Maryland Court Says It Would Still Be Equating A Smartphone With A 'Crumpled Cigarette Pack' If Not For Riley Decision

from the way-to-adapt-to-the-realities-of-the-new-millenium dept

The Supreme Court's Riley decision said law enforcement officers must obtain warrants to search cell phones incident to an arrest. A recent Maryland Appeals Court decision prevented the suppression of evidence obtained via a warrantless search of a smartphone. Why? Well, for a few reasons, most of which seem convoluted and almost inexplicable considering the context. (via John Wesley Hall of FourthAmendment.com)

The opinion opens with this:

Petitioner appealed the judgment of conviction to the Court of Special Appeals and, while the case was pending in that court, filed a petition for writ of certiorari, which we granted. We then stayed all proceedings in this case until the United States Supreme Court issued its decisions in Riley v. California, cert. granted, 134 S. Ct. 999 (2014), and United States v. Wurie, cert. granted, 134 S. Ct. 999 (2014). On June 25, 2014, the Supreme Court issued a consolidated opinion in those two cases. Riley v. California, 134 S. Ct. 2473 (2014).
Despite staying the case to hear from the Supreme Court on this issue, the Maryland court went in the other direction once that decision had been handed down. Considering the circumstances, this is probably the right decision, but one wonders why they bothered staying the case if it was going to rely on pre-Riley caselaw anyway.

Officers interviewing a suspect about a robbery took a look at his cell phone and found unopened text messages pertaining to the criminal act. The defendant sought suppression of this warrantless search of his phone but the court found that because the search had occurred before the Riley decision, the officers here were covered under the "good faith" exception because no warrant requirement existed at that point.

This would be all well and good (if a little bizarre considering the stay issued for the pending, but disregarded, Riley decision) if the court hadn't decided to quote previous Supreme Court decisions so badly outdated they only serve to make the Maryland court look utterly ridiculous.

The suspect here had a smartphone. The Maryland Court exhumes the corpse of the 1973 US v. Robinson decision and applies it to the 2011 search.
The Supreme Court further developed the scope of the search incident to arrest exception in United States v. Robinson, 414 U.S. 218 (1973). Robinson had been arrested for driving on a suspended license. The arresting officer, while conducting a pat down of Robinson, felt an object in his coat pocket that the officer could not identify. The officer removed that object—a crumpled cigarette packet—opened it, and found capsules of heroin inside. Id. at 220-23. The Court upheld the warrantless search as a proper search incident to Robinson’s arrest.
This is a court telling an appellant that -- if Riley had not gone the way it did -- it would still consider a smartphone loaded with personal information and a connection to web-based services offering even more personal information to be roughly equivalent to whatever might fit inside a crumpled cigarette pack.

Now, I have no problem with the court granting the "good faith exception," considering the search occurred pre-Riley, but I do have my concerns about a court that will apparently only consider the implications of technological advances when the Supreme Court basically forces it to.

Attempting to apply a forty-year-old decision involving a small cardboard box to today's smartphones is to indicate the court either has performed no serious independent thinking about the subject, or has somehow managed to escape dealing with relevant cases that might force it confront the fact that a computer that fits in someone's pocket is not even remotely equivalent to the "contents" of said pocket.

To be fair, the DOJ has been equally unwilling to cede ground to logic and has argued for similarly non-comparable items to be deemed comparable by the nation's highest court. But this is to be expected from an entity that acts on behalf of the nation's law enforcement when presenting its arguments in court (despite having the word "Justice" in its name). A state appeals court, on the other hand, is actually supposed to be acting on behalf of the slippery term "justice," and citing outdated caselaw does very little to serve that purpose.

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Filed Under: 4th amendment, maryland, mobile phones, privacy, riley, searches, supreme court


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  1. icon
    That One Guy (profile), 7 Aug 2015 @ 2:26pm

    When the ruling has already been made

    Despite staying the case to hear from the Supreme Court on this issue, the Maryland court went in the other direction once that decision had been handed down. Considering the circumstances, this is probably the right decision, but one wonders why they bothered staying the case if it was going to rely on pre-Riley caselaw anyway.

    Most likely because they were hoping that the SC would have ruled opposite of what it did. Waiting to see what the SC has to say on a matter, and then ignoring it only makes sense if they had already made their decision, and were hoping to get some extra backing for it from a higher court. Either that or they just felt like wasting everyone's time, as though that's any better.

    reply to this | link to this | view in thread ]

  2. identicon
    Jason K., 7 Aug 2015 @ 2:35pm

    Why does "good faith" make sense here?

    How does the fact that this incident happened prior to the Riley decision make it okay? The Riley case also happened before the Riley decision (obviously), yet the SC ruled that a warrant was required. Wouldn't the SC rule the same for this case?

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 7 Aug 2015 @ 2:55pm

    Re: Why does "good faith" make sense here?

