After being charged, Wright-Darrisaw moved to “suppress
information displayed on her cell phone” during her interview with a U.S.
Secret Service Special Agent who was investigating the threat against the
President. U.S. v. Wright-Darrisaw, supra. (She also moved to suppress certain
statements she made during that interview, but this post only examines the
motion that targeted the cell phone information.)
This is how the U.S. Magistrate Judge, to whom the federal district court judge initially referred Wright-Darrisaw’s motion to suppress,
explained the encounter between her and the Secret Service Agent:
On March 3, 2012, United States Secret
Service Special Agent Joel Blackerby was involved in an investigation relative
to threats allegedly made by . . . Christine Wright–Darrisaw, against the
President of the United States. . . . Blackerby had been searching
for [her] for over a week, and his `investigation revealed she had class at [Monroe
County Community College].’ . . . . Blackerby determined that his `best
chance’ of locating [Wright-Darrisaw] to speak with her about the alleged
incident would be to find her at Monroe County Community College (`MCC’). .
. .
Thus, on March 3, 2012, as part of his
investigation, Blackerby -- wearing khaki pants, a polo shirt and a light blue
`windbreaker’ jacket -- drove to MCC to conduct an interview with [her]. .
. . Prior to driving to MCC, Blackerby contacted the MCC security office to
advise it that he would be visiting the campus that day. . . . Upon
his arrival at MCC, Blackerby `went directly to the security office and met
with [MCC security officer] Mr. Hull.’ . . . Blackerby spoke with Hull upon his
arrival and requested that MCC security accompany him during his interview with
[Wright-Darrisaw].
Hull and another MCC security officer accompanied
Blackerby to the classroom where [she] was taking her class. . . .
Blackerby was carrying a firearm, but it was not openly displayed. . .
. The MCC security officers were not carrying firearms. . . . Hull
knocked on the door and advised the professor that he needed to speak with
Wright–Darrisaw. . . . [She] agreed to speak with the officers out
in the hallway. . . .
Once [she] was in the hallway, Hull explained to her
that Blackerby needed to speak with her, and Blackerby identified himself and `gave
her a brief description of the scope of the investigation, why I needed to
speak with her.’ Specifically, Blackerby
told [Wright-Darrisaw] that he is `a special agent with the Secret Service and
[was] currently investigating a threat that was made to the President.’ . . . Blackerby, Hull and Wright–Darrisaw then
walked about 30–40 feet down the hall to a bench to continue their
conversation. The other MCC security officer remained at the other end of the
hall and did not participate in the questioning.
During his conversation with [Wright-Darrisaw],
Blackerby sat in a chair facing [her] while she sat across the bench. .
. . Hull was behind and to the left of Blackerby. . . . Blackerby began
asking [Wright-Darrisaw] about the telephone call at issue and asked her if she
had made the call. . . . [She] `willingly said the phone number for
the White House is in her cell phone contacts.’
Blackerby asked if she
would show him the White House contact in her cell phone, and [Wright-Darrisaw]
took her cell phone out of her purse, `opened it up, pulled [the White House
telephone number] up and turned [the phone] and showed it to me.’ . . . Blackerby recognized the number in [her] cell
phone as being the number for the White House, as `[i]t was identical to the
[number] that I had in my notes that I had been given.’ . . .
Blackerby looked at [Wright-Darrisaw’s]
cell phone for `[a] couple seconds.’ . . . Blackerby never took the cell phone
from [her], and never touched her phone or `scrolled’ through it in any
way. . . . Blackerby asked [Wright-Darrisaw] `about call logs; the
call history, incoming and outgoing calls in her phone,’ and asked if he could
see the call logs on her phone.
[She] said `no,’ refused to show Blackerby
her call logs or call history, shut her phone off and placed it back in her
purse. . . . At that point, [Wright-Darrisaw’s] demeanor started to
change, as she became `a little more agitated’ and `[a] little more
confrontational verbally.’ . . .. At the start of the interview, [her]
demeanor had been `[v]ery polite, very open.’
U.S. v.
Wright-Darrisaw, supra.
The opinion also explains that during the interview, Blackerb showed
[Wright-Darrisaw] two forms: first, a `consent form’ known as a
1945 Standard Service Form (`SSF); and second, a voluntary consent to search
form. . . . The 1945 SSF form is used by the Secret Service during
protective investigations to allow the Secret Service `to view all psychiatric
records pertaining to [defendant] in the United States.’ . . . Wright–Darrisaw
refused to sign the 1945 SSF form. . . .
Blackerby also asked [her] to sign the
voluntary consent to search form so that he could search the vehicle she had on
the MCC campus that day. . . . Wright–Darrisaw refused to sign the
consent to search form. . . .. Upon being asked to sign the
two forms, [she] became even more `agitated and, at that point, Blackerby
decided to terminate the interview. . . . Blackerby thanked [Wright-Darrisaw]
for speaking with him and told her `you're free to go back to class if you
wish.’ . . .
U.S. v.
Wright-Darrisaw, supra.
lasted approximately twenty
minutes. . . . During the interview, [Wright-Darrisaw] never asked
to leave and the officers never told her that she had to stay or that she could
not go back to her classroom. . . . [Wright-Darrisaw] never asked for an attorney. . . .
Blackerby
never told [her] she was under arrest or had to speak with him,
never threatened her, never made any promises to her, and never showed or used
any type of restraints, handcuffs or zip ties or attempted to physically block
her or prevent her from moving. . . . Wright–Darrisaw was never
read her Miranda warnings. . . .
