Cell Phones, Search Incident and Good Faith

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 4^th 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 4^th Amendment, as noted above.  United States law uses the exclusionary rule to enforce the requirements of the 4^th Amendment, which means evidence obtained by actions that violate the 4^th 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 4^th 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 4^th 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.  

Homicide, the Prepaid Cell Phone and the Stingray

Bobby Tate was “arrested . . . for first-degree intentional homicide”, moved to suppress certain evidence, after the trial judge denied the motion, “pled no contest to first-degree reckless homicide” and then appealed the denial of his motion. State v. Tate, 2014 WL 3672705 (Supreme Court of Wisconsin 2014).  You can read more about the case in the story you can find here. 

On appeal, Tate claimed the lofficers who investigated the case violated “his right against unreasonable searches under both the 4th Amendment of the United States Constitution and Article I § 11 of the Wisconsin Constitution and the order authorizing the tracking of his cell phone required statutory authority, which it lacked.”  State v. Tate supra. The Supreme Court begins its opinion by explaining how the prosecution arose:

On the evening of June 9, 2009, [officers] responded to a homicide outside Mother's Foods Market/Magic Cell Phones at 2879 N. 16th Street in Milwaukee. . . . [They] found a victim lying between the curb and thesidewalk with a fatal gunshot wound to the head. A second victim was taken to the hospital to [be treated] for a gunshot wound to his left ankle.

Witnesses described the shooter as a black male wearing a striped polo shirt. Footage from Mother's Foods' surveillance camera showed a person matching the suspect's description purchase a prepaid cellular phone inside the store, leave the store and shoot the victim in the back of the head. The clerk who sold the phone to the suspect told police [he] identified himself to her as `Bobby’ and said he had just gotten out of prison that day.  Mother's Foods provided police with information about the phone the suspect purchased, including the telephone number. . . . Detective Patrick Pajot used two internet databases to confirm U.S. Cellular was the service provider for that phone.

Upon these facts, which Detective Pajot described in a sworn affidavit, Assistant District Attorney Grant Huebner applied for an order approving the following: (1) installation and use of a trap and trace device or process; (2) installation and use of a pen register device or process; and (3) the release of subscriber information, including cell tower activity and location and global positioning system (GPS) information that could identify the physical location of the target phone.

Officer Brian Brosseau of the Milwaukee County's Intelligence Fusion Division testified at the suppression hearing about the technology officers used to locate the suspect's phone, which included cell site information and a stingray. Cell site information allows law enforcement to locate a cell phone by triangulation. . . . Any time a cell phone is turned on, it is searching for a signal and, in the process, identifying itself with the nearest cell tower every seven seconds. . . . Cell service providers can `collect data from th[e]se contacts, which allows [them] to locate cell phones on a real-time basis and to reconstruct a phone's movement from recorded data.’ State v. Earls, 214 N.J. 564, 70 A.3d 630 (New Jersey Supreme Court 2013).

State v. Tate supra.  In a footnote, the court explains that a stingray is an electronic

device that mimics the signal from a cellphone tower, which causes the cell phone to send a responding signal. If the stingray is within the cell phone's signal range, [it] measures signals from the phone, and based on the cell phone's signal strength, . . . can provide an initial general location of the phone. By collecting the cell phone's signals from several locations, the stingray can develop the location of the phone quite precisely. . . .

State v. Tate supra. 

The Supreme Court also noted that it was not clear from the record in the case exactly

how law enforcement used cell site information. . . . We do not know whether U.S. Cellular or law enforcement triangulated the signals from the target phone. We also do not know whether U.S. Cellular regularly collects this information, or if it did so solely at law enforcement's request. Brosseau explained only that, `[w]e were receiving information with the cell tower information, what that cell tower is currently on’ and that, as a general matter, `the cell phone provider . . . send[s] us data regarding a certain number . . . [pen] register information on that particular phone number.’ He stated that the phone signal “was bouncing between three different cell phone towers on three different sectors which if you were to map it out were to give you an angle or an area of probability of where you believe the suspect would be . . . at that time.’

