The Pace Criminal Justice Center is honored to feature an article by Thomas Kapp, Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container? Thomas Kapp is the Senior Investigative Attorney at the Bronx County District Attorney’s Office and a member of the Pace Criminal Justice Center Advisory Board. In his article, he
review[s] the current federal standard for a search incident to arrest of containers and how some federal and other state courts have addressed the search of a cell phone. In addition, [he] discusses the development of the law in New York of the right of police to conduct a search incident to arrest of a closed container and will also address whether that right includes the search of a cell phone incident to arrest, an issue which may be ripe for our courts.
As the article notes, this issue will be decided this term by the United States Supreme Court. Mr. Kapp concludes his analysis by assessing the future of searches of cell phones incident to arrest in the State of New York.
Enjoy reading the full article: Thomas Kapp – Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container?
For the past forty years, the United States Supreme Court has continually tinkered with the exceptions to the Fourth Amendment’s general prohibition on warrantless searches, including the allowance of warrantless searches that are conducted after the police have obtained voluntary consent from the individual whose property is being searched. In 1974, the United States Supreme Court ruled that the Fourth Amendment recognizes a warrantless search of a premises when the police obtain the consent of an occupant who shares common authority over the property. United States v. Matlock, 415 U.S. 164, 170 (1974). Thereafter, the Court expanded its decision in Matlock to include situations where a warrantless search of a premises was conducted based upon the “consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not.” Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). In 2006, the Court again modified its prior decisions on this issue, ruling that the consent of one co-occupant was insufficient to authorize police to conduct a warrantless search of a premises if another objecting occupant was “physically present” at the time. Georgia v. Randolph, 547 U.S. 103 (2006).
On Tuesday, the Court decided to rework its decision in Randolph, and severely limit its future application. In Fernandez v. California, the Court held that the rule set forth in Randolf was “extremely narrow,” and does not apply to situations when the police have received consent from one co-occupant after the objecting occupant had been removed from the premises. The Court explained that the co-occupant’s initial objection to the police’s entry is not everlasting, and can be overridden by the consent of a co-occupant after the objecting party is no longer present. Notably, the Court held that the consent of a co-occupant will authorize a search even when the objecting party has been removed from the premises involuntarily, including when removal occurs as a result of police conduct. The Court explained that searches occurring after the police have removed the objector will be permissible so long as the reason for removing the occupant was “objectively reasonable.” In Fernandez, the police had removed the objecting co-occupant after he was suspected of being involved in a robbery and believed to have battered his girlfriend moments before the police had arrived. Several hours later, the police returned to the residence and conducted a warrantless search of the premises based upon the girlfriend’s consent.
Three members of the Court (Justices Ginsburg, Sotomayor, & Kagan) disagreed with the majority’s decision, noting that “[i]n its zeal to diminish Randolph, today’s decision overlooks the warrant requirement’s venerable role as the “bulwark of Fourth Amendment protection.” They explained that “[r]educing Randolph to a “narrow exception,” the Court declares the main rule to be that “consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search. Such a declaration “has it backwards, for consent searches themselves are a “`jealously and carefully drawn’ exception” to “the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable per se.” (citations omitted).
The U.S. Supreme Court recently granted certiorari in two cases involving searches of cell phones incident to arrest. Riley v. California, No. 13-132, review granted 1/17/14; United States v. Wurie, No. 13-212, review granted 1/17/14.
There is a split of authority on this issue: some courts have held that existing Supreme Court precedent involving search incident to arrest is applicable, i.e., that a phone is no different than any other hand-held container and may be searched incident to arrest without a warrant, probable cause, or even reasonable suspicion. Other courts have refused to apply that precedent, treating cell phones as sui generis because of the tremendous amount of personal information contained in a typical smart phone.
, the First Circuit held that mobile phones are different from the containers other courts have allowed to be searched incident to arrest. It held unconstitutional a police search of the defendant’s numbers in the call log on his mobile phone incident to his arrest. United States v. Wurie, 728 F.3d 1 (1st Cir. 2013)
. In Riley
, the California state court upheld a warrantless search of the defendant’s mobile phone address book, photographs and videos incident to his arrest for a firearms offense that then linked him to a drive-by shooting. People v. Riley, No. SCD226240, 2013 WL 475242 (Cal. Ct. App. 2013)
(not certified for publication in official reports and not to be cited pursuant to California Rules of Court, Rule 8.1115(a) except as provided in Rule 8.1115(b)).
