US Supreme Court Riley v. California 13-132

Decision here.

   This is actually two different cases which both made it up to the Supreme Court on a similar issue.  The facts were these:

   In Riley v. California: Riley (who is a blood) was stopped for driving with an expired license plate, and his license was also suspended.  The car was towed, and loaded handguns were found concealed under the hood.  Riley was arrested.  During a search incident to arrest, a smart phone was found in his pocket.  The arresting officer found entries (in the contact list or text messages, the record apparently wasn't all that clear on this) with the label "CK" in front of them.  Two hours later, a gangs detective went through the phone at the station.  This was basically a fishing expedition for evidence of anything, and evidence they found.  Based on some of the pictures and videos, Riley was identified as a gang member and implicated in a shooting a few weeks earlier, and charged with attempted murder.  He was sentenced to 15 to life, and he appealed.

   In US v. Wurie: Wurie was arrested for selling drugs out of his car.  While at the station, he was receiving multiple calls (on a flip phone) from a contact labeled "my house."  Police accessed the phone, saw that the home screen was a picture of a woman and a child, and looked at the contact information for "my house."  They used a reverse lookup to trace that number to an apartment.  When they went to the apartment, Wurie's name was on the mailbox, and through the window they saw a woman who looked like the picture on Wurie's phone.  They got a warrant for his apartment, where they found drugs, a gun, and money.  Wurie was convicted, but the First Circuit reversed his conviction.  The prosecution appealed.

   That brings us to the Supreme Court's decision.  In reasoning out its decision, the Court reviewed three landmark cases in search incident to arrest: Chimel, Robinson, and Gant.  In Chimel, the court recognized police authority to search the area under the immediate control of an arrestee (in this case, the police had far overstepped that boundary and they were getting slapped for it).  The rule was already pretty entrenched in common law, but the Court recognized it here and held that it was reasonable because it allows an officer to find an remove weapons that the prisoner may use to attack him, and because it allows an officer to find evidence that the prisoner may attempt to destroy.  In Robinson, the Court held that these two risks were inherent in all arrests without need for specific articulation.  In other words, it made it clear that search incident to arrest was justified by any custodial arrest, not just one where the police had some specific reason to believe that there were weapons or evidence to be found (in this case, the police searched a cigarette pack that was in an arrested traffic offender's pocket, and found drugs).  And in Gant, the Court narrowed the police's authority to search a vehicle incident to arrest.  The Court held that the reasoning set forth in Chimel only makes sense in the context of a vehicle when the arrestee is unsecured and within reaching distance of the passenger compartment, but it also created another exception.  Gant allows police to search a vehicle incident to arrest when there is reason to believe that evidence of the crime for which the person has been arrested will be found.

   The Court also discussed that the reasonableness of a warrantless search is determined by balancing the government interest in the immediacy of the search against the privacy interest at stake.  And this line of reasoning becomes a wooden stake in the heart of search incident to arrest as it relates to digital information.

   One thing the court makes very clear is that Chimel's reasoning doesn't make sense at all when we're talking about the digital contents of a cell phone.  The pictures, call log, videos, messages, and files that are stored in a cell phone can't be used as a weapon against a police officer.  In cases where those items are evidence, the arrestee isn't usually in a position to destroy them once you take away the phone.  Remote wiping exists, but it's normally something that a third party does or something that is built into the phone itself.  That's not the same thing as a prisoner himself destroying evidence the way that Chimel was talking about (and besides, law enforcement can address that by shutting off the phone, taking out the battery, or using a device like a Faraday bag to isolate it from receiving signals).

   Since the Chimel reasoning doesn't work here, we're left with balancing interests.  Given that there isn't (ordinarily) any real emergency when it comes to reviewing digital information, the government interest in warrantless searches here is slight.  On the other hand, the privacy concerns are staggering; a modern cell phone isn't so much a phone as it is a small computer.  It either contains or provides remote access to detailed information about almost every aspect of a person's private life.  The Court makes an argument that searching through someone's phone might even provide more information about their private affairs and daily activities than searching through their house would.

   In light of that, the Court has now ruled that search incident to arrest simply does not apply to data.  Digital information isn't immune from search, but you generally need a warrant.  Exigent circumstances can still justify a warrantless search (the court mentions hypotheticals like a child abduction case where the suspect's phone is believed to have information about the location of the victim, or text messages to someone who is getting ready to detonate a bomb).  

Tenth Circuit Felders v. Malcom 12-4154

Decision here.

 Dear fellow officers,

   Please don't Gant the fellow officer rule.

  Sincerely,

   The Author of This Blog.