After law enforcement received cell site information from U.S. Cellular, officers used a stingray to further narrow down the phone's location. The stingray . . . allowed officers to locate the phone based on signal strength. . . . Brosseau explained that law enforcement's stingray is a `directional antenna mounted on our vehicle which will respond only to that electronic serial number of which we're looking for and it will give [us] an arrow, if you will, pointing to the direction and with the strength tell [us] how close [we] are to that particular electronic.’ Using [it], officers `could tell [the target phone] was on the . . . south and east side’ of a particular apartment building on the 5700 block of West Hampton Avenue.

State v. Tate supra.  The investigating officers then entered the apartment building and

began knocking on the doors of individual apartments on the southeast side of the building. After searching the apartments of three or four residents and not locating what they were looking for, officers knocked on the door of the [Tate’s] mother, Doris Cobb.

State v. Tate supra.  They entered Cobb’s apartment and asked if Tate was there; she said he was and “pointed toward his bedroom.”  State v. Tate supra.  The officers “found [him] sleeping in the back bedroom, along with a striped polo shirt and a tennis shoe that appeared to have blood on it and the cell phone.” State v. Tate supra.  As noted above, they arrested him for first-degree intentional homicide.  State v. Tate supra. 

The Supreme Court began its analysis of Tate’s arguments by noting that “we assume without deciding that: (1) law enforcement's activities constituted a search within the meaning of the 4th Amendment and Article I § 11; and (2) because the tracking led law enforcement to discover Tate's location within his mother's home, a warrant was needed.” State v. Tate supra. The Supreme Court then took up the first issue, i.e., Tate’s comparing cell phone tracking technology to the GPS tracking device

we examined in State v. Brereton, 2013 WI 17, ¶ 34, 345 Wis.2d 563, 826 N.W.2d 369, He contends that tracking a cell phone through cell site information and a stingray involves a similar `usurpation of an individual's property’ and therefore constitutes a search. Id.

In Brereton, we concluded that the law enforcement officers who placed a GPS device on a defendant's car and monitored his movements in order to conduct surveillance `invad[ed] privacy interests long afforded, and undoubtedly entitled to, 4th Amendment protection’ when they used his property without his permission. Id. (quoting U.S. v. Jones, 132 S.Ct. 945 (2012) (Sotomayor, J., concurring)).

When the U.S. Supreme Court analyzed a similar physical placement of a GPS device on a defendant's car, it did so in terms of trespass. U.S. v. Jones, supra. In Brereton, we noted that tracking through the use of a GPS device attached to a defendant's car may have constituted a search `even in the absence of a trespass.’ Brereton, supra (quoting U.S. v. Jones, supra (Sotomayor, J., concurring)). We reiterated that to determine whether a search occurs when law enforcement uses tracking technology to which a physical trespass on a defendant's property does not apply, we apply the test set forth in Katz v. U.S., 389 U.S. 347 (1967), which asks whether `the government violates a subjective expectation of privacy that society recognizes as reasonable.’ Brereton, supra (quoting U.S. v. Jones, supra).

State v. Tate supra. 

The Supreme Court also explained that the issue of whether tracking through cell site

information and a stingray `violates a subjective expectation of privacy that society recognizes as reasonable’ is not before us because the State has conceded, and therefore has not briefed, whether such tracking is a search within the meaning of the 4th Amendment. . . . For that reason and because the parties do not dispute that a search occurred, we assume, without deciding, that tracking a cell phone using cell site information and a stingray constitutes a search that has constitutional implications.

State v. Tate supra. 

The Supreme Court then took up the issue of whether the search in this case was conducted in a manner that complied with the requirements of the 4^th Amendment and of Article 1 § 11 of the Wisconsin Constitution.  State v. Tate supra.  It explained that the 4^th Amendment and Article I § 11 protect individuals from “`unreasonable searches’” and

establish the manner in which warrants shall issue. State v. Henderson, 245 Wis.2d 345, 629 N.W.2d 613 (Wisconsin Supreme Court 2001). Searches made without warrants issued pursuant to the requirements of the warrant clause are presumed to be unconstitutional.’  Id.

