Ineffective Assistance of Counsel, SpoofCards and Habeas Corpus

This post examines a recent opinion from the Appellate Court of Connecticut:  Bozelko v. Commissioner of Correction, 2016 WL 305628 (2016).  The court begins the opinion by explaining what the appeal involved and who was bringing it:

Chandra Bozelko appeals from the judgment of the habeas court denying her petition for a writ of habeas corpus. She claims the court erred in denying her claim of ineffective assistance of trial counsel due to a failure to investigate effectively. She further argues that the court abused its discretion in denying certification to appeal. We dismiss the appeal.

The petitioner claims her counsel provided ineffective assistance in the course of defending her against charges of jury tampering. She pleaded guilty to and was convicted of making telephone calls to jurors during her criminal trial on certain otherwise unrelated prior charges. The habeas court recited the following facts with respect to the jury tampering: `On the evening of October 4, 2007, while the petitioner's criminal jury trial was underway, several jurors assigned to the case received telephone calls at their residences from a telephone number identified on their respective caller identification systems as originating from Kate's Paperie, a business establishment in Greenwich, Connecticut. A male caller asked the jurors questions regarding their status as jurors and instructed the jurors that they should not find the petitioner guilty of the pending charges. The petitioner submitted an affidavit to the court indicating that she received several calls from jurors at her residence on October 8, 2007.’

`The police conducted an extensive investigation and determined that the calls did not originate from Kate's Paperie or from the jurors' residences. The police determined that the caller identification information for these calls had been “spoofed,’ a process whereby the caller attaches false identity contact information to the communication. The police discovered that a ‘SpoofCard’ was purchased on April 12, 2007, with the computer located in the petitioner's residence and her mother's credit card. A SpoofCard allows the user to change caller identification information through the use of a computer service. A SpoofCard user also has the ability to change his or her voice to that of a male or female.’

`The call records showed that 123 calls were made with the [Spoof]card beginning on April 12, 2007, and ending on October 4, 2007. Ninety-four of the calls originated from the petitioner's father's fax machine phone number, nineteen of the calls originated from the petitioner's residential phone number and ten of the calls originated from a Tracfone phone number. The Trac-fone, a prepaid cell phone, was activated from the computer in the petitioner's residence. The SpoofCard and the Tracfone were used to place the phone calls to the jurors on October 4, 2007. The calls took place over the span of an hour and a half, beginning at 7:22 p.m. and ending at 8:52 p.m. All of the phone calls made using the SpoofCard were recorded.

`A second SpoofCard was purchased on October 8, 2007, with the computer located in the petitioner's residence and a prepaid credit card that was found in the petitioner's bedroom when the search warrant was executed. The second SpoofCard and the Tracfone were used to make calls to the petitioner's residence from phone numbers spoofed to appear as if the calls originated from the jurors' residences. There were no recordings made of these calls.’ The habeas court further explained that, in connection with this incident, `[t]he petitioner was charged with six counts of attempt to commit tampering with a juror in violation of General Statutes §§ 53a–49 (a)(2) and 53a–154 one count of false statement in the second degree in violation of General Statutes [Rev. to 2007] § 53a–157b and one count of tampering with physical evidence in violation of General Statutes § 53a–155(1). The petitioner was also charged with [crimes] arising from the same allegations in a separate case in the Stamford judicial district. The petitioner's exposure on these charges was approximately fifty years.’

Bozelko v. Commissioner of Correction, supra.  You can, if you are interested, read more about the case and the facts it arose from in the articles you can find here and here. 
The Appellate Court went on to outline the legal proceedings that led to this appeal:

Attorney Dean Popkin represented the petitioner. The petitioner entered a guilty plea, under the Alford doctrine, to three counts of attempt to commit tampering with a juror on March 30, 2010. On May 24, 2010, the petitioner was sentenced to twenty-seven months incarceration on each count, to run concurrently, for a total effective sentence of twenty-seven months imprisonment. The state nolled the remaining charges against the petitioner in both this case and the Stamford case.

The petitioner filed a petition for a writ of habeas corpus in August, 2010. . . . [S]he claimed her trial counsel was ineffective for failing to conduct an adequate pretrial investigation prior to the entry of her plea. She claimed he did not effectively investigate the petitioner's innocent use of another telephone line in the same time frame in which the telephone calls to the jurors were taking place, and he did not effectively investigate all of the telephone records. The court denied the petition and found the petitioner had failed to establish both deficient performance and prejudice. The habeas court denied her petition for certification to appeal. This appeal followed.