   So Felders was stopped for speeding in Utah while she was driving from California to Colorado.  The trooper (Bairett) who stopped her thought that she was hauling drugs.  Why, you ask?  Because she had an air freshener (like many 54 year old ladies), she didn't maintain eye contact (like 80-90% of people on traffic stops), and the kids in the car didn't have the details of the trip straight (like most 17 & 18 year olds).  Oh, and she had a Jesus bumper sticker or something.

   I'm not even kidding, Bairett thought all of that was PC to search the car.  But he didn't search it right away.  First, he asked for consent (denied).  Then, he called for a K9.  Before running the dog on the car, he explained what was going on to the handler (Malcom), and then had the occupants of the car get out.  When they did get out, he prevented them from closing the doors (and then he and Malcom pretended that they had left the doors open voluntarily).

   When Malcom ran the dog on the car, it jumped in and alerted on the beef jerky in the center console.  Then the two cops spent two hours searching the car and finding nothing.  Quite correctly, Felders sued.

   Both officers moved to dismiss the suit based on qualified immunity, and they were denied.  Malcom appealed.  And these are his ridiculous arguments:

   1- He argued that he was entitled to rely on Bairett's assertion that there was probable cause to search the vehicle, based on the collective knowledge doctrine (sometimes known as the fellow officer rule).

   2- He alternately argued that he independently had probable cause to search the vehicle because he could arrest Felders for obstruction for lying to Bairett in order to obstruct his drug investigation.

   3- He argued that the law was not clearly established that his conduct during the search violated Felders' rights.

   So first, let's talk about collective knowledge.  The courts have described that it works "vertically" and "horizontally."  Vertical collective knowledge is where an investigating officer informs another officer that there is probable cause to search/arrest/whatever and the second officer carries that out.  Horizontal collective knowledge is where several officers act independently in an investigation, then they can pool their knowledge and if putting all the pieces together gets them to PC they can act on that (this only works if they actually do communicate with each other, though).  

   Malcom couldn't rely on vertical collective knowledge because Bairett didn't have PC (the court is willing to humor the idea that he had reasonable suspicion, but I think they're being generous).  He couldn't even make a good faith reliance on Bairett's assertion of PC, because he knew too much about the case.  Or, as the court put it: "Accordingly, the good faith defense shields objectively reasonable good faith reliance on the statements of a fellow officer, but does not protect deliberate, reckless, or grossly negligent reliance on the flawed conclusions of a fellow officer."

   He also didn't have PC to arrest Felders for obstructing Bairett, because the facts communicated to him by Bairett wouldn't lead a reasonable officer to believe that she had committed that crime.

   The court also ruled that by facilitating the dog's entry into the car (even though Bairett was the one who actually kept the door open when the passengers wanted to close it), he violated Felders' clearly established rights.

   Qualified immunity denied.  

US Supreme Court Abramski v. US 12-1493

Decision here.

   Abramski was (is) a former cop (having been fired two years prior to the following events).  His uncle wanted to buy a gun, and Abramski offered to use his old police ID card to get a discount.  He bought the gun using his uncle's money and then gave his uncle the gun.  This after signing a form declaring that he wasn't doing exactly that.

   When the feds found out (because they were searching his house because he was a suspect in something else), he was charged with making a false statement on the form.  His conviction was appealed all the way to the supreme court.

   Abramski's argument was that his false statement was immaterial either because a) his uncle was eligible to own a gun anyway, or b) federal law doesn't prohibit someone from buying a gun on behalf someone else.  The Supreme court held that a) doesn't matter and b) yes, it does.  So Abramski's false statement was material and his conviction was upheld.

Colorado Supreme Court People v. Schaufele 13SA276

Decision here.

   Schaufele caused an accident and was transported to the hospital, where an investigating officer noted indicia of alcohol intoxication.  Since he was lapsing in and out of consciousness, express consent was not explained to him.  A blood draw was conducted without a warrant, and his BAC turned out to be .2something.

   The trial court did not find that there were exigent circumstances justifying a warrantless blood draw, and suppressed the BAC evidence.  The people appealed.  The Colorado Supreme Court, with frequent references to the SCOTUS case of Missouri v. McNeely, held that the trial court had made the correct decision.  Even though the express consent statute might have allowed for the blood draw (since Schaufele was unconscious), the express consent statute does not trump constitutional law.

   The people's argument centered around the time that it would have taken to get a warrant.  The court ruled that this is just one factor in determining whether or not there are exigent circumstances, and that the trial court had already correctly determined that the totality in this case weighed against that one factor.  

We now return to your regularly scheduled research project

   The next few hours (days?) will teach me to take a month off from blogging.  Some interesting stuff happened in the courts while I was on vacation!  So I'll be glued to my computer for a while.

   But the vacation was totally worth it.

