Cell Phone Text Message Search Love 2016

Police Must Obtain Search Warrant to See Content of Text Messages

By | Search & Seizure | No Comments

Cell Phone Text Message Search Love 2016From call logs, to cell tower info, to sent and received text messages, many criminal investigations involve the contents of a defendant’s cell phone.  Under the Stored Communications Act, cell phone providers can provide a users cell phone data to police during an active criminal investigation with a simple court order (like a subpoena).  But what about the actual content of text messages?  Can the police or the prosecutor get the actual content from those text messages with the same court order?

Capital Murder Conviction Gained After Judge Admits Content of Text Messages

Recently, the Texas Court of Criminal Appeals considered a capital murder (death penalty) case in which the State relied on text message evidence during trial. During the trial, the state admitted (over defense objection) the contents of text messages sent and received by the defendant. The messages established the defendant’s presence at the scene of the murder and implied his direct involvement. The state leaned on this evidence during both its opening and closing statements in the case. The defendant was convicted of capital murder and sentenced to death.

The Content of Text Messages are Not Covered by the Stored Communications Act

The appellant argued on appeal that while the Stored Communications Act allows the state to gain evidence of text messages sent and received, it does not allow the dissemination of the content of those messages. The appellant argued that the State should have obtained a search warrant backed by probable cause in order to get these records. The CCA agreed, drawing comparisons to the contents of letters sent in the mail and email stored on a server. Text message enjoy the same reasonable expectation of privacy and should be protected.

The Question in Love v. State is Whether Appellant had an Expectation of Privacy in his Service Provider’s Records

LOVE v. STATE (Tex. Crim. App – 2016), Majority Opinion

Judge Yeary penned the majority opinion in Love. The following excerpts are taken from the opinion:

Many courts have treated text messages as analogous to the content of an envelope conveyed through the United States mail…Admittedly, the analogy is not a perfect one…A letter remains in its sealed envelope until it arrives at its destination, and the telephone company does not routinely record private telephone conversations. But internet and cell phone service providers do routinely store the content of emails and text messages, even if they do not necessarily take the time to read them…[E]mpirical data seem to support the proposition that society recognizes the propriety of assigning Fourth Amendment protection to the content of text messages…All of this leads us to conclude that the content of appellant’s text messages could not be obtained without a probable cause–based warrant. Text messages are analogous to regular mail and email communications. Like regular mail and email, a text message has an “outside address ‘visible’ to the third-party carriers that transmit it to its intended location, and also a package of content that the sender presumes will be read only by the intended recipient…Consequently, the State was prohibited from compelling Metro PCS to turn over appellant’s content-based communications without first obtaining a warrant supported by probable cause.

Finding that “the probable impact of the improperly-admitted text messages was great,” the CCA then reversed the conviction and remanded the case back to the trial court for a new trial.

TAKEAWAY: Not all records can be gained so easily through a court order. Some require a probably cause warrant.  Is there a reasonable expectation of privacy in the message? It might take a new analysis as our media is changing daily, but it can be worth the fight.

Note: Presiding Judge Keller dissented. She did not believe that the appellant preserved this issue for appeal.

Birchfield v. North Dakota Supreme Court Breath Test

Criminal Penalties for Refusing a Breath Test—Are They Coming to Texas?

By | DWI | No Comments

Can Texas Charge a Person with a Crime for Refusing a Breath or Blood Test During a DWI Stop?

In Texas, when a person refuses to provide a breath or blood specimen when being arrested for alleged drunk driving offense, their driver’s license is typically suspended. But, can a state have a law that additionally makes it a crime to refuse a breath or blood test? In Birchfield v. North Dakota, the United States Supreme Court held that a state can attach a criminal penalty to those that refuse to submit to a warrantless breath test but they cannot for those that refuse to submit to a warrantless blood test.

In a previous blog post we discussed the oral arguments that took place in this case and briefed the three cases facing the court, Birchfield , Bernard and Beylund.  Birchfield had been criminally prosecuted for refusing a warrantless blood draw; Bernard had been criminally prosecuted for refusing a warrantless breath test; and Beylund, while not criminally prosecuted for refusing a test, submitted to a blood test after the officer told him the law required it. Birchfield v. North Dakota 579 U.S. ____ (2016).

U.S. Supreme Court Issues Opinion in Birchfield Upholding Criminal Penalty for Breath Test Refusal (But Not Blood)

SUPREME COURT DECISION – Birchfield v. North Dakota

First, the Court determined whether warrantless breath and blood tests were proper searches incident to arrest for drunk driving. The Court held that since “breath tests are significantly less intrusive than blood tests” and in most cases adequately serve law enforcement interests, the Fourth Amendment permits a warrantless breath test but not blood test as a search incident to arrest for drunk driving.

Next, the Court addressed the argument that when making the decision to drive on a public road, drivers are deemed to have given consent to submit to a blood test. Applying the Fourth Amendment reasonableness standard, the Court held that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Birchfield, 579 U.S. ____ (2016).

Finally, the Court applies these legal conclusions to the three cases.  In Birchfield, the Court held that the judgment affirming his conviction must be reversed because the warrantless blood draw was not a justified search incident to arrest and he was thus, threatened with an unlawful search. In Bernard, the Court held that Bernard had no right to refuse the breath test because it was a proper search incident to arrest. In Beylund, the Court vacated the judgment and remanded the case to the state court to reconsider Beylund’s consent given the partial inaccuracy of the officer’s statement that “the law required it.”

In conclusion, the Supreme Court held that States may enact laws that attach criminal penalties to the refusal to submit to a breath test but they may not enact such laws that will apply to refusal to submit a blood test. So what does this mean for Texas? Well, while we do not currently have laws in place that attaches a criminal penalty to refusal of a breathalyzer, the State could enact a law that makes it a crime to refuse to provide a warrantless breath test incident to arrest of drunk driving.

Utah v. Strieff Illegal Police Conduct

US Supreme Court Allows Evidence From Illegal Police Stop in a Shocking Decision

By | Search & Seizure | No Comments

In a 5-3 Split, Utah v. Strieff Causes Strife for the Supreme Court: What Happens When an Illegal Stop Leads to the Discovery of an Outstanding Warrant?