Bozelko v. Commissioner of Correction, supra.

The Appellate Court went on to explain that

[a]s a threshold matter, the petitioner claims that the habeas court abused its discretion in denying her petition for certification to appeal. `Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion. . . . A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . .The required determination may be made on the basis of the record before the habeas court and applicable legal principles. . . .

In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.’ . . . Ham v. Commissioner of Correction, 152 Conn. App. 212, 98 A.3d 81, cert. denied, 314 Conn. 932, 102 A.3d 83 (2014). Resolution of the petitioner's threshold claim that the court abused its discretion in denying her petition for certification to appeal requires an examination of her underlying claims, and, thus, we address these claims in turn.

Bozelko v. Commissioner of Correction, supra.  You can, if you are interested, read more about habeas procedure in the United States in the article you can find here.

The court then explained that in this proceeding Bozelko argued that the habeas corpus

court erred: (1) in finding that her counsel's performance was not deficient, and (2) in using an incorrect standard for determining prejudice. We are not persuaded.

`In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary.’ (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 117 Conn. App. 510, 978 A.2d 1167 (2009).

Bozelko v. Commissioner of Correction, supra.

The Appellate Court went on to explain that the

`governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with guilty pleas are set forth in Strickland [v. Washington,466 U.S. 668 (1984)] and Hill [v. Lockhart, 474 U.S.52 (1985)]. [According to] Strickland, [an ineffective assistance of counsel] claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . .The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. . . . Under . . . Hill . . .  which . . . modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial.’ . . . Patterson v. Commissioner of Correction, 150 Conn.App. 30, 89 A.3d 1018 (2014). An ineffective assistance of counsel claim `will succeed only if both prongs [of Strickland as modified by Hill ] are satisfied.’ . . . Mozell v. Commissioner of Correction, 291 Conn. 62, 77, 967 A.2d 41 (2009).

Bozelko v. Commissioner of Correction, supra.

The Appellate Court then took up Bozelko’s argument that the habeas court judge

erred in determining that Popkin's performance was not deficient. She contends that he rendered deficient performance in that he failed to examine the telephone records provided by the state during discovery, which show telephone calls made on the night in question from the landline at her residence, and that he failed to interview one Willie Green, since deceased. Green, an employee at Kinsella Commons, a mental health and substance abuse treatment center, allegedly was the recipient of an innocent call from the landline at the residence on the night in question. The petitioner claims that Green could have provided useful information about the call. We disagree with the petitioner's claim in this regard.

Bozelko v. Commissioner of Correction, supra.

The Appellate Court went on to explain that the

following additional findings of fact and conclusions of law were made by the habeas court. At trial, the petitioner introduced records from AT & T and Kinsella Commons to demonstrate what additional investigation by Attorney Popkin would have revealed. The AT & T phone records submitted into evidence indicate that several calls were made from the landline at the petitioner's residence on the evening of October 4, 2007. The first outgoing phone call was made at 7:24 p.m., and the last outgoing phone call was made at 10:01 p.m. The durations of the phone calls ranged from approximately one second to four and a half minutes. The petitioner testified that the outgoing calls were made to Kinsella Commons, [a patient at the facility], relatives of [the patient], and the petitioner's sisters. The notes submitted from Kinsella Commons, handwritten by Willie Green, a supervisor of the center's residents, state that Green received a phone call from the petitioner on the evening of October 4, 2007. Green's notes indicate that the call was received at 7:45 p.m., but they do not indicate how long the phone call lasted. The AT & T phone records indicate that one phone call was made from the petitioner's residence to Kinsella Commons at 7:48 p.m., and the call ended at 7:52 p.m.

Attorney Popkin hired an investigator in this case. The investigator attempted to contact individuals identified by the petitioner as having some involvement with the case, but they refused to speak with him. The investigator also arranged for a forensic review of the petitioner's hard drive, but the forensic examiner found more evidence on the computer that was detrimental to the petitioner than the state police had found. The court credits Attorney Popkin's testimony that he also requested the phone records to substantiate the petitioner's claimed theory of defense, but he did not find them to be helpful. The phone records did not prove that it was the petitioner making the phone calls. Moreover, Attorney Popkin determined that several brief phone calls to Kinsella Commons would not account for the hour and a half time frame during which the calls were made to the jurors.

