Wednesday, December 07, 2016

Murder, the iPhone and the Fourth Amendment

This post examines a recent opinion from the Appeals Court of Massachusetts:  Commonwealth v. Williams, 2016 WL 7041629 (2016).  The court begins by explaining that “[b]efore us is the defendant's interlocutory appeal from the denial of his motion to suppress evidence discovered on his cellular telephone (iPhone), which was seized without a warrant.”  Commonwealth v. Williams, supra.
The opinion goes on to explain that the “motion judge”, i.e., the judge who heard Williams’ argument as to why his motion to suppress should have been granted, “found the following pertinent facts.” Commonwealth v. Williams, supra.
Shortly after 5:30 P.M. on November 19, 2012, police responded to a shooting in the Brighton section of Boston and found the victim, Leroy Cooper, unresponsive. The victim had been in a car with two men, Athanasios Paloukos and Sadar Yaraghi, who told police that the three were engaged in a transaction to sell marijuana. The victim had made and received calls on his cellular telephone (cell phone) while sitting in the front passenger seat during the drive to Brighton in order to arrange the deal. The three men picked up two young men outside a housing development. One of the men (suspect one) sat in the middle back seat, and the other (suspect two) sat behind the front passenger seat. Marijuana was handed to one of the suspects, and both then exited the vehicle. After a dispute about payment for the marijuana, suspect two pulled out a gun and fatally shot the victim. Both suspects then fled on foot.

The victim's cell phone showed that he had exchanged text messages, arranging a meeting place, with a particular telephone number with an 857 area code (857 number) in the hours preceding the shooting. The victim had also answered a call from the 857 number just minutes before the shooting. The 857 number was associated with an individual named Patrick Malone, who had given the 857 number as his telephone number when booked for an unrelated crime two weeks before the shooting.  Malone, who was wearing a global positioning system tracking device, was in the area of the shooting when it occurred. The 857 number was registered to a `Warren Sapp’ (the name of a former professional football player); service to the cell phone associated with that number was terminated shortly after 6 P.M. on the day of the shooting.
Commonwealth v. Williams, supra.
The court goes on to explain that
Yaraghi and Paloukos both gave physical descriptions of the suspects, and Paloukos told police he thought one of the suspects was named Robert. Four days after the shooting, both witnesses were shown photograph arrays including a picture of Malone, and both identified Malone as resembling suspect one. Malone was arrested eleven days after the shooting.
Commonwealth v. Williams, supra.
The opinion then explains what happened next:
The victim's cell phone records led police to another individual who identified the defendant as one of two people who possibly matched the witness descriptions of suspect two. Police included a photograph of the defendant in a second set of photograph arrays, and both Yaraghi and Paloukos selected the defendant as bearing a resemblance to suspect two, although neither could so state with certainty. The defendant lived near Malone and near the location where the victim and the two witnesses had picked up the two suspects on the day of the shooting.

The defendant agreed to an interview with police two weeks after the shooting. He stated that he had known Malone for twenty years and that Malone had spoken to him (by telephone) on the morning of the shooting. The defendant provided his iPhone number and shortly thereafter invoked his right to counsel. At the end of the interview, the police seized the defendant's iPhone. A detective switched the iPhone into `airplane mode,’ disabled security features, powered it off, and wrapped it in aluminum foil. The police returned the defendant to his residence and secured the iPhone until they obtained a warrant to search it a few days later.
Commonwealth v. Williams, supra.
The opinion then explains that Williams
was charged with and indicted for murder, armed robbery, and unlawful possession of a firearm. He filed several motions to suppress evidence from the warrantless seizure of his iPhone, which were denied. The motion judge concluded that police had probable cause to believe that evidence of the defendant's involvement in the shooting might be found on his iPhone, and that (as the defendant concedes) exigent circumstances justified its seizure to prevent destruction or removal of evidence during the time it would take to obtain a search warrant.
Commonwealth v. Williams, supra.
The Appeals Court then begins its analysis of the lower court’s ruling on the motion to suppress:
The sole issue before us is whether there was probable cause to seize the defendant’s iPhone. When reviewing a decision on a motion to suppress, `we accept the judge's subsidiary findings of fact absent clear error, but independently review the judge's ultimate findings and conclusions of law.’ Commonwealth v. Jewett, 471 Mass. 624, 628 (Massachusetts Supreme Judicial Court 2015) (quotation omitted).

Here, we conclude that there was probable cause to believe that the defendant’s iPhone would contain evidence linking his alleged coventurer Malone to the 857 number and thus to the shooting. Before the seizure, the police had evidence that the 857 number associated with Malone as of two weeks earlier had been used to communicate with the victim just before the shooting, and the defendant admitted that he had spoken to Malone by telephone earlier that day. 

