After being convicted by a jury “of conspiracy to distribute
a scheduled II controlled substance” in violation of Colorado law, Donald
Eugene Taylor appealed. People v. Taylor, __ P.3d __, 2012 WL
2045754 (Colorado Court of Appeals 2012). He raised several issues on appeal,
but we’re only concerned with one of them.
Taylor argued that the trial court judge erred in “refusing
to suppress evidence discovered during a warrantless search of the call history
contained in his cellular telephone on his person at the time of his arrest.” People
v. Taylor, supra. This is how the
search, and the prosecution, came about:
On November 20, 2008, undercover
officers C.S. and J.W. of the Aurora Police Department were conducting sting
operations on the East Colfax corridor. Detective C.S. and Investigator J.W.
were patrolling in an undercover police car when they observed [Taylor] making
gestures at them consistent with initiating a drug transaction.
The officers approached [Taylor] and Investigator
J.W. asked if he `could get a hookup.’ [Taylor] asked, `[H]ook you up with
what?’ to which Investigator J.W. replied, `[F]orty hard,’ street slang for $40
worth of crack cocaine. [Taylor said] he did not sell drugs, but he indicated
that he could call someone to sell them the drugs. [Taylor] then instructed the
officers to park across the street.
The officers observed [Taylor] make a phone call on
his cellular telephone, and soon thereafter a female approached and entered the
car. Investigator J.W. purchased $40 of crack cocaine from the woman. After the
controlled purchase, both [Taylor] and the woman were arrested.
After [Taylor] was arrested, he was searched and his
cell phone was seized. One of the arresting officers, Sergeant R., opened the
call log history of [his] cell phone, noting a call was recently placed to the
woman's phone.
People v. Taylor,
supra.
Taylor was actually charged both with “distribution of a
controlled substance and conspiracy to distribute a controlled substance.” People v. Taylor, supra. The jury convicted him of conspiracy to
distribute but deadlocked on the distribution count. People v. Taylor, supra. “The
court dismissed the distribution count, and sentenced defendant to eight years
in community corrections.” People v. Taylor, supra.
In his motion to suppress Taylor claimed he was “subject to
an unlawful search when the police reviewed his cellular telephone's call log
without obtaining a warrant.” People v. Taylor, supra. The Court of Appeals began its analysis of
his argument by noting that
[w]e must defer to the trial court's
findings of fact if those findings are supported by competent evidence in the
record, but we review the trial court's legal conclusions de novo. . . . At a suppression hearing, a defendant has the
burden of demonstrating that he is entitled to protection under the 4th
Amendment
People v. Taylor,
supra.
The court assumed that
(i) Taylor “had a reasonable expectation of privacy in his cellular
telephone's call history”; and (ii)
the officer's “review of the call history constituted a warrantless
search within the meaning of the 4th Amendment.” People
v. Taylor, supra. It noted that
other courts "have found a reasonable expectation of privacy in a
cellular telephone’s call history.” People v. Taylor, supra.
The court then explained that warrantless searches are
unreasonable unless they fall under a
specifically established .
. . exception to the warrant requirement. City of Ontario v. Quon, 130
S.Ct. 2619 (2010) ( `Although as a general matter, warrantless searches “are per
se unreasonable under the 4th Amendment,” there are `a few
specifically . . . exceptions” to that general rule.') (quoting Katz v.
U.S., 389 U.S. 347 (1967)). . . . `
People v. Taylor,
supra.
It also explained that one specifically established
exception to the warrant requirement is
`a search incident to lawful arrest. U.S. v. Robinson, 414 U.S. 218, 224 (1973). This
`allows . . . officers . . . to search an arrestee's person and the area within
the arrestee's immediate control.’ People
v. Gothard, 185 P.3d 180, 184 (Colorado Supreme Court 2008). . . . [T]he
`search require[s] no independent justification, such as a reasonable suspicion
or belief the defendant might be armed or in possession of contraband.’ People
v. Tottenhoff, 691 P.2d 340, 345 (Colo.1984). . .
People v. Taylor,
supra.
In U.S. v. Robinson,
supra, the Supreme Court held that an officer’s decision as to and where
to search the person of a
suspect whom he has arrested is necessarily a quick ad hoc judgment
which the 4th Amendment does not require to be broken down in each instance
into an analysis of each step in the search. . . . A custodial arrest . . .
based on probable cause is a reasonable intrusion under the 4th Amendment; that
intrusion being lawful, a search incident to the arrest requires no additional
justification.
(For another court's take on this same issue, check my prior post.)
The Court of Appeals noted that neither the U.S. Supreme
Court nor the Colorado
Supreme Court has directly
considered the issue of whether a search incident to arrest may include a
search of a cell phone's contents, and if it does, how thorough the search
might be. We conclude, under the circumstances present in this case, that the
search of [Taylor’s] cell phone's call history was a lawful search incident to
arrest.
People v. Taylor,
supra.
