This post examines an opinion recently issued by the Supreme Court of Colorado: People v. Herrera, 2015 WL 6443045 (2015). The court begins by explaining that
[i]n this interlocutory appeal, the
People argue that evidence of text messages between defendant Matthew Herrera
and a juvenile girl named Faith W. were admissible under a warrant
authorizing a search of his cellphone for indicia of ownership, and, in the
alternative, under the plain view exception to the warrant requirement. We
disagree and affirm the trial court's suppression order.
People v. Herrera,
supra.
It goes on to explain that the
mother of a juvenile girl named Faith
W. reported to the Fremont County Sheriff's Office that Herrera had had sexual
interactions with her daughter. The mother provided the
officers with printouts of online conversations between Faith W. and Herrera as
well as Herrera's cell phone number.
Using Herrera's number, Detective Dodd
started texting Herrera posing as a fourteen-year-old girl called `Stazi.’
These texts led to Herrera's arrest several weeks later. During this arrest,
officers seized the cell phone from Herrera. At no time did Herrera deny ownership
of the phone.
Dodd applied for and received a search
warrant for the phone. The warrant allowed a search of the phone for (1) texts
sent between Herrera and `Stazi,’ (2) photographs sent between Herrera and
`Stazi’ that were attached to text messages, and (3) indicia of ownership to
show the phone belonged to Herrera.
Dodd gave the phone to Detective
Slattery to search. Dodd told Slattery the basic details of the case, including
Faith W.'s name, `Stazi's’ phone number, and the suspected communications
between `Stazi’ and Herrera.
The police department's usual practice
for searching cell phones was to use an instrument called the Cellebrite
Device. This instrument searches the memory of the phone and lets the officers
download certain data–for instance, text messages and internet history.
Herrera's phone, however, was not compatible with the Cellebrite Device.
Slattery therefore had to search the phone by hand and photograph what he
found.
Slattery first went through the phone's
standard text messages. Because the standard messages were arranged
chronologically rather than by name, he had to scroll through all of the
messages to find the entire conversation. He discovered several messages
between `Stazi’ and Herrera sent from Detective Dodd's number.
After going through all the standard
text messages, he looked through the messages on the phone's Kik application.
Kik is another method of sending messages—it simply sends them over the
internet rather than the cellular network. The messages in Kik were organized
by name. While scrolling to find more messages between Herrera and `Stazi,’
Slattery found a text message folder identified by the name `Faith Fallout’
that contained messages from a phone number other than Dodd's. Slattery knew
the victim's name in the underlying case was Faith W. and she and Herrera
had been communicating digitally. Suspecting `Faith Fallout’ was Faith W.,
Slattery clicked on the name and found that it was the conversation between
Faith W. and Herrera.
People v. Herrera,
supra.
Herrera was then
charged with one count of sexual
assault on a child,’ one
count of internet sexual exploitation of a child, and one count of
internet luring of a child. Herrera filed a Motion to Suppress, inter alia, the texts between him and Faith W. found during Slattery's search of the
phone.
People v. Herrera,
supra.
The trial court held a hearing on Herrera’s motion to
suppress and, at the hearing,
Slattery testified that he was given
Dodd's cell phone number and that he searched for texts between Herrera and
`Stazi’ associated with that number. Slattery further testified that the `Faith
Fallout’ folder was associated with a number other than Dodd's, and that he
believed that the messages contained in the folder belonged to the victim in
this case, Faith W. Finally, Dodd testified that there was no connection
between his number and the number belonging to `Faith Fallout.’
The trial court granted the motion and
suppressed the texts between `Faith Fallout’ and Herrera. The court found that
Slattery could not have reasonably concluded that the `Faith Fallout’ folder
would contain messages from `Stazi’ because there was no link between that
folder and Dodd's number. The trial court thus concluded that Slattery exceeded
the scope of the warrant by clicking on the name to look at the messages. It
also held that none of the exceptions to the warrant requirement applied. The
People appealed that ruling to this court. . . .
People v. Herrera,
supra.
The Supreme Court began its analysis of the issues in the
case by explaining that
[t]he The People argue that the text
messages contained in the `Faith Fallout’ folder were admissible under the
search warrant issued in this case, and, in the alternative, under the plain
view exception to the warrant requirement. We address each argument in turn.