Although there was no evidence that the conversation took place by cell phone rather than by landline, it was a reasonable inference, even if not compelled, that cell phones were used. Accordingly, because the defendant admitted that he had known Malone for twenty years and had spoken with him by telephone that day, the police had probable cause to believe that the defendant's iPhone would contain evidence of a call between the iPhone and a cell phone being used by Malone on the day of the shooting. Establishing what cell phone number Malone was using on the day of the shooting was important because the 857 number was not registered in Malone's name.

Thus the seizure of the iPhone was supported by probable cause to believe it contained evidence relevant to who was involved in the shooting, even if the defendant himself had not been suspected of involvement in the shooting. Compare Matter of a Grand Jury Investigation, 427 Mass. 221, 225, cert. denied, 525 U.S. 873 (Massachusetts Supreme Judicial Court 1998) (`[T]here is no requirement at all that the person to whom a search warrant is directed should himself even be suspected of crime, much less that there be probable cause to believe him guilty’); Commonwealth v. Augustine, 472 Mass. 448, 456 n. 11 (Massachusetts Supreme Judicial Court 2015).
Commonwealth v. Williams, supra.
The court goes on to explain that,
[l]ike the motion judge, we are not persuaded by the defendant's remaining argument: that the police had insufficient grounds to infer that the iPhone seized from him at his interview two weeks after the shooting was the same cell phone he had been using on the day of the shooting. Where an object possessed by a defendant is `durable, of continuing utility to the defendant[ ], and . . . not inherently incriminating to possess,’ it is reasonable to infer that the object has not been disposed of and may be found at the defendant's home. Commonwealth v. James, 424 Mass. 770, 778 (Massachusetts Supreme Judicial Court 1997). See Commonwealth v. Wilson, 427 Mass. 336, 343 (Massachusetts Supreme Judicial Court 1998); Commonwealth v. Thevenin, 82 Mass.App.Ct. 822, 827 (2012).

We think the same factors make it reasonable to infer that the defendant here had not disposed of the cell phone he used on the day of the shooting, but instead that he continued to keep it on his person (as is typical of a cell phone), including when he came to the police station for an interview two weeks later. Compare Commonwealth v. Fleurant, 2 Mass.App.Ct. 250, 255 (1974) (because, `[u]nlike drugs or liquors, a collection of weapons is not likely to be consumed or destroyed,’ age of information in search warrant application was of less significance). See Commonwealth v. Blye, 5 Mass.App.Ct. 817, 818 (1977).
Commonwealth v. Williams, supra.
The Appeals Court concluded the opinion with these observations:
Finally, this case is quite unlike Commonwealth v. White, 475 Mass. 583, 588–591 (Massachusetts Supreme Judicial Court 2016), where the court held that there was no probable cause to seize a murder suspect's cellphone, absent information that the cell phone had any `nexus’ with the crime. There, the police had `inferred that, if the defendant planned and committed multiple crimes with two coventurers, it was likely he did so, at least in part, using his cellular telephone, and that evidence of these communications would be found on the device.’ Id. at 591. The court held that this inference did not establish a nexus; `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 particularized evidence likely to be found there.’ Id. at 590–591. 

Here, unlike in White, the police had information suggesting that the defendant’s iPhone would contain particularized evidence: the cell phone number that Malone was using on the day of a crime of which Malone was suspected and in which it was known that cell phone communications played a central role.
Commonwealth v. Williams, supra. 

Monday, December 05, 2016

The Civil Suit, the Juror’s Tweets and the Motion for a New Trial

This post examines an opinion the District Court of Appeal  of Florida – Fourth District recently issued in a civil appeal that involved a jury verdict in an action seeking damages for injuries sustained in an automobile accident:  Murphy v. Roth, 2016 WL 5803658 (2016).
The Court of Appeal begins by explaining that
Michele L. Murphy (hereinafter `Plaintiff’) appeals from a final judgment and seeks review of an order denying her motion for a new trial. Plaintiff contends that a juror engaged in misconduct by posting comments about the case on social media and by failing to disclose certain information during voir dire. The sole issue on appeal is whether the trial court abused its discretion in denying Plaintiff's motion for a new trial based on this alleged misconduct. . . .
Murphy v. Roth, supra.
The opinion goes on to explain how, and why, the lawsuit arose:
This case involved an automobile accident. Plaintiff brought suit against Michael B. Roth (`Defendant’), claiming that she sustained injuries due to Defendant's negligent operation of his vehicle. Issues of liability and damages were hotly contested. At the trial below, Plaintiff claimed that she was hit from behind by a phantom car, causing her to swerve and lose control, and that she was then hit in the front by Defendant's car and forced off the road. Defendant claimed that Plaintiff struck his car on the rear passenger side, skewing his car to the right, and then hit the front right side of his car, sending him spinning off the road.

At the beginning of voir dire, the trial court instructed the jurors not to communicate with anyone about the case or their jury service:

`You must not communicate with anyone, including friends and family members, about this case, the people and places involved, or your jury service. You must not disclose your thoughts about this case or ask for advice on how to decide this case.’