BY: David Restrepo
The Second Circuit recently decided United States v. Freeman, which was on appeal from a conviction for gun possession. On appeal, the defendant argued that the police lacked reasonable suspicion to conduct the Terry stop that produced a gun in the defendant’s possession. The Second Circuit reversed the defendant’s conviction, mainly on the ground that the police lacked reasonable suspicion to stop and frisk so that the evidence should have been suppressed.
The interesting part about the case is the court’s in-depth discussion on what constitutes reasonable suspicion. Initially, police responded to a pair of anonymous 911 calls from the same caller. The caller offered a description and location of the defendant, claiming that the defendant had a gun on his person. What makes the court’s decision newsworthy is its analysis of the phone calls and their sufficiency as a basis for reasonable suspicion given that, although they were anonymous, the 911 center recorded the phone number and the caller called twice.
The Second Circuit held that the phone calls were an insufficient basis for reasonable suspicion because the information in the calls could not be corroborated. However, the majority and dissent both discussed an issue raised by Justice Kennedy in his concurrence in Florida v. J.L., 529 U.S. 266 (2000) – whether 911 calls are really anonymous given current police technology. In J.L., the majority held that a mere description in 911 call is not sufficient to establish reasonable suspicion. In his dissent in Freeman, however, Judge Wesley disagreed, suggesting that the Supreme Court should offer “further guidance in this troubling and exceptionally important area of Fourth Amendment jurisprudence.” Whether or not the holding in Freeman is correct, Judge Wesley poses an interesting issue. Given the speed of advancement in technology available to law enforcement, it is an issue that deserves further clarification by the Supreme Court.
David Restrepo, United States v. Freeman – Second Circuit, ABA Media Alerts (Nov. 7, 2013).
United States v. Freeman, No. 12-2233-cr (2d Cir. Nov. 7, 2013).
Following in the footsteps of the 2008 Second Circuit Decision In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 157 (2d Cir. 2008), the Seventh Circuit in United States v. Stokes, No. 11-2734 (7th Cir. Aug. 1, 2013) held that U.S. citizens are not protected by the warrant requirements of the fourth amendment overseas. The Thai warrant in this case did not describe the items to be seized with particularity and the search exceeded the scope of the warrant. Additionally, the Court relied on the Second Circuit holding that fourth amendment warrant requirements do not have extraterritorial reach. Therefore the Court held that
… the Fourth Amendment’s warrant requirement, and by extension the strictures of the Warrant Clause, do not apply to extraterritorial searches by U.S. agents. The search of Stoke’s home in Thailand is governed by the Amendment’s basic requirement of reasonable, … , to which we now turn.
The Court observed that the ICE agents relied in good faith on Thai legal authorities, law enforcement officers acted pursuant to a valid Thai search warrant, and the search was reasonable under all circumstances. Thus, the Court in Stokes held that the search of the defendant’s home was reasonable and therefore the district court didn’t err when it denied suppression of the evidence recovered as a result of this search.
Judge Sykes writes
The challenge to the search raises two questions: (1) whether an extraterritorial search of an American citizen by U.S. agents is subject to the Fourth Amendment’s implicit warrant requirement and the explicit requirements of the Warrant Clause; and (2) whether the search by ICE agents was reasonable. Following the Second Circuit, we hold that the Fourth Amendment’s warrant requirement and the Warrant Clause have no extraterritorial application. See In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 157, 171 (2d Cir. 2008). But Stokes remains protected by the Amendment’s touchstone requirement of reasonableness. See id. at 170 n.7. Because the search was reasonable, the photographic evidence was properly admitted at trial.
For additional commentary, see Lance J. Rogers, U.S. Citizens Living Abroad Aren’t Protected by Fourth Amendment’s Warrant Requirement, 93 CrL 638 (Aug. 14, 2013).