    Wouldn't the SC rule the same for this case?
    What the Supreme Court actually did in the twin appeals of Riley and Wurie
    We reverse the judgment of the California Court of Appeal in No. 13-132 [Riley] and remand the case for further proceedings not inconsistent with this opinion. We affirm the judgment of the First Circuit in No. 13-212 [Wurie].

    It is so ordered.

    … mumble… … mumble… …equal protection of the laws… … mumble… … mumble…

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 7 Aug 2015 @ 3:03pm

    Re: Re: Why does "good faith" make sense here?

    We affirm the judgment of the First Circuit in No. 13-212

    U.S. v Wurie (1st Cir. 2013)
    C. The good-faith exception

    That leaves only the government's belated argument, made for the first time in a footnote in its brief on appeal, that suppression is inappropriate here under the good-faith exception to the exclusionary rule. The government bears the "heavy burden" of proving that the good-faith exception applies, and it did not invoke the exception before the district court. . . .


    III. Conclusion

     . . .

    We therefore reverse the denial of Wurie's motion to suppress, vacate his conviction, and remand for further proceedings consistent with this opinion.
    (Citations omitted.)

    reply to this | link to this | view in thread ]

  5. identicon
    Zonker, 7 Aug 2015 @ 3:09pm

    The defendant sought suppression of this warrantless search of his phone but the court found that because the search had occurred before the Riley decision, the officers here were covered under the "good faith" exception because no warrant requirement existed at that point.
    I beleive that the US Constitution and Bill of Rights were in effect at the time of the cell phone search in this case. I can't seem to find where the US Constitution or Bill of Rights grant any such "good faith" exception to our "inalienable" rights government "shall not violate". My understanding of "shall not be violated" in the supreme law of the land is the exact opposite of any "good faith exception" applied by the court here.

    The Supremacy Clause:
    This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 7 Aug 2015 @ 3:16pm

    Re: Re: Why does "good faith" make sense here?

    We reverse the judgment of the California Court of Appeal in No. 13-132 and remand the case for further proceedings not inconsistent with this opinion.

    People v Riley (Cal. Ct. App., Feb. 19, 2015)
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS

     . . . On remand, Riley asserts his convictions must be reversed in their entirety because, considering all of the evidence properly admitted at trial, the erroneous admission of three photographs taken from his cell phone cannot be deemed harmless beyond a reasonable doubt . . . 


    II ANALYSIS

    A. Applicable Standard

    When, as here, evidence is admitted that was the product of a Fourth Amendment violation, the proper test for whether the error was harmless is Chapman. . . .

    DISPOSITION

    The judgment is affirmed.

    reply to this | link to this | view in thread ]

  7. identicon
    Joel Coehoorn, 7 Aug 2015 @ 3:31pm

    Quick Look

    An office conducts a legal pat-down, finds an unknown rectangular object, and pulls it out.

    Let's say he finds a cigarette packet. At this point, a quick look inside the packet is just being thorough, especially if it crumpling felt odd to him. It's reasonable to expect he checks it at the place and time.

    But let's say the object is a smartphone. Without a warrant, a full search of that phone shouldn't even enter the officer's mind. But a quick look at the home screen, and maybe also the last few messages, has a hint of "reasonableness" to it, in the same way it's okay to glance inside the cigarette packet. However, that's nothing like searching the entire contents of the phone, and especially not like seizing the phone to give it the full forensic treatment.

    The point is that I don't think it's a good idea to declare phones, laptops, etc completely off limits in these situations. But if you need extended time with the device, or special skills, that's a pretty good indicator you've gone beyond what is reasonable, at least until you have a warrant.

    reply to this | link to this | view in thread ]

  8. icon
    Uriel-238 (profile), 7 Aug 2015 @ 3:59pm

    Good Faith is not relevant.

    In my understanding of fourth-amendment protections (mind you IANAL) a suspect determined to be guilty by evidence obtained by violation of the fourth-amendment is acquitted as a penalty to the state for violating the rights of the suspect.

    And I was in a recent conversation right here on TechDirt in which it was clarified that a law or practice ruled unconstitutional was ruled to be so at its inception, hence all convicts who were incarcerated by that ruling are set free.

    Whether or not the officer was acting in good faith is irrelevant. The state was wrong to let the officer search the pjone without a warrant in the first place, and the officer was acting on bad orders. The suspect's rights were violated, now affirmed by SCOTUS and by not vacating the conviction, the court continues violate the suspect's rights.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 7 Aug 2015 @ 5:09pm

    "Good Faith"

    "the officers here were covered under the "good faith" exception"

    Why is ignorance of the law ok for LEOs, but for the unwashed masses, i.e. citizens, ignorance of the law is no excuse?

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 7 Aug 2015 @ 5:11pm

    Re: Quick Look

    So LEOs can take a quick look, without a warrant, in the all windows of your house and that's ok?

    reply to this | link to this | view in thread ]

  11. icon
    Uriel-238 (profile), 7 Aug 2015 @ 8:30pm

    In all the windows of your house...

