After Jeremy Clark was charged, in an indictment issued by a federal grand jury, with “being an unlawful user of a controlled substance in possession of a firearm and ammunition”, he moved to suppress evidence seized from his cell phone. U.S. v. Clark, 2014 WL 2895457 (U.S.District Court for the Eastern District of Tennessee 2014).
As to how the prosecution arose, the opinion explains that on April 29, 2013, “after a same-day burglary involving the theft of firearms from a pawn shop,” law enforcement officers with the Chattanooga Police Department (CPD) were trying to find “Kerry,”
a suspect in the burglary, at two particular houses. When CPD Officer Watkins arrived at one of the houses around 10:45 a.m., he saw [Clark] walk out of the house. When Watkins yelled for [Clark] to stop, [he] fled on foot. During the ensuing chase, Watkins saw [Clark] discard a firearm. Watkins caught and secured [Clark], then retrieved the abandoned gun.
Watkins arrested [Clark] for unlawful possession of a firearm without a permit. Items from [his] pockets, including a `smartphone,’ were seized during a search of his person incident to arrest.
Officer Narramore, who was at the scene to investigate the theft of firearms during the burglary, picked up the smartphone after it had been removed from [Clark’s] pocket and looked at the call log and recent text messages for the purpose of determining if [he] was in contact with `Kerry.’ . . . Narramore did not know if the gun abandoned by [Clark] was one of the firearms stolen from the pawn shop. Narramore's initial review of the call log and text messages occurred within minutes of [Clark’s] apprehension. . . .
Narramore did not have consent or a warrant to search [Clark’s] smartphone at that time. Narramore thought `by law’ that while he would need a warrant or consent to have a technology expert extract data from the phone, he could look at the call log and text messages as part of the search conducted incident to [Clark’s] arrest.
U.S. v. Clark, supra.
Officers took Clark to “CPD headquarters” to question him about the pawn show burglary. U.S. v. Clark, supra. He was Mirandized, waived his Miranda rights and agreed to talk to them. U.S. v. Clark, supra. Narramore and “another officer” questioned him
for about an hour concerning the burglary and about certain data found on the smartphone. During the questioning, Narramore and [Clark] looked at various data contained in the smartphone, which was in the officers' possession during the interview.
As the officers looked at data on the smartphone, they and [Clark] discussed pictures, tweets, contacts, the call log, and text messages. [Clark] at one point showed Narramore a photograph of his child on the smartphone. Narramore never saw any data regarding `Kerry’ on the smartphone.
Near the conclusion of the interview, Narramore asked [Clark] to sign a consent to search form so data could be extracted by `dumping’ the digital content of the smartphone. Narramore told [Clark] the global positioning (`GPS’) data from the smartphone could establish whether [he] was near the pawn shop at the time of the burglary.
Narramore said if the consent form was not signed, he would try to seek a warrant. Narramore's testimony [at the hearing on the motion to suppress] indicated [Clark] agreed to sign the consent form because he wanted to get his phone back quickly.
U.S. v. Clark, supra.
All of that happened in April of 2013. As the opinion notes, on June 25, 2014, the U.S. Supreme Court “issued a unanimous Opinion” in two consolidated cases: U.S. v. Wurie and Riley v. California. You can find the opinion here. (It includes the Court's rulings in both cases.) In it, the Court reviewed “the search incident to arrest doctrine to determine how it should apply to `modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.’” Riley v. California,573 U.S. __ (2014).
In this opinion, the Supreme Court balanced the “legitimate government interests” and
an individual's right to privacy under the 4th Amendment. . . . [T]he Court concluded that a `digital data’ search has no identifiable risk of harm to officers or destruction of evidence, which were the two risks identified in Chimel v. California, 395 U.S. 752 (1969). . . .
Additionally, the Court distinguished a digital search from `the type of brief physical search’ at issue in U.S. v. Robinson, 414 U.S. 218 (1973) (`Modern cell phones . . . implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse’). Based on these considerations, and the `immense storage capacity' of modern cell phones, the Court held that `officers must generally secure a warrant before conducting [searches of data on cell phones.]’
U.S. v. Clark, supra.
Here, the U.S. District Court Judge referred Clark’s motion to suppress to a U.S. Magistrate Judge, so the latter could review the facts and evidence and write a Report and Recommendation explaining whether the motion should be granted. U.S. v. Clark, supra.
The U.S. Magistrate Judge found Officer Narramore’s searching Clark’s smartphone prior to the moment when Clark signed the consent form violated the 4th Amendment. U.S. v. Clark, supra. The Magistrate Judge issued her Report and Recommendation before the Supreme Court had issued its opinion in the Wurie and Riley cases. When the issue was before the Magistrate Judge, the Department of Justice argued that the searches of Clark’s smart phone conducted by Narramore
at the scene of the arrest and during the interview were appropriate and reasonable under the circumstances as the searches were limited to looking at the information readily available on the smartphone and the police did not extract further data from the phone's memory, such as geolocation data, until after obtaining [Clark’s] consent.
