As I have noted in earlier posts, every U.S. state has its
own constitution. As Wikipedia explains,
the 10th Amendment to the U.S. Constitution states
that `The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.’
The Guarantee Clause of Article 4 of the Constitution states that `The United States shall guarantee to every
State in this Union a Republican Form of Government.’ These two provisions
give states the wide latitude to adopt a constitution, the fundamental
documents of state law.
This post examines a recent decision from the Indiana Court
of Appeals in which the applicability, and effect, of a provision of the Indiana
Constitution was at issue.
The case is Kirk v.
State, __ N.E.2d __, 2012 WL 4336228 (Indiana Court of Appeals 2012), and
this is how it arose:
During June 2010, Dennis Barnett lived
in the 800 block of North Tuxedo Street in Indianapolis. . . . Barnett . . . was
buying $20 to $40 worth of crack cocaine every other day from [Gregory] Kirk's
sixteen-year-old stepson, D.K. Barnett was unable to text from his cell phone,
so when he needed drugs he would knock on the door of D.K.'s house, . . . at
918 North Tuxedo Street. Occasionally, when Barnett did not have the cash to
pay for the cocaine, D.K. `fronted [Barnett] until the next day.’ Barnett and
D.K. kept track of . . . any money Barnett owed. . . .
On.
. . June 18, 2010, Barnett promised Kirk $20 if he would drive him to collect
$80 from a man who owed him money. When they arrived, the man did not have cash
so Barnett accepted . . . $80 worth of crack cocaine. Kirk asked Barnett to
give him $20 worth of cocaine . . . instead of the . . . $20 in cash.
On the
drive back, Kirk talked to Barnett `about money [Barnett] owed [his] son,’ for
previously purchased drugs. Upon returning home, Kirk told D.K. Barnett owed
D.K. money and Barnett was currently in possession of crack cocaine. That
evening, D.K. and an unidentified man went to Barnett's house. Barnett . . .
had smoked all of the cocaine before the men got there. The men left . . .
without incident.
On June 19, Barnett walked
by Kirk's home. . . . Upon seeing Barnett, Kirk said, `You are going to get
beat down.’ . . . Later that evening, Barnett saw Kirk and D.K. across the
street near his house. D.K. had a gun in his hand, which was pointed at the
ground. Kirk was standing beside D.K., and the two were `talking towards
[Barnett] down the street.’ . . . Barnett . . . heard Kirk yell, `We going to
get him.’ Assuming Kirk and D.K. were there to collect on the debt they
believed Barnett owed for a prior cocaine purchase, Barnett called 911.
Kirk v. State, supra.
Indianapolis Metropolitan Police Department Officer Nelson
responded, joined shortly thereafter by other officers. Kirk v.
State, supra. Nelson patted down the
suspects and found a “loaded, semi-automatic, Cobra 380 handgun” on D.K., who
was arrested for possessing a handgun without a license.” Kirk v. State, supra. “After he was arrested, D.K. made
incriminating statements about Kirk to police.” Kirk v. State, supra
After one of the other officers, Detective Schwomeyer, noted
that Kirk’s eyes were
glassy and bloodshot, his speech was
slurred, and his breath had an odor of alcohol, [he] arrested Kirk for public
intoxication and for neglect of a dependent. . . .During a search of Kirk
incident to arrest, police found half-burnt marijuana cigarettes, `roach
clips,’ a pipe, and a cell phone. . . .
Schwomeyer immediately pressed the text
button on the cell phone and looked at six to eight text messages. He recalled that
one text message was from `someone requesting to purchase marijuana, and
[another] was someone requesting to purchase pain pills.’ Nelson also looked at
the text messages. While Nelson did not recall the exact language of the text
messages, he recalled they were from `people wanting to buy drugs,’ i.e., `pills’
and one other drug Nelson could not remember. . . When questioned at the scene,
Kirk told Schwomeyer he had been near Barnett's house because `the guy owed him
money.’ . . . When asked about the nature of the debt, Kirk declined to
answer.
Kirk v. State, supra.
On June 23, officers executed a search warrant for the home
“Kirk and D.K. gave as . . . their residence”. Kirk v. State, supra. They found “a Mossburg .22 caliber full
tactical rifle”, a “sawed-off 12–gauge shotgun; 200 to 300 rounds of . . .
ammunition; 1000 small, plastic, zip-lock baggies; a set of digital scales; a
shoulder holster for a semi-automatic 380; a couple of BB guns; and a bottle of
injectable lidocaine.” Kirk v. State,
supra. They also found “$388 in cash”, and “a gun cleaning kit for an M–16
rifle.”
Kirk was charged with conspiracy to commit dealing in
cocaine, conspiracy to commit dealing in a controlled substance, neglect of a
dependent, and possession of marijuana. Kirk
v. State, supra. He moved to suppress “evidence obtained from the search of
Kirk's cell phone” and evidence found during the search of his home. Kirk v.
State, supra. After a two-day trial,
he was convicted on all four counts and sentenced to eighteen years in prison,
with portions of the sentence suspended.
Kirk v. State, supra.
He appealed, raising various issues, only one of which
concerns us. Kirk v. State, supra. Kirk
argued, on appeal, that the trial court
abused its discretion by admitting
testimony regarding the content of Kirk's text messages. Specifically, he contends
that the evidence should have been suppressed because it violated the
unreasonable search and seizure provisions in Article I, Section 11, of the Indiana Constitution and the 4th Amendment to the U.S. Constitution. .
. .
Kirk v. State, supra.