    I think in Coehoorn's interpretation, if a glance into your home window reveals something suspicious (an unlikely example would be a bound and gagged child that shares the general features of a recent amber alert) then he can act on that reasonable suspicion.

    If the same officer has hang at the window and look around for something, or the suspicion is not reasonable (a pile of white powder on a mirror), or he has to go around the house and willfully check windows, then the search should become illegal and require a warrant.

    If we could count on the police to exercise this degree of privacy, I'd regard good faith searches to be reasonable, but as things are good faith has turned into a device like detection dogs to merely bypass the warrant process, so I think good faith exceptions are bogus, for what it's worth.

    And granted, this is the degree of privacy that lets Konerak Sinthasomphone get killed, but it lets so many others live, and lets the rest of us live in less fear.

    reply to this | link to this | view in thread ]

  12. identicon
    David, 8 Aug 2015 @ 12:25am

    Re: "Good Faith"

    Because citizens do not act in good faith.

    reply to this | link to this | view in thread ]

  13. icon
    Uriel-238 (profile), 8 Aug 2015 @ 12:08pm

    "Citizens do not act in good faith."

    Officers do?

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 9 Aug 2015 @ 10:42am

    Following the arguments

    From the Maryland Court of Appeals opinion above:
    We twice have applied the good faith doctrine, as was done in Davis, to “searches conducted in objectively reasonable reliance on binding appellate precedent[.]”


    Davis v United States (2011)
     . . . The question in this case is whether to apply the exclusionary rule when the police conduct a search in objectively reasonable reliance on binding judicial precedent. . . .


     . . . The principal argument of both the dissent and Davis is that the exclusionary rule's availability to enforce new Fourth Amendment precedent is a retroactivity issue, see Griffith v. Kentucky (1987), not a good-faith issue. They contend that applying the good-faith exception where police have relied on overruled precedent effectively revives the discarded retroactivity regime of Linkletter v. Walker (1965). . . .
    And from the dissent in Davis:
    Justice BREYER, with whom Justice GINSBURG joins, dissenting.

     . . . After 22 years of struggling with its Linkletter approach, however, the Court decided in Griffith that Linkletter had proved unfair and unworkable. It then substituted a clearer approach . . .

    reply to this | link to this | view in thread ]

  15. identicon
    GEMont, 9 Aug 2015 @ 11:02am

    The Evidence Industry

    Wondering when the government's inserted insecurity - ie. police backdoors into all cell phones - will be used as a defense by someone convicted due to evidence discovered through a search of a cell phone, since the existence of these backdoors literally means that anyone with access to the "magic key", could easily plant the "evidence" on the phone for later "discovery".

    Should not be long now.

    ---

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 9 Aug 2015 @ 8:14pm

    Demby and Sinclair

    From the Spence case above:
    [W]e heard arguments in the case on the same day as two other cases, Demby v. State, No. 11, Sept. Term 2014, and Sinclair v. State, No. 43, Sept. Term 2014. The three cases present the common question of whether, in light of the Supreme Court’s decision in Riley, the respective petitioners were entitled to the suppression of data obtained by the police during a warrantless search of the cell phones incident to a lawful arrest.
    Demby v State (Md. July 27, 2015)
    We need not repeat here the analysis that led us to our decision in Spence. It suffices that, in material respect, the present case is identical to Spence, and the outcome is therefore the same.
    Sinclair v State (Md. July 27, 2015)
    In failing to make his motion to suppress the three photographs of his cell phone screen within the time period and with the specificity required by the Maryland Rules, Mr. Sinclair waived that motion. If the motion had not been waived and if a pretrial hearing had established the facts . . .

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 9 Aug 2015 @ 8:36pm

    Supremacy clause [was Re: ]

    My understanding of "shall not be violated" in the supreme law of the land is the exact opposite of any "good faith exception" applied by the court here.

    The Supremacy Clause: [ . . . ]
    Sorry, I'm not sure I comprehend the argument you're trying to make with the Supremacy clause here.

    You can't be suggesting that Maryland's high court is failing to follow the United States Supreme Court decision in Davis v United States (2011)?

    reply to this | link to this | view in thread ]

  18. identicon
    Anonymous Coward, 10 Aug 2015 @ 10:55am

    Re: Quick Look

    The point is that I don't think it's a good idea to declare phones, laptops, etc completely off limits in these situations.

    From Riley:
    Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon — say, to determine whether there is a razor blade hidden between the phone and its case.
    It seems to follow that information encountered in plain view during this physical aspects examination of a device is not excludable.

    Beyond that, there's an active debate over rules versus standards in the fourth amendment context. If one favors bright-line, categorical rules to guide police, then the facility with which a trained officer may apply the rule is a consideration.

    reply to this | link to this | view in thread ]


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