`I want to stress that this rule means you must not use electronic devices or computers to communicate about this case, including tweeting, texting, blogging, emails, posting information on a website or chatroom, or any other means at all. Do not send or accept any messages to and from anyone about this case or your jury service.’
Murphy v. Roth, supra.
The court goes on to explain that during voir dire,
the trial court inquired whether anyone had been involved in a similar situation:

`This is a case about injuries received in an automobile accident. Ms. Murphy claims that Mr. Roth caused an automobile accident that resulted in certain injuries. Mr. Roth denies those claims. Instead, Mr. Roth claims Ms. Murphy caused the accident and that the injuries from the accident are not as extensive as Ms. Murphy claims.’

`All right. You have heard me give you a brief description of what this case is about. And, again, that's all you're going to be allowed to hear until a jury is picked. Is there anyone here personally or has had a close relative or a very close friend involved in a situation that sounds similar in any way to this case, whether or not it resulted in a lawsuit or not?’

In response, several prospective jurors discussed accidents involving themselves or their family members, all of which involved either a lawsuit or an injury. The trial court then asked: `All right. Anyone else?’ The juror at issue herein (`Juror 5’) did not respond.’
Murphy v. Roth, supra.
The opinion goes on to explain that,
[l]ater during voir dire, Plaintiff's counsel asked if anyone had a family member or friend who had undergone a cervical fusion. Juror 5 responded that his step-mother was in a car accident and had some plates inserted in her neck, but was not sure if the procedure was a cervical fusion. Plaintiff's counsel asked him a few follow-up questions about his step-mother's recovery after surgery, but did not inquire further about the accident or whether a lawsuit arose.

At another point during voir dire, Plaintiff's counsel asked the jurors about their feelings towards personal injury lawsuits. In addition to believing that there were probably more frivolous lawsuits than there should be, Juror 5 stated the following:

`I'm kind of like indifferent about it. Like, I really don't—it's necessary. Some people, sure they need it. But I feel like some people also do it just for the money, like he said up front.’

`I wouldn't say 80%. I can't put a number on it. But I feel like, sure, a good amount of people sue for dumb reasons.’
Murphy v. Roth, supra.
Next, came the trial and,
[a]fter the jury was selected and sworn, the trial court again gave an instruction to the jury to not communicate about the case:

`In this age of electronic communication I want to stress again that just as you must not talk about this case face-to-face, you must not talk about this case by using an electronic device. Do not send or accept any messages related to this case or your jury service. Do not discuss this case or ask for advice by any means at all, including posting information on an Internet website, chatroom, or blog.’

The trial took place between May 12 and May 16, 2014. The jury returned a $39,000 verdict for past and future medical expenses and apportioned liability, 60% to Plaintiff and 40% to Defendant. Since the jury did not find that Plaintiff had suffered a permanent injury, no damages for pain and suffering were awarded.
Murphy v. Roth, supra.
The opinion goes on to explain that
Plaintiff filed a motion for juror interview based on newly discovered evidence, wherein she contended that her right to a fair and impartial jury was compromised by Juror 5. Plaintiff also filed a motion for new trial incorporating, by reference, her motion for juror interview. In support of these motions, Plaintiff alleged that Juror 5 posted a series of tweets on his Twitter account during the days of jury selection and trial, which included the following:

a. `I got picked as a juror . . . I hate this s––– I'm so pissed, I even half assed all my answers and I dressed terrible.’

b. `Being a juror isn't bad, people I'm working with are pretty cool. But I still hate the fact that I have to be here all day.’

c. `Everyone is so money hungry that they'll do anything for it.’
Murphy v. Roth, supra.
The court then noted that
[a]fter conducting two hearings, the trial court granted the motion for juror interview. During the interview, Juror 5 admitted that the Twitter account in question, although titled under a pseudonym, was his and that he posted all of the tweets at issue. The trial court asked Juror 5 about his understanding of the court's instruction to not communicate about the case or his jury service on social media. Juror 5 responded that he thought the instruction `pretty much’ meant `don't talk about the case.’ Juror 5 testified that he did not tweet while sitting in the courtroom during the trial and that he did not intentionally or deliberately disobey the court's order regarding the use of social media. Finally, Juror 5 denied telling anyone else his views about the case at any time prior to the commencement of deliberations.
Murphy v. Roth, supra.
The court then points out that the
trial court specifically asked Juror 5 about his tweet that he `half assed’ his answers. Juror 5 replied that he was `kind of confused’ by what Plaintiff's counsel was saying during jury selection. Juror 5 elaborated: `Because, like, I got nervous so when he was asking me questions I didn't really know what to say so all my questions were all mumble jumbled and then that's pretty much what I meant by it.’ And finally, the trial court asked Juror 5 whether he was referring to the trial when he tweeted, `Everyone is so money hungry that they will do anything for it’? Juror 5 responded:

`No, ma‘am, I was not. I was actually tweeting about the fact that we got into an accident, me and my father, May 2, and then my dad got the court order during the trial case, and that's when I woke up after my nap he told me about it.’