Colorado Supreme Court People v. Begay 14SA18

Decision here.

   This case reads a little like it was written by a teacher who is getting impatient after having tried to explain the same concept thirty times.  For whatever reason, trial courts screw this one up A LOT.

   Anyway, someone known to the victims as "Rabbit" tried to strangle a couple of people at a park in Boulder.  Responding officers aired a description of Rabbit, who had left the area with someone named Bo.  Shortly afterwards, three plainclothes officers spotted a couple guys who matched the suspect description.

   One of the officers called out "Hey Rabbit," and then Rabbit approached him in a friendly manner and tried to hug him.  The officers identified themselves and instructed Rabbit to sit down.  While they were waiting for the victim to arrive for a show-up, they asked Rabbit (whose real name is Begay) why someone might have reported that he was involved in a strangulation.

   Begay claimed that Bo had been attacked and that he had intervened.  Bo denied that any altercation had happened.  And then the victimes identified Begay as their attacker.  He was subsequently arrested for assault.  He moved to suppress his statements, since he had not been read his Miranda rights at the time that he made them.

   The trial court suppressed Begay's admission that he had been involved in an altercation, and the people filed an interlocutory appeal.  The reasoning the trial court used was that Begay would not have felt free to leave, and that if he had tried to leave then the police would have stopped him.  Both of these lines of reasoning are incorrect.  

   What the officers would have done if Begay tried to leave is irrelevant, unless the officers told him what they would have done.  Custody for Miranda purposes is an objective question, so the subjective intent of the officers doesn't matter.  What matters is what they actually said and did.

   The other mistake the trial court made is a really common one, though.  The trial court applied Fourth Amendment reasoning to a Fifth Amendment question.

   The Miranda warning requirement is designed to protect a suspect's Fifth Amendment right against self incrimination.  Whenever a suspect is subjected to custodial interrogation, the police are required to warn him of his rights.  Everyone agrees that Begay was being interrogated (the police were asking questions to elicit incriminating information).  The question is whether or not he was in custody at the time.

   The trial court held that because he would not have felt free to leave (or otherwise terminate the encounter), he was in custody.  But it doesn't matter whether or not Begay would have believed that he was free to go; that's only important in determining whether or not someone is seized for Fourth Amendment purposes.  Miranda custody is determined by asking whether or not someone's freedom has been interfered with to the degree associated with formal arrest.  In this case, it had not.  Begay had been instructed to sit down, but he had not been searched, had not been handcuffed, had not been told he was under arrest, was not in a police dominated atmosphere, the police were speaking to him in friendly tones, he had only been detained for a few minutes, he wasn't taken to a different place by the police... the list goes on.  Although Begay was seized for Fourth Amendment purposes (he was clearly being detained), none of that says "under arrest."  He was not in custody for Miranda purposes.

   The Supreme Court reversed the suppression order.

Colorado Supreme Court People v. McIntyre 13SA235

Decision here.

   McIntyre was accused of fondling his ten year old niece.  After speaking to a detective (and denying the allegations), he agreed to meet with another deputy to take a lie detector test.  Prior to the administration of a lie detector test, the deputy talked to McIntyre about the way the test would be run (things like the need to tailor the questions to the allegations in a very specific way), the legal ramifications of taking or not taking the test, what McIntyre remembered about the incident, how much the test would cost and whether it would be admissible or not, etc, etc, etc.  Not all of what the deputy told McIntyre was accurate.  For example, he told him that the test would not be used in court unless McIntrye wanted it to be (when it actually would be per se inadmissible).  He told him that the test was very expensive, but that he wouldn't have to pay for it unless he was found guilty and they came after him for the fees (when in truth he wouldn't have to pay for the test under any circumstances).  

   The deputy also suggested that they weren't trying to ruin his life, and that they were interested in treatment and rehabilitation in cases where it's appropriate.  He made some statement that could be looked at as being promises of either leniency or immunity if taken out of context.  But all of this was peppered with copious reminders of McIntyre being free to leave, of the deputy's plan to discuss this interview with the detective, Miranda warnings, and explanations that the deputy couldn't make any legal promises.  Also, the deputy didn't actually promise leniency or immunity at any point.

   The lie detector test never happened.  McIntyre made some incriminating statements without it, wrote a letter of apology to his niece, and then made an appointment for another interview with the detective (but by then, he had a lawyer and didn't want to talk).

   The trial court suppressed McIntyre's incriminating statements, holding that they were involuntary because of some implied promises of immunity made by the deputy who was going to run the lie detector.  The people filed an interlocutory appeal, and the Colorado Supreme Court reversed the suppression order.  The Court held that under the totality of the circumstances, McIntyre's statements were voluntarily made and not the result of police coercion.