Attorney Popkin wrote a letter to the petitioner, recommending that she plead guilty due to the strength of the state's case against her and her lack of a viable defense. While the voice on the tape recordings of the phone calls made to the jurors using the SpoofCard was disguised in a male voice, the voice on other phone calls recorded on the card was not disguised. Attorney Popkin determined that the petitioner's defense would require her to testify, and he believed that any jury that heard the tape recordings and the petitioner's voice would determine that it was her voice on those phone calls. Attorney Popkin testified that he reviewed the tapes with the petitioner, and that she decided to plead guilty after hearing the recordings. He believed that the plea deal was very favorable in light of the exposure she faced. The sentencing court, Rodriguez, J., thoroughly canvassed the petitioner regarding her plea.

`Pursuant to the foregoing, the court finds that the evidence submitted by the petitioner is insufficient to establish the existence of exculpatory information that should have been discovered had a proper investigation been conducted. Attorney Popkin's investigation was objectively reasonable under the circumstances of this case, and the petitioner has not met her burden of proving deficient performance for purposes of her ineffective assistance claim.’

The court did not err in concluding Popkin had not rendered deficient performance. He hired an investigator and examined the petitioner's defense that she was making telephone calls from the landline at her residence during the time in which the telephone calls to the jurors had been made. He found the telephone records that he had requested, in order to support the petitioner's defense theory, to be unhelpful. The records did not prove that the petitioner had made the telephone calls herself, and, because of the brief duration of the telephone calls from the landline, even if the petitioner had made those calls, she still had an hour and a half in which to telephone the jurors using the cell phone.

Popkin determined that not only were the additional telephone calls on the night in question of insufficient duration reasonably to eliminate the petitioner as the maker of the incriminating calls—for instance, the call to Green accounted for only approximately four minutes of the one and one half hour time frame in which the jurors were telephoned—but also that the jury would be able to match the voice on the tape recorded telephone calls to the petitioner's voice, which of course would be heard if she testified. Popkin testified that roughly twenty calls were made using the SpoofCard and that the caller's voice was disguised on some of the calls. He testified that other calls captured what Popkin believed to be the petitioner's real voice. He further testified that the petitioner decided to plead guilty after hearing the recordings of her voice. The court determined that Popkin's investigation was objectively reasonable under the circumstances of the case.

The petitioner argues, however, that Popkin was ineffective for not investigating the petitioner's defense further. `[C]ounsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it . . . [as][e]ffective assistance of counsel imposes an obligation [on] the attorney to investigate all surrounding circumstances of the case and to explore all avenues that may potentially lead to facts relevant to the defense of the case. . . . In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. . . .If counsel makes strategic decisions after thorough investigation, those decisions are virtually unchallengeable. . . .’ Taft v. Commissioner of Correction, 159 Conn.App. 537, 124 A.3d 1, cert. denied, 320 Conn. 910, A.3d (2015). We conclude that the court did not err in concluding Popkin's performance was not constitutionally deficient.

Bozelko v. Commissioner of Correction, supra.

Finally, the Appellate Court took up the issue as to whether her lawyer’s performance caused her “prejudice.”  Bozelko v. Commissioner of Correction, supra.  It began its analysis of that issue by explaining that Bozelko

argues that the habeas court relied on the superseded prejudice standard enunciated in Copas v. Commissioner of Correction, 234 Conn. 139, 662 A.2d 178 (Connecticut Supreme Court 1995), and examined only the strength of the state's case. The petitioner argues that the court failed to use the proper prejudice standard articulated in Carraway v. Commissioner of Correction, 317 Conn. 594, 119 A.3d 1153 (Connecticut Supreme Court 2015). We disagree.

