Wednesday, November 04, 2015

The Plain View Doctrine, the Text Messages and the Folder

This post examines an opinion recently issued by the Supreme Court of Colorado:  People v. Herrera, 2015 WL 6443045 (2015).  The court begins by explaining that
[i]n this interlocutory appeal, the People argue that evidence of text messages between defendant Matthew Herrera and a juvenile girl named Faith W. were admissible under a warrant authorizing a search of his cellphone for indicia of ownership, and, in the alternative, under the plain view exception to the warrant requirement. We disagree and affirm the trial court's suppression order.
People v. Herrera, supra.
It goes on to explain that the
mother of a juvenile girl named Faith W. reported to the Fremont County Sheriff's Office that Herrera had had sexual interactions with her daughter.  The mother provided the officers with printouts of online conversations between Faith W. and Herrera as well as Herrera's cell phone number.

Using Herrera's number, Detective Dodd started texting Herrera posing as a fourteen-year-old girl called `Stazi.’ These texts led to Herrera's arrest several weeks later. During this arrest, officers seized the cell phone from Herrera. At no time did Herrera deny ownership of the phone.

Dodd applied for and received a search warrant for the phone. The warrant allowed a search of the phone for (1) texts sent between Herrera and `Stazi,’ (2) photographs sent between Herrera and `Stazi’ that were attached to text messages, and (3) indicia of ownership to show the phone belonged to Herrera.

Dodd gave the phone to Detective Slattery to search. Dodd told Slattery the basic details of the case, including Faith W.'s name, `Stazi's’ phone number, and the suspected communications between `Stazi’ and Herrera.

The police department's usual practice for searching cell phones was to use an instrument called the Cellebrite Device. This instrument searches the memory of the phone and lets the officers download certain data–for instance, text messages and internet history. Herrera's phone, however, was not compatible with the Cellebrite Device. Slattery therefore had to search the phone by hand and photograph what he found.

Slattery first went through the phone's standard text messages. Because the standard messages were arranged chronologically rather than by name, he had to scroll through all of the messages to find the entire conversation. He discovered several messages between `Stazi’ and Herrera sent from Detective Dodd's number.

After going through all the standard text messages, he looked through the messages on the phone's Kik application. Kik is another method of sending messages—it simply sends them over the internet rather than the cellular network. The messages in Kik were organized by name. While scrolling to find more messages between Herrera and `Stazi,’ Slattery found a text message folder identified by the name `Faith Fallout’ that contained messages from a phone number other than Dodd's. Slattery knew the victim's name in the underlying case was Faith W. and she and Herrera had been communicating digitally. Suspecting `Faith Fallout’ was Faith W., Slattery clicked on the name and found that it was the conversation between Faith W. and Herrera.
People v. Herrera, supra.
Herrera was then
charged with one count of sexual assault on a child, one count of internet sexual exploitation of a child, and one count of internet luring of a child. Herrera filed a Motion to Suppress, inter alia, the texts between him and Faith W. found during Slattery's search of the phone.
People v. Herrera, supra.
The trial court held a hearing on Herrera’s motion to suppress and, at the hearing,
Slattery testified that he was given Dodd's cell phone number and that he searched for texts between Herrera and `Stazi’ associated with that number. Slattery further testified that the `Faith Fallout’ folder was associated with a number other than Dodd's, and that he believed that the messages contained in the folder belonged to the victim in this case, Faith W. Finally, Dodd testified that there was no connection between his number and the number belonging to `Faith Fallout.’

The trial court granted the motion and suppressed the texts between `Faith Fallout’ and Herrera. The court found that Slattery could not have reasonably concluded that the `Faith Fallout’ folder would contain messages from `Stazi’ because there was no link between that folder and Dodd's number. The trial court thus concluded that Slattery exceeded the scope of the warrant by clicking on the name to look at the messages. It also held that none of the exceptions to the warrant requirement applied. The People appealed that ruling to this court. . . .
People v. Herrera, supra.
The Supreme Court began its analysis of the issues in the case by explaining that
[t]he The People argue that the text messages contained in the `Faith Fallout’ folder were admissible under the search warrant issued in this case, and, in the alternative, under the plain view exception to the warrant requirement. We address each argument in turn.
People v. Herrera, supra.  The court began its analysis of the first issue by explaining that the search warrant in this case
authorized a search of Herrera's cellphone for text messages between Herrera and `Stazi’ as well as for `indicia of ownership.' The People contend that the warrant thus permitted a search of the text messages contained in the `Faith Fallout’ folder because any message found there would reveal Herrera as the owner of the phone. We believe this argument proves too much, as it would authorize a general search of the entire contents of the phone. Indeed, the People argue that any piece of data on the phone, including any text message on the phone, would have the possibility of revealing Herrera's ownership of the phone. This rationale transforms the warrant into a general warrant that fails to comply with the Fourth Amendment's particularity requirement.