People v. Herrera,
supra. The court began its analysis
of the first issue by explaining that the search warrant in this case
authorized a search of Herrera's
cellphone for text messages between Herrera and `Stazi’ as well as for `indicia
of ownership.' The People contend that the warrant thus permitted a search of
the text messages contained in the `Faith Fallout’ folder because any message
found there would reveal Herrera as the owner of the phone. We believe this
argument proves too much, as it would authorize a general search of the entire
contents of the phone. Indeed, the People argue that any piece of data on the
phone, including any text message on the phone, would have the possibility of
revealing Herrera's ownership of the phone. This rationale transforms the
warrant into a general warrant that fails to comply with the Fourth Amendment's
particularity requirement.
The Warrant Clause of the Fourth
Amendment requires that a warrant `particularly describ[e] the place to be
searched, and the persons or things to be seized.’ U.S. Const. amend. IV. The
particularity requirement is designed to `prevent officers from conducting a “general,
exploratory rummaging in a person's belongings.”’ People v. Roccaforte, 919 P.2d 700 (Colorado Supreme Court 1996)
(citing Coolidge v. New Hampshire, 403 U.S. 443 (1971)). As the
U.S. Supreme Court recently observed, `the Fourth Amendment was the founding
generation's response to the reviled “general warrants” and “writs of
assistance” of the colonial era, which allowed British officers to rummage
through homes in an unrestrained search for evidence of criminal activity.’ Rileyv. California, 134 S.Ct. 2473 (2014). In this case, the People's rationale
would permit officers to `rummage through’ the entirety of an individual's
private information contained in his phone, without limitation.
People v. Herrera,
supra.
It went on to point out that
this court has sustained some fairly
broad searches against particularity challenges. For example, in People v. Roccaforte, we reversed
the trial court's suppression of evidence stemming from a search pursuant to a
warrant that permitted a search for all records pertaining to a business,
including electronically stored data. People
v. Roccaforte, supra. We held, however, that the warrant had to be read in
conjunction with the supporting affidavit, which narrowed the search to
business documents pertaining to particular dates that were related to a
particular alleged crime. People v.
Roccaforte, supra. Here, by contrast, the People's argument–namely, that
they could search any and all data contained in Herrera's cell phone because
any and all data could reveal his ownership of the phone–contains no such
limits, or any limits.
Moreover, in Roccaforte, supra,
we noted that the breadth of the warrant was necessary in that case because
the government had been unable to perform an audit of the business. People v. Roccaforte, supra. Here,
again by contrast, such a necessity did not exist; in fact, the phone was seized
from Herrera during his arrest, and he never disputed ownership of the phone.
In sum, we reject the People's argument
that the search of the `Faith Fallout’ folder was authorized by the warrant
because such an argument is inconsistent with the particularity requirement.
People v. Herrera,
supra.
The court then took up the prosecution’s argument under the
plain view doctrine. It began by
explaining that the
People argue in the alternative that
the texts contained in the `Faith Fallout’ folder could be searched under the
plain view exception to the warrant requirement, which holds that officers need
not `close their eyes’ to evidence of criminal activity in plain sight while
they are conducting a lawful search. People v. Dumas, 955 P.2d
60 (Colorado Supreme Court 1998). Here, the People argue that because Slattery
observed the `Faith Fallout’ folder while he was searching for the `Stazi’
texts, the folder could be opened and searched. We conclude, however, that the
`Faith Fallout’ folder is analogous to a closed container that could not reasonably
contain texts between `Stazi’ and Herrera, and that therefore the plain view
exception does not apply.
People v. Herrera,
supra.
The court went on to note that
[f]ollowing the lead of the Supreme
Court in Horton v. California, 496 U.S. 128 (1990), this court
has identified three requirements for applying the plain view exception to
warrantless searches: (1) the government's initial intrusion must be
legitimate, (2) the incriminating nature of the evidence must be apparent
immediately, and (3) the government must have the right to lawfully access the
object. People v. Gothard, 185 P.2d 180 (Colorado Supreme Court 20080.
The search meets the first requirement
that the initial intrusion be legitimate. Slattery had a warrant to search the
phone for messages between Herrera and `Stazi.’ Because the Kik application is
used to send messages, it was reasonable for him to look for the messages
there. It was during a search of the Kik application that he found the folder
identified by the name `Faith Fallout.’ His initial intrusion was therefore
legitimate.