`For claims of ineffective assistance of counsel arising out of the plea process, the United States Supreme Court has modified the [prejudice] prong of the Strickland test to require that the petitioner produce evidence ‘that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial.’ Hill v. Lockhart, supra.’ Thiersaint v. Commissioner of Correction, 316 Conn. 89, 111 A.3d 829 (Connecticut Supreme Court 2015). In Copas v. Commissioner of Correction, supra, our Supreme Court interpreted Hill to require that to prove prejudice the petitioner must `demonstrate that [s]he would not have pleaded guilty, that [s]he would have insisted on going to trial, and that the evidence that had been undiscovered or the defenses [s]he claims should have been introduced were likely to have been successful at trial.’

In Carraway, our Supreme Court held that the prejudice standard enunciated in Copas had been overruled, sub silentio, by statements in more recent cases in which it `specifically disapproved of the petitioner's characterization of the prejudice prong as “a reasonable probability that the result of the trial court proceedings would have been different’ and instead stated that ‘[i]n the context of a guilty plea . . . to succeed on the prejudice prong the petitioner must demonstrate that, but for counsel's alleged ineffective performance, the petitioner would not have pleaded guilty and would have proceeded to trial.”’ Carraway v. Commissioner of Correction, supra. . . .

Bozelko v. Commissioner of Correction, supra.

The Appellate Court then enunciated its ruling on Bozelko’s appeal:

The habeas court used the proper prejudice standard under Carraway. In its introductory discussion of law, the court specifically stated the same standard as that enunciated in Carraway. The court later specifically found:

`The evidence submitted by the petitioner is insufficient to establish the existence of exculpatory information that would have changed the result in this case. The telephone records reveal that calls were made on the landline in the petitioner's residence; however, the telephone calls made to the jurors were placed on a Tracfone. The duration of the outgoing telephone calls do not amount to the time needed to attempt to tamper with the jurors. Furthermore, there is no evidence that it was the petitioner who was making the telephone calls. The only evidence of a telephone call made by the petitioner on October 4, 2007, is a four minute telephone call made to Green around 7:45 p.m. The petitioner pleaded guilty as a result of the strength of the state's case, particularly, the existence of the tape recordings featuring the petitioner's voice that the state intended to introduce into evidence, and the potential exposure that she faced if convicted. The court does not credit the petitioner's testimony that she would have gone to trial in light of these circumstances. The court finds that there is not a reasonable probability that this newly submitted evidence would have changed the petitioner's decision to plead guilty.’

The court clearly assessed whether the petitioner, but for counsel's alleged ineffective performance, would not have pleaded guilty and would have proceeded to trial. The court discredited the petitioner's testimony that she would have gone to trial. The court analyzed the strength of the state's case, to be sure, as the strength of the state's case played a role in the petitioner's decision to plead guilty and in the court's determination of whether that decision would likely have changed if the `new’ evidence had been developed at the time of the plea. The court concluded that it was not reasonably probable that the new evidence would have changed the petitioner's mind to plead guilty. We conclude that the court used the proper standard in assessing prejudice.

After a thorough review of the record and briefs, we conclude that the petitioner did not demonstrate that the issues she has raised in her petition for certification to appeal are debatable among jurists of reason, that a court could resolve those issues differently or that the questions raised deserve encouragement to proceed further. Accordingly, we conclude that the petitioner has failed to demonstrate that the court abused its discretion in denying her petition for certification to appeal.

The appeal is dismissed.

Bozelko v. Commissioner of Correction, supra. 

The Text Messages, Riley v. California and the Cell Phone

This post examines an opinion from the Court of Appeals of Oregon:  State v. Lowell, 2015 WL 8349916 (2015).  The court begins by explaining how the case arose:

This criminal appeal concerns defendant's motion to suppress evidence. After defendant crashed his bicycle into a car and was injured, he separately interacted with two police officers. A police officer at the accident scene ordered him to go to the hospital. A second police officer, who was investigating the accident, arrived after defendant requested treatment at the hospital, entered his treatment room, and smelled marijuana. That officer asked for and obtained defendant's consent to search the backpack and discovered in it marijuana and other related paraphernalia, including a digital scale. The officer informed defendant of his Miranda rights, and defendant admitted that he regularly sold marijuana. Then the officer seized defendant's cell phone and reviewed incriminating text messages. Ultimately, defendant was prosecuted and unsuccessfully moved to suppress the evidence from his backpack, his statements, and the text messages. Defendant was then convicted of one count of delivery of marijuana for consideration, [Oregon Revised Statutes] 475.860(2)(a), based on a conditional guilty plea.

