Wednesday, March 26, 2014

The Password-Protected Phone, Search Incident and Good Faith

After she was charged with “conspiracy to distribute narcotics in violation of 21 U.S.C. §§ 841(a)(1)846”, Danielle Goding filed a motion to suppress “and all statements obtained as a result of a vehicle stop on I–87 in New York State.”  U.S. v. Trapp, 2014 WL 1117012 (U.S. District Court for the District of Vermont 2014).  The news story you can find here explains how the case arose.

The judge who has the case did the same thing, in more detail, in this opinion:

On April 23, 2013, at approximately 2 p.m., FBI Special Agent Destito called New York State Police Investigator Law. . . .  Destito told Law he had been conducting an investigation and advised that a taxi carrying a male suspected of drug dealing would be approaching the outlet stores off Exit 20 in Lake George, New York, to meet with another person. . . . Law drove to the outlet stores and contacted New York State Trooper Miller, asking him to look out for a taxi coming from Vermont. . . . Miller . . . called Law back and said such a taxi had just passed him. . . . A few minutes later, Law saw the taxi pull into the outlet stores' parking lot and watched a man get out. . . . Law recognized the man as “Kenny Trapp” because about one month earlier, Law and Miller had `dealt’ with Trapp during a traffic stop of a taxi in which Trapp was a passenger. . . .  

Law watched Trapp exit the taxi carrying `a small little bag . . . almost like a shopping bag.’ . . . He observed Trapp go in and out of various outlet stores [and] then saw a `black livery with New York City style plates’ pull into the parking lot near the Polo outlet store. . . . The town car's front license plate was hanging down. . . . Law watched a black woman with blond hair and a bright blue hat exit the town car.  The woman, later identified as Danielle Goding, walked into the Polo outlet. . . . Trapp also went into the Polo outlet. . . . [and he] and Goding then separately exited the store a few minutes later. . . . Law observed Trapp with what appeared to be a Timberland shopping bag, which he had carried into the Polo outlet, but no longer noticed the `black bag.’  Goding also had bags in her hand as she exited the store. 

At this point, a `Tri County’ taxi pulled into the parking lot. . . . Trapp put his bags in the trunk and got in.  Law called Destito, who asked him to follow Trapp's taxi. Law followed it onto Route 9, Route 149, and then Route 4 into Vermont.  Destito had also given Law Vermont State Trooper Andrew Todd's cell phone number.  Destito had called Todd shortly before 5 p.m. on April 23, 2013, and told him he was working on an `ongoing drug investigation’ and `wanted to coordinate’ Todd with a New York State Trooper `in terms of a vehicle that was coming to Vermont’ after `something that took place in Lake George, New York.’ . . . 

Law called Todd [who]. . . . was sitting in his car just east of the New York state line on Route 4 in Vermont when the taxi drove by. . . . When Law saw Todd's cruiser enter the highway, he made a U-turn and headed back to New York.  Todd observed the taxi make `several violations’ -- speeding, illegal lane change, failure to use directional signals, and tailgating -- before pulling it over. He told the taxi driver about the moving violations and his `general’ concerns about the connection between interstate taxi travel and drug trafficking. . . . The driver then consented to a search of the taxi `as well as his property and person.’

Next, Todd told the passenger, Kenneth Trapp, about the impending vehicle search . . . and asked him to exit the taxi. Trapp complied. Todd informed Trapp that a K–9 unit, which had arrived moments after Todd pulled the taxi over, would also conduct a search.  Todd asked Trapp for consent to search his shopping bags in the trunk, but Trapp refused.  Todd did an initial search of the taxi -- not including Trapp's bags -- and then the. . . . drug dog, Maximus,  hopped inside the taxi to sniff around at the handler's instruction. . . . Maximus `alerted to the presence of narcotics both where Mr. Trapp [had been] sitting and where his property was in the trunk.’ . . .  Based on Maximus' alert, Todd detained Trapp, seized his shopping bags, then applied for and received a warrant to search Trapp's belongings. . . . Todd later uncovered 1,200 bags of heroin in Trapp's bags.

Meanwhile, Trooper Miller had arrived to assist Law in his surveillance at the outlets. . . . After observing Danielle Goding get back into the black town car outside the Polo outlet, Miller followed the car onto Route 9 and then southbound on I–87.  Law. . . had `advised [Miller] to make a car stop . . . if he could’ on the black town car carrying Goding. . . . Law and Miller had observed . . . that [its] front license plate was secured by one screw and was hanging down at an angle. . . . Law also informed Miller, to some extent, of his previous surveillance of Goding and Trapp at the Polo outlet and suspicions of drug activity. . . .

Miller pulled over the black town car based on its unsecured license plate. . . . During his conversation with the driver, Miller smelled burnt marijuana in the vehicle and asked the driver and the female passenger, Goding, to exit the car. . . . Based on the marijuana odor, Miller believed he had probable cause to search the car and its contents. . . . Inside a plastic bag in the backseat, Miller found a watch box containing approximately $14,000 in cash. . . . Goding told Miller the money was hers, she worked as a baker, and she had come up to the outlets to shop. . . . He did not believe this story because she had a Polo outlet job application with her and also wore `very long press-on’ nails that `looked like they just recently had been painted.’ Id. Miller did not find any evidence of marijuana after searching the town car. . . .