After conducting what would be the fourth post-trial hearing on this case, the trial court denied Plaintiff's motion and declined to take any action against Juror 5. Thereafter, the trial court entered a final judgment in favor of Plaintiff for $27,535.17 from which this appeal was taken.
Murphy v. Roth, supra.
The Court of Appeals then began its analysis of the facts and the legal issues in the case by explaining that a
trial court's order on a motion for new trial is reviewed for an abuse of discretion. Duong v. Ziadie, 125 So.3d 225, 227 (Fla. 4th District Court of Appeal 2013). `If reasonable people could differ as to the propriety of the court's ruling, then the abuse of discretion standard has not been met.’ Taylor v. Magana, 911 So.2d 1263, 1267 (Fla. 4th District Court of Appeal 2005) (quoting Vanderbilt Inn on the Gulf v. Pfenninger, 834 So.2d 202, 203 (Fla. 4th District Court of Appeal 2002)). As the Florida Supreme Court explained in Canakaris v. Canakaris, `[i]n reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the ‘reasonableness' test to determine whether the trial judge abused his discretion.’ 382 So.2d 1197, 1203 (Florida Supreme Court 1980). A discretionary ruling of a trial judge should be disturbed only when the decision fails to satisfy this test of reasonableness. Id.

Plaintiff argues that the comments posted within Juror 5's tweets showed not only a disdain for the court system and his jury service but also a clear bias against Plaintiff which, when coupled with his failure to disclose a recent accident involving him and his father, deprived Plaintiff of the right to a fair and impartial jury. Accordingly, Plaintiff contends that the trial court abused its discretion in denying her motion for a new trial. Defendant argues that Juror 5's tweets do not amount to prejudicial misconduct and that Plaintiff cannot, on this record, establish that she is entitled to a new trial based on the nondisclosure of the recent accident.

`When the embrace of social media is ubiquitous, it cannot be surprising that examples of jurors using platforms like Facebook and Twitter “are legion.’” United States v. Feng Ling Liu, 69 F.Supp.3d 374, 386 (U.S. District Courtfor the Southern District of New York 2014) (citation omitted). `Prejudice can come through a whisper or a byte.’ Dietz v. Bouldin, 136 S.Ct.1885, 1895 (2016).
 Murphy v. Roth, supra.
The Court of Appeal went on to explain that
[a]lthough no Florida court has directly addressed the issue of juror misconduct arising from the use of social media during a trial, in United States v. Fumo, 655 F.3d 288 (U.S. Court of Appeals for the 3rd Circuit 2011), the Third Circuit held that the trial court did not abuse its discretion in denying the defendant's motion for a new trial on the basis of a juror's comments about the trial on Facebook and Twitter. The trial court questioned the juror and determined that, although in violation of the court's instruction not to discuss the case outside the jury room, the comments were `nothing more than harmless ramblings having no prejudicial effect.’ Id. at 298–99. The trial court found that the comments `raised no specific facts dealing with the trial,” and that nothing in the comments “indicated any disposition toward anyone involved in the suit.’ Id. at 306.

The Third Circuit explained that `while prohibiting and admonishing jurors from commenting —even obliquely— about a trial on social networking websites and other internet mediums is the preferred and highly recommended practice, it does not follow that every failure of a juror to abide by that prohibition will result in a new trial.’ Id. at 305. Rather, courts should determine if the complaining party was `substantially prejudiced.’ Id. In light of the trial court's findings, which were based in large part on the juror's testimony and demeanor, the Third Circuit reasoned that there was `no plausible theory’ for how the defendant `suffered any prejudice, let alone substantial prejudice,’ from the juror’s Facebook and Twitter comments. Id. at 306.

