Monday, April 30, 2012

Oxycontin, The Cell Phone and the 4th Amendment

On “the evening of March 14, 2010,” Seal Beach (California) Police Officer Philip Gonshak was
on routine patrol in downtown Seal Beach when he noticed [James] Kenney at an intersection. Because Kenney did not have a license plate on the front of his pickup truck, Gonshak decided to stop him for that infraction. . . . [B]efore doing so, [he] ran Kenney's rear license plate number through his dispatcher and discovered there might be a warrant out for Kenney's arrest.

While the dispatcher was looking into that issue, Gonshak pulled Kenney over and contacted him in the truck. After checking Kenney's driver's license, Gonshak asked him to step outside, so he could talk to him about the possible warrant. Kenney agreed and walked to the rear of his truck, while his front seat passenger, Adam Cirillo, stayed in the vehicle. . . .

Gonshak asked Kenney if there were any drugs or weapons inside his truck, and he said there was Oxycontin in the center console. Kenney also said he had just gotten out of rehab for his addiction to Oxycontin and had received a stomach implant to help him in his recovery. When asked if he had a prescription for the Oxycontin in his truck, Kenney said he did, but he did not know where it was.

People v. Kenney, 2012 WL 1207206 (California Court of Appeals 2012). 
While Gonshak Kenny were having this conversation, Gonshak heard from the dispatcher that
Kenney did in fact have an outstanding warrant, arising from a traffic matter.  . . . Gonshak arrested Kenney on the warrant and seized $890 from his back pocket. Gonshak then turned . . . to . . . Cirillo. Upon speaking with Cirillo, Gonshak saw he appeared to be under the influence of a controlled substance. He had Cirillo exit the truck, placed him under arrest, and sat him down on the curb next to Kenney. While a backup officer watched the two arrestees, Gonshak proceeded to search the truck.

People v. Kenney, supra.
In the “center console area” of the truck, Gonshak found
three prescription pill bottles in Kenney's name. One of the bottles was empty, one contained a few Xanax pills, and the other had 23 tablets of Oxycontin. Gonshak also found Kenney's cell phone on the driver's seat. Upon examining the phone, Gonshak discovered several text messages showing Kenney was involved in the sale of `beans’ and `bars,’ which are slang terms for Oxycontin and Xanax.

People v. Kenney, supra.
Based on what Gonshak found (and observed), Kenney was indicted on “drug charges” (the opinion doesn’t say exactly what they were) and moved to suppress the evidence found in his truck.  People v. Kenney, supra.  At the hearing the trial judge held on Kenney’s motion to suppress, his lawyer conceded that Kenney was
lawfully stopped for the traffic violation and arrested on the outstanding warrant. He also conceded Gonshak was lawfully entitled to search Kenney incident to arrest and seize the money in his back pocket. However, defense counsel argued the arrest did not give Gonshak the right to search Kenney's truck, seize his pills and cell phone, and read his text messages. 

People v. Kenney, supra. 
The prosecutor, in response, argued that “irrespective of the search-incident-to-arrest rule, Kenney's actions were justified under the `automobile exception’ to the warrant requirement, which allows the police to search a vehicle if there is probable cause it contains evidence of a crime.”  People v. Kenney, supra.  The opinion notes that the trial judge denied Kenney’s motion to suppress but “was not entirely clear in terms of explaining the basis for his ruling.”  People v. Kenney, supra.  We’ll get to the merits of those issues in a moment; first I have to finish outlining how the case came before the Court of Appeals.
After the case was bound over for trial, Kenney “renewed his motion to suppress” pursuant to California Penal Code § 1538.5(i), which triggered another hearing.  People v. Kenney, supra.  Gonshak testified in more detail at this hearing, explaining that when he approached Cirillo in the passenger seat, he noticed Cirillo’s “pupils were constricted, his speech was impaired, and there was a white pasty substance around his mouth”.  People v. Kenney, supra.  Cirillo also admitted “he had taken oxycodone and used marijuana that day, and he had previously been addicted to Oxycontin.”  People v. Kenney, supra.  Based on that, Gonshak arrested Cirillo for “for being under the influence of narcotics and cannabis.”  People v. Kenney, supra. 
Gonshak also testified that when he found Kenney's cell phone “in close proximity to the pills, he began to suspect Kenney might be involved in drug sales activity.”  People v. Kenney, supra.   Based on his experience investigating narcotics, Gonshak felt the phone “was a `very important’ piece of evidence bearing on that issue”, so he read the messages on the phone “to shed light on whether or not Kenney was dealing drugs.”  People v. Kenney, supra.  Gonshak said he did not seek a warrant to search the phone “because it would have taken a considerable amount of time, and he did not believe a warrant was necessary.”  People v. Kenney, supra. 
The prosecution and defense then basically renewed the arguments they had made at the original motion to suppress hearing, though now the prosecution seems to have relied more on the “automobile exception” than the “search incident” exception to justify the search.  People v. Kenney, supra.  (More on those below.) The trial judge again denied Kenney’s motion to suppress, he “pled guilty to the charges and was based on probation”, after which he appealed.  People v. Kenney, supra. 
As Wikipedia notes, and as I have explained in earlier posts, the 4th Amendment creates a right to be free from “unreasonable” searches and seizures.  As Wikipedia notes, and as I have noted in earlier posts, a “search” violates a reasonable expectation of privacy under Katz v. U.S., 389 U.S. 347 (1967), i.e., officers explore a place or a thing which I subjectively believe is “private” and society agrees with me.  As Wikipedia notes and as I have noted in earlier posts, a “seizure” of a person interferes with that person’s freedom of movement; arresting someone is clearly a seizure.  And, finally, as Wikipedia explains, officers need a warrant – or an exception to the 4th Amendment’s warrant requirement – to “search” and/or “seize.” 
As I’ve noted in earlier posts, search incident to arrest is an exception to the 4th Amendment’s warrant requirement.  As Wikipedia notes, a search conducted pursuant to this exception is “limited to only the person arrested and the area immediately surrounding the person in which the person may gain possession of a weapon, in some way effect an escape, or destroy or hide evidence.” The search incident exception applies automatically once someone has been arrested, but to be valid, a search incident must stay within the scope of the exception.
Kenney argued that Gonshak’s search of his truck and cell phone did not stay within the scope of that exception and therefore violated the 4th Amendment.  People v. Kenney, supra.  He relied on the Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332 (2009), in which the Court held that officers can “search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”  The resolution of this issue depended on the basis of the (alleged) search incident to arrest.
Kenney argued that if it was based on his arrest for the outstanding warrant – which was all he had been arrested for – then it was invalid because (i) he was not within reaching distance of the passenger compartment of his truck when Gonshak arrested him on the warrant and/or (ii) there was no evidence suggesting his “truck contained evidence relating to the traffic matter” which what the arrest was for.  People v. Kenney, supra.  The California Attorney General, who represented the prosecution, conceded this point.  People v. Kenney, supra. 
The Court of Appeals did not agree.  It found that the search incident exception justified Gonshak’s search of Kenney’s vehicle “because Kenney was already in lawful custody per the arrest warrant, and because there was probable cause to arrest him for illegal drug activity” based on what he had seen and heard in the course of making that arrest.  People v. Kenney, supra.  As the court noted, by the time Gonshak searched the truck, Kenney had
already told him: 1) there was Oxycontin in the vehicle; 2) he did not know where his prescription was; 3) he was a recovering from Oxycontin or heroin addiction; and 4) he had a stomach implant that was designed to counter the effects of any narcotics he ingested. Based on these statements, it was reasonable to infer Kenney was not supposed to have Oxycontin in his possession.