In three combined assignments of error, defendant challenges the trial court's denial of his motion to suppress the evidence. He argues that the police seized him by compelling him to seek medical treatment at the hospital and, in doing so, violated his right to be free from unreasonable seizures under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. Based on that premise, defendant argues that all evidence obtained after the bicycle crash was unlawfully obtained and, therefore, should have been suppressed. 

 State v. Lowell, supra.  

Next, as appellate courts often do, the Court of Appeals explained how, and why, the prosecution arose, but only after providing a brief preface:

When reviewing a trial court's denial of a motion to suppress, we are bound by the trial court's findings of historical fact provided that there is evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (Oregon Supreme Court 1993). If the trial court did not make detailed findings on disputed issues of historical fact, we infer that the trial court made findings consistent with its ultimate conclusion. State v. Watson, 353 Or. 768, 769, 305 P.3d 94 (Oregon Supreme Court 2013). We present the following facts with that standard in mind.

State v. Lowell, supra. 

The court then presented the relevant facts, separated into sections that described what occurred at different stages in the circumstances that led to the prosecution:

A. The Alleged Seizure of Defendant at the Accident Scene

While riding his bicycle the wrong way in a bicycle lane, defendant crashed into a car and flew over the handlebars. Defendant hit the vehicle with enough force to break his bicycle at the handlebars, rendering it inoperable. He suffered a cut on his forehead, and he had blood on his face.

Paramedics and Officer Riddle were the first responders at the accident. Riddle, who was ending his shift, chose to respond in case emergency medical assistance was necessary; he knew that other officers beginning their shifts would be dispatched to actually investigate the accident. The paramedics tried to persuade defendant that he needed to go to the hospital, but he did not have medical insurance and refused. The paramedics enlisted Riddle's help in persuading defendant to seek medical treatment.

Riddle tried to “convince” defendant that he needed to go to the hospital. Riddle was concerned that defendant was injured, based on the paramedics' statements, the blood running down defendant's face, and his `common sense’ that bicycle-car crashes can result in serious injuries to bicyclists. He also believed that defendant, who `looked very young,’ was a `kid,’ and he was concerned about his `community care taking’ `obligation’ to help an injured minor, although he did not inquire as to defendant's age.

Riddle testified that he stressed his concern during his conversation with defendant: `[The paramedics] are concerned about you. I am concerned about you. You need to go to the hospital.’ He testified, `I essentially gave him a choice. I said, you can voluntarily go down with the paramedics, or I will take you to the hospital, but you need medical treatment.’

Their conversation lasted one to two minutes. Riddle described his tone as `encouraging’ and `out of concern and convincing.’ He testified that he routinely interacts with injured community members who are reluctant to seek medical treatment because of the expense. He tries to reassure those people that they `are not in trouble’ and that, even though medical treatment is expensive, their immediate health is more important than the cost. Riddle characterized his conversation with defendant as typical of those conversations, which he perceived to be part of his `community care taking’ obligation to `force people to go get medical treatment’ in certain circumstances. Riddle and defendant never discussed a criminal investigation, and he was `completely shocked’ when he later received the subpoena in this case. In his words, `I thought it was a kid riding a bicycle that got hit by a car and needed to go to the hospital. And that was the end of it.’

Defendant had decided to go to the hospital and was in the ambulance when the second officer, Officer Folkerte, arrived. Folkerte took over as the primary officer at the scene because Riddle's shift was ending. Folkerte spoke with Riddle regarding the details of the crash and learned that defendant would be transported to the hospital in the ambulance.

At the accident scene, Folkerte began to suspect that `other things [were] going on.’ A paramedic told Folkerte defendant was acting `very guarded’ and `extremely paranoid’ and that defendant had made the unusual request to drop off his backpack at a friend's house on the way to the hospital. The paramedic asked Folkerte to follow the ambulance to the hospital, which he did a few minutes later, after he finished interviewing witnesses at the scene. Folkerte did not interview defendant at the accident scene, but Folkerte intended to interview defendant and also to issue him a traffic citation once Folkerte got to the hospital.