U.S. v. Trapp, supra.

The officers took Goding “back to the Queensbury, New York, barracks”, where she was “detained in a locked interview room at the request of Destito, who was en route . . . with Drug Enforcement Agency (`DEA’) Special Agent Thomas Doud.”  U.S. v. Trapp, supra. Destito and Doud arrived “around 9 p.m. and were given Goding's personal belongings, including her cell phone.”  U.S. v. Trapp, supra. The agents

tried to look at her phone, but it was password-protected and Goding declined to give them her password. . . . Goding and Trapp . . . were both transported to Vermont for their appearance in federal court the next day in Burlington. . . .Destito gave Goding's phone to another agent in the Burlington FBI office and, two weeks later, that agent circumvented the password and downloaded the contents of the phone. 

U.S. v. Trapp, supra.

The judge prefaced his analysis of Goding’s arguments in support of suppressing the evidence from her phone by explaining that while the 4th Amendment’s default standard is that officers must have a search warrant to search a place or thing, under the

automobile exception to the 4th Amendment warrant requirement, police may also conduct a warrantless search of a vehicle if probable cause exists to believe it contains contraband or other evidence of a crime. U.S. v. Gaskin, 364 F.3d 438 (U.S. Courtof Appeals for the 2d Circuit 2004). This may include containers within the vehicle.  California v. Acevedo, 500 U.S. 565 (1991).

Probable cause exists if the facts and circumstances are sufficient to lead a person of reasonable caution to believe evidence of a crime will be found in the place searched.  U.S. v. Gaskin, supra. . . . `[C]ourts recognize that experience and training may allow a law enforcement officer to discern probable cause from facts and circumstances where a layman might not.’  U.S. v. Gaskin, supra.  . . .

U.S. v. Trapp, supra.

That brings us back to Goding’s motion to suppress.  She made several arguments in the motion, but the one this post focuses on “challenge[d] the search of her cell phone, which occurred approximately two weeks after her arrest.”  U.S. v. Trapp, supra.  The prosecution “relie[d] on the search incident to arrest exception to the warrant requirement, under which the police may conduct a warrantless search of a lawfully arrested person, her belongings (including containers), and the area within her control.”  U.S. v. Trapp, supra.  In her motion, Goding cited

U.S. v. Wurie, 728 F.3d 1 (U.S. Court of Appeals for the 1st Circuit 2013), in which the First Circuit held that searching a cell phone pursuant to a lawful arrest `exceeds the boundaries of the 4th Amendment search-incident-to-arrest exception.’ . . .  In November 2013, this Court similarly held that `cell phones properly seized pursuant to the search-incident-to-arrest exception or the automobile exception cannot be searched without a warrant.’ U.S. v. Mayo, 2013 WL 5945802, at *13 (U.S. District Court for the District of Vermont 2013). . . . The Supreme Court has granted certiorari to address the issue in Wurie and a similar case, People v. Riley, 2013 WL 475242 (California Court of Appeals 2013), and oral arguments are scheduled for April 29, 2014. 

U.S. v. Trapp, supra.

The judge therefore found that                                  

[f]or substantially the same reasons articulated in Mayo, the Court finds the search incident to arrest exception inapplicable in this circumstance. See U.S. v. Mayo, supra. (concluding `it is simply inappropriate to analogize [modern] cell phones to cigarette packs, purses, and address books; the more apt comparison is to computers.’).

Accordingly, Goding's 4th Amendment rights were violated when the FBI searched her phone, without a warrant, two weeks after her arrest. As in Mayo, however, the Court finds application of the exclusionary rule unwarranted because the FBI acted with a reasonable good-faith belief that a warrant was not required. . . . . Indeed, at the time of the search, `all of the circuits to address the issue had permitted cell phone searches incident to arrest. U.S. v. Mayo, supra. Wurie was not decided until May 17, 2013, and the Second Circuit [Court of Appeals] has not directly addressed the issue. `Law enforcement in this case was acting pursuant to reasonable reading of Supreme Court precedent and a general consensus in other circuits.’ U.S. v. Mayo, supra.  The good-faith exception therefore applies.

U.S. v. Trapp, supra.

As Wikipedia explains, the good faith exception essentially nullifies the need to apply the exclusionary rule, which is how courts enforce the 4th Amendment.  In other words, the premise is that law enforcement officers investigate, and conduct searches and seizures, to obtain evidence they can use in a prosecution.  The default standard, in terms of a remedy for violations of the 4th Amendment is the exclusionary rule, which is based on the premises that (i) police violate the 4th Amendment to get evidence and (ii) if the exclusionary rule bars officers from using evidence obtained in violation of the 4th Amendment, then this should deter officers from committing such violations. 

But since the exclusionary rule implicitly assumes deliberate conduct, i.e., deliberate violations of the 4th Amendment, courts have decided there is no need to apply it when officers did not act in bad faith, i.e., did not deliberately violate the 4th Amendment.  Instead, they reasonably assumed that their conduct did not violation the 4th Amendment.  

So, Goding won on one issue and lost on another.  The judge therefore denied her motion to suppress. U.S. v. Trapp, supra.

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