`As to searches made pursuant to a warrant, they pass constitutional muster if they comply with the three requirements of the Warrant Clause of the 4th Amendment:

`(1) prior authorization by a neutral, detached magistrate; (2) a demonstration upon oath or affirmation that there is probable cause to believe that evidence sought will aid in a particular conviction for a particular offense; and (3) a particularized description of the place to be searched and items to be seized.’  State v. Sveum, 328 Wis.2d 369 (Wisconsin Supreme Court 2010).

State v. Tate supra. 

The court then took up Tate’s argument that (i) officers were required by both the 4^th Amendment and Article I § 11 to obtain a warrant justifying the cell phone tracking and (ii) the warrant they obtained, which was issued by a trial court judge (Judge Wagner) was not sufficient because he “`lacked statutory authority to issue an order authorizing police to track Tate's phone in real time’.” State v. Tate supra.  The Supreme Court also noted that the “latter contention implies that statutory authority is necessary to the lawful issuance of a warrant.”  State v. Tate supra. 

The Supreme Court began its analysis with the constitutional issues, noting that to be

constitutionally sufficient, a warrant must be based on probable cause and be reasonable both in its issuance and in its execution. . . . State v. Henderson, 245 Wis.2d 345 (Wisconsin Supreme Court 2001). The warrant we review was based on the affidavit of Detective Pajot, who described sufficient facts to support probable cause to believe the cell phone site information law enforcement sought would aid in `a particular apprehension or conviction for a particular offense.’ State v. Henderson, supra (quoting Warden v. Hayden, 387 U.S. 294 (1967)).

Judge Wagner was told a surveillance video made at the time of a homicide captured a person wearing a distinctive shirt, who identified himself to a store clerk as `Bobby’ when he purchased a cell phone. He also was told that, moments later, surveillance video captured a person matching that physical description shooting two people outside the store. Finding the cell phone the suspect purchased could be probative that the person in possession of [it] was the shooter. Tate has not established that the facts before the circuit court were clearly insufficient to support a determination of probable cause. See State v. Henderson, supra.

State v. Tate supra. 

The Supreme Court also noted that, “[i]n regard to Tate's complaint that Detective Pajot, Assistant District Attorney Huebner and Judge Wagner did not address why the cell phone constituted evidence of a crime, neither the 4th Amendment nor our decisions require the person seeking a warrant to explain why a particular object or information constitutes evidence.” State v. Tate supra.  As Wikipedia notes, the warrant need only be based on probable cause “to believe that the search will uncover criminal activity or contraband.”  The court therefore reviewed the factual allegations provided to Judge Wagner and found they supported a finding of probable cause. State v. Tate supra. 

Next, Tate claimed the warrant did not satisfy the 4^th Amendment’s particularity requirement “because it does not specify a particular location where evidence will be found.” State v. Tate supra.  The Supreme Court found the argument failed

for two reasons. First, both the United States Supreme Court and this court have upheld searches involving tracking devices despite the impossibility of describing the exact place to be searched by a traditional description, such as a street address. address. U.S. v. Karo, 488 U.S. 705 (1984); State v. Sveum, supra.  Second, we disagree with Tate's argument that since there was no physical installation of the tracking device on Tate's property in this case, as there was in Karo, State v. Brereton, 826 N.W.2s 369 (Supreme Court of Wisconsin 2013); and State v. Sveum, supra, the order does not satisfy the particularity requirement.

In Sveum, we explained that `to satisfy the particularity requirement, the warrant must enable the searcher to reasonably ascertain and identify the things which are authorized to be seized.’ State v. Sveu, supra (quoting State v. Noll, 116 Wis.2d 443, 343 N.W.2d 391 (Wisconsin Supreme Court 1984)). While a description of the object into which the tracking device was to be placed was a factor in satisfying the particularity requirement in Sveum, there is no reason why another way of identifying a cell phone, such as by its electronic serial number, cannot serve the same function as physically placing the tracking device on Tate's property. Accordingly, we conclude that the employment of the electronic serial number for Tate's phone satisfies the particularity requirement because that number permits a particularized collection of cell site information for only one cell phone.

