United States Supreme Court Holds Police “Generally May Not” Search Information of Cell Phone Seized from Arrestee

June 25, 2014 by Marshall A. Mintz · Leave a Comment 

In Riley v. California, decided June 25, 2014, the Supreme Court examined how the ‘search incident to arrest’ doctrine applies to information stored in cellular phone.* The Court first explained that “[d]igital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.”

Moving on to concerns that evidence might be destroyed, the Court found that “once law enforcement officers have secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone.” While the government had argued that a third party could remotely erase the data or security features on the phone could encrypt the contents, the Court concluded that neither problem was “prevalent” and could be addressed in other ways – such as removing the phone’s battery or storing the phone in a room which blocks radio waves. In any event, “[i]f the police are truly confronted with a ‘now or never’ situation, – for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt – they may be able to rely on exigent circumstances to search the phone immediately.”

The Court also discussed how cell phones could store many different types of personal data and the amount of storage space meant that the “sum of an individual’s life” could be reconstructed through all of that information. Moreover, this was different than information stored on paper which a person was not likely to always be carrying around.

I highly recommend reading the entire Opinion but will leave you with its closing paragraph:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.

* The Court also stated that labeling a search incident to arrest as an “exception” to the warrant requirement was “something of misnomer,” as these searches “occur with far greater frequency than searches conducted pursuant to a warrant.”

Applying the “public safety” exception to the Miranda requirements

December 7, 2012 by Marshall A. Mintz · Leave a Comment 

In United States v. Ferguson, 11-3806 (2d Cir. Dec. 6, 2012), the Court held that the “public safety” exception to the Miranda requirements applied when a police officer has reason to believe that a person may have left a firearm in a public place – thus permitting the officer to interrogate that person an hour or more after arrest.

In New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court explained that “overriding considerations of public safety [may] justify [an] officer’s failure to provide Miranda warnings before he ask[s] questions devoted to  locating [an] abandoned weapon.” Later, in United States v. Estrada, 430 F.3d 606 (2d Cir. 2005), the Second Circuit looked to three factors in making that determination: (1) whether the questioning related to an objectively reasonable need to protect the police or public from an immediate danger, (2) whether an objected observer would believe the questioning was a subterfuge meant to elicit evidence from a suspect, and (3) that the questions were not routinely asked to arrested suspects but instead showed an intent to protect against a perceived danger.

The officer who interrogated Ferguson had previously heard he possessed a firearm and the 911 call reported that a firearm had been fired. But no weapon was recovered when Ferguson was arrested and the officer’s questions were “rationally related to the objective of securing public safety by locating the gun.” Thus, the Court found, the interrogation was within the scope of Estrada.

While recognizing that the passage of time between an arrest and an interrogation may “diminish the immediacy of threat posed by an unaccounted-for firearm,” the Court ultimately concluded that, in this case, it “did not diminish the officers’ objectively reasonable need to protect the public from the realistic possibility that Ferguson had hidden his gun in public, creating an imminent threat to public safety.”

New York Court of Appeals Invalidates Warrant Which Authorized Search of All Persons Present at the Time of its Execution

April 2, 2010 by Marshall A. Mintz · Leave a Comment 

In People v. Mothersell, the Court of Appeals addressed the legality of a warrant which authorized the search of all persons present at the time of its execution.  In reversing the lower courts and ordering the indictment dismissed, the Court reiterated that an all-persons-present warrant should only issue after a showing of significant justification.

While The Fourth Amendment to the Federal Constitution as made applicable to the states by the Fourteenth Amendment, and Article I, Section 12 of our New York State Constitution requires that warrants “particularly describ[e] . . . the persons . . . to be seized,” New York States CPL 690.15 (2) states that “[a] search warrant which directs a search of a designated or described place, premises or vehicle, may also direct a search of any person present thereat or therein[.]”

In People v Nieves, 36 NY2d 396 (1975), the Court reasoned that there could be circumstances in which a showing of probable cause to search a place would also afford probable cause to infer that everyone present at the place had upon their persons the items specified in the warrant, and thus, that [CPL 690.15] was capable of application without constitutional offense.  However, the Court described the “severely limited” circumstances which would justify such a warrant, explaining that “[t]he facts made known to the Magistrate and the reasonable inferences to which they give rise, must create a substantial probability that the authorized invasions of privacy will be justified by discovery of the items sought from all persons present when the warrant is executed. If this probability is not present, then each person subject to search must be identified in the warrant and supporting papers by name or sufficient personal description”

But in Mothersell the Court found that no such showing had been made, in the warrant application citing “boilerplate allegations” and a statement by the deponent that, based on her past experience, it is “not uncommon that persons found in the subject residence could reasonably be expected to conceal cocaine.”

Turning to the general concept of an all-persons-present warrant, the Court did not condemn them entirely.  While the Court did note the “utility” of such a warrant, it cautioned that such utility “may not permissibly arise, as it apparently has in practice, from any relaxation of the requirement of probable cause as to each person targeted for
search or seizure.”

Second Circuit allows warrantless search of unhitched trailer under automobile exception to Fourth Amendment’s warrant requirement

March 8, 2010 by Marshall A. Mintz · Leave a Comment 

In United States v. Navas, 09-1144-cr, the Second Circuit reversed the district court’s finding that the warrantless search of a trailer – which was unhitched from its cab and parked in a warehouse – was prohibited by the Fourth Amendment.

After being tipped off by a confidential informant and obtaining a warrant to track the location of Navas’s cell phone, agents discovered the phone approaching the Bronx and set up surveillance at the Hunts Point Terminal Market. At that point, Navas was seen unloading a tractor trailer with another defendant. The two then drove the tractor trailer to a private warehouse, where they detached the trailer and drove away, leaving the trailer locked inside. They then proceeded to a McDonald’s where they met with several other individuals and were all arrested.

Agents transported everyone back to the warehouse, and, during a pat-down of one of the defendants, found a garage door opener. While that individual claimed the opener was for his home, one of the agents testified that it opened the door to the warehouse when the agent “inadvertently” touched it.

When agents entered the warehouse, they “examined the top of the trailer and observed physical indicia of a secret compartment. The agents then “ripped off the sheet metal roof” of the trailer, discovered 230 kilograms of cocaine, and promptly seized the contraband.

The district court held that the automobile exception to the Fourth Amendment’s warrant requirement,“generally relates to some type of vehicle that is capable of moving on its own,” and “[a] stationary trailer, detached from a tractor cab with its legs dropped, and stored inside a warehouse, is not a vehicle that is readily mobile or in use for transportation.” As such, the district court granted defendants’ suppression motion.

The Second Circuit began its analysis by recognizing that the automobile exception permits law enforcement to conduct a warrantless search of a readily mobile vehicle where there is probable cause to believe that the vehicle contains contraband. See, Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). That exception is based on two rationales: the inherent mobility of a vehicle and the diminished expectation of privacy in their contents. See, e.g., California v. Carney, 471 U.S. 386, 391 (1985); see also United States v. Howard, 489 F.3d 484, 492 (2d Cir. 2007).

The Second Circuit concluded that the trailer was “readily mobile” because “[w]hether a vehicle is ‘readily mobile’ within the meaning of the automobile exception has more to do with the inherent mobility of the vehicle than with the potential for the vehicle to be moved from the jurisdiction, thereby precluding a search.” Citing Howard, 489 F.3d at 493. The Court also found the reduced-privacy rationale to apply “forcefully,” in part because of the myriad state and federal regulations on such trailers.