It noted that several years after it decided Robinson, the Supreme Court limited the area available
for a search incident to arrest “to the arrestee’s person and areas `within the
immediate control’ of an arrestee.” People v. Taylor, supra (quoting U.S. v. Chadwick, 433 U.S. 1
(1977)). This court then held that a “search
of the contents of a defendant's cellular telephone or other personal
electronic device is a lawful search incident to arrest.” People
v. Taylor, supra. In so doing, it
relied on the Supreme Court’s decisions in U.S.
v. Robinson, supra and in U.S. v.
Edwards, 415 U.S. 800 (1974). The Edwards Court held that officers were “entitled
to take from [the defendant] any evidence of the crime in his immediate
possession, including his clothing.” U.S.
v. Edwards, supra.
It also explained that, under these and
other decisions, a search of the call history of a
cellular telephone on the person of the arrestee is a lawful
search incident to arrest. Here, the uncontested evidence at the suppression
hearing was that [Taylor’s] cell phone was removed from his person after his .
. . arrest. The officer then searched [its] history to confirm [he] had called
the woman who arrived to sell Investigator J.W. the drugs. This search was a
lawful warrantless search incident to arrest.
People v. Taylor,
supra.
It also pointed out that,
applying the narrower view proposed by
some courts that officers may not search all data contained in a cell phone,
nevertheless the search of the call history of [Taylor’s] cell phone was
lawful. See Hawkins v. State, 307 Ga. App. 253, 704
S.E.2d 886 (Georgia Court of Appeals 2010) (`Just because an officer has
the authority to make a search of the data stored on a cell phone . . . does
not mean he has the authority to sift through all of the data
stored on the phone (that is, to open and view all of the sub-containers of
data stored therein). Instead, his search must be limited as much as is
reasonably practicable by the object of the search.’) (emphasis in the original).
People v. Taylor,
supra.
Having found that the search of Taylor’s call
history was a lawful search incident, the Court of Appeals noted that it recognized
that “cell phones, tablets, and other personal electronic devices, like computers,
are capable of storing and accessing large amounts of personal information, and
we are aware of the concerns of other courts regarding searches for information
contained in these devices.” People v. Taylor, supra.
Having said that, the court agreed with the
practical consideration proposed by
Magistrate Judge Torres of the Southern District of Florida, who stated:
`Perhaps the better
alternative is to a find a technological answer to this technological problem.
We don't have the answer, but a good place to start is by a user password
protecting the electronic device. Short of that practical step, the solution
does not lie with a revamped analysis of the search incident to arrest
doctrine.’
People v. Taylor,
supra (quoting U.S. v. Gomez, 807
F.Supp.2d 1134 (U.S. District Court for the Southern District of Florida
2011)).
And the Taylor court reiterated that it was holding that “the call
history stored in a cell phone . . . found . . . on his person . . . is not
beyond the scope of a search incident to arrest”, which meant “[Taylor’s] cell
phone call log was accessible to searching officers.” People
v. Taylor, supra. Since it rejected
Taylor’s 4th Amendment argument and the other arguments he made on
appeal, the court affirmed his conviction and sentence. People
v. Taylor, supra.
In a concurring opinion, Judge Booras pointed out that while
the majority opinion “acknowledges the concerns express by other courts”
regarding cell phone searches “based on the capability of such devices for
storing and accessing large amounts of personal information”, there is an
another view. Concurring opinion, People v. Taylor, supra. She wanted “to point out that many other courts reject the view that the potential
volume of information in a cell phone changes its character as a personal
effect that . . . may be searched incident to arrest.” Concurring opinion, People
v. Taylor, supra.
After citing opinions that have taken this position, she
explained that “courts have noted problems that would be caused by limiting a
search on the basis of the quantity and types of information a device might
hold.” Concurring opinion, People v. Taylor, supra. For this proposition, she cited U.S. v. Murphy, 552 F.3d 405 (U.S. Court of Appeals for the 4th Circuit 2009), in which a federal Court of Appeals noted that the defendant, Murphy, argued that whether a cell phone can be searched
without a warrant can be determined only upon the officers
ascertaining the cell phone's storage capacity. . . . [H]e
concedes a device with a small storage capacity may be searched without a
warrant due to the volatile nature of the information stored, but argues that a
search of a cell phone with a larger storage capacity would . . . require a
warrant to be issued before a search could be conducted.
Murphy's argument is problematic. . . . First, [he] has
not provided . . . any standard by which to determine what would constitute a
`large’ storage capacity as opposed to a `small’ storage capacity. . . . Second,
he introduced no evidence that his cell phone had the . . . `large’ storage
capacity he contends is subject to a heightened expectation of privacy. Third, .
. . his argument . . . is premised on the unwarranted assumption that
information stored on a cell phone with a `large’ storage capacity would be any
less volatile than the information stored on a cell phone with a `small’
storage capacity.
Finally, Murphy's argument must be
rejected because to require officers to ascertain the storage capacity of a
cell phone before conducting a search would be an unworkable and unreasonable
rule. It is unlikely that officers would have any way of knowing whether the
text messages and other information stored on a cell phone will be preserved or
be automatically deleted simply by looking at the cell phone.
People v. Taylor,
supra (quoting U.S. v. Murphy, supra).
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