People v. Kenney, supra.
The Court of Appeals found (i) that this gave Gonshak probable cause to have arrested Kenney for drug possession and/or “activity” at that point and (ii) that because Kenney “was already in lawful custody per the arrest warrant, and because there was probable cause to arrest him for illegal drug activity, it matters not that no second arrest occurred”.  People v. Kenney, supra. In other words, the court said Gonshak didn’t have to arrest Kenney a second time – on drug charges – to be able to conduct a search incident of his truck and its contents.  People v. Kenney, supra. “A search conducted when there is probable cause to arrest may be carried out before the person is actually arrested for the suspected offense.”  People v. Kenney, supra.
The Court of Appeals also noted that another exception – the “automobile exception” also justified the search of the truck.  People v. Kenney, supra. As Wikipedia notes, this exception lets an officer “search a vehicle without a warrant as long as he or she has probable cause to believe that evidence or contraband is located in the vehicle.”  People v. Kenney, supra.  As noted above, the court found that Gonshak would have had probable cause to arrest Kenney a second time on drug charges, which meant Gonshak had probable cause to believe there were drugs in the vehicle, which meant he could search the vehicle for drugs pursuant to the automobile exception.  People v. Kenney, supra.
The Court of Appeals applied this section to reject Kenney’s argument that, aside from anything else, the 4th Amendment did not justify Gonshak “look[ing] inside Kenney's phone and read[ing] his text messages for further evidence of drug activity.”  People v. Kenney, supra. It found that by the time Gonshak had seized the cell phone, he already had probable cause to believe Kenney “was involved in illegal drug activity”, which meant that under the automobile exception, “he not only had the right to search Kenney's truck, he also had the right to search any of its contents that could conceal evidence of the suspected crime.”  People v. Kenney, supra (emphasis in the original).  The court found  this would “logically include the cell phone, because, as Gonshak knew from his police experience, cell phones are commonly used by drug dealers to conduct illegal drug activity.”   People v. Kenney, supra.
It therefore rejected Kenney’s argument that “because cell phones are capable of storing a lot of personal information about the owner, they should be exempt from the general rule authorizing the warrantless search of a car's contents based on probable cause alone.”  People v. Kenney, supra. It noted that “in discussing that rule in a case involving the warrantless search of a cell phone, the California Supreme Court recently observed that `whether a particular container may be searched without a warrant does not depend on the character of the container’ and that the ‘”scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted.”’”  People v. Kenney, supra (quoting People v. Diaz, 51 Cal.4th 84 (2011)). 
The Court of Appeals also applied the rationale noted above to the search of Kenney’s cell phone, i.e., that Gonshak had probable cause to arrest Kenney for drug “activity” before he read the text messages, which meant that reading the messages was a “search” that fell within the scope of the search incident exception.  People v. Kenney, supra.
So the court held that Kenney’s motions to suppress were properly denied and affirmed his conviction and sentence.  People v. Kenney, supra.

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