Similarly, the Missouri Court of Appeals held that a trial court did not abuse its discretion in denying a motion for a new trial based on a juror's Facebook posts in which he mentioned that he was on jury duty, noted that he was `sworn to secrecy’ as to the details of the case, and joked that `there is no beverage service and the 3pm cocktail hour is not observed!’ J.T. ex rel. Taylor v. Anbari, 442 S.W.3d 49, 57–60 (Missouri Court of Appeals 2014). The Missouri court reasoned that the trial court did not abuse its discretion in finding that the juror `did not reveal any details about the case and any appearance of impropriety was not more prejudicial to any party over the other.’ Id. at 58 (internal quotation marks omitted). The court explained that the question of whether a new trial is required `is essentially a factual one, and that the trial court is in the best position to determine the credibility of the witnesses and any prejudicial effect of the alleged misconduct because it hears the evidence regarding the alleged misconduct.’ Id. at 59. The court further emphasized that the juror's remarks did not violate the trial court's `instructions not to post on Facebook about this case.’ Id. (emphasis in original). The court noted that: `To say the comments in this case, which simply informed people [the juror] was serving jury duty, were improper simply because they were posted on Facebook would be to ignore the reality of society's current relationship with communication technology.’ Id. at 59–60.
Murphy v. Roth, supra.
The court then noted that in this case, Murphy
relies on Dimas–Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238 (2011). In that case, the Arkansas Supreme Court held that a defendant in a death penalty case was denied a fair trial where a juror disregarded the trial court's instructions and tweeted about the case, even after the trial court questioned the juror about his tweets and admonished him to stop tweeting and to otherwise refrain from discussing the case any further. During the proceedings, the juror tweeted: `Choices to be made. Hearts to be broken. We each define the great line.’ Id. at 246. When the trial court questioned the juror about the tweet, the juror admitted posting on Twitter during the trial and explained that the tweet in question did not pertain only to the case, but also to `future stuff.’ Id. The trial court refused to strike the juror. Id. The Arkansas Supreme Court found troubling the fact that `even after the juror was questioned, admitted to the misconduct, and was again admonished not to discuss the case, he continued to tweet, specifically during sentencing deliberations.’ Id. at 247.

Dimas–Martinez is distinguishable in that it involved a situation where a juror continued to post comments on social media even after the trial court became aware, mid-trial, of the juror's postings and expressly instructed him to stop. Thus, the juror was unquestionably either unwilling to follow the court's instructions or simply incapable of doing so. Here, Juror 5's tweets were discovered after the verdict had been rendered and were the subject of four separate hearings conducted by the trial court, including one in which the trial court questioned Juror 5 in detail about these tweets.
Murphy v. Roth, supra.
The court went on to point out that,
[i]n denying Plaintiff's motion for a new trial and taking no action against Juror 5, the trial court necessarily credited and accepted Juror 5's explanation that this misconduct was neither intentional nor willful, and that none of his tweets related specifically to this case. Although its order contained no written findings, the trial court likewise necessarily found that the comments contained in Juror 5's tweets were insufficiently prejudicial to Plaintiff to require a new trial. There is no evidence that any of the other jurors saw, or had any discussions about, Juror 5's tweets. Moreover, nothing in the plain language of Juror 5's tweets discusses any facts specific to this case or the parties involved. Thus, it cannot be said that the trial court abused its discretion in concluding that Juror 5 misinterpreted the scope of the trial court's instruction not to post about his jury service and that he did not intentionally violate the court's order. While Juror 5's tweets are potentially offensive on a number of levels, the trial court acted within its discretion to interview Juror 5, assess his credibility and, in doing so, deny Plaintiff's motion for a new trial based thereon.

With regard to whether Juror 5's tweet that `[e]veryone is so money hungry that they'll do anything for it’ demonstrates that he was biased against Plaintiff, the trial court clearly credited Juror 5's testimony that the `money hungry’ post was not about Plaintiff or the trial in this case. More importantly, during voir dire, Juror 5 expressed similar opinions that some people sue `just for the money’ or for `dumb reasons,’ and that there were probably more frivolous lawsuits than there should be.  Thus, Juror 5's mid-trial tweet that `everyone is so money hungry’ is consistent with the views he had expressed in voir dire—hence, no argument can be made that there was any prejudice to Plaintiff based on this tweet.

In addition to the arguments with respect to Juror 5's tweeting, Plaintiff contends that she is entitled to a new trial because Juror 5 lied during voir dire by failing to disclose a recent accident involving him and his father. Defendant contends that Plaintiff is not entitled to a new trial because Plaintiff cannot establish that Juror 5's nondisclosure was material, that Juror 5 concealed this information, or that Plaintiff's counsel acted diligently to discover this information during voir dire.
Murphy v. Roth, supra.
The Court of Appeals then pointed out that,
[f]or a juror's nondisclosure of information during voir dire to warrant a new trial, the complaining party must establish that: (1) the information is relevant and material to jury service in the case; (2) the juror concealed the information during questioning; and (3) the failure to disclose the information was not attributable to the complaining party's lack of diligence. De La Rosa v. Zequeira, 659 So.2d 239, 241 (Florida Supreme Court 1995). Under De La Rosa, the burden is on the moving party to prove entitlement to a new trial on the basis of juror nondisclosure. Beyel Bros., Inc. v. Lemenze, 720 So.2d 556, 557 (Florida District Court of Appeals 4th District 1998).
Murphy v. Roth, supra.
The court then applied the above standards to Murphy’s argument, noting, initially, that
[h]ere, the record is insufficient to establish that Juror 5's nondisclosure of the accident with his father was material. If Juror 5 was involved in an automobile accident that occurred a week before trial, and the accident involved injuries and/or involved someone making a claim or filing a lawsuit, such information would clearly be material in the context of a personal injury case arising out of an automobile accident. However, the only information on the record is that Juror 5 and his father “got into an accident” on May 2, 2014, and that his father `got the court order’ during the trial of Plaintiff's case, which coincided with Juror 5’s tweet that `[e]veryone is so money hungry that they will do anything for it.’ It is unclear, however, whether the accident involved an automobile, a golf cart, a boat, or something else, whether there were any injuries, minor or serious, who was at fault, what were the damages, and what was the substance of the court order Juror 5's father received.
Murphy v. Roth, supra.
The opinion goes on to explain that
[i]n addition, during the juror interview, Plaintiff did not seek to ask any questions of Juror 5 about this accident or about why he did not disclose it in voir dire. Instead, after the trial court had asked all of its questions of Juror 5, Plaintiff asked the court, and it agreed, to pose two or more additional follow-up questions unrelated to the accident. In any event, Plaintiff's counsel conceded at the hearing on the motion for a new trial that he was not seeking reexamination of Juror 5 on the nondisclosure issue. Thus, without more information about the facts of the undisclosed accident, Plaintiff cannot meet her burden to establish the materiality prong of De La Rosa.