Therefore, applying great deference to Judge Wagner's probable cause determination, we conclude that the warrant passes constitutional muster.

State v. Tate supra. 

The court then took up Tate’s argument that the tracking warrant “lacked statutory authority”, which was required.  State v. Tate supra. It began by noting that “[n]o specific statutory authority is necessary to the issuance of a valid warrant for cell site information.”  State v. Tate supra.  Notwithstanding that, it examined several Wisconsin statutes that “enacted general criteria about the procedures to employ with regard to issuing warrants”.  State v. Tate supra.  Basically, it found Judge Wagner’s “analysis was consistent with the legal standard” required by those statutes. State v. Tate supra. 

One of the Supreme Court Justices – Shirley S. Abrahamson, Chief Justice -- wrote a very lengthy dissenting opinion, in which she concluded that government access to

cell phone location data in the present cases is a search within the meaning of the Constitutions that requires a warrant, and that the warrant must comply with the existing directly applicable statutes. The warrant in Tate did not comply with the existing statutes and is invalid.

State v. Tate supra.  Essentially, she disagreed with the way the majority parsed the 4^th Amendment cases dealing with when someone has, and does not have, a 4^th Amendment expectation of privacy in electronic communications.   If you are interested, you can read the entire opinion, and Justice Abrahamson’s dissent, here.

The Law Student, Stalking and the 4th Amendment

This post examines an opinion a U.S. District Court Judge recently issued in a civil case filed in the U.S. District Court for the Eastern District of Michigan:  Enjaian v. University of Michigan, 2014 WL 3662709 (2014).  As the judge explains, 

[p]laintiff Jesse R. Enjaian, pro se, filed the instant action alleging that Defendant Renée Schomp wrongfully reported criminal stalking behavior to the University of Michigan Law School and the University of Michigan Department of Public Safety. Based on Schomp's complaint, Enjaian claims police unreasonably searched his apartment and seized various items in violation of his rights under the 4th Amendment. 

Enjaian v. University of Michigan, supra. 

The judge then explains that Enjaian is

a former student and classmate of Schomp's at the University of Michigan Law School. Enjaian alleges that on December 9, 2011, Schomp made a phone call to the University Department of Public Safety complaining about two email messages that Enjaian sent to the entire Law School. Following Schomp's phone call, university police obtained a search warrant to search Enjaian's apartment for evidence related to criminal stalking. Police seized a laptop, cell phone, MP3 player, and four external hard drives from Enjaian's apartment. Enjaian claims that the police held his property for 446 days before they returned it to him.

Enjaian further alleges that on March 27, 2012, Schomp emailed Defendant Sergeant Jose Dorta, a University of Michigan police officer, claiming Enjaian possessed a firearm and `intended to use it during an act of mass-homicide.’ Specifically, Enjaian states:

`Schomp wrote to Dorta and another employee that she “has considered where the best place in the Law School would be to hide in the event that Enjaian came to the School with a gun”’ and that a mutual friend told her he was `“so concerned about his girlfriend's safety with regard to Enjaian, that he came over to her dorm room right away carrying a baseball bat.”’. . .

Enjaian claims he did not learn of this email until March 2013. No criminal stalking or any other charge was filed against Enjaian, and the University Police returned his property more than a year later, near the end of February 2013.

On September 12, 2013, Enjaian filed the instant lawsuit, alleging that Sergeant Dorta and the University of Michigan violated his 4th Amendment right to be free from unreasonable searches and seizures, and that Schomp's `allegations’ constitute libel per se under Michigan law.

Enjaian v. University of Michigan, supra. 