U.S. v.
Wright-Darrisaw, supra.
As the last comments suggests, these factors go primarily to
Wright-Darrisaw’s motion to suppress her statements, as she claimed she was in
“custody” during the interview and therefore should have been given her Miranda warnings before it began. U.S. v. Wright-Darrisaw, supra. As Wikipedia notes, Miranda warnings have to be given to suspects who are “in custody,”
i.e., have been arrested or otherwise deprived of their freedom of movement (so
they cannot simply walk away or otherwise terminate the interview). The judge found Wright-Darrisaw
was not in custody for Miranda
purposes because neither Blackerby not Hull ever indicated to her that she was
not free to leave or otherwise deprived her of her freedom of movement. U.S. v.
Wright-Darrisaw, supra. (That finding implicitly plays into the denial of the motion to suppress, as it goes to the voluntariness of her consent.)
That brings us to her motion to suppress the cell-phone
information. It was based on Darrisaw-Wrights rights under the 4th Amendment, which creates a right to be free from “unreasonable” searches and
seizures. As I have explained in other posts, to be “reasonable” a
search/seizure has to be conducted (i) pursuant to a valid search (and seizure)
warrant or (ii) pursuant to one of the exceptions to the warrant requirement,
which includes consent.
As I have also explained in earlier posts, to be valid, a
consent to search and/or seizure property has to be given by someone who has
the authority to consent (owner and/or user of the property) and has to be
given voluntarily. There was no dispute
in this case about the first factor; the issue was whether the consent was
given voluntarily. The opinion notes that the U.S. Magistrate Judge held a
hearing on the motion to suppress and that
“[a]t the conclusion of the suppression
hearing, the Court confirmed with defense counsel that the fact at issue was
whether the information obtained from the defendant's cell phone was seized
involuntarily by Blackerby, or whether it was voluntarily displayed by [Wright-Darrisaw]
to Blackerby.
U.S. v.
Wright-Darrisaw, supra. The
Magistrate Judge wrote a “report and recommendation” to the U.S. District
Court judge recommending that her motion to suppress the cell-phone information
be denied. U.S. v. Wright-Darrisaw, supra.
In this opinion, the district court judge explains why he is
accepting the U.S. Magistrate Judge’s report and recommendation. U.S. v. Wright-Darrisaw, supra.
The Magistrate Judge began his analysis of this issue by noting
that the prosecution has the burden
of proving by a
preponderance of the evidence that consent to conduct a search was freely and
voluntarily given. U.S. v. Vasauez, 638 F.2d 507 (U.S. Court of
Appeals for the 2d Circuit 1980). . . . `[T]he ultimate question presented is
whether the officer had a reasonable basis for believing that there had been
consent to the search.’ U.S. v. Garcia, 56 F.3d 418 (U.S.Court of Appeals for the 2d Circuit 1995). . . .
The Supreme Court has `long approved
consensual searches because it is no doubt reasonable for the police to conduct
a search once they have been permitted to do so.’ Florida v. Jimeno, 500U.S. 248 (1991). `The standard for measuring the scope of a suspect's consent
under the Fourth Amendment is that of ‘objective’ reasonableness—what would the
typical reasonable person have understood by the exchange between the officer
and the suspect?’ Florida v. Jimeno,
supra.
U.S. v.
Wright-Darrisaw, supra.
The opinion then explains that the evidence in this case
establishes that Wright-Darrisaw
told Blackerby the White House's phone number was `in her cell phone contacts,’
took her cell phone out of her purse, `opened it up, pulled [the White House
telephone number] up and turned [the phone] and showed it to’ Blackerby. .
. . Blackerby looked at [her] cell phone for only `[a] couple seconds,’ never
took the cell phone from [her] and never touched the phone or `scrolled’
through her call log. . . .
When Blackerby asked [Wright-Darrisaw]
about her cell phone's `call logs; the call history, incoming and outgoing
calls in her phone’ and, specifically, whether he could see the call logs on
her phone, [she] responded `no,’ refused to show Blackerby her call logs or
call history, shut her phone off and placed it back in her purse. . . .
Blackerby did not ask [her] to take
the cell phone back out of her purse, or to show him the cell phone again or
hand the cell phone over to law enforcement.
U.S. v.
Wright-Darrisaw, supra.
The court then found that it was
objectively reasonable for Blackerby to believe that [Wright-Darrisaw]
had given him consent to view the information [she] showed him on her cell
phone that day. Wright–Darrisaw voluntarily displayed the information on her
cell phone to Blackerby, and Blackerby briefly looked at the information on her
cell phone and confirmed that it contained a telephone number linked to his
investigation -- i.e., the telephone number for the White
House.
Wright–Darrisaw was obviously aware of her right to refuse
to consent to a search of her phone as she exercised that right when Blackerby
sought further information. In sum, the Court finds the Government has met its
burden of proving that [Wright-Darrisaw’s] consent for Blackerby to view the
information on her cell phone was voluntary.
U.S. v.
Wright-Darrisaw, supra.
The judge therefore denied Wright-Darrisaw’s motion to
suppress the cell-phone evidence (and, for the reasons noted above, her
statements to Blackerby). U.S. v.
Wright-Darrisaw, supra. You can see
a photo of Wright-Darrisaw and read more about the facts in the case in the
news story you can find here.
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