Under the second prong of De La Rosa, `information is considered concealed for purposes of the three part test where the information is ‘squarely asked for’ and not provided.’ Birch ex rel. Birch v. Albert, 761 So.2d 355, 358 (District Court of Appeal of Florida For the Third District 2000). `Finally, the third prong addresses whether the cause of the failure to elicit the information was due to the fault of the complaining party.’ Pembroke Lakes Mall Ltd. v. McGruder, 137 So.3d 418, 429 (Fla. 4th DCA 2014). Because there is insufficient record evidence to establish the first prong of De La Rosa, we decline to address the second and third.
Murphy v. Roth, supra.


Friday, December 02, 2016

Driving with a Suspended License, the Pill Bottle and the Facebook Profile

This post examines an opinion from the U.S. District Court for the District of Kansas: U.S. v. Cooks, 2016 WL 6948065 (2016). The District Court Judge begins by explaining that
Defendant Gary Cooks was pulled over for driving with a suspended license. The traffic stop gave rise to a protective sweep that uncovered a pill bottle. And that pill bottle led to a search of the entire vehicle that uncovered a firearm in the trunk. As a result, Cooks is now charged with possessing a firearm as a convicted felon in violation of 18 U.S.  Code § 922(g)(1). Cooks moves to suppress all evidence obtained from the search of his car.
U.S. v. Cooks, supra.
The opinion, as opinions usually do, goes on to explain how and why the case arose:
On or about April 1, 2016, Officer Jared Henry of the Wichita Police Department responded to a reported aggravated assault. The victim claimed an individual had leaned out of a tan Chevy Impala and pointed a gun at her. The victim provided the Impala's tag number, and Officer Henry learned that the tag was registered to a tan Chevy Impala belonging to Gary Cooks. The victim's description matched Cooks, although she failed to pick him out from a photo lineup. Officer Henry checked Cooks' Facebook profile, and found that on March 25, Cooks had posted a video of what appeared to be him brandishing a firearm. Officer Henry also learned that Cooks was a convicted felon with a suspended driver's license.

On April 7, Officer Henry observed Cooks leaving his residence in the tan Impala. Shortly thereafter, Officer Henry pulled Cooks over for driving with a suspended license. Upon initial contact, Officer Henry confirmed Cooks' identity and asked him to step out of the vehicle. Officer Henry then patted Cooks down for weapons. Finding none, Officer Henry directed Cooks to sit on the curb under supervision of another officer that had arrived on scene. Officer Henry then proceeded to conduct a protective sweep of the immediate vicinity of the area Cooks was occupying in the car. Although Officer Henry knew that Cooks' license was suspended, he testified that he did not intend on placing Cooks under arrest at the time he conducted the protective sweep.

While conducting the protective sweep, Officer Henry opened the middle console—located in the armrest between the driver and passenger seat—and found a prescription pill bottle with approximately 20 pills inside of it. The label had been ripped off of the bottle. At this point, Officer Henry asked Cooks about the pills. Cooks stated that they were Lortabs that had been prescribed to him following a dental procedure. Cooks claimed that he had the procedure 60 days earlier, and had refilled the prescription for Lortabs 30 days ago. Officer Henry asked if Cooks had a label, or some document to verify that he had the Lortabs pursuant to a valid prescription. Cooks stated that he did not have anything on him or in the car to immediately verify the prescription, but he offered to show Officer Henry his dental work and medical insurance information in an attempt to assuage any suspicions. Cooks claimed that whenever he got a new prescription, he would put the pills in the same old pill bottle that had the label ripped off. Officer Henry did not follow up on any of Cooks' explanations.
U.S. v. Cooks, supra.
The opinion then explains that
Officer Henry found Cooks' answers suspicious. He believed that Cooks did not have a valid prescription for the Lortabs, and at that moment, felt he had probable cause to arrest Cooks for possession of narcotics. Officer Henry also believed he had probable cause to search the rest of the car for additional narcotics. He conducted a search of the entire vehicle and discovered a handgun and a jar of marijuana inside of a bag in the trunk. At that point, Cooks was placed under arrest.
U.S. v. Cooks, supra.
The court goes on to note that “Cooks now moves to suppress the evidence from the car, arguing that the protective sweep was improper and the search of the trunk was not supported by probable cause.” U.S. v. Cooks, supra.
The District Court Judge began his analysis of the issues in the case by explaining that
[t]he Fourth Amendment protects the `right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ `The Fourth Amendment generally requires police to secure a warrant before conducting a search.’ But there are exceptions to the warrant requirement. Officer Henry did not acquire a warrant to search Cooks' vehicle, and thus, the Court must consider whether any exceptions to the warrant requirement apply.

