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.
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