||SECOND CIRCUIT UPHOLDS OFFICER’S SEARCH OF LOST CELL PHONE TO FIND OWNER INFORMATION

SECOND CIRCUIT UPHOLDS OFFICER’S SEARCH OF LOST CELL PHONE TO FIND OWNER INFORMATION

On February 12, 2020, the Second Circuit Court of Appeals decided the United States v. Stacy[i], in which serves as an excellent review related to searches of lost phones for the purpose of locating the owner.  The relevant facts of Stacy, taken directly from the case, are as follows:

On September 11, 2017, in Norwich, New York, a woman saw a man on a motorized bicycle drop a cellphone. She picked it up and turned it over to Police Officer Alicia Woodard. Based on Woodard’s testimony at the suppression hearing, the district court determined that as soon as Woodard accessed the cellphone to identify its owner, she saw an image of a naked, prepubescent female whose genital area was exposed. Woodard reported this image to her supervisor, Detective Sergeant Reuben Roach, who then applied for a state warrant to search the rest of the phone.

The state warrant — later determined by the district court to have issued without probable cause — was executed on September 12, 2017 by Roach, who conducted a manual search of the phone and discovered numerous images and videos depicting child pornography on it. The contact list displayed only one contact: John Stacy. Stacy’s name was listed under the word “ME,” which matched the name associated with the Facebook account the phone was logged into. Roach checked Stacy’s name against a sex offender database and confirmed that Stacy was registered as a Level II sex offender in New York.

On September 14, 2017, Roach called Stacy into the Norwich City Police Department, where he waived his Miranda rights, participated in a recorded interview in which he admitted to downloading the images and videos on his phone, and was arrested. About a week later, Roach met with Special Agent Jenelle Bringuel of the Federal Bureau of Investigation, who then applied for a federal search warrant. The federal warrant was issued and executed, and a forensic analysis of the phone revealed extensive child pornography. Stacy was charged in this case.[ii]

Stacy filed a motion to suppress the evidence obtained in the warrantless search of his cell phone.  The district court denied the motion and Stacy entered a plea with the right to appeal the denial of his motion to suppress.

On appeal, Stacy argued (1) that the warrantless search of his cell phone violated the Fourth Amendment, and (2) that the district court was erroneous in holding that the good-faith exception to the exclusionary rule applied in his case.

The court of appeals first set out to determine if the warrantless search that occurred when the lost phone was turned over to a police officer violated the Fourth Amendment.  The court first noted applicable legal principles and stated

Although police officers usually require a warrant to conduct a search, they may execute a limited, warrantless search of lost property to identify the owner and inventory the item(s). Gudema vNassau Cty., 163 F.3d 717, 722 (2d Cir. 1998). Under the plain-view doctrine, police officers do not violate a defendant’s Fourth Amendment rights when they “encounter[] incriminating evidence,” the incriminating nature of which is “immediately apparent,” as long as they have a “legitimate reason” for conducting the searchUnited States vBabilonia, 854 F.3d 163, 180 (2d Cir. 2017) (internal quotation marks omitted).[iii]

Regarding this issue, Stacy based his argument on alleged inconsistent statements about whether the officer observed the image of a naked child before or after she had already identified the phone’s owner.  If the officer saw the image before or at the same time as identifying the phone’s owner, the evidence is admissible and falls within the exception stated in the above rule.  However, if the officer was able to identify the phone’s owner, but continued to search through the phone, the officer would have exceeded the permissible scope of the search and the evidence would not be admissible.

In Stacy’s case the district court weighed the credibility of the testimony provided and credited the officer’s testimony that she found the image of the naked child at the same time she identified the phone’s owner.  The court of appeals cannot overrule the district court’s finding of fact unless it is clearly erroneous and this was not clearly erroneous.  As such, there was no violation of the Fourth Amendment regarding the initial search of the cell phone.  This is important as that search provided the legal basis for the issuance of the search warrant.

The court then examined Stacy’s second argument for suppression of the evidence.  Stacy argued that the search warrant for the phone was invalid because the warrant was not sufficiently specific in describing the things the officers were authorized to search for.  Specifically, the search warrant authorized the officers to search for “evidence of crimes committed against a child or children or evidence of other unlawful acts.”[iv]  The district court agreed that the warrant was not “sufficiently particular” regarding items to be seized because it gave the officers “unfettered discretion to seize anything” seen.[v]  However, the district court applied the good-faith exception and allowed the evidence.

The court of appeals examined the legal principles relevant to this issue and stated

The fruits of a search conducted pursuant to a warrant that issued without probable cause, however, will not be suppressed if the officers reasonably relied on the warrant in good faithUnited States vLeon, 468 U.S. 897, 920 (1984). An officer’s reliance on a search warrant is unreasonable where: (1) the judge who issued the warrant was purposefully misled; (2) the judge who issued the warrant “wholly abandoned his judicial role”; (3) the affidavit accompanying the warrant application is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; or (4) the warrant is so “facially deficient . . . that the executing officers cannot reasonably presume it to be valid.” Id. at 923.

In this case, the court of appeals noted that there was no evidence to suggest that the officers misled the judge who issued the warrant and no evidence to suggest the judge abandoned his judicial role.  The court examined the evidence and noted that the officer conferred with the judge regarding the search warrant several times prior to the issuance of the warrant and described the image as a “approximately five-year-old female,” naked and “posing.”[vi]  The court of appeals then stated that it was not unreasonable for the officer to believe probable cause was present to search Stacy’s phone.

The court also discussed how the warrant was deficient in that it was not “sufficiently particular with the respect to the things to be seized because it granted the executing officer virtually unfettered discretion to seize anything” seen.[vii]  As such, the warrant was invalid.  However, the court also examined the good-faith exception to the exclusionary rule.  The court stated

[I]f an officer was “intimately familiar with the contemplated limits of the search” and never “searched for, or seized, any items that were unrelated to the crimes” initially contemplated, the good-faith exception appliesUnited States vRosa, 626 F.3d 56, 65 (2d Cir. 2010).[viii]

The court then examined the record in Stacy’s case and noted that nothing in evidence suggests that the officer did not understand the intended scope of the search warrant and there was nothing to suggest that the officer exceeded the permissible scope of the search warrant.  As such, the warrant was not “facially deficient” and the good-faith exception applied.

Therefore, the court of appeals affirmed the denial of the motion to suppress.

________________________________________________

Citations

[i] No. 19-339-cr (2nd Cir. Decided February 12, 2020 Unpublished)

[ii] Id. at 3-4

[iii] Id. at 4 (emphasis added)

[iv] Id. at 6

[v] Id.

[vi] Id.

[vii] Id. at 6-7

[viii] Id. at 7 (emphasis added)

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By |2021-02-02T09:58:02-05:00February 2nd, 2021|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.