Search Warrants & Cell Phones

According to a Reuters survey, most people cannot live without their cell phone, and if given a choice, would rather lose their wallet than their cell phone. Verizon Wireless recently conducted a lighthearted 'would you rather' survey' to determine how attached people are to their cell phone. Four percent said they would rather lose their hair than their cell phone and nine percent said they would rather lose vacation days than their phone.

The importance of our cell phones has become paramount in today's society. Our phones contain more than a detailed snapshot of our lives with all the photos, videos, emails and text messages they hold.

Police have found them equally valuable in criminal investigations. As a result, appellate courts across the country are issuing opinions on this frequently litigated issue in courtrooms today- do the police need a search warrant  to look at your cell phone.

The Fourth Amendment prohibits the unreasonable search and seizure of a person and their property absent probable cause or a search warrant. A person's cell phone squarely falls within the parameter of the Fourth Amendment. Most law enforcement routinely seek out a warrant to search a cell phone involved in their criminal investigation. However, the situation becomes more complicated for an officer when a crime occurs while they are on duty. Once the officer believes the suspect has committed a crime, does that provide probable cause to search the person's cell phone for evidence of the crime?

The Massachusetts Supreme Court  recently addressed this issue. Commonwealth v. Onyx found that a 'nexus' must exist between the crime and the cell phone to justify the search. In the Onyx case, the Court found probable cause did not exist and found the search violated the Fourth Amendment;

Here, prior to seizing the defendant's cellular telephone, police had received information that the robbery and homicide under investigation had been committed by several people, that the defendant likely was one of those people, and that he owned a cellular telephone. They also knew from experience that coventurers often use cellular telephones to communicate with each other, and that these devices may contain evidence of such communications. According to their own statements, however, the detectives here did not have any "information that [a] cell phone was used in the crime under investigation," nor did they claim that there existed a particular piece of evidence likely to be found on such a device. In essence, then, their decision to seize the defendant's cellular telephone was made because (a) they had reason to believe that the defendant had participated with others in the commission of a robbery-homicide and (b) their training and experience in cases involving multiple defendants suggested that the device in question was likely to contain evidence relevant to those offenses.

This, without more, does not satisfy the nexus requirement. "Information establishing that a person [may be] guilty of a crime does not necessarily constitute probable cause to search" or seize the person's cellular telephone, even where the police believe, based on their training and experience in similar cases, that the device is likely to contain relevant evidence. Commonwealth v. Pina, 453 Mass. 438 , 441 (2009). Rather, even where there is probable cause to suspect the defendant of a crime, police may not seize or search his or her cellular telephone to look for evidence unless they have information establishing the existence of particular evidence likely to be found there.

Most are not involved in complicated fact scenarios such as the robbery/homicide case above. A more common scenario asked by clients is whether an officer can look at a cell phone when issuing a traffic or speeding ticket. Some have asked if a police officer can look at their cell phone for evidence of a drinking pattern after a DWI arrest.

Generally speaking, most searches of a cell phone will require a warrant. However, if an officer asks you for permission to look at your phone and you consent, you have likely waived Fourth Amendment protection. Consent is a topic for another day...

Meanwhile, criminal courtrooms continue to litigate the definition of nexus, probable cause and the overall right to privacy. And cell phones will continue to be more important to some than their vacation days....

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Marijuana Possession- An Illegal Search

A criminal attorney rarely forgets the cases they loose. I still remember a case I lost as a Deputy District Attorney in California back in the 1990's. It was a straightforward drug case. Police were called to a convenience store in reference to a suspicious man in the store. Officer arrives, makes contact with the man, and then conducts what the police officer calls an officer safety "pat down search for weapons". Under the Fourth Amendment, the law permits a police officer to conduct this pat down search for weapons when the officer can describe specific reasons why he believes the person to be armed and dangerous. In my case, the court granted the defense attorney's motion to suppress the evidence prior to trial. The court found the police officer had a legitimate reason to contact the man, but then found that the officer was unable to articulate specific facts that showed this man could be armed and dangerous.  Pat down searches often lead to the discovery of illegal contraband. From that point on in my career, I had countless conversations with police officers regarding the legality of  pat down searches. I would reject cases for further information when I would read the language "I conducted a cursory pat down search for weapons."  Cursory? Automatically done on every case? Can't do that....

This issue came up last week in Mecklenburg County District court in my client's marijuana case. My client was a passenger in a Ford Taurus. In a matter of seconds they were being pulled over by five different police vehicles. After the vehicle is pulled over, my client is ordered out of the vehicle and patted down for weapons.  The police officer found some marijuana on my client. The officer testified the car my client was riding in matched the description of a car that had been involved in several armed robberies. He testified the Ford Taurus involved in the robberies also had two African-Americans driving the vehicle.

The court granted my motion to suppress the evidence. This means the judge found a violation of my client's Fourth Amendment Rights, which requires the evidence in my case, the marijuana, be excluded from evidence. The District Attorney is unable to proceed with the case because there is no evidence to use against my client. The case is dismissed.  The Court found that the police officer was within the law to pull the vehicle over, but the pat down search was not supported by enough facts to justify the search.

As I have said in earlier posts, I never underestimate the danger police officers face every day. It is a dangerous job. However, they must be able to articulate with clarity the dangers they encounter in the field when they come to the courthouse to testify at trial. This police officer couldn't. The result- My client left the Mecklenburg County Courthouse with his case dismissed.

When can the police search my car?

The United States Supreme Court recently handed down an important opinion that narrows the ability of a police officer to search the passenger area of a car after a person in the car was arrested. In Arizona v. Gant, the Court found the Fourth Amendment of the United States Constitution requires police to have an actual and continuing threat to their safety or a reasonable belief that there is evidence in the car that directly relates to the crime the person was arrested for. Without this, a search could be unlawful and any ‘fruits’, i.e. anything the officer found in the car, could be excluded from evidence. These types of searches are commonly called searches incident to arrest. This is different than an inventory search, a search of the vehicle when the vehicle is impounded. This is also different than probable cause to search standard; an officer can justify a search when there is a reasonable belief that a person has committed a crime and the officer searches an area where he believes evidence of the crime exists.

How does this change things?

Prior to this decision, law enforcement relied heavily on the decision in New York v. Belton. In Belton, the court held that a police officer may search the entire passenger compartment of a vehicle when they have made a lawful arrest of a person inside the vehicle.

Bottom line- anytime an officer searches you or your property, you should question it. This decision is a definite win for right to privacy rights advocates. This decision should impact many pending cases in the courthouses and certainly reaffirms the rights of individuals to be free from unreasonable search and seizures.

As a practical matter, watch out for the increase in inventory searches. When the police impound a vehicle, they become liable for the contents. To protect against civil liability, the police are permitted to examine the vehicle and create an inventory of its contents before sending the car to the impound lot. Many officers have avoided this in the past because of the time and paperwork it requires. Police Officers are now going to need the inventory search exception to justify their searches.

I assume owners of impound car lots who collect those enormous fines are cheering now.