The Warrant Clause of the Fourth Amendment requires that a warrant `particularly describ[e] the place to be searched, and the persons or things to be seized.’ U.S. Const. amend. IV. The particularity requirement is designed to `prevent officers from conducting a “general, exploratory rummaging in a person's belongings.”’ People v. Roccaforte, 919 P.2d 700 (Colorado Supreme Court 1996) (citing Coolidge v. New Hampshire, 403 U.S. 443 (1971)). As the U.S. Supreme Court recently observed, `the Fourth Amendment was the founding generation's response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.’ Rileyv. California, 134 S.Ct. 2473 (2014). In this case, the People's rationale would permit officers to `rummage through’ the entirety of an individual's private information contained in his phone, without limitation.
People v. Herrera, supra.  
It went on to point out that
this court has sustained some fairly broad searches against particularity challenges. For example, in People v. Roccaforte, we reversed the trial court's suppression of evidence stemming from a search pursuant to a warrant that permitted a search for all records pertaining to a business, including electronically stored data. People v. Roccaforte, supra. We held, however, that the warrant had to be read in conjunction with the supporting affidavit, which narrowed the search to business documents pertaining to particular dates that were related to a particular alleged crime. People v. Roccaforte, supra. Here, by contrast, the People's argument–namely, that they could search any and all data contained in Herrera's cell phone because any and all data could reveal his ownership of the phone–contains no such limits, or any limits.

Moreover, in Roccaforte, supra, we noted that the breadth of the warrant was necessary in that case because the government had been unable to perform an audit of the business. People v. Roccaforte, supra. Here, again by contrast, such a necessity did not exist; in fact, the phone was seized from Herrera during his arrest, and he never disputed ownership of the phone.

In sum, we reject the People's argument that the search of the `Faith Fallout’ folder was authorized by the warrant because such an argument is inconsistent with the particularity requirement.
People v. Herrera, supra.  
The court then took up the prosecution’s argument under the plain view doctrine.  It began by explaining that the
People argue in the alternative that the texts contained in the `Faith Fallout’ folder could be searched under the plain view exception to the warrant requirement, which holds that officers need not `close their eyes’ to evidence of criminal activity in plain sight while they are conducting a lawful search. People v. Dumas, 955 P.2d 60 (Colorado Supreme Court 1998). Here, the People argue that because Slattery observed the `Faith Fallout’ folder while he was searching for the `Stazi’ texts, the folder could be opened and searched. We conclude, however, that the `Faith Fallout’ folder is analogous to a closed container that could not reasonably contain texts between `Stazi’ and Herrera, and that therefore the plain view exception does not apply.
People v. Herrera, supra.  
The court went on to note that
[f]ollowing the lead of the Supreme Court in Horton v. California, 496 U.S. 128 (1990), this court has identified three requirements for applying the plain view exception to warrantless searches: (1) the government's initial intrusion must be legitimate, (2) the incriminating nature of the evidence must be apparent immediately, and (3) the government must have the right to lawfully access the object. People v. Gothard, 185 P.2d 180 (Colorado Supreme Court 20080.

The search meets the first requirement that the initial intrusion be legitimate. Slattery had a warrant to search the phone for messages between Herrera and `Stazi.’ Because the Kik application is used to send messages, it was reasonable for him to look for the messages there. It was during a search of the Kik application that he found the folder identified by the name `Faith Fallout.’ His initial intrusion was therefore legitimate.