Utah v. Strieff Illegal Police ConductUtah v. Strieff (United States Supreme Court – 2016)

The Supreme Court has had a busy term already! Handed down just yesterday, Utah v. Strieff divided the Supreme Court over the question of what happens when an illegal stop leads to the discovery of an outstanding warrant? And when that warrant is executed, what happens when drug paraphernalia is found incident to arrest? Should evidence obtained at a search incident to arrest be suppressed when the stop was unlawful from the start?

Surveillance of a Suspected Drug House Leads to an Arrest for a Traffic Violation

In Strieff, law enforcement conducted surveillance of a Salt Lake City, Utah, residence, after an anonymous tipster called a drug hotline to report to police that drugs were being sold in the home. During the surveillance, police observed a large number of people visiting the home for mere minutes at a time and leaving, increasing law enforcement’s suspicion that the residents were dealing drugs. Shortly after Edward Strieff visited the home, law enforcement stopped and detained Strieff, asking him the reason for visiting the home. Next, police ran Strieff’s identification information through their electronic records, discovering an outstanding arrest warrant on Strieff for a traffic violation. Strieff was arrested and searched. During the search, police found a baggie of meth and other drug paraphernalia in Strieff’s pockets. Strieff was charged with unlawful possession of methamphetamine and drug paraphernalia.

Strieff Moves to Suppress the Evidence as the Fruits of an Illegal Police Stop.

At trial, Strieff moved to suppress the evidence as a result of an unlawful investigatory stop. Strieff argued that because law enforcement’s stop was illegal from the beginning, then any evidence found on him as a result of the stop was “tainted.” The State argued that the evidence was in fact admissible because it was found as a result from a search incident to a lawful arrest with a warrant, and that the warrant itself attenuated the connection between the unlawful stop and the discovery of the drugs and drug paraphernalia. Agreeing with the State, and finding the presence of the arrest warrant to be an “extraordinary intervening circumstance” the trial court denied Strieff’s motion to suppress. United States v. Simpson, 439 F.3d 490, 496 (CA8 2006). Strieff pleaded guilty to a lesser charge, but preserved his right to appeal.

Utah Supreme Court Holds that Illegal Police Conduct Was Not Attenuated.

On appeal, Strieff argued that the evidence should have been suppressed at trial. However, the Utah Court of Appeals affirmed the trial court’s ruling. 2012 UT App. 245, 286 P. 3d 317. On appeal to the Utah Supreme Court, Strieff argued that the evidence should have been suppressed at trial and that the court of appeals was incorrect in their verdict. The Utah Supreme Court agreed with Strieff, and reversed the lower courts’ rulings, ordering the evidence to be suppressed. 2015 UT 2, 357 P. 3d 532. In declining to apply the attenuation doctrine, the Utah Supreme court held, “the evidence is inadmissible because only a voluntary act of a defendant’s free will sufficiently breaks the connections between an illegal search and the discovery of evidence.Id. at 536.

The State of Utah appealed to the United States Supreme Court. Strieff contends that the facts of his case show that he was stopped illegally for the purpose of obtaining his identifying information, and that because of flagrant police misconduct, he was detained and searched unlawfully.

US Supreme Court Must Determine Whether Illegal Police Conduct Must Result in Exclusion of the Tainted Evidence.

When a police officer lawfully stops a person and asks for identification, then, discovers that there is a traffic warrant for this person’s arrest, and in the process of arresting and searching him discovers drugs and drug paraphernalia, the evidence found in the search of a person can be used against him.

However, what if the initial stop was not lawful. Doctrinally, does the “attenuation doctrine”—an exception to the exclusionary rule of the Fourth Amendment—apply when law enforcement makes an unconstitutional investigatory stop, discovering during that stop that the suspect is subject to a valid arrest warrant, and then, arrests the suspect, seizing incriminating evidence during a search incident to arrest?

The Law of the Land: The Fourth Amendment

The Fourth Amendment to the United States Constitution provides, “ the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S. CONST. amend. IV. To enforce the Fourth Amendment’s prohibition against unreasonable searches and seizures, “[the Supreme] Court has required…courts to exclude evidence obtained by unconstitutional police conduct” via the exclusionary rule. Utah v. Strieff, 579 U.S. ___(2016).

The Exclusionary Rule to the Fourth Amendment

The Exclusionary Rule to the Fourth Amendment is a legal principal, put forth by the Supreme Court in precedent case law, protecting defendants in criminal cases where evidence is collected in violation of a person’s constitutional rights, by deeming the evidence inadmissible for criminal prosecution. Mapp v. Ohio, 367 U.S. 643, 655 (1961). The Exclusionary Rule encompasses both the “primary evidence obtained as a direct result of an illegal search or seizure [and] evidence later discovered and found to be derivative of an illegality.” Segura v. United States, 468 U.S. 796, 804 (1984). However, courts will only apply the exclusionary rule, “where the deterrence benefits outweigh its substantial social costs.” Hudson v. Michigan, 547 U.S. 586, 591 (2006).

The Exception to the Exclusionary Rule: Attenuation Doctrine (and Brown Factors)

Over the years, the Supreme Court has recognized several exceptions to the Exclusionary Rule, one of which is called the “Attenuation Doctrine.” The Attenuation Doctrine provides for admissibility when the connection between unconstitutional police conduct and evidence is sufficiently remote or has been interrupted by some intervening circumstances. Id. at 593. The doctrine “evaluates the causal link between the government’s unlawful act and the discovery of evidence.” Strieff, 579 U.S. ___ (2016).

The factors, articulated in Brown v. Illinois, 422 U.S. 590 (1975) (the “Brown factors”), are used by courts in legal analyses to determine whether the Attenuation Doctrine is applicable to the facts of a case. The three factors are temporal proximity, intervening circumstances, and flagrant police misconduct.

  1. Temporal proximity—For example, how much time did it take for police to stop the suspect and to arrest him, and under what circumstances?
  2. Intervening circumstances—For example, did the suspect make a confession, or volunteer some other information to law enforcement to indicate that he has committed a crime?
  3. Flagrant police misconduct—For example, did police act in an unethical manner to discover evidence, or, is there a pattern of misconduct for that officer or police department as a whole?

The Supreme Court Holds That The Valid Arrest Warrant Attenuated the Taint of the Illegal Stop.

