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Good Case Bad Case

By on Jul 19, 2014 | 0 comments

As I’ve written before, a part of my practice is staying on top of new cases that could affect my clients. The landscape for criminal defense is constantly shifting, and clients need an attorney who can stay on top of relevant developments in the field. Today’s post concerns two recent cases in search and seizure jurisprudence. One case is a step forward for citizen protections and the other goes backwards.

The first case comes from the United States Supreme Court: Riley v. CaliforniaRiley considers the length to which police can go when searching cell phones after an arrest.

Riley involves two defendants in two different cases, but the issue for both was the same. In each case a defendant was validly arrested. As a part of that arrest, police seized the cell phones on the defendant. For one of the defendants, who owned a smartphone, the police accessed the data directly. Specifically, the police went through the contact list looking for potential gang members, as well as looking through photographs and video for incriminating media. For the other defendant, who owned a flip phone, while he was in custody the phone began receiving calls. The police opened the phone and used the data to find the defendant’s house. At the house they obtained a warrant and found lots of drugs. Both defendants were convicted and appealed, arguing the search of their phones violated their Fourth Amendment rights.

The Court agreed and reversed the convictions for both.

The Court began by noting that warrants are required whenever the government, i.e. the police, search a person or their property. Here there were two searches: the first one was the frisk of the defendants when they were arrested and when the phones were retrieved. The second search was when the phones were actually accessed for its data.

The Court upheld the first search. The Court noted it was well-settled that when a person was validly arrested, the police may conduct a search incident to that arrest without a warrant. This search is generally for officer safety, i.e. to search for weapons on the person. But if the person has something incriminating on them, e.g. drugs, those are validly seized during that search incident to arrest.

The issue with the Court was the second search. Did a search incident to arrest permit the police to delve into the contents of a smartphone in the defendant’s pocket? Luckily for privacy fans, all nine justices said “No.”

The Court reviewed the case law for searches incident to arrest and affirmed the longstanding rule that those searches must be tailored only to what was in the immediate control of an arrested person. Historically this meant the police, for example, couldn’t go into locked containers that were on or near someone. In addition, the Court maintained the rule that when a person is pulled over and arrested, the police would need a warrant to open and search a trunk since those contents would not be in the driver’s immediate control. 

With that framework, the Court turned to the question of whether cell phones were more like scraps of paper in someone’s pocket or locked chests. This quote fro Chief Justice Roberts answers that question: “[M]odern cell phones…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.”

I appreciate this sentiment because the Court spent a lot of time talking about current technology, which has sometimes been a hurdle in modern jurisprudence. But the Court gets it right, noting the mechanical framework of retrieving items in arrested person’s pocket do not capture the breadth of data available in modern smartphones. “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be retrieved on an arrestee’s person. The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”

The Court went on to say, clarifying the difference between normal items in pockets and cell phones: “A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communication with Mr. Jones for the past several months, as would routinely be kept on a phone.”

What was even more impressive was that this was a 9-0 decision in favor of reversing the convictions and forbidding categorical cell phone searches on arrested persons. Justice Alito wrote a concurring opinion saying that he agreed with the decision but perhaps Congress or future cases could clarify some of the issues presented in the case. But he too agreed the announced rule was the correct one.

This decision was important in striking an appropriate balance between law enforcement interests and a citizen’s privacy rights. It’s easy to imagine that invading the privacy rights of citizens would lead to more arrests. There would be more convictions if police could simply go into peoples’ homes to check for evidence of crimes. But that is not a society we want to live in and that is not what the Constitution permits. In this country, if the government wants to get electronic records, they need a warrant to do so. Usually.

While Riley was a step forward in Fourth Amendment rights, our own Washington Court of Appeals took a big step backward in State v. Mecham.

In Mecham the driver was arrested when a random license plate check showed he an outstanding warrant. During the stop the police officer inferred that Mr. Mecham had been drinking based on his movements and the odor of intoxicants. The officer asked Mr. Mecham to perform voluntary field sobriety tests (FSTs). These FSTs were the horizontal gaze nystagmus (tracking pupil movements with a pen light in the eye), the walk-and-turn (walking so many steps in a straight line and then turning around and walking back), and  the one-legged stand (standing on one leg while counting seconds). Mr. Mecham refused to perform any FSTs. After a blood draw for his blood alcohol content, which was inconclusive, he was charged with DUI.

At his DUI trial the prosecution, over strenuous objection from the defense, argued that Mr. Mecham’s refusal to submit to FSTs indicated his consciousness of guilty. The jury convicted him and he appealed, arguing among other things that commentary on his refusal to perform voluntary FSTs was unconstitutional.

Mr. Mecham’s argument had two components. First, he argued FSTs constituted a search within the Fourth Amendment. And second, since there was no warrant and Mr. Mecham could lawfully refuse the search, it was unconstitutional to punish his refusal by commenting on his refusal to do FSTs. Punishment in this case meant permitting the prosecutor to argue he knew he was guilty because of his refusal to perform FSTs.

The appellate court first agreed that FSTs were a search. No Washington case had directly addressed the issue although over 25 states have already held that, in a DUI context, FSTs  constitute a search. This was an important ruling because if they were a search they fell under the ambit of the Fourth Amendment (and Washington’s constitution, which provides even greater protections).

But then the appellate court’s decision went off the rails. The court opined that FSTs were permitted to be taken under the Terry stop exception. I have written about Terry stops previously but here’s a quick recap. A Terry stop permits an officer who suspects criminal behavior to conduct a brief pat-down or ask questions of someone. It’s only permitted when an officer has some suspicion of a crime but less than needed to arrest.

The Terry exception has no place in this case. A brief conversation about Mr. Mecham’s drinking and driving was appropriate. But clearly the officer had enough to arrest on the spot, since despite not receiving FSTs, the officer arrested Mr. Mecham anyway (also for driving on a suspended license). The officer also had enough information to obtain a warrant to take Mr. Mecham’s blood when he refused to give a breath sample. The police attempted to conduct FSTs merely to gather more evidence against Mr. Mecham and Mr. Mecham was well-within his rights to refuse.

The court then discussed the prosecutor’s argument that Mr. Mecham’s refusal to perform FSTs indicated consciousness of guilt. A case came down a year ago in Washington, State v. Gauthier, where a defendant refused to provide a voluntary DNA sample. The prosecution there commented that the defendant refused to provide DNA because he knew he was guilty. He was convicted and the Court of Appeals reversed, holding that of course the defendant had the constitutional right to refuse to give up his DNA and it was improper to comment on his exercising of that right. I have previously written about the impropriety of commenting on someone’s exercising of their rights here

So how does Mecham synch with Gauthier? Well, it doesn’t. The Mecham court simply said the Terry stop was appropriate here and that Mr. Mecham had no constitutional right to refuse to cooperate with a Terry stop. It is, in my opinion, very tortured logic.

For people charged with crimes in Washington, it is critical that their attorney stays on top of the ever-shifting case law out there. If you or someone you know needs an attorney who keeps abreast of all the developments in search and seizure law, give me a call.


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The facts and circumstances of your case may differ from the matters in which results and testimonials have been provided. Every case is different, and each client’s case must be evaluated and handled on its own merits.