The three defendants (University of Michigan, Sergeant Dorta and Schomp) responded by filing motions to dismiss Enjaian’s suit under Rule12(b)(6) of the Federal Rules of Civil Procedure, which lets a judge dismiss a lawsuit if the plaintiff has failed to state a viable cause of action. As Wikipedia explains, the Rule 12(b)(6) motion is how lawsuits with

insufficient legal theories underlying their cause of action are dismissed from court. For example, assault requires intent, so if the plaintiff has failed to plead intent, the defense can seek dismissal by filing a 12(b)(6) motion. `While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).’  Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). 

The judge took up each motion to dismiss, starting with Sergeant Dorta.  Enjaian v. University of Michigan, supra.  He began his analysis of this motion by explaining that

Enjaian alleges that Sergeant Dorta, as a sergeant in the University of Michigan police department, `established policies and procedures’ and `made management decisions’ regarding the search of Enjaian's electronic devices. Enjaian claims Sergeant Dorta's actions violated his 4rth Amendment right to be free from unreasonable search and seizure. Sergeant Dorta moves to dismiss Enjaian's claim, arguing qualified immunity protects him from suit.

Enjaian v. University of Michigan, supra.

The judge began his analysis of Enjaian’s argument by explaining that the

`doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ Pearson v. Callahan, 555 U.S. 223 (2009). Because qualified immunity is an immunity from suit, the court must resolve an assertion of qualified immunity at the ‘earliest possible stage in the litigation.’ Id. 

In assessing a claim of qualified immunity, the court must assess whether: (1) `the facts a plaintiff has alleged . . . make out a violation of a constitutional right,’ and (2) `the right at issue was clearly established at the time of defendant's alleged misconduct.’ Id. The court may exercise its discretion in deciding which of these two prongs should be addressed first. Id. As the plaintiff, Enjaian `bears the burden of showing that defendants are not entitled to qualified immunity.’ Chappell v. City of Cleveland, 585 F.3d 901 (U.S. Court of Appeals for the 6th Circuit 2009).

Enjaian v. University of Michigan, supra. 

The judge then explained that Enjaian

has not met this burden. To begin with, it is unclear exactly what Enjaian is claiming. Much of his response to Defendants' motion to dismiss consists of block quotations from a variety of cases, without any attempt at developed argumentation. To the extent that Enjaian does discuss the facts of his case, he appears to argue that Sergeant Dorta used an invasive search methodology in attempting to crack a variety of passwords present on Enjaian's computer. 

It appears this cumbersome investigative methodology resulted in Enjaian's computer and other personal property -- including some that had no relevance to internet communications -- being retained by the investigators longer than he believes was reasonably necessary. However, the 4th Amendment does not protect against unreasonable delay in returning lawfully seized property to the owner. Fox v. Van Oosterum, 176 F.3d 342 (U.S. Court of Appeals for the 6th Circuit 1999). Thus, whether Enjaian is able to allege a violation of his 4th Amendment rights turns on whether the search and seizure of that property was itself illegal. 

Enjaian v. University of Michigan, supra.

He then analyzed whether Enjaian was able to do this:

Construed liberally, Enjaian's response argues that the affidavit supporting the search warrant did not establish a sufficient nexus between the computer equipment to be searched and the alleged stalking at issue. A review of the affidavit reveals that the affiant, Officer Bernard Mundt, stated, inter alia, that he received reports Enjaian had engaged in behavior and that he `feels’ [Enjaian] was `intentionally stalking Schomp.’ . . . Officer Mundt, however, is not a defendant in this lawsuit.

Enjaian asserts that `the U–M campus police at Ann Arbor is a very small department,’ and that Sergeant Dorta `established polices and procedures and has made management decisions for the search and seizure of computer evidence during criminal investigations.’ Beyond that, Enjaian does not explain how the supervisor, Dorta, as opposed to the affiant, Mundt, violated his constitutional rights in connection with the creation of what certainly is a very sparse, and likely insufficient, warrant affidavit. Nor does he specify which policies and procedures he disagrees with.

Because Enjaian has not alleged anything other than vague and conclusory assertions connecting Sergeant Dorta to the alleged constitutional violation, the court concludes Enjaian has failed to allege a violation of his constitutional rights. Enjaian's claim against Sergeant Dorta will be dismissed without prejudice.