In a 5-3 split, the Supreme Court reverses the Utah Supreme Court’s ruling, holding that the evidence the officer seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest. Essentially, the arrest warrant was, in and of itself, the attenuation or the reason that the evidence seized is admissible. “The evidence [law enforcement] seized incident to Strieff’s arrest is admissible based on an application of attenuation factors from Brown v. Illinois, 422 U.S. 590.”

First, the “temporal proximity” factor “favors suppressing the evidence,” the Supreme Court states, as the stop was initially unlawful and because law enforcement discovered the drug paraphernalia on Strieff mere minutes after he an illegal stop. However, the other two factors strongly favor the State.

Second, the “intervening circumstances” factor is met under the facts of the case. “The existence of a valid arrest warrant, predating the investigation and entirely unconnected with the stop, favors…attenuation between the unlawful conduct and the discovery of evidence.” Further, the warrant itself authorized law enforcement to arrest Strieff—once the arrest was authorized by a magistrate’s signature on a warrant, a search incident to an arrest is “undisputedly lawful.”

Third, the “flagrant police misconduct” factor strongly “favors the state” as law enforcement was “at most negligent…but [these] errors in judgment hardly rise to a purposeful or flagrant violation of Strieff’s Fourth Amendment rights.” In this case, there was no indication that the stop was part of any systemic police misconduct. Police misconduct and flagrancy requires more than “mere absence of proper cause.”

Additionally, the Supreme Court says that Strieff’s arguments are not persuasive. Law enforcement did not stop Strieff randomly. Strieff had visited a suspicious house that was under surveillance. Law enforcement’s purpose in surveilling the residence was to “gather information about activity inside a house whose occupants were legitimately suspected of dealing drugs.” Further, it is “unlikely that the prevalence of outstanding warrants will create dragnet searches,” says the Supreme Court.

Three Supreme Court Justices Dissent and Would Hold That the Illegal Stop Requires Exclusion of the Seized Evidence.

There were three dissenters who put forth two written dissents to the holding in this case. In the first dissent, Justices Sotomayor and Ginsburg (in part) state that, “the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights.” Further the Justices add, “If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.” “Two wrongs don’t make a right” they implore, “as it is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian.” The holding in this case, they say, undermines the heart of the constitutional protections, “the Fourth Amendment should prohibit, not permit.”

Additionally, Justices Kagan and Ginsburg dissented together. The Justices argue that the majority misapplied the Brown factors altogether, and that an outstanding warrant in and of itself does not an intervening circumstance make. Further, they argue that the outcome of this case invites law enforcement to stop citizens, even without reasonable suspicion. “If the target[ed] [citizen] is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in criminal prosecution,” the Justices argue. Thus, law enforcement’s incentive to violate the Fourth Amendment increases, which is in opposition to the purpose of the Exclusionary Rule altogether—to remove potential temptation from police to stop random individuals without reasonable suspicion.

Commentary

This is a very troubling decision. While we never hope that our police officers would engage in illegal conduct to stop folks that have not committed a violation, it is never good to allow a 4th Amendment violation to be trumped by the later discovery of a traffic warrant. If we subscribe to an “ends justify the means” mentality, all of our constitutional rights are in serious jeopardy. It will be interesting to see how this decision plays out in real life, but I predict that it will not be good in the short term.

Warrantless Blood Draw DWI CCA

Two New Warrantless Blood Draw Opinions; Two Different Results

By | DWI | No Comments

CCA Reaches Different Conclusions in Two Separate Warrantless Blood Draw DWI Cases

Warrantless Blood Draw DWI CCAJust when we thought the warrantless blood draw issue was starting to reach firm footing in our appellate case law, the Texas Court of Criminal Appeals (CCA) throws a wrench into it. This week the CCA handed down a confounding set of opinions relating to warrantless blood draws in two separate DWI cases—Weems v. State and Cole v. State. Both cases dealt with drivers who were alleged to be intoxicated, both cases involved serious car accidents, both drivers suffered injuries, and, both cases presented law enforcement with the difficult decision to obtain blood samples without a warrant, as the body’s natural metabolic process threatened to destroy evidence over time that could have been used to charge and to prosecute the suspected intoxicated drivers. Procedurally, both Weems and Cole argue that the Texas Transportation Code § 724.012 is at odds with the Fourth Amendment and McNeely. Let’s take a look at the facts of each case and briefly review Texas law to reveal the reasoning behind the surprising conclusions reached by the CCA.

Weems v. State

A Night of Drinking Leads to a Car Accident

FACTS: Daniel Weems drank heavily at a bar for several hours one summer evening in June of 2011. Weems decided to drive home around 11:00pm, and on the way, his car veered off the road and flipped over, striking a utility pole. A passerby stopped to help, but saw Weems exit the car through his window. When asked if he was alright, Weems stumbled around saying that he was drunk. Noticing the smell of alcohol, the passerby called 911 and watched Weems run from the scene. When the first police officer arrived at midnight, Weems was found hiding under a parked car.

Law enforcement noted his bloodshot eyes, slurred speech, and inability to stand without assistance in the police report. Moments later, a second police officer came to the scene and arrested Weems on suspicion of driving while intoxicated (“DWI”). Law enforcement decided against conducting field sobriety tests because Weems suffered injuries and had “lost the normal use of his mental and physical faculties due to alcohol.” TEX. PENAL CODE § 49.01 (2)(A). Weems, however, refused a breathalyzer and a blood test, even after law enforcement informed him of the potential consequences (suspended license, etc.) for refusal. Emergency responders transported Weems to a nearby hospital because Weems complained of neck and back pain.

Arrest Leads to Warrantless Blood Draw

Weems was seen in the hospital’s trauma unit and the second police officer completed the form, requesting a blood draw, while the first police officer remained on duty, but on standby. Weems blood was taken at 2:30 am, over two hours post-arrest, with a result of .18—well above the .08 legal limit. Relying on the Supreme Court case Missouri v. McNeely, where the highest court held that the body’s natural metabolic processing of alcohol in the bloodstream does not create an exigency (emergency) such that an exception to the Fourth Amendment’s warrant requirement is created, Weems sought to have the results of the blood draw suppressed at trial. The trial court did not grant the suppression and jury found Weems guilty of felony DWI, sentencing him to eighty years’ imprisonment. On appeal, Weems argued that his Fourth Amendment rights were violated. Surprisingly, the Fourth Court of Appeals agreed with Weems, holding that in light of McNeely, Texas’s implied consent and mandatory blood draw schemes do not give way to warrant-requirement exceptions, and, that the record established at Weems’s trial did not support admitting the warrantless blood draw results under an exigency exception. The State appealed to the CCA.