The second requirement is also met, because the incriminating nature of the name was immediately apparent. To meet the second requirement, the police must have probable cause that the evidence is incriminating. People v. Pitts, 13 P.3d 1218 (Colorado Supreme Court 2000) In the context of a plain view seizure, `probable cause’ requires `that the facts available to the officers would warrant a person of reasonable caution in the belief that certain items are contraband, fruits or instrumentalities of a crime, or evidence of criminal activity.’ People v. Melgosa, 753 P.2d 221 (Colorado Supreme Court 1988). The concept, however, is incapable of having a precise definition and is instead dependent on `the totality of the circumstances.’ People v. Gutierrez, 222 P.3d 925, 937 (Colorado Supreme Court 2009) (citing Maryland v. Pringle, 540 U.S. 366 (2003)). This court has enumerated two considerations necessary for probable cause: (1) `a reasonable ground for belief of guilt,’ and (2) that belief is `particularized with respect to the person to be searched or seized.’ People v. Gutierrez, supra.
People v. Herrera, supra.  
The Supreme Court then pointed out that
[o]ur prior case law provides two relevant examples of analyzing probable cause for a plain view seizure. In People v. Najjar, 984 P.2d 592 (Colorado Supreme Court 1999), this court addressed whether police officers had probable cause to examine and seize a luggage ticket in plain view during a legitimate search of a defendant's hip bag after a suitcase filled with marijuana was found at a bus station stop. In determining that the officers had probable cause to seize the luggage ticket, this court emphasized all of the facts the officers knew at the time. See People v. Najjar, supra. For instance, the bag's ticket said it was going from Las Vegas to Detroit, and the defendant was the only person on the bus with that itinerary. See People v. Najjar, supra. The defendant bought the bus ticket with cash using a fake name. Id. The defendant was very nervous. People v. Najjar, supra. Each luggage tag was unique, and the owner of the luggage would have the matching tag. Finally, because the defendant denied having any luggage on the bus, he should not have had a luggage ticket to begin with. People v. Najjar, supra. All of these separate facts, known to the officers at the time of the search, were enough probable cause to justify the plain view search and seizure of the luggage ticket. People v. Najjar, supra.

People v. Dumas, 955 P.2s 60 (Colorado Supreme Court 1998),  provides another example of probable cause for plain view seizures. Police officers were conducting a legitimate search of the defendant's motel room for drugs, weapons, and contraband. People v. Dumas, supra. During this, they searched through a checkbook and seized it as evidence of forgery.  This court ruled that the officers had probable cause to read through the checkbook and seize it because of the totality of what the officers knew at the time. People v. Dumas, supra. For instance, the court noted that (1) the checkbook was found beneath a mattress, and the checks were signed with a name other than the defendant's; (2) the officers found stamps worth over $1,000 in a shoebox, which the defendant claimed were a gift; and (3) receipts in the checkbook with the defendant's name showed she had returned over $1,000 worth of stamps to the post office.  See People v. Dumas, supra. Taken together, these facts created enough probable cause to seize the checkbook as evidence of forgery. 
People v. Herrera, supra.  
The court explained that, notwithstanding what it found above, there was a problem:
As with People v. Najjar and People v. Dumas, this case is determined by a consideration of the facts known at the time of the search. In particular, we note the following facts Slattery knew at the time of his search. First, the name of the victim in the underlying case was Faith W. Second, Faith W. was communicating with Herrera digitally. Third, the name `Faith Fallout’ was highly suggestive of Faith W. The name `Faith’ was the same as the alleged victim's, while `Fallout’ strongly suggested a false persona. Taken as a whole, these facts establish `a reasonable ground for belief’ that the texts were related to a crime, and these facts were particularized to Slattery's knowledge of Herrera and Faith W. See People v. Gutierrez, supra.   The incriminating nature of the `Faith Fallout’ folder identification name was thus immediately apparent, satisfying the second requirement of the plain view doctrine.

However, the third requirement, that the officers have lawful access to the object, is not met in this case. This requirement has been understood to preclude officers from seizing an item that is in plain view but is in an area that cannot be lawfully reached—for example, when officers can see stolen cars but would have to commit a warrantless trespass across the defendant's property to reach them. . . .
People v. Herrera, supra.  
The Supreme Court then applied the principles and analysis above to this case, noting that in executing a search warrant,
police officers may search areas in which the items identified in the warrant might reasonably be found, including closed containers. People in Interest of D.F.L., 931 P.2d 448 (Colorado Supreme Court 1997); see also People v. Koehn, 178 P.3d 536, 537 (Colorado Supreme Court 2008) (where warrant authorized search of defendant's residence for firearms and ammunition, officers were justified in searching kitchen cabinet and pants and seizing incriminating items found there in plain view). We analogize the `Faith Fallout’ text message folder to a closed container, which Detective Slattery opened to discover its contents–namely, the text messages between Faith W. and Herrera. Here, the warrant authorized Slattery to search for messages between `Stazi’ and Herrera. The question, then, is whether the `Faith Fallout’ folder was a container in which messages from `Stazi’ could reasonably be found. We agree with the trial court that it was not.