Enjaian v. University of Michigan, supra.  Since the dismissal was without prejudice, Enjaian could re-file his lawsuit, if he was able to address the issues the judge noted.  And if you are interested, you can find an application for a search warrant here, to find out how the affidavit is used, etc.

The judge then took up Enjaian’s claims against the University, explaining that he

seeks a judgment against the University of Michigan declaring that the search warrant issued to the University of Michigan Police Department was overbroad and in violation of the 4th Amendment. The University of Michigan moves to dismiss this claim, arguing that, as a Michigan state department, it is entitled to immunity from suit under the 11th Amendment.

The 11th Amendment provides, in relevant part: `The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State[.]’ U.S. Constitution, amendment XI.

`This immunity is far reaching. It bars all suits, whether for injunctive, declaratory or monetary relief, against the state and its departments, by citizens of another state, foreigners or its own citizens.’ Thiokol Corp. v. Dep't of Treasury, State of Mich., Revenue Div., 987 F.2d 376 (U.S. Court of Appeals for the 6th Circuit 1993) (emphasis added).

Enjaian's complaint concedes that the University of Michigan is a state agency. . . . Although state officials may be sued in their official capacity for prospective injunctive or declaratory relief, see Thiokol Corp. v. Dep’t of Treasury supra,  no such official appears as a defendant in the instant lawsuit.  Enjaian's claim against the University of Michigan is barred by the 11th Amendment and will therefore be dismissed without prejudice.

Enjaian v. University of Michigan, supra. 

Finally, the judge took up Schomp’s motion to dismiss, explaining that Enjaian

also alleges that Schomp's report to police constitutes libel per se under Michigan law. MichiganCompiled Laws § 600.2911.  However, because Enjaian's only federal claim has been dismissed, the court declines to exercise supplemental jurisdiction over Enjaian's state-law claim. 28 U.S.C. § 1367(c)(3). See also Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244 (U.S. Court of Appeals for the 6th Circuit 1996) (`When all federal claims are dismissed before trial, the balance of considerations usually will point to dismissing the state law claims. . . .’).

Accordingly, Schomp's motion to dismiss will be granted. 

Enjaian v. University of Michigan, supra. 

The ruling on Schomp’s motion went to a jurisdictional issue, unlike the rulings on Dorta’s and the University’s motions to dismiss.  Those Rule 12(b)(6) motions were directed at the substantive cause of action he sought to assert against both of those defendants, i.e., a violation of his 4^th Amendment rights.  As Wikipedia explains, U.S. District Courts have jurisdiction to hear and decide civil suits that arise under the U.S. Constitution (including the 4^th Amendment) and the laws and treaties of the United States.  It also has jurisdiction to hear lawsuits that do not involve federal and/or U.S. Constitutional law if those suits involve citizens of different state, which is known as the courts’ “diversity jurisdiction.”  

Enjaian’s claims against Dorta and the University were allegedly based on a violation of his 4^th Amendment rights.  Since the 4^th Amendment is part of the U.S. Constitution, the court would have had jurisdiction over those claims, if they had been viable federal law claims.  Enjaian’s claim against Dorta was a state claim allegedly arising under Michigan’s libel law.  A federal court can only hear cases that arise under state law if (i) the parties are from different states (which apparently was not true here) or (ii) the state law claims come under the court’s supplemental jurisdiction, which is created by 28 U.S. Code § 1367(a).  Supplemental jurisdiction is based on the premise that if a federal court has jurisdiction over Doe’s federal claim against Smith, it is reasonable to let the court hear and decide Doe’s state law claim against Smith as long as the state law claim arises out of the same set of facts. As Wikipedia notes, the rationale for this is efficiency, i.e., if the non-federal, non-diversity jurisdiction claims are based on the same set of facts, it makes sense to dispose of all them in a single, federal proceeding. 

Enjaian and Schomp apparently were not from different states, so the court had no basis for keeping the libel per se claim.  

The judge therefore dismissed the lawsuit. Enjaian v. University of Michigan, supra.