Cole v. State

Fatal Car Crash Leads to Arrest

FACTS: On a December evening in 2011, Steven Cole drove his vehicle 110 miles per hour down a busy street, running a red light, and crashing into a pickup truck. The crash caused a large explosion and fire, killing the driver of the pickup truck instantly. When the first police officer arrived at the scene around 10:30pm, he saw Cole shouting for help because he was trapped in his truck in the fire’s path. Shortly thereafter, several police officers arrived and began putting out the multiple fires to secure the area for pedestrians and motorists.

Law enforcement would later testify that “from a law enforcement and safety perspective, they needed as many officers on the scene as they could possibly get” because the raging fires and continued explosions put the public in danger. When the crash occurred, the police were in the middle of a shift change which further complicated securing the scene, conducting the investigation and maintaining public safety. Cole was eventually rescued from his truck and was examined by EMTs, to whom Cole admitted that he had taken some meth. Because of the large debris field that spanned an entire block, fourteen police officers remained at the scene to collect evidence and secure the area, which pushed the limits of the small precinct’s manpower. The debris field was not fully cleared until 6:00am—almost eight hours after the crash. Because of the size of the debris field and dangerousness of the scene requiring multiple officers to secure, only one police officer accompanied Cole to the hospital.

Suspected Intoxication Leads to Warrantless Blood Draw

At the hospital, Cole was observed complaining of pain, but also, “tweaking” and shaking—potential symptoms of suspected methamphetamine intoxication. Under a directive from the superior officer on duty, the police officer arrested Cole at 11:38pm and asked Cole for consent to collect blood and breath samples. When Cole refused, the officer read the statutory consequences for failure to consent. Cole interrupted the officer several times to comment that he had not been drinking, rather, he had taken meth. The officer made a request to the hospital for a blood draw, which was done at 12:20am. The results confirmed that Cole’s blood contained amphetamine and methamphetamine.

Cole moved to suppress the evidence at trial, but the trial court overruled the motion. The jury convicted Cole of intoxication manslaughter, sentencing Cole to a life imprisonment. On appeal, the court of appeals held that the lower court erred in not suppressing Cole’s blood draw results because State v.Villarreal “foreclosed on the State’s reliance on the mandatory blood-draw provision found in the Texas Transportation Code, and that, the trial court record did not establish that an emergency (exigency) existed to justify the warrantless blood draw. Cole v. State, 454 S.W.3d 89, 103 (Tex. App—Texarkana 2014). The State appealed to the CCA.

Law Applicable to Warrantless Blood Draws

The Fourth Amendment

The Fourth Amendment to the United States Constitution provides, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S. CONT. amend. IV. McNeely informs that blood tests are Fourth Amendment searches that implicate a “most personal and deep-rooted expectation of privacy.” McNeely, 133 S. Ct. at 1558-59 (quoting Winston v. Lee, 470 U.S. 753, 760 (1985)). Case law has determined that “a warrantless search is reasonable only if it falls within a recognized exception.” State v. Villarreal, 475 S.W.3d 784, 796 (Tex. Crim. App. 2015), reh’g denied, 475 S.W.3d 817, (Tex. Crim. App. 2015) (per curiam).

One exception to the Fourth Amendment warrant requirement is a warrantless search performed to prevent imminent evidence destruction when there is no time to secure a warrant. Cupp v. Murphy, 412 U.S. 291, 296 (1973); McNeely, 133 S. Ct. at 1559. Whether law enforcement faces an emergency that justifies acting without a warrant calls for a case-by-case determination based upon the totality of the circumstances. Id. In order for courts to determine whether an emergency existed, courts must analyze the totality of the circumstances based on an objective evaluation of the facts reasonably available to law enforcement at the time of a search, and not based on 20/20 hindsight of the facts as they are known after the fact. Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006); Ryburn v. Huff, 132 S. Ct. 987, 992 (2012)(per curiam).

Texas Transportation Code § 724.012

Texas Transportation Code § 724.012(a) states, “specimens of a person’s breath or blood may be taken if the person is arrested and at the request of [law enforcement] having reasonable grounds to believe the person was intoxicated while operating a motor vehicle.” § 724.012(b) states, “[Law enforcement] shall require the taking of a specimen of the person’s breath or blood…if the officer arrests the person [for DUI/DWI] and the person refuses the officer’s request to submit to the taking of the specimen voluntarily…[where] any individual has died…an individual other than the person has suffered serious bodily injury.”

The CCA Weighs In—What did the CCA Decide and How Did the Judges Reach The Decisions?

In both Weems and Cole, the Court of Criminal Appeals had to determine whether the warrantless blood draws were justified by exigent (emergency) circumstances under a totality of the circumstances review of the facts. It may be surprising that in one case the CCA upheld the legality of the blood draw and in the other case the CCA held that the blood draw was unlawful.  The charts below shed some light on the relevant facts of each case that the CCA reviewed to determine the holdings in each case. As you can see, the cases are quite similar, yet have some striking differences—differences that distinguished each case just enough for the CCA to arrive at opposite conclusions.

Totality of the Circumstances Analysis
Similarities Between Weems and Cole

WEEMS COLE
Refused consent to breath and blood tests. Refused consent to breath and blood tests.
Driver caused car crash. Driver caused car crash.
Driver injured in crash. Driver injured in crash.
Admitted to drinking during initial questioning. Admitted to using meth during initial questioning.
Moved to suppress evidence at trial. Moved to suppress evidence at trial.
Warrantless blood draw. Warrantless blood draw.
Law enforcement claimed “exigency/emergency” as reason for warrantless blood draw. Law enforcement claimed “exigency/emergency” as reason for warrantless blood draw.
Law enforcement concerned BAC would fall over time, destroying potential evidence. Law enforcement was concerned intoxication levels would fall over time, destroying potential evidence.

