Feb. 3, 2010 – The Wisconsin Supreme Court today upheld a search warrant despite a detective’s illegal, warrantless search of images kept on the defendant’s cell phone.
In State v. Carroll, 2010 WI 8, a majority of the court found that police had gathered enough evidence to form a basis for the warrant independent of the officer’s knowledge gained by the illegal search.
But dissenters discounted this additional evidence, warning that the majority was undermining the purpose of the Fourth Amendment’s exclusionary rule and setting a low standard for warrantless searches of cell phones.
Cell phone seized
Jermichael Carroll drove away from a residence that police had been watching as part of an armed robbery investigation. The police noticed Carroll slowed down while passing their car before speeding away. The officers attempted to stop Carroll who led them on a high-speed chase before abruptly abandoning his car at a gas station.
The officers could not identify an object in Carroll’s hand as he fled on foot so a detective drew his weapon and ordered Carroll to drop the item. The police retrieved a flip-style cell phone that had opened up to show an image of Carroll smoking a cigar-like object, which the detective recognized to be a marijuana blunt.
When Carroll gave his name, the officers ran a routine check to find he was driving with a suspended license. The detective put Carroll in the back seat of the police car and began to search through the cell phone’s image library, finding pictures of Carroll with illegal drugs and a semiautomatic firearm. The phone rang several times while the detective browsed through the pictures and he eventually answered it. Posing as Carroll, the detective believed the caller was attempting to purchase four and a half ounces of cocaine.
Two days later, the detective sought a search warrant for the cell phone. In the affidavit supporting the warrant application, the detective noted the firearm image as evidence that Carroll was in violation of the statute forbidding felons from possessing such weapons. He observed that in his experience, drug dealers commonly personalize their phones with images of themselves and the objects of their criminal ventures.
The detective also described the intercepted phone call and stated that drug traffickers commonly use cell phones to maintain contact with their sources. The detective added that Carroll's record included a juvenile adjudication for felony possession of cocaine with intent to deliver.
Not included in the affidavit was any mention of the image of Carroll smoking a blunt.
Charged with possession of a firearm by a felon, Carroll persuaded the trial court to suppress the evidence obtained with the search warrant. The court held that the warrant resulted from an illegal search of the phone, rejecting the state’s argument that the search was pursuant to a lawful arrest because Carroll had not been arrested at that point. Even if police had attempted to arrest Carroll, the circuit court questioned whether they could given that Carroll’s two offenses – speeding and driving with a suspended license – were noncriminal.
The Wisconsin Court of Appeals reversed, finding that the search was illegal but that the information gained from the intercepted phone call provided sufficient probable cause for a warrant.
Untainted evidence
In a majority opinion authored by Justice N. Patrick Crooks, the supreme court agreed that the detective illegally searched the phone, but that the image of Carroll with a blunt and the intercepted phone call, combined with the detective’s knowledge and experience, formed a sufficiently independent basis for the warrant.
The court separated the legal evidence from the fruits of the improper search. The court noted that a warrantless seizure of personal property, such as containers, is per se unreasonable following U.S. v. Place, 462 U.S. 696 (1983). But Place also instructs that the Fourth Amendment does not require exclusion of illegally seized evidence when police can demonstrate an exigency.
In this case, the court said that the applicable exigency concerned the detective’s fear that failing to answer the phone would lose evidence of the caller looking to buy drugs. The court said that the detective had developed probable cause to believe the phone call pertained to illegal activity after he had inadvertently seen the blunt image on Carroll’s opened phone, and it conformed to his knowledge of drug traffickers’ behavior. This phone image was lawfully observed by the detective under the “plain view” exception to the warrant requirement.
The court discounted Carroll’s argument that the blunt image would only give probable cause to believe that Carroll possessed drugs, not that he was a trafficker or that the phone call would concern drug trafficking. The court said it was not just the image, but the detective’s knowledge, training, and experience that “are germane to the court’s assessment of probable cause.” The court noted that Carroll had not disputed the detective’s testimony that traffickers tend to personalize their phones with images of themselves with drugs, and they conduct their criminal trade with those phones.
Prosser dissents
But Justice David Prosser was unconvinced by the court’s reasoning on the significance of the blunt image, leading him to doubt that the detective could claim an exigency to intercept the phone call without a warrant.
“The syllogism that the majority appears to rely on is as follows: (1) Drug traffickers frequently personalize their cell phones with pictures of themselves possessing illegal drugs; (2) The defendant’s cell phone shows him smoking a marijuana cigarette; (3) Therefore, the defendant is probably a drug trafficker,” Prosser wrote.
Prosser commented that the police knew virtually nothing more; they did not who Carroll was nor did they know of his felony conviction at the time the detective intercepted the call. “After this decision, will an impersonal picture of illegal drugs on a cell phone provide probable cause for a search of the phone without a warrant?” Prosser asked.
The affidavit for the warrant showed that the basis for probable cause plainly involved evidence from the illegal search, Prosser said. Reviewing the affidavit, Prosser noted the detective’s numerous references to the images he viewed during his illegal search of the phone. The only image the detective legally saw – that of the blunt – was not mentioned at all in the affidavit, Prosser remarked.
“It is quite clear from the testimony that Detective [John] Belsha did not answer the defendant’s phone and impersonate the defendant until after he had examined all the pictures inside the phone,” Prosser wrote, concluding that the affidavit should have been further stripped of reference to the phone call since it was another illegal intrusion on Carroll’s privacy.
Abrahamson dissents
Chief Justice Shirley Abrahamson criticized the majority for relying on an underdeveloped evidentiary record that left too many important questions unanswered.
Like Prosser, Abrahamson was troubled that the detective did not mention the blunt image in the warrant affidavit. That oversight – combined with the detective’s failure to answer several incoming calls before he finished looking at the images in violation of Carroll’s rights – led Abrahamson to believe the court could not simply attribute critical inferences to the detective’s training and experience. She argued the court should have remanded the case for determination of how independent the legally obtained evidence truly was from that gained by an illegal search.
“[T]he obvious implication is that the Detective thought the initial photo relatively inconsequential, and the decision to answer the later call was motivated by the photos he had already viewed in the image gallery,” Abrahamson wrote.
Abrahamson warned that the majority’s effort to preserve the warrant on the basis of legal evidence gathered alongside illegally seized evidence may encourage a police officer “who has already obtained sufficient evidence for a search warrant to proceed nevertheless without one, confirming that the suspected evidence actually exists and thus avoiding the need to apply for a warrant until the suspicions have already been confirmed.”
The chief justice said this would run counter to the purpose of the exclusionary rule which “is calculated to prevent, not to repair” defective police procedure. “Its purpose is to deter – to compel respect for the constitutional guaranty in the only effectively available way – by removing the incentive to disregard it,” she wrote, quoting Elkins v. U.S., 364 U.S. 206.