The trial court concluded that in searching Herrera's cell phone, Slattery was authorized to search for messages from `Stazi's,’ or Dodd's, number. As noted above, however, the police had an objective basis to believe that the `Faith Fallout’ folder was associated with a different number–that is, one that belonged to Faith W., not Detective Dodd. Furthermore, there was no evidence before the trial court that a specific folder in the Kik application could contain messages from multiple numbers. Instead, the evidence indicated that each folder could only be associated with a single number. And the trial court specifically found there was no link between the `Stazi’ number and the `Faith Fallout’ folder. Thus, because the evidence objectively indicated that the `Faith Fallout’ folder contained messages from Faith W. and only Faith W., the police had no objective basis to conclude that the folder would contain messages from `Stazi.’
People v. Herrera, supra.  
It went on to note that, in
other contexts, courts have recognized that defendants can easily conceal the identity of contraband by mislabeling a container. See U.S. v. Riley, 906 F.2d 841 (U.S. Court of Appeals for the 2d Circuit 1990) (`”F]ew people keep documents of their criminal transactions in a folder marked ‘drug records”’). In the computer file context,  the Fourth Circuit has noted that a search of computer files `c[an] not be limited to reviewing only the files' designation or labeling, because the designation or labeling of files on a computer can easily be manipulated to hide their substance.’ U.S. v. Williams, 592 F.3d 511 (U.S. Court of Appeals for the 4th Circuit 2010); see also U.S. v. Burgess, 576 F.3d 1078 (U.S. Court of Appeals for the 10th Circuit 2009). . . .
People v. Herrera, supra.  
The Supreme Court then applied the principles above to this case, noting that
the People did not present a shred of evidence to suggest, nor did they attempt to argue, that Herrera had `manipulated’ the Kik files `to hide their substance.’ U.S. v. Williams, supra. . . . On the contrary, their evidence indicated that the `Faith Fallout’ file corresponded with the name of Herrera's suspected victim, Faith W., and thus it was reasonable for them to believe that the messages in that folder were from the actual victim, not Detective Dodd. In other words, the circumstances suggested that the files had not been deceptively labeled. As such, because there was no evidence that Herrera might have mislabeled the folders, the mere, abstract possibility that he could have done so did not give Detective Slattery reason to believe that the `Faith Fallout’ folder contained messages from `Stazi.’ We therefore conclude that the trial court was correct in determining that messages from Detective Dodd could not be reasonably found in that folder. Any search of the `Faith Fallout’ folder would require an additional warrant. See, e.g., U.S. v. Corral, 970 F.2d 719 (U.S. Court of Appeals for the 10th Circuit 1992) (in some circumstances, the plain view doctrine `may support the warrantless seizure of a container believed to contain contraband[,] but any subsequent search of the concealed contents of the container must be accompanied by a warrant or justified by one of the exceptions to the warrant requirement’) (emphasis in original).

If we were to hold that any text message folder could be searched because of the abstract possibility that it might have been deceptively labeled, we would again be faced with a limitless search, as with the People's first argument. We instead proceed cautiously in applying the plain view doctrine to searches involving digital data. . . .

Where such a search does not meet the traditional requirements of Fourth Amendment doctrine, it should not be permitted. For example, in Riley v. California, supra, the Court held that police could not search a suspect's cell phone as part of a search incident to arrest as a general matter because the traditional justifications for a search incident to arrest were not met; as the Court concluded, cell phone data does not present danger to arresting officers and is not usually susceptible to immediate destruction. Riley v. California, supra. Most importantly, the Court recognized that `[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.”’ Riley v. California, supra. (citation omitted). That is the case here. Because Detective Slattery did not have lawful access to the `Faith Fallout’ folder, the third requirement of the plain view exception is not met. The plain view exception therefore does not apply.
People v. Herrera, supra.

The Supreme Court therefore affirmed the trial court’s suppression order. People v. Herrera, supra.  

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