Totality of the Circumstances Analysis
Differences Between Weems and Cole

WEEMS COLE
Single-vehicle crash. Two-vehicle crash.
Small, rural road. Large, high-traffic intersection.
Two police officers, one who remained on “stand-by”. Entire police department tasked with maintaining and securing the exceedingly dangerous scene.
No deaths as a result of crash. One fatality as a result of crash.
Small debris field. Large “one block long” debris field.
Alcohol was the substance at issue. Meth was the substance at issue.
Alcohol has a ‘known’ dissipation time. Meth has a ‘lesser known’ dissipation time.
Police department’s manpower was not overwhelmed by the crash. Police department’s manpower pushed to the limits by the crash.
Nothing on the record to indicate Weems was going to receive pain medication that would impact the results of a blood test. Hospital was set to give narcotics to Cole because of pain, narcotics that could potentially impact the results of a blood test.

The CCA’s Holding in Weems – Warrantless Blood Draw Improper

In Weems v. State, the CCA concluded that the warrantless blood draw was NOT justified by exigent (emergency) circumstances. The CCA affirmed the holding of the court of appeals that said that § 724.012 of the Texas Transportation Code does not create an exigency exception to the Fourth Amendment and that the trial court did not establish on the record any facts to support a finding of an exigent circumstance. The CCA stated that law enforcement might have had a “temporal disadvantage,” however, the time frame from the crash to the time Weems was transported to the hospital was short and that the police officer who was on standby could have called a magistrate to obtain a warrant, “the hypothetically available officer could have secured a warrant in the arresting officer’s stead.”

Further, even though the hospital took two hours to obtain the sample, such a timeframe would not have been known beforehand by law enforcement, and thus is considered “hindsight.” Hindsight is not factored into the totality of circumstances analyses. Additionally, the police department’s manpower was not completely tied up with the details of Weems’s crash. Lastly, the CCA commented that law enforcement should have protocols in place to process and deal with blood draw warrants in cases where the suspected intoxicated driver is transported to the hospital with injuries, “the record does not reflect what procedures, if any, existed for obtaining a warrant when an arrestee is taken to the hospital.”

The CCA’s Holding in Cole – Warrantless Blood Draw Authorized

In Cole v. State, the CCA held that the trial record established circumstances rendering obtaining a warrant impractical and that the warrantless search was justified under the exigency exception to the Fourth Amendment’s warrant requirement. The case was reversed and remanded to the court of appeals.

The CCA said that the size and severity of the accident scene requiring several police officers to remain on the scene for public safety concerns, the large debris field that required accident investigators extended time to complete the investigation, the fact that someone died in the crash, and the fact that the dissipation rate for methamphetamine is not widely known among law enforcement the way alcohol dissipation in known, are reasons that come together to create a constellation of exigency under a totality of the circumstances analysis.

“Law enforcement was confronted with not only the natural destruction of evidence though natural dissipation of intoxicating substances, but also with the logistical and practical constraints posed by a severe accident involving a death and the attendant duties this accident demanded.” Further, because Cole complained of pain, law enforcement had a legitimate concern that any narcotic drugs administered would impact the outcome of a blood test, rendering the test ineffective for evidence in trial later on.

Justice Johnson did file a dissent in Cole, “I would hold that the circumstances and testimony at trial indicate that a warrant was required.” Justice Johnson says that someone on the police force could have obtained a warrant and had enough time to do so, “this was not a now or never situation that would relieve the state of its burden.”

Where do we go from here?

Birchfield v. North Dakota Supreme Court Breath Test

Should Drivers Face Criminal Charges for Refusing a Breathalyzer Test?

By | DWI | No Comments

SCOTUS Hears Oral Argument in Birchfield v. North Dakota

Birchfield v. North Dakota Supreme Court Breath TestOn April 20, 2016, the Supreme Court of the United States (“SCOTUS”) heard oral arguments in Birchfield v. North Dakota, a case that consolidates Birchfield with Bernard v. Minnesota and Beylund v. Levi, where the SCOTUS will determine whether the government may, without a warrant, make it a crime for a motorist to refuse to take a blood-alcohol test. Currently, thirteen states make it a crime to refuse any form of drunk-driving tests (breathalyzer, field sobriety, etc.). Birchfield comes on the heels of the 2013 Missouri v. McNeely case, where the SCOTUS held that if police have time, they should get a warrant before taking an invasive test of a suspected drunk driver. Let’s take a look at each consolidated case to understand the big issue before the Supreme Court.

Case #1: Birchfield v. North Dakota

In Birchfield, motorist Danny Birchfield drove his car off of a North Dakota road and subsequently failed a field sobriety test and a preliminary breath test, given by the state highway patrol. At that point Birchfield was arrested, told he had to take another more invasive chemical test, and informed of North Dakota’s implied consent rule. In North Dakota, any individual who operates a motor vehicle on any public or private road in the state is deemed to have consented to a chemical test for alcohol in the blood stream. Birchfield refused to submit to any further testing and was charged with both DUI and Failure to Submit to chemical testing. Birchfield filed several appeals, arguing that North Dakota’s implied consent law is unconstitutional under the 4th Amendment of the United States Constitution. Birchfield is opposed to “refusal” being a crime all by itself.

Read the brief in Birchfield here.

Case #2: Bernard v. Minnesota

In Bernard, police confronted a man who smelled of alcohol on a public boat ramp and asked him to consent to field sobriety tests. Bernard consented to a breathalyzer test after being told of the criminal penalties for refusal. Under Minnesota’s implied consent law, it is a criminal offense for a driver who has been arrested on probable cause for driving while impaired to refuse a chemical test. Minnesota argues that a warrantless breath search is constitutional under the “search incident to an arrest” doctrine. On the other hand, Bernard argues that a breathalyzer is not a valid search incident to an arrest because the search does nothing to further officer safety or to preserve evidence.

Read the brief in Bernard here.

Case #3: Beylund v. Levi

In Beylund, law enforcement observed a car driving erratically and stopping in the middle of the road. The police asked defendant Beylund to consent to chemical testing. At trial, Beylund argued that the test imposed an unconstitutional condition on his driver’s license.

Read the brief in Beylund here.

The Big Issues—Implied Consent or Criminalization of a Constitutional Right?

