Blackberry Seized Lawfully . . . ?

My last post dealt with a U.S. Virgin Islands case in which a federal judge held that the seizure of a Blackberry violated the 4^th Amendment. This post is about a New York case in which a state judge held that a Blackberry was seized lawfully . . . a holding I tend to disagree with, at least in part.

We’ll start, as usual, with the facts:

[O]n January 1, 2010, [Detective DeStefano] was notified by the Lynbrook Police Department that a pedestrian robbery had occurred at 7:30 p.m., at the intersection of Nieuman Avenue and Merrick Road, in Lynbrook. . . .

DeStefano proceeded to that location. Upon arriving at the scene, [he] spoke with Lynbrook Police Officers, and with the complainants, Stephen Alonge and Michael Suter. [They said] they were walking on Nieuman Avenue toward Merrick Road, when a car pulled up and three men jumped out and approached them. The complainants told DeStefano that one of the individuals, . . . a `light-skinned male black,’ pulled out a . . . handgun and demanded their cellular phones, money and valuables. Suter [said] the men took his Blackberry cellular phone. The complainants said the men got back into the car and drove away. DeStefano recorded the phone number of Suter's cellular phone. . . . [and] . . . applied for a Pen Register and Trap and Trace Order, regarding [it]. The application . . . was granted by a Nassau County Court Judge. The Order authorized the Police to use Global Positioning Satellite (G.P.S.) technology to track the location of the cellular phone. . . .

[O]n January 7, 2010, [Detective Galgano] was investigating the alleged robbery in conjunction with members of the Nassau County Police Department Electronics Squad. The Electronics Squad was using G.P.S. technology to track . . . [Suter’s] cellular phone. The Electronics Squad reported that G.P.S. tracking located the cellular phone in Brooklyn. . . . Galgano and Detective John proceeded to Brooklyn along with members of the Electronics Squad, and Officers from the Nassau County Bureau of Special Operations. The G.P.S. tracking . . . led them to an apartment building at 245 Wortman Street, in Brooklyn. . . . [T]hey entered . . . and observed a woman wearing a `Community Watch’ jacket seated at a table in the lobby. . . . [She] appeared to be monitoring the people who entered the building. The Detectives were directed by the Electronics Squad to apartment 1L. . . . [A]s [Galgano] approached apartment 1L, the woman wearing the `Community Watch’ jacket was entering that apartment. Galgano asked [her] who lived there, and she [said] she lived there with her two grandsons. Galgano asked [her] if he could come into the apartment and [she] responded `yes.’ . . .

[W]hen they entered the apartment, [Galgano] saw two young men sitting on the couch in the living room. [He] noticed that one of the men, [later] identified as [Kyare Starks], was a `light-skinned male black,’ and was holding a Blackberry cellular phone. Galgano . . . used his Police Department cellular phone to dial the phone number of [Suter’s] Blackberry. . . . [A]t that point the Blackberry . . . [Kyare Starks] was holding immediately began to ring. Galgano then seized the Blackberry cellular phone from [Starks] and placed him under arrest.

People v. Starks, 2010 WL 4054236 (Supreme Court, Nassau County, New York 2010). Starks was charged with 3 counts of robbery and 2 counts of grand larceny and moved to suppress Suter’s Blackberry, on the grounds that it had been seized in violation of the 4^th Amendment. People v. Starks, supra.

As I’ve explained in earlier posts, the 4^th Amendment outlaws “unreasonable” searches and seizures, so “reasonable” searches and seizures don’t violate the 4^th Amendment. As Wikipedia notes, there are two kinds of seizures: a seizure of a person and a seizure of property. A person is “seized” when law enforcement officers interfere with her/his freedom of movement (as in an arrest); and as Wikipedia notes, a seizure of property “occurs when there is meaningful interference by the government with an individual's possessory interests, such as when police officers take personal property away from” someone to use it as evidence. If a seizure of property (or of a person) occurs, it has to be “reasonable” which, as I’ve noted before, means it has to have been conducted either pursuant to a warrant (a search and seizure warrant for property, an arrest warrant for a person) or to an exception to the warrant requirement.

As I noted earlier, Starks moved to suppress the Blackberry seized from him on the grounds that the seizure violated the 4^th Amendment. This is all the opinion says about the specifics of his argument on this issue: “Defense counsel suggests that the incoming call on the cellular phone [Starks] was holding was not necessarily from Galgano, and therefore there was no basis for Galgano to reasonably conclude that the cellular phone [Starks] was holding was the phone allegedly stolen from [Suter].” People v. Starks, supra.

I’m not exactly sure what the prosecution argued in response (I don’t have access to the briefs in this case), but I do know how the judge resolved the issue. This is how he ruled on Stark’s motion to suppress the Blackberry:

This Court finds that the Blackberry . . . seized from [Starks] was in the plain view of Detective Sergeant Galgano once he entered the living room of apartment 1L. . . The fact that the cellular phone began ringing after Galgano dialed [Suter’s] cellular phone number, gave Galgano a basis to seize it from the defendant. . . . Therefore, the defendant's motion to suppress the Blackberry cellular phone is hereby denied.