The Court of Appeals began by reviewing the applicable 4th
Amendment principles:
The 4th Amendment to the U.S.
Constitution guarantees the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures. As
such it protects an individual's privacy and possessory interests by
prohibiting unreasonable searches and seizures. . . . . This protection
has been extended to the states through the 14th Amendment. . . .
A search warrant is generally a
prerequisite to a constitutionally proper search and seizure. . . . `Whether a
particular warrantless search violates the guarantees of the 4th Amendment
depends on the facts and circumstances of each case.’ Trotter v. State, supra. We note that exceptions to the
warrant requirement are strictly construed. . . .
Kirk v. State, supra.
The Court of Appeals then explained why it was not going to
rely on the 4th Amendment in ruling on Kirk’s motion to suppress the
content of his text messages:
`[A]pplying the 4th Amendment to modern
technology such as cell phones posits some fundamental questions.’ Chelsea
Oxton, The Search Incident to Arrest Exception Plays Catch Up, 43
Creighton L. Rev. 1157 (2010. . . . The U.S. Supreme Court has
reminded us that `[t]he judiciary risks error by elaborating too fully on the 4th
Amendment implications of emerging technology before its role in society has
become clear.’ City of Ontario v. Quon, 130 S.Ct. 2619 (2010).
Where, like here, we can decide this issue without addressing the 4th Amendment
issue, we will do so.
Kirk v. State, supra.
The court then noted that, like the 4th
Amendment,
Article I, section 11 of the Indiana
Constitution protects citizens from unreasonable searches and seizures. . . . [I]n spite of the
similarity in structure of the federal and state constitutional provisions,
interpretations and applications vary. . . .
`When we interpret language
in our state constitution substantially identical to its federal counterpart, “we
may part company with the interpretation of the Supreme Court of the United
States . . . based on the text, history, and decisional law elaborating the
Indiana constitutional right.”’ Holder v.
State, 847 N.E.2d 930 (Indiana Supreme Court 2006) (quoting Ajabu
v. State, 693 N.E.2d 921 (Indiana Supreme Court 1998)).
Kirk v. State, supra.
The Court of Appeals explained that while it focuses on “the
defendant’s reasonable expectation of privacy” when applying the 4th
Amendment, “under Article I, section 11, we focus on the actions of the
police, concluding that the search is legitimate where it is reasonable given
the totality of the circumstances.” Kirk
v. State, supra. It noted that its “determination of the
reasonableness of a search . . . under Article I, section 11 often turns on
a balance of: `1) the degree of concern, suspicion, or knowledge that a
violation has occurred; 2) the degree of intrusion the method of the search or
seizure imposes on the citizen's ordinary activities; and 3) the extent of law
enforcement needs.’” Kirk v. State, supra (quoting Trimble v. State, 842 N.E.2d 798
(Indiana Supreme Court 200) (quoting Litchfield v. State, 824
N.E.2d 356 (Indiana Supreme Court 2005)). The state has the burden to prove the
search was reasonable. Kirk v.
State, supra.
The court then addressed the issues raised by Kirk’s motion to suppress:
By requiring the need for a warrant to search a cell
phone, our court has recognized that the seizing of the contents of such items
are deserving of protection and court oversight. . . . The State did not make clear the reason for the search of
Kirk's private cell phone. Kirk was not seen talking on his phone or even
holding his phone prior to his arrest. Here, Kirk was arrested for neglect of a
dependent and public intoxication; neither crime of which clearly implicated
use of a cell phone.
Kirk v. State, supra.
It found that while Detective Schwomeyer was
within his rights to confiscate the cell phone
during the search incident to arrest, there was no real law enforcement need to
open the cell phone, press a button to access the inbox, and read six to eight
text messages. The State attempts to justify the search of the cell phone under
the Indiana constitution by stating that the search intruded only a small
amount into Kirk's ordinary activities and that law enforcement needs were
great. On balance, we are not persuaded.
The State contends that the law
enforcement needs to search the phone immediately were great because the
contents of the cell phone could have been remotely cleansed. The State,
however, fails to prove that this was a reasonable concern or to demonstrate
that less intrusive means such as removing the SIM card or simply turning the
cell phone off could not have been used to block any effort to remotely cleanse
the cell phone until a warrant could be obtained.
Kirk v. State, supra.
The Court of Appeals also found that
the police actions subsequent to Kirk's
arrest call into question the claim of the importance of the contents of the
cell phone. Kirk's phone was seized in June 2010 and was not accessed by either
party for the next three months. During that time, the property room misplaced
and later found the cell phone. When Kirk's cell phone reappeared, it was in
need of being charged and required a code to unlock it.
The State could not obtain the code
from Kirk, and yet made no effort to obtain a search warrant to again view the
text messages. The State's failure to act promptly to secure the contents of
the text messages suggests that the warrantless search was not motivated by
concerns about the destruction of evidence.
Under these facts and circumstances, we
conclude that the warrantless search of the cell phone was unreasonable
under Article I, Section 11 of the Indiana Constitution, and it was error
for the trial court to admit the testimony regarding the contents of Kirk's
cell phone.
Kirk v. State, supra.
Since the court found the search of the cell phone violated
the state constitution, it did not address the 4th Amendment
issue. This case illustrates how state
courts can use their own constitutions to reach results that may provide more
protection than is provided by the 4th Amendment (or other
provisions of the Bill of Rights). And
as I noted in an earlier post, states cannot use their own constitutions to
provide less protection than is
provided by the 4th Amendment or other provisions of the Bill ofRights.
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