U.S. v. Clark, supra. The Magistrate Judge’s reaction to the argument was that
Narramore and the government's interpretation of the search-incident-to-arrest exception would seemingly give law enforcement broad latitude to conduct a search of any electronic device seized on an arrestee's person during a lawful arrest, including a laptop computer or a tablet device, so long as law enforcement could access the information without using the services of a technology expert to extract digital data.
U.S. v. Clark, supra. She therefore found that the prosecution had not
demonstrated officer safety or preservation of evidence were motivating factors for the searches, especially given Narramore's unequivocal testimony that he was searching for evidence that [Clark] was associated with `Kerry’ and involved in the pawn shop burglary.
Finally, I FIND that while the seizure of the smartphone was proper, the searches of [Clark’s] smartphone for digital data that were conducted without consent and without a warrant, violate the 4th Amendment. Given that the Supreme Court has granted certiorari to address the lawfulness of conducting a warrantless search of a seized smartphone incident to arrest and presumably will address this issue soon, it seems unnecessary to elaborate further on the basis for my conclusion since I also FIND the good faith exception to the violation applies as explained below.
U.S. v. Clark, supra (emphasis in the original).
Since Narramore’s searching the phone was not justified by the search incident exception or, apparently, any of the other exceptions, and since he did not obtain a warrant before searching the phone, his search violated the 4th Amendment, as noted above. United States law uses the exclusionary rule to enforce the requirements of the 4th Amendment, which means evidence obtained by actions that violate the 4th Amendment cannot be used against the person whose property was searched in a criminal prosecution unless. . . .
In U.S. v. Leon, 468 U.S. 897 (1984), the Supreme Court held that there is no reason to apply the exclusionary rule when police officers act in “good faith,” i.e., when they do not realize their conduct violates the 4th Amendment. This is the good faith exception to the application of the exclusionary rule.
In the Clark case, the District Court Judge reviewed the Magistrate Judge’s report and recommendation and agreed with her finding that the search of the smart phone violated the 4th Amendment and with her finding that the good faith exception applied here. U.S. v. Clark, supra. Clark had challenged the Magistrate Judge’s conclusion that the good faith exception applied. U.S. v. Clark, supra. He contended “there is no established basis for Officer Narramore's belief that a warrant was not required to search” Clark’s smart phone and that suppressing any evidence found in [his] phone is the proper remedy under the exclusionary rule.” U.S. v. Clark, supra.
The District Court Judge explained that as the U.S. Magistrate Judge discussed in her
Report and Recommendation, the Court is bound by the longstanding limitations of the suppression remedy set forth by the U.S. Supreme Court. See Davis v. U.S., 131 S.Ct. 2419 (2011) (`Where suppression fails to yield “appreciable deterrence,” exclusion is “clearly . . . unwarranted'"); Herring v. U.S., 555 U.S. 135 (2009) (`exclusion [of evidence] has always been our last resort, not our first impulse); U.S. v. Leon, 468 U.S. 897 (1984) (`where the officer's conduct is objectively reasonable, excluding the evidence will not further the ends of the exclusionary rule in any appreciable way’); U.S. v. Peltier, 422 U.S. 531 (1975) (`If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the 4th Amendment’).
Based on these limitations, suppression of evidence is only appropriate in certain circumstances in which unlawful police conduct would then be deterred. Accordingly, if Officer Narramore was objectively reasonable in believing that the search was constitutional, the evidence should not be suppressed.
U.S. v. Clark, supra.
The District Court Judge went on to explain that, after reviewing the record in
this case, the Court finds [Clark’s] objection to be without merit. While [he] argues that Narramore's belief that he did not need a warrant to search [Clark’s] phone was unreasonable, Magistrate Judge Lee arrived at the conclusion that the belief was reasonable after hearing Narramore's testimony and evaluating his credibility. Magistrate Judge Lee also noted that, even though Narramore's belief was objectively reasonable, such a course of action was `troubling’ to her given the `relative ease of asking for either consent or a warrant.’ . . .
It has long been the practice of our judicial system to leave credibility determinations to the fact finder best equipped to make those determinations. . . .
Although the Court agrees that Narramore's conduct was certainly not a best practice, given the state of the law on this issue when the search was conducted and Magistrate Judge Lee's superior position to make a credibility determination regarding Officer Narramore's testimony, the Court sees no reason to disturb [her] finding that the Officer's testimony was reasonable.
U.S. v. Clark, supra.
The judge therefore adopted the Magistrate’s Report and Recommendation and so denied Clark’s motion to suppress. U.S. v. Clark, supra.