People v. Starks, supra. I find this holding interesting, and perhaps problematic. As I explained in an earlier post, the “plain view doctrine” is a rule that can expand the scope of a lawful 4^th Amendment intrusion into a private area. The doctrine isn’t, as I noted in that post, an exception to the warrant requirement; it’s a piggyback principle that can expand the scope of an otherwise lawful intrusion. And as I also explained in that post, the plain view doctrine only authorizes a SEIZURE of property; it cannot justify a search of or for property (or anything else, for that matter).

In this case, the judge held that the Blackberry was in plain view, which is quite true; the officers saw it as soon as they entered the living room of the apartment. For a seizure of property to be “reasonable” under the plain view doctrine, the officers had to have been lawfully on the premises (they were – the grandmother consented to their entry) and the incriminating nature of the Blackberry must have been “immediately apparent” as soon as they saw it. (Or, phrased differently, as soon as they saw the Blackberry they must have had probable cause to believe it was evidence of a crime and therefore seizable.)

The judge didn’t say Galgano had probable cause to seize the Blackberry when he saw Starks holding it; the judge said Galgano had probable cause to seize the Blackberry under the plain view doctrine because the phone rang when he used his cell phone to dial the number of Suter’s Blackberry. Why did Galgano do that? I’m assuming he did it because he didn’t think he had probable cause to seize the Blackberry based on the simple fact that Starks was holding a Blackberry . . . and if that is what he thought, I think he was probably right.

But I’m not sure I agree with the judge’s holding. He incorporated Galgano’s calling Suter’s Blackberry into the probable cause determination and said that since the phone rang, that established probable cause. I think calling the Blackberry may have been a “search” that violated the 4^th Amendment, and to explain why I think that I need to review a Supreme Court plain view doctrine case.

In Arizona v. Hicks, 480 U.S. 321 (1987), someone fired a bullet through the floor of Hicks’ apartment that injured a man in the apartment below his. Police arrived and entered Hicks’ apartment (lawfully) to search for the shooter and for weapons. While they were looking for those things, one of officers – Officer Nelson – “noticed two sets of expensive stereo components, which seemed out of place in the squalid and otherwise ill-appointed four-room apartment.” Arizona v. Hicks, supra. Since Nelson suspected the components were stolen, “he read and recorded their serial numbers – moving some of them” in order to be able to see the serial numbers. Arizona v. Hicks, supra. He then called the numbers into headquarters, was told that one of the components he’d moved had been stolen and seized it as evidence. Arizona v. Hicks, supra.

Hicks was indicted for the theft and moved to suppress the stereo component, arguing that Nelson’s moving it so he could see and record the serial number was a “search” under the 4^th Amendment, one that was not authorized either by a search warrant (the officers entered the apartment under the exigent circumstances exception, which let them look for the shooter and for weapons . . . only) or by an exception to the search warrant requirement (the scope of the exigent circumstances exception, on these facts, didn’t encompass checking out stereo equipment). Arizona v. Hicks, supra. The Supreme Court agreed. It held that the

`distinction between “looking’ at a suspicious object in plain view and ‘moving” it even a few inches’ is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent -- serial numbers rather than . . . letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.

Arizona v. Hicks, supra. Since it was a search, the plain view doctrine didn’t apply. The Supreme Court also found that the search wasn’t “reasonable” because Nelson didn’t have probable cause to conduct the search. Arizona v. Hicks, supra. Even if Nelson had had probable cause to conduct the search, that, alone, wouldn’t make it reasonable under the 4^th Amendment; he’d also have to fit the search into an applicable exception to the warrant requirement (or take time to get a search warrant to move the component). Since he didn’t get a warrant and since no exception applied, the Supreme Court upheld the lower court decisions that had suppressed the component. Arizona v. Hicks, supra.

And that brings us back to Suter’s Blackberry. If calling Suter’s Blackberry to see if the Blackberry Starks was holding was a “search” under Arizona v. Hicks, then I don’t see how the plain view doctrine could apply to justify the seizure of the Blackberry. If calling the phone is analogous to Nelson’s moving the stereo component, it was a search and would violate the 4^th Amendment unless Galgano (i) had probable cause to make the call (I suspect he did) and (ii) a valid exception to the 4^th Amendment’s warrant requirement authorized him to make the call for the purpose of determining in the cell phone Starks was holding would ring.

Or maybe I’m wrong . . . maybe it wasn’t a “search” for Galgano to call the Blackberry? Maybe calling a phone (especially one that may not belong to the person who's holding it) isn't a "search" under the 4th Amendment . . .