the issues require the help of qualified legal counsel.

South Dakota laws state that parents may be held liable for the acts of their minor children under the following circumstances:

  1. When the act is malicious and willful (S.D. Law section 25-5-15) – Willful acts are those that are intended to produce a specific result. An example of this type of behavior would be, if a teenager drives a car into the yard of a neighbor’s house intentionally damaging the garden. Parents of a teenager that makes willful acts, which cause damage, may be sued. Individuals, businesses, government organizations, or churches may file a lawsuit, if any of those entities suffered damage.
  2. When the principles of common law apply.

Common Law Principles of Parental Liability for Children
Common law principles make parents liable for the acts of their minor children under the following circumstances:

  1. When parents know the teenager is not competent to drive or has a history of reckless driving and they still allow the teenager to drive.
  2. When parents do not properly supervise teenage drivers.
  3. When the teenager drives while working for the parent(s).
  4. When the teenage is running an errand for the parent(s) or family.

An auto accident with a teenage driver involved is problematic because it can create liabilities for the teenager’s parents. Besides having auto insurance rates suddenly increase dramatically due to the accident, parents may also find themselves being sued for the damages caused by the actions of their children.