B. The Search of Defendant's Backpack at the Hospital

The paramedics dropped defendant off at the hospital, a few minutes away. Defendant went in and signed a voluntary consent-to-treatment form before Folkerte arrived. Folkerte then entered defendant's treatment room and immediately smelled marijuana. That put defendant's concern about his backpack in context for Folkerte, who suspected defendant possessed marijuana. During the exchange that followed, medical personnel filtered in and out of defendant's treatment room, and Folkerte stood next to defendant, who was in a chair. Folkerte testified that his tone was `[p]rofessional,’ that there was `nothing exceptional about’ the `dialogue’ that ensued, and that there were `no raised voices’ or `unnecessary high emotions.’ Folkerte did not threaten to arrest defendant if he refused to cooperate.

Folkerte inquired whether the backpack contained marijuana, and defendant stated that it contained `a couple of pipes’ and a `small amount of marijuana.’ Then, Folkerte asked defendant for consent to search his backpack, which defendant orally gave. Folkerte then read a department-prepared consent card to defendant, informing defendant that he had the right to refuse consent. Folkerte again asked defendant if he consented to the search and defendant again orally consented to the search. Defendant signed the card. Folkerte asked defendant to open his backpack and hand over the pipes and the `small amount of marijuana’ that he had identified. While defendant complied, Folkerte could see that defendant was attempting to hide a brown wooden cigar box within the backpack. Folkerte asked defendant about the cigar box, which defendant removed from the backpack and opened to reveal two clear plastic bags containing marijuana, later weighed at 1.45 ounces. Folkerte questioned defendant again about any additional items in the backpack, and defendant removed a digital scale and a small pill container containing small amounts of crushed marijuana.

C. The Questioning After the Backpack Search

After seeing the marijuana, scale, and pill container, and considering defendant's earlier request to drop off his backpack, Folkerte suspected defendant was delivering marijuana. Folkerte estimated that, at that point, about 20 minutes had passed since Folkerte had arrived at the hospital room. Folkerte read defendant his Miranda rights from a department-prepared card, and defendant stated that he understood his rights. Folkerte then began questioning defendant about delivering marijuana. Defendant stated that he delivered marijuana to friends who require it for medical purposes. Defendant also stated that he intended to sell the marijuana in his backpack to a friend and that he typically sold marijuana about once a week. Defendant admitted that he had last sold marijuana earlier that afternoon.

D. The Search of Defendant's Cell Phone

At some point after questioning defendant about his marijuana dealing, Folkerte seized defendant's cell phone, although Folkerte could not remember how he acquired the phone or verified that it was defendant's. Based on defendant's statements and the evidence previously identified, Folkerte believed that he had probable cause to search defendant's text messages for evidence of marijuana dealing. He read defendant's text messages and identified text messages confirming that defendant had sold marijuana earlier in the day.

Folkerte issued defendant a criminal citation for the marijuana but did not take defendant into custody. Defendant, who was charged with delivery of marijuana for consideration and marijuana possession, then moved to suppress `any reference to, any evidence seized during, and any derivative evidence flowing from the search of defendant's [backpack].’ The trial court denied defendant's motion, concluding that (1) defendant was not seized; (2) there was `probable cause throughout’ to support the police officers' actions; (3) defendant voluntarily consented to the search of his backpack; and, (4) if defendant had been unlawfully seized, defendant's consent did not result from police exploitation of defendant's unlawful seizure. The trial court explained that the questioning that took place at the hospital `simply was an opportunity that occurred because of the police utilizing their community caretaking function.  There certainly was no intent for a criminal investigation when that request and direction [that defendant seek medical attention] was given.’ The trial court also addressed the lawfulness of the questioning at the hospital, stating that, `when the second officer got to the hospital room to give the citation for the incident that initiated all of this conduct, then the overwhelming smell of marijuana, as well as the information he had been given’ before he contacted defendant resulted in a lawful investigatory process and `then a lawful consent process as well.’ The trial court also concluded that defendant's cell phone was lawfully seized and searched incident to his arrest.

State v. Lowell, supra. 