The highest court will determine whether in the absence of a warrant, a state can make it a crime, in and of itself, for a person to refuse to take a chemical test (blood, breath and urine) to detect the presence of alcohol in the blood? The Supreme Court will likely be examining the following questions to determine the answer to that question:

  • When drivers obtain a driver’s license from a state agency, does a driver impliedly consent to invasive chemical testing to detect the presence of alcohol?
  • Is refusing an invasive chemical test criminal in and of itself?
  • Do citizens have the constitutional right to refuse an invasive chemical test without penalty?
  • Do states have a compelling interest in protecting public roadways from drunk driving so that they may order chemical testing for suspected drunk drivers even without a warrant?
  • Can a government benefit (such as driving on public roadways) be conditioned upon search requirements, even if the search is an invasive chemical test?

Precedent Case: Missouri v. McNeely

Driving While Intoxicated and invasive chemical testing are not new topics to the SCOTUS. In 2013, the Court heard Missouri v. McNeely. Defendant McNeely had been arrested for DUI after failing field sobriety tests. He refused to take a breathalyzer, so law enforcement transported him to a hospital where his blood was removed against his will. After several appeals and suppression hearings, McNeely was heard by the SCOTUS. Chief Justice Sonia Sotomayor reiterated that a blood draw “is an invasion of bodily integrity that implicates the most personal and deep-rooted expectations of privacy.” Although the SCOTUS noted that from time to time cases may arise that will allow for a warrantless blood alcohol test, the Court ultimately held, “in drunk driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”

What Will the Supreme Court Say About Warrantless Breath Tests?

Several national organizations, such a Mothers Against Drunk Driving (see the MADD brief here) and the American Civil Liberties Union (read the ACLU brief here), have filed amicus “friends of the court” briefs for this case arguing for and against the constitutionally of implied consent laws. In the past decade, 112,998 people have been killed in alcohol-impaired driving crashes. With grim statistics underpinning many of the individual states’ implied consent laws, will the Supreme Court overturn or add to McNeely? It will be very interesting to see how the SCOTUS squares this case with the precedent case law and which legal theory they will select to reach a conclusion.

Texting While Driving Cell Phone Search

Driving While InTEXTicated: Hand Over Your Cell Phone or Lose Your License

By | Search & Seizure | No Comments

Lawmakers and Forensic Engineers Introduce the Textalyzer to Combat Distracted Driving in New York

Texting While Driving Cell Phone SearchDid you talk on your mobile phone while driving to work this morning? Check your email? Have you ever asked Siri for help selecting a restaurant for dinner while you are driving around a new city? What about the urgent text from your boss—did you glance at that while driving? Ideally, we should answer each question with an emphatic, “No!” However, we don’t live in an ideal world—many drivers on Texas roads are distracted by mobile devices every time they drive. Just look over at the driver next to you and you’ll see it.

Distraction.gov, the official government website for distracted driving statistics, reports that in 2014, over 3,000 people were killed in the United States by distracted drivers. To combat the growing problem, lawmakers in New York are reviewing proposed legislation that would allow police to obtain the mobile devices of each person involved in a car accident for immediate testing by a Textalyzer.

What is the Textalyzer?

The Textalyzer is a mobile kiosk installed into law enforcement vehicles. The Textalyzer helps law enforcement determine whether someone involved in a car accident was distracted by a mobile device at the time of the accident. Created by the Israeli-based mobile forensics technology firm, Cellebrite, the Textalyzer, known in the techie world as the “UFED InField Kiosk,” conducts a scan of the phone to determine whether the device’s voice, text, or data features were used at the time of an auto accident.

According to Cellebrite’s UFED InField Kiosk datasheet, “officers and investigators can conduct a forensically sound, logical extraction of mobile device text messages, call logs, emails, etc., and quickly view and act decisively on potential evidence.” Almost every type of mobile device can be accessed by the UFED InField Kiosk, “the UFED Series is able to extract, decode, analyze and report data from thousands of mobile devices, including, smart phones, legacy and feature phones, portable GPS devices, tablets, memory cards and phones manufactured with Chinese chipsets.”

The New York Law | New York Senate Bill S6325A

In New York, Senate Bill S6325A is currently “in committee” but progressing with strong support. If signed into law, it would require drivers who have had car accidents to provide law enforcement with all of their mobile devices so that police could conduct a Textalyzer scan on the device at the scene. Although the Textalyzer is able to “scrape” all of the data from a phone, the mobile kiosks in New York would only be able to tell law enforcement whether the device was used and at what time, circumventing some Fourth Amendment privacy arguments. Information obtained at the scene would likely become evidence to be used in a case against the owner of the mobile device. Motorists who are found “guilty” will face more serious charges and tougher penalties than those found not guilty of being distracted.  If a motorist refuses to provide his or her cell phone to police officers for inspection, the new law provides that the person’s driver’s license could be suspended (similar to the refusal of breath or blood testing in a DWI context).

The bill began as a result of intense lobbying in part by the Distracted Operators Risk Casualties group, a group focused on creating tougher laws and stricter penalties for distracted drivers to protect innocent people from injuries caused by distracted driving. The co-founder of the group lost his son to distracted driving.

Mobile Forensics Data Collection and Analysis Creates Many Unanswered Legal Questions

The technology to “check” each of our phones at the scene of a car accident is here. The question remains—what will lawmakers decide to do with it? Further, unless legislatures provide clarification it, it will be up to the courts to wade through ambiguities. For example, what if drivers use “hands-free” options on mobile devices while operating a motor vehicle—how is such use different from using the radio or talking with a passenger—isn’t radio use just as distracting? Or what if a driver is distracted by a device and passes that device to a passenger after having an accident? Further, what if a distracted driver does not disclose he possesses a mobile device? What if a distracted driver has two phones, but only discloses one of the phones—the phone he wasn’t distracted by—to law enforcement? The “what ifs” are endless.

The Fourth Amendment protects from unreasonable searches and seizures—will the data itself (contact lists, the context of text messages, music playlists, the content of email, etc) be collected? If so, could the content of the data be held against a “distracted driver” in other court cases? Will we, perhaps, lose any reasonable expectation privacy altogether in our phones? Safety or privacy—which do you value more? Currently, Texas does not have a law like this in the works, but it could only be a matter of time if other states continue with this trend.

HIPAA Medical Record Search Warrant DWI

HIPAA Does Not Bar Admissibility of Private Medical Records in Criminal Case

By | DWI, Evidence | No Comments

Does HIPAA Impact Fourth Amendment Standing When the State Obtains Medical Records in a Criminal Investigation?