The second requirement is also met,
because the incriminating nature of the name was immediately apparent. To meet
the second requirement, the police must have probable cause that the evidence
is incriminating. People v. Pitts, 13 P.3d 1218 (Colorado Supreme
Court 2000) In the context of a plain view seizure, `probable cause’ requires `that
the facts available to the officers would warrant a person of reasonable caution
in the belief that certain items are contraband, fruits or instrumentalities of
a crime, or evidence of criminal activity.’ People v. Melgosa, 753
P.2d 221 (Colorado Supreme Court 1988). The concept, however, is incapable of
having a precise definition and is instead dependent on `the totality of the
circumstances.’ People v. Gutierrez, 222 P.3d 925, 937
(Colorado Supreme Court 2009) (citing Maryland v. Pringle, 540 U.S. 366 (2003)). This court has enumerated two considerations necessary for
probable cause: (1) `a reasonable ground for belief of guilt,’ and (2) that
belief is `particularized with respect to the person to be searched or seized.’
People v. Gutierrez, supra.
People v. Herrera,
supra.
The Supreme Court then pointed out that
[o]ur prior case law provides two
relevant examples of analyzing probable cause for a plain view seizure. In People
v. Najjar, 984 P.2d 592 (Colorado Supreme Court 1999), this court
addressed whether police officers had probable cause to examine and seize a
luggage ticket in plain view during a legitimate search of a defendant's hip
bag after a suitcase filled with marijuana was found at a bus station stop. In
determining that the officers had probable cause to seize the luggage ticket,
this court emphasized all of the facts the officers knew at the time. See People
v. Najjar, supra. For instance, the bag's ticket said it was going from Las
Vegas to Detroit, and the defendant was the only person on the bus with that
itinerary. See People v. Najjar, supra. The defendant bought
the bus ticket with cash using a fake name. Id. The defendant
was very nervous. People v. Najjar, supra. Each luggage tag was unique,
and the owner of the luggage would have the matching tag. Finally, because
the defendant denied having any luggage on the bus, he should not have had a
luggage ticket to begin with. People v. Najjar, supra. All of
these separate facts, known to the officers at the time of the search, were
enough probable cause to justify the plain view search and seizure of the
luggage ticket. People v. Najjar, supra.
People
v. Dumas, 955 P.2s 60 (Colorado Supreme Court 1998), provides another example of probable cause for
plain view seizures. Police officers were conducting a legitimate search of the
defendant's motel room for drugs, weapons, and contraband. People v. Dumas, supra. During this, they searched through a
checkbook and seized it as evidence of forgery. This court ruled
that the officers had probable cause to read through the checkbook and seize it
because of the totality of what the officers knew at the time. People v. Dumas, supra. For instance,
the court noted that (1) the checkbook was found beneath a mattress, and the
checks were signed with a name other than the defendant's; (2) the officers
found stamps worth over $1,000 in a shoebox, which the defendant claimed were a
gift; and (3) receipts in the checkbook with the defendant's name showed she
had returned over $1,000 worth of stamps to the post office. See
People v. Dumas, supra. Taken
together, these facts created enough probable cause to seize the checkbook as
evidence of forgery.
People v. Herrera,
supra.
The court explained that, notwithstanding what it found
above, there was a problem:
As with People v. Najjar and People
v. Dumas, this case is determined by a consideration of the facts
known at the time of the search. In particular, we note the following facts
Slattery knew at the time of his search. First, the name of the victim in the
underlying case was Faith W. Second, Faith W. was communicating with Herrera
digitally. Third, the name `Faith Fallout’ was highly suggestive of Faith W.
The name `Faith’ was the same as the alleged victim's, while `Fallout’ strongly
suggested a false persona. Taken as a whole, these facts establish `a reasonable
ground for belief’ that the texts were related to a crime, and these facts were
particularized to Slattery's knowledge of Herrera and Faith W. See People
v. Gutierrez, supra. The incriminating nature of the `Faith Fallout’
folder identification name was thus immediately apparent, satisfying the second
requirement of the plain view doctrine.
However, the third requirement, that
the officers have lawful access to the object, is not met in this case. This
requirement has been understood to preclude officers from seizing an item that
is in plain view but is in an area that cannot be lawfully reached—for example,
when officers can see stolen cars but would have to commit a warrantless
trespass across the defendant's property to reach them. . . .
People v. Herrera,
supra.
The Supreme Court then applied the principles and analysis
above to this case, noting that in executing a search warrant,
police officers may search areas in
which the items identified in the warrant might reasonably be found, including
closed containers. People in Interest of D.F.L., 931 P.2d 448
(Colorado Supreme Court 1997); see also People v. Koehn, 178
P.3d 536, 537 (Colorado Supreme Court 2008) (where warrant authorized
search of defendant's residence for firearms and ammunition, officers were
justified in searching kitchen cabinet and pants and seizing incriminating
items found there in plain view). We analogize the `Faith Fallout’ text message
folder to a closed container, which Detective Slattery opened to discover its
contents–namely, the text messages between Faith W. and Herrera. Here, the
warrant authorized Slattery to search for messages between `Stazi’ and Herrera.