The Court of Appeals then began its analysis of Lowell’s motion to suppress:

Defendant's arguments for suppression build upon the assumption that defendant was seized at the accident scene. Therefore, although we do not decide that issue, we summarize the parties' arguments to provide analytical context.At the suppression hearing and in his brief on appeal, defendant argued that he was subject to ongoing police control from at least the moment that Riddle issued the ultimatum until Folkerte left the hospital. The state, on the other hand, frames defendant's interactions with Riddle and Folkerte as separate events. The state concedes that defendant's theory that he was seized at the accident scene `presents a close question, particularly in light of defendant's liberty interest in refusing medical treatment,’ and it notes cases from other jurisdictions addressing that issue. See, e.g., Peete v. Metropolitan Government of Nashville, 486 F.3d 217 (U.S. Court of Appeals for the 6th Circuit 2007) (local government paramedics did not unreasonably seize individual under the Fourth Amendment by physically restraining him to administer treatment for epileptic shock); Green v. City of New York, 465 F.3d 65 (U.S. Court of Appeals for the 2d Circuit 2006) (assuming that the jury accepted the plaintiffs' version of the facts, under the Fourth Amendment, police seized man with ALS who repeatedly communicated his intent not to be transported to the hospital, when an officer argued with the man's family about his need for medical assistance for more than an hour, his family constructed a barrier of furniture to prevent the police from removing the man, an officer or a paramedic knocked down the man's wife to reach the man, and an officer said, `We are going to the hospital whether you like it or not’); see also, e.g., Schreiner v. City of Gresham, 681 F.Supp.2d 1270, 1273 (U.S. District Court for theDistrict of Oregon 2010) (woman experiencing diabetic shock was seized under the Fourth Amendment when a police officer tased her and handcuffed her to force her to submit to medical treatment). However, in the state's view, even if Riddle did seize defendant, that seizure ended before Folkerte arrived at the hospital and began his investigation.As does the state, the trial court implicitly conceptualized defendant's interactions with Riddle and Folkerte as two separate events. We agree that Riddle's interaction with defendant should be analyzed separately from Folkerte's interaction with defendant, because any seizure by Riddle ended before Folkerte arrived at the hospital.A `seizure’ of a person occurs under Article I, section 9, `if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement’ or `if a reasonable person under the totality of the circumstances would believe’ that such a restriction has occurred. State v. Ashbaugh, 349 Or. 297, 244 P.3d 360 (Supreme Court of Oregon 2010) (emphasis omitted). A seizure ends when a reasonable person under the totality of the circumstances would no longer believe that his or her liberty is being restricted. See State v. Ashbaugh, supra (unlawful seizure ended when police returned the defendant's identification and told her they were arresting her husband only).In this case, even if Riddle seized defendant at the accident scene, that seizure ended, at the latest, when the paramedics dropped defendant off at the hospital and defendant signed a voluntary consent-to-treatment form. Defendant sought treatment with no police present, under normal circumstances at the hospital. Neither of the officers at the accident scene communicated to defendant that he intended to follow defendant to the hospital. By the time defendant was being transported, Riddle, the officer with whom defendant had directly interacted, had left the accident scene, and he did not interact with defendant again.  And, Folkerte did not follow directly behind the ambulance on its way to the hospital, but instead left for the hospital a few minutes after the ambulance had left the accident scene. He arrived at the hospital after defendant had made the choice to receive medical treatment. A reasonable person, under the totality of the circumstances, would not have felt that he or she was subject to ongoing police control at the time that defendant entered the hospital and sought medical treatment. 

State v. Lowell, supra.

The Court of Appeals then took up Lowell’s argument that

the physical evidence found in his backpack should be suppressed because, even though he voluntarily consented to Folkerte's search of the backpack, his consent resulted from police exploitation of his earlier illegal seizure by Riddle at the accident scene and Folkerte's alleged continuation of that seizure. Thus, even though we have determined that any unlawful seizure (if there was one) had ended at the time that defendant entered the hospital, we nonetheless must address defendant's argument that Folkerte exploited that allegedly unlawful seizure to obtain defendant's consent to the search of his backpack. We reject that argument. . . .

Based on the totality of the circumstances—including that Riddle had a noninvestigative, community-caretaking purpose to interact with defendant; defendant chose to seek medical treatment once he was dropped off at the hospital when no police were present; Folkerte had an independent lawful basis to question defendant about marijuana possession; and Folkerte fully informed defendant he could refuse consent—we conclude that the state met its burden to prove that defendant's consent was sufficiently attenuated from any preceding unlawful police conduct that may have occurred. Therefore, we conclude that the trial court did not err in admitting the physical evidence seized as a result of a lawful consent search of defendant's backpack.