HIPAA Medical Record Search Warrant DWIWe’ve all signed the “HIPAA” privacy statements at the doctor’s office before treatment. The HIPAA Privacy Rule mandates nationwide standards to protect our medical records and personal health information by establishing safeguards, such as disclosure rules, patient authorization, and uniform protocols for the electronic transmission of medical data. HIPAA also grants patients the right to their own health information, but what about others? Does HIPAA prohibit the release of health information in a criminal investigation? What if that information is obtained via a grand jury subpoena?

State v. Huse (Tex. Crim. App. 2016)

One Month After Car Accident, Man is Charged with DWI

On February 13, 2010, Hayden Huse ran off the road and crashed into a cotton field at two in the morning. When law enforcement responded to the scene, they smelled alcohol on Huse’s breath. Instead of giving him a sobriety test, they transported him to the local hospital for injuries he sustained. During the medical exam, the hospital ran routine blood work. A few hours later during an interview with law enforcement, Huse admitted that he consumed six or seven alcoholic drinks the previous evening. However, he refused law enforcement’s request for a breath or blood specimen for blood alcohol analysis.

One month later, based upon the police report taken of Huse’s car accident, a Lubbock County Assistant District Attorney filed an application for a grand jury subpoena to obtain Huse’s medical records from the hospital, even though no grand jury had been investigating Huse. The hospital complied with the subpoena, providing Huse’s medical records, along with a business records affidavit. The records revealed that approximately two hours after the car accident, Huse’s blood alcohol concentration was .219—an amount well above the legal limit.

Huse Files a Motion to Suppress the Evidence

Huse filed a motion to suppress the records at a suppression hearing. The trial court granted his motion to suppress on the grounds that the records were obtained in violation of the Fourth Amendment and that the Assistant District Attorney misused the grand jury subpoena process. The State appealed to the Seventh Court of Appeals, which reversed the trial court’s suppression order because “[Huse] lacked standing to raise a Fourth Amendment challenge…and [because] the State did not acquire [Huse’s] medical records through an unlawful grand jury subpoena.” State v. Huse, No. 07-12-00383-CR, 2014 WL 931265 (Tex. App.—Amarillo Mar. 6, 2014). Huse filed a petition to the Court of Criminal Appeals for a discretionary review of his case.

The Two Big Issues for The Court of Criminal Appeals

The Court of Criminal Appeals set out to determine whether the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) impacts Fourth Amendment standing when the State obtains medical records in a criminal matter, and, whether the State acquired Huse’s records via a grand jury subpoena that potentially violated HIPAA.

The Fourth Amendment and Reasonable Expectation of Privacy

Under the Fourth Amendment, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend. IV. “The provision protects people, not places.” Katz v. United States, 389 U.S. 347, 351 (1967). In order to raise a Fourth Amendment claim, a person must have legal standing, that may be “predicated on…a reasonable expectation of privacy principle.” United States v. Jones, 132 S.Ct. 945 (2012); Florida v. Jardines, 133 S.Ct. 1409 (2013).

State v. Hardy: The Precedent Case for the CCA

In Hardy, the CCA recognized that when the State itself extracts blood from a DWI suspect, and then subsequently conducts a blood alcohol analysis, then two “discrete searches” have occurred for a Fourth Amendment analysis. State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997). The State neither extracted the sample nor conducted the blood alcohol analysis. As a result, the CCA concluded that the “Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on its own initiative.” Skinner v. Railway Labor Exec. Assn., U.S. 602, 624 (1989). Further, “society [does not] recognize a reasonable expectation of privacy in privately-generated and maintained medical records that would show the result of a blood alcohol analysis [in a DWI investigation].” Hardy, 963 S.W.2d at 525-27.

The CCA Decides Whether HIPAA Trumps the Holding In Hardy?

Here, the CCA says that the State neither extracted nor analyzed Huse’s blood sample—the third-party hospital did. Huse, therefore, has no Fourth Amendment standing because he had no reasonable expectation of privacy in his privately-generated and maintained medical records. Further, “whatever interests society may have in safeguarding the privacy of medical records, [such interests] are not strong to require protection of blood-alcohol test results taken by hospital personnel solely for medical purposes after a traffic accident.” Id. But what about HIPAA? Does HIPAA trump the holding in Hardy?

The CCA explains that while HIPAA “might support a broader claim that society recognizes that patients have a legitimate expectation of privacy in their own medical records, generally, HIPAA does not undercut the Court’s holding in Hardy.” Further, the CCA states, “HIPAA expressly permits the disclosure of otherwise protected health information when it is sought by grand jury subpoena.”

In sum, Huse had no expectation of privacy in third-party generated and maintained medical records for a Fourth Amendment claim, and, no provisions in HIPAA specifically deny the disclosure of health information in the event of a criminal investigation. The CCA affirms the judgment Seventh Court of Appeals that Huse’s medical records shall not be suppressed.

Recording Conversations Wiretapping Texas

Can I Record a Conversation Without the Other Party’s Consent in Texas?

By | Criminal Defense | No Comments

Recording Conversations Without Consent in Texas | Wiretapping Laws

Recording Conversations Wiretapping TexasWith red light cameras at nearly every street corner, video surveillance in businesses and homes, web cams on computers, and recording capabilities on mobile phones – we must navigate carefully in a digital world. We’ve seen titillating news reports exposing a secret audio tape of a public figure having scandalous phone conversations, or video surveillance of questionable traffic stops that escalate in shocking fashion. You may have had a suspicious feeling that you were being recorded, or on the other hand, felt as if you needed to record a conversation with another for your own protection.

With privacy seemingly harder to come by as compared with days long past—what does Texas law say about recording conversations? Is it illegal to record a phone conversation with another person? What about in person?

The short answer is: YES, you can record a conversation with another person without that person’s consent. But this answer requires more explanation.

Recording Phone Calls in Texas | Texas is a One-Party Consent State

Under Texas Law, it is a crime intercept or record any wire, oral or electronic communication without the consent of at least one party. The good news is that you count as one party and if you’re recording then you have probably given yourself consent to record the conversation. Generally speaking, state wiretapping laws turn on whether the state is a one-party consent state. While some states require the consent of all of the parties to a conversation prior to recording, Texas permits the recording of telephone calls, so long as the consent of one of the parties is obtained. As stated, if you are one of the parties on the phone call, then you may consent to having your own conversation recorded—you need not alert the other party. Additionally, a parent may give vicarious consent to the recording of a child’s conversation if the parent has a good faith objectively reasonable belief that the recording is necessary for the welfare of the child.