There are two searches at issue: (1) Officer Henry's protective sweep of the vehicle immediately upon pulling Cooks over; and (2) Officer Henry's more thorough search of the vehicle, including the trunk. The Court will consider each search in turn.
U.S. v. Cooks, supra.
The judge addressed the issues in this order, so he began with the propriety of the protective sweep of the vehicle.  U.S. v. Cooks, supra. The opinion begins that analysis as follows:
Cooks argues that under Arizona v. Gant, Officer Henry's protective sweep of the vehicle exceeded the scope of a search incident to arrest. But this argument conflates two distinct concepts: the search incident to arrest and the protective sweep.

`A search incident to arrest allows a search not only of the arrestee, but also of the area within his “immediate control,” meaning “the area from within which he might gain possession of a weapon or destructible evidence.”’ The search incident to arrest doctrine was applied in the context of vehicles in New York v. Belton. In Belton, the Supreme Court held that when an officer arrests an occupant of a vehicle, he may search the passenger compartment of that vehicle as a search incident to arrest.  Lower courts applied the Belton rule inconsistently, but most courts read Belton to allow an officer to search the vehicle even after he had arrested the occupants and secured them in a patrol car.  In 2009, the Supreme Court decided Arizona v. Gant, noting that Belton was being interpreted too broadly to allow officers to conduct searches that were divorced from the underlying rationale of the search incident to arrest doctrine. The Court went on to hold that the search of a vehicle and its passenger compartments incident to arrest is only allowed (1) when the arrestee is unsecured and within reaching distance of the area to be searched or (2) when the officer reasonably believes that evidence of the crime of arrest might be found.
U.S. v. Cooks, supra.
The opinion goes on to explain that
[d]istinct from the search incident to arrest is the protective sweep. In Terry v. Ohio, the Supreme Court held that an officer may search a suspect for weapons if he reasonably believes he is dealing with an armed and dangerous individual. Such a search is commonly referred to as a `protective search’ or `protective sweep.’ In Michigan v. Long, the Court applied Terry to situations in which an officer has conducted a traffic stop. Thus, an officer may conduct a protective sweep of a vehicle if he reasonably believes that the suspect poses a danger. The purpose of the protective sweep is officer safety, and it is `limited to those areas in which a weapon may be placed or hidden.’ The protective sweep may encompass the glove compartment and any other area that could contain a weapon and to which the suspect could later gain access.

Notably, the protective sweep is not subject to the limits placed on a search incident to arrest. A protective sweep usually occurs before a suspect is placed under arrest, and in some cases when a protective sweep is performed, the suspect might not be arrested at all. “In the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is complete. And therefore, unlike a search incident to arrest, a protective sweep of a vehicle may be conducted even when the suspect is not in reaching distance of the area at the time of the search.
U.S. v. Cooks, supra.
The judge then began his analysis of the propriety of the protective sweep, explaining that
[w]hen Officer Henry conducted his protective sweep of Cooks' vehicle, Cooks was not under arrest. At that point, Cooks was only stopped for driving on a suspended license—and Officer Henry testified that he did intend to arrest Cooks for that offense. Had Officer Henry not found Cooks' Lortabs, the encounter might have ended with Cooks returning to his vehicle. Therefore, the facts in this case are much more akin to Michigan v. Long than Arizona v. Gant, and the limitations on searches incident to arrest do not apply.

In other words, Officer Henry's initial search was a protective sweep and not a search incident to arrest. Officer Henry was authorized to conduct a protective sweep if there was reasonable, articulable suspicion that Cooks could be armed. It had been reported to Officer Henry that an individual matching Cooks' appearance had brandished a handgun from a tan Chevy Impala just a week earlier. And Officer Henry had viewed a recently uploaded Facebook video of Cooks brandishing what appeared to be a handgun. Given these facts, Officer Henry was justified in conducting a protective sweep of Cooks' vehicle. Additionally, the search did not exceed the scope allowed for under the law. Officer Henry limited the search to areas within reaching distance that could have contained a weapon. The prescription pill bottle was located in such an area. And so, Officer Henry uncovered the prescription pill bottle and Lortabs while conducting a legal search.