State v. Lowell, supra. 

Lowell also argued that his statements should be suppressed because “he received late and ineffective Miranda warnings”, an argument the court rejected.  State v. Lowell, supra.  It explained that Folkerte

issued defendant Miranda warnings before questioning him about drug sales, reading them from a department-prepared card. . . . [T]he Miranda warnings notified defendant that he did not have to speak to the police and served to mitigate the taint of any preceding unlawful seizure. . . . Accordingly, we conclude that the trial court did not err in denying defendant's motion to suppress as to his statements regarding drug sales.

State v. Lowell, supra. 

Finally, the court addressed the seizure of Lowell’s cell phone, noting that the

Oregon and federal search incident to arrest doctrines are independent exceptions to the warrant requirements under Article I, section 9, and the Fourth Amendment. The trial court concluded that defendant's cell phone was lawfully seized and that Folkerte's warrantless search of defendant's text messages was lawful as a search incident to a lawful arrest. Defendant argued to the trial court that both Article I, section 9, and the Fourth Amendment required suppression of the text messages, and renews both arguments on appeal. Federal law concerning police officer searches of cell phone data has developed since defendant appealed, and it is now apparent, based on Riley v. Calfornia,134 S.Ct. 2473 (2014), that the court erred in admitting the text messages under the Fourth Amendment's search incident to arrest exception to the warrant requirement.

After oral argument in this case, the United States Supreme Court held in Riley that the search incident to arrest exception under the Fourth Amendment categorically does not apply to digital data stored on cell phones. Riley v. Calfornia, supra. Defendant supplied a memorandum of additional authorities, arguing that under Riley, he prevails under the Fourth Amendment. Neither party has briefed whether Article I, section 9, compels a different result.

Ordinarily, the `first-things-first’ doctrine directs us to resolve state constitutional law claims before reaching federal law claims. State v. Babson, 355 Or. 383, 326 P.3d 559 (Oregon Supreme Court 2014) (acknowledging without accepting or rejecting an argument that we may not be required to resolve state law claims first, but observing that, at the very least, there are `sound [policy] reasons for doing so’); State v. Babson, 249 Or.App. 278, 307 n. 6, 279 P.3d 222 (2012), aff'd, 355 Or. 383 (2014) (stating that, until the Supreme Court repudiates the first-things-first doctrine, we will generally choose to follow it). However, `in some instances, where a rights claimant obviously prevails under the federal constitution regardless of whether the state law vindicates the claim, we will, as a matter of judicial efficiency, decide the case under the federal constitution without treating the state law issue.’ State v. Babson, supra.

State v. Lowell, supra (emphasis in the original).

The Court of Appeals went on to explain that

[a]s a matter of judicial efficiency, we decide defendant's challenge to the admission of the text messages from his cell phone under the Fourth Amendment. We conclude that the trial court erred by admitting the text messages, because it incorrectly reasoned that the warrantless search of defendant's cell phone was valid under the federal search incident to arrest doctrine. We so conclude based on only federal law for three reasons.

First, the Court's holding in Riley could not be clearer: `[A] warrant is generally required before’ a search of data on a cell phone, `even when a cell phone is seized incident to arrest.’ Riley v. Calfornia, supra.  Second, the parties have not briefed how we should interpret Article I, section 9, as it applies to warrantless searches of cell phone data. And third, although we might in other circumstances ask the parties to brief the state constitutional issue, see State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983) (stating that, `[w]hen a court is confronted with a mere unexplained citation of an Oregon source tacked on as an ‘afterthought,’ * * * the court * * * may request counsel either to explain the claim under state law or to abandon it’), such briefing would be an inefficient use of the parties' and our resources.

Our disposition would ultimately be the same, even if we were to prolong this appeal by requiring the parties to brief the state constitutional grounds. Therefore, in the interest of judicial efficiency and a final resolution of this case, we address only defendant's Fourth Amendment authorities and conclude that the trial court erred in admitting the text messages.

State v. Lowell, supra. 

The Court of Appeals therefore reversed Lowell’s conviction and remanded the case to the trial court for further proceedings. State v. Lowell, supra. 

"Revenge Porn," Defamation and Intentional Infliction of Emotional Distress

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