The question, then, is whether the `Faith Fallout’ folder was a container in
which messages from `Stazi’ could reasonably be found. We agree with the trial
court that it was not.
The trial court concluded that in
searching Herrera's cell phone, Slattery was authorized to search for messages
from `Stazi's,’ or Dodd's, number. As noted above, however, the police had an
objective basis to believe that the `Faith Fallout’ folder was associated with
a different number–that is, one that belonged to Faith W., not Detective Dodd.
Furthermore, there was no evidence before the trial court that a specific folder
in the Kik application could contain messages from multiple numbers. Instead,
the evidence indicated that each folder could only be associated with a single
number. And the trial court specifically found there was no link between the
`Stazi’ number and the `Faith Fallout’ folder. Thus, because the evidence objectively
indicated that the `Faith Fallout’ folder contained messages from Faith W. and
only Faith W., the police had no objective basis to conclude that the folder
would contain messages from `Stazi.’
People v. Herrera,
supra.
It went on to note that, in
other contexts, courts have recognized
that defendants can easily conceal the identity of contraband by mislabeling a
container. See U.S. v. Riley, 906 F.2d 841 (U.S. Court of Appeals for the 2d Circuit 1990) (`”F]ew people keep documents of their
criminal transactions in a folder marked ‘drug records”’). In the computer file
context, the Fourth Circuit has noted that
a search of computer files `c[an] not be limited to reviewing only the files'
designation or labeling, because the designation or labeling of files on a
computer can easily be manipulated to hide their substance.’ U.S. v.
Williams, 592 F.3d 511 (U.S. Court of Appeals for the 4th Circuit 2010); see also U.S. v. Burgess, 576 F.3d 1078 (U.S. Court of Appeals for the 10th Circuit 2009). . . .
People v. Herrera,
supra.
The Supreme Court then applied the principles above to this
case, noting that
the People did not present a shred of
evidence to suggest, nor did they attempt to argue, that Herrera had
`manipulated’ the Kik files `to hide their substance.’ U.S. v. Williams, supra.
. . . On the contrary, their evidence indicated that the `Faith Fallout’ file
corresponded with the name of Herrera's suspected victim, Faith W., and thus it
was reasonable for them to believe that the messages in that folder were from
the actual victim, not Detective Dodd. In other words, the circumstances
suggested that the files had not been deceptively labeled. As such, because
there was no evidence that Herrera might have mislabeled the folders, the mere,
abstract possibility that he could have done so did not give Detective Slattery
reason to believe that the `Faith Fallout’ folder contained messages from
`Stazi.’ We therefore conclude that the trial court was correct in determining
that messages from Detective Dodd could not be reasonably found in that folder.
Any search of the `Faith Fallout’ folder would require an additional
warrant. See, e.g., U.S. v. Corral, 970 F.2d 719 (U.S. Court
of Appeals for the 10th Circuit 1992) (in some circumstances, the plain view
doctrine `may support the warrantless seizure of a container
believed to contain contraband[,] but any subsequent search of the
concealed contents of the container must be accompanied by a warrant or
justified by one of the exceptions to the warrant requirement’) (emphasis in
original).
If we were to hold that any text
message folder could be searched because of the abstract possibility that it
might have been deceptively labeled, we would again be faced with a limitless
search, as with the People's first argument. We instead proceed cautiously in
applying the plain view doctrine to searches involving digital data. . . .
Where such a search does not meet the
traditional requirements of Fourth Amendment doctrine, it should not be
permitted. For example, in Riley v. California, supra, the
Court held that police could not search a suspect's cell phone as part of a
search incident to arrest as a general matter because the traditional
justifications for a search incident to arrest were not met; as the Court
concluded, cell phone data does not present danger to arresting officers and is
not usually susceptible to immediate destruction. Riley v. California,
supra. Most importantly, the Court recognized that `[m]odern cell phones
are not just another technological convenience. With all they contain and all
they may reveal, they hold for many Americans “the privacies of life.”’ Riley
v. California, supra. (citation omitted). That is the case here. Because Detective
Slattery did not have lawful access to the `Faith Fallout’ folder, the third
requirement of the plain view exception is not met. The plain view exception
therefore does not apply.
People v. Herrera,
supra.
The Supreme Court therefore affirmed the trial court’s
suppression order. People v. Herrera,
supra.
No comments:
Post a Comment