Because the pills were discovered through a lawful protective sweep, the Court will not suppress them as evidence. The Court now turns to Officer Henry's search of the trunk of Cooks' vehicle.
U.S. v. Cooks, supra.
The judge began the analysis of the search of the trunk by explaining that a police officer
may conduct a warrantless search of a vehicle if he has probable cause to believe contraband will be found inside. In such circumstances, `the officer may search the entire vehicle, including the trunk and all containers therein that might contain contraband.’ After questioning Cooks about the pill bottle, Officer Henry believed that Cooks possessed the pills illegally.

Officer Henry said he was struck by several things in his conversation with Cooks. First, that Cooks was unusually talkative and tried to change the subject when asked about the pills. Officer Henry testified that, in his experience, such behavior suggested dishonesty. Second, Officer Henry found it suspicious that there were approximately 20 pills in the bottle for a 60 day-old prescription that had only been refilled once. Third, when asked to verify the prescription, Cooks presented his health insurance card, but not an actual label or something to verify that the Lortabs were lawfully prescribed him. Fourth, Officer Henry found it unbelievable that Cooks would place legally prescribed pills in an unmarked prescription pill bottle. Cooks' explanation, Officer Henry testified, was simply incredible. Accordingly, Officer Henry felt that he had probable cause to arrest Cooks for possessing the Lortabs illegally and to search the rest of the vehicle.
U.S. v. Cooks, supra.
The opinion goes on to address the issue of probable cause, explaining that
Cooks argues that the pill bottle and his explanations was not enough evidence to provide Officer Henry with probable cause to search his trunk. At the hearing on his motion to suppress, Cooks' counsel argued that instead of searching the vehicle at the scene, Officer Henry `could have had the car impounded. [He] could have gotten a warrant to try to search it.’ While the Court agrees that Officer Henry certainly could have tried to get a search warrant, he would have been unsuccessful because probable cause was lacking.

Probable cause to search is established where known facts and circumstances would lead a reasonable person to believe evidence of a crime will be found. There must be a nexus between the suspected criminal activity and the place to be searched. Probable cause is measured against an objective standard of reasonableness and cannot be established `simply by piling hunch upon hunch.’ Rather, the Court must look at the facts and consider not only those supporting probable cause, but also `those that militate against it.’
U.S. v. Cooks, supra.
The judge goes on to explain that
[i]n this case, there was insufficient evidence to establish probable cause for a search of the trunk. In his testimony, Officer Henry was able to articulate why he was suspicious of Cooks' answers. And indeed, if the test were reasonable suspicion, the Court would certainly find that Officer Henry had a reasonable, articulable suspicion of criminal activity. But `[r]easonable suspicion is a less demanding standard than probable cause.’ Cooks gave plausible answers to Officer Henry's questions about the pills. And while Officer Henry's suspicions may have been justified, the evidence did not rise to the level of probable cause to search the vehicle.

Most conversations between a law enforcement officer and one suspected of criminal activity in situations such as this, that give rise to probable cause supporting a more thorough search, arise because the suspect gives responses that in light of the known facts are illogical or make no sense. Cooks' responses that he had recently had undergone a dental procedure, had been prescribed pain pills for that procedure, and had the pain medication refilled, is not illogical or nonsensical. While it was unusual that the medication was contained in a bottle with the label removed, Cooks' story was otherwise coherent and consistent with the known facts at the time. Moreover, though Cooks could not immediately provide a pill bottle label showing a prescription for Lortabs issued to him, he did offer to display the dental work to the officer to prove that he had received recent treatment, and he did offer to show his health insurance card. Both offers were implicitly declined.
U.S. v. Cooks, supra.
The opinion concludes by explaining that
[i]n light of all the facts then known to the officer, it is not illogical, unreasonable or necessarily unbelievable that Cooks actually had a dental procedure, that he had received a prescription for pain medication because of that procedure, that perhaps after refilling the prescription his pain subsided somewhat so that much of his refilled medication would still remain. Though perhaps unusual, these representations viewed in total are not so implausible or unbelievable to rise from the level of reasonable suspicion to that of probable cause. The Court does not believe that, on this showing alone, a neutral magistrate would have found a sufficient showing of probable cause to have issued a search warrant. Nor does this Court find a sufficient showing of probable cause. Thus Officer Henry's warrantless search was unlawful.

Viewed objectively, the evidence did not establish a fair probability that contraband would found in the trunk. Thus, Officer Henry did not have probable cause to search Cooks' trunk, and the evidence retrieved from that search is suppressed.
U.S. v. Cooks, supra.
The judge therefore held that “[b]ecause Officer Henry searched the trunk of Cooks' vehicle without probable cause to do so, Cooks' motion is granted and all evidence recovered from the trunk is suppressed.”  U.S. v. Cooks, supra.