However, if during a phone call there are multiple parties who are in different states, then be aware that other state laws may require pre-recording consent of all of the parties. In this scenario, if the recording party obtains consent from the other parties before the recording begins, then the recorder is not in violation of wiretapping laws.

See this link to learn more about the various state wiretapping laws.

Recording In-Person Conversations in Texas | Can I Record Someone Else’s Public Conversation?

Texas law (Penal Code §16.02) does not permit you to record in-person communications when the parties have an expectation that such communication is not subject to interception (i.e. If there is a reasonable expectation of privacy). If you wish to record a conversation to which you are not a party, all of the parties must give consent before the recording device is turned on. If you are a party to the conversation, record away.

Further, you are able to record in-person communication at a public place, like a mall food court or at a football game for example, where parties do not have the expectation of privacy. Remember—if you say it in a public place, within earshot of others who may overhear, you do not have an expectation of privacy in those statements. Generally, such statements may be recorded without violating that state’s wiretapping laws.

A Word of Caution of Recording Conversations in Texas

Please be aware that there are both federal and state wiretapping laws that may limit your ability to making recordings of telephone calls or in person conversations. This article addresses state wiretapping laws in Texas only. Additionally, if a person has violated a state or federal wiretapping statute, he may be both charged criminally and be sued civilly by the damaged party.

Further, while a person may have successfully recorded a conversation under state and federal wiretapping laws, the act of disclosing the recording to other third parties could be, in and of itself, punishable criminally or civilly under other legal theories (such as slander, for example).

If you are faced with a wiretapping charge, or have questions about wiretapping, please contact an attorney who will address both the state and federal regulations as they are related to the facts of your specific case. Wiretapping charges are potentially serious felonies that could land a person in jail or prison, with fines ranging from $200 to $10,000. If you are faced with charges related to wiretapping in Texas, please contact our offices at (817) 993-9249 for a consultation.

Summary on Texas Wiretapping

  • A person can record a conversation to which you are a party in Texas without violating wiretapping laws, so long as the other party is in a “one party consent” state.
  • A person can record a conversation (to which he is not a party) if one of the participants gives him permission.
  • A person can record a conversation when, in a public setting, the participants do not have a reasonable expectation of privacy.
  • It is almost always illegal to record a phone call or private conversation to which one is not a party, does not have consent from at least one of the parties, and could not naturally overhear the conversation.

This article is for educational purposes only and should never be substituted for legal advice.

Fort Worth Criminal Defense Attorney
Rating: ★★★★★ 5 / 5 stars
Rated By Google User
“From day one I felt like they were the best attorneys to represent me.”

 

Limiting Consent – Your 4th Amendment Right

By | Warrantless Search | No Comments

Is it a violation of one’s Fourth Amendment rights against unreasonable warrantless search and seizure if an officer finds drugs in a vehicle through a nonconsensual search?  The United States Court of Appeals for the 5th Circuit said YES in United States v. Cotton.

U.S. v. Cotton– In February 2011, Appellant was driving his rental car when he was pulled over by a police officer who had received a tip that Appellant may be carrying drugs. The officer conducted a traffic stop and asked Appellant twice for consent to search his car. Appellant replied both times that the officer could search only his luggage. After searching through Appellant’s luggage, the officer examined the driver side rear door, which had loose screws and tool marks. The officer pried back the door panel and discovered crack cocaine inside. The officer arrested Appellant who then made incriminating statements to the officer.

The 5th Circuit held that the officer impermissibly extended his search beyond the scope of the Appellant’s consent and therefore violated the Appellant’s Fourth Amendment right. According to the 5th Circuit, “when conducting a warrantless search of a vehicle based on consent, officers have no more authority to search than it appears was given by consent.” Appellant’s consent allowed the officer to only search luggage in areas of the car where luggage might be found. The officer exceeded the bounds of his limited consent when, instead of only searching the luggage, he searched the entire vehicle for drugs.

The 5th Circuit compared Cotton to U.S. v. Solis, which involved an officer who unexpectedly came across heroin during a consensual search of a defendant’s bedroom. When the officer moved a cooler to use as a step, heroin was revealed. The defendant sought to suppress the evidence but the 5th Circuit held that because the cooler was moved only to effectuate the search for the gun, for which consent had been voluntarily given, the officer did not exceed the scope of the consent. Therefore, the heroin was admissible evidence.

However, in Cotton, after searching Appellant’s luggage, the officer expanded his search by examining other parts of the car. The 5th Circuit held that because the officer did not have authority to search discrete locations where luggage would not likely be found, evidence of the crack cocaine must be suppressed as the officer violated Appellant’s Fourth Amendment right.

If your 4th Amendment rights have been violated and you are facing criminal prosecution, give us a call for a free consultation.  Our attorneys will aggressively defend your rights against government intrusion.

Taint from Unlawful Stop and Frisk in Texas

Purging Unconstitutional Taint from Unlawful Search

By | Unlawful Search | No Comments

Taint from Unlawful Stop and Frisk in TexasAlthough the Fourth Amendment acts as a safeguard against unlawful search and seizures, the State can still use evidence it finds against a defendant in a consensual search of their property if the search is sufficiently detached from an illegal search that purges any unconstitutional taint. Accordingly, such a search is valid if the search was voluntary and an independent act of freewill.  In order to determine whether a search was an independent act of freewill, the Court analyzes several factors, none of which are controlling by themselves:

  1. the temporal proximity of the illegal conduct and the consent,
  2. the presence of intervening circumstances, and
  3. the purpose and flagrancy of the initial misconduct.

In US v. Montgomery, the Defendant was stopped by a police officer and frisked during a traffic stop in front of the Defendant’s house. As the officer frisked the Defendant, the Defendant pushed the officer’s hands away from his pockets after the officer felt a bulge. The Defendant revealed that the bulge was cocaine, prompting his arrest and Mirandizing. The Defendant, eventually, consented to a search of his house. During the search, the Defendant was allowed into the house to obtain medicine and made several requests to officers on scene for his cell phone to erase some “naked pictures” that he did not want his father to find. The Defendant consented to one of the officers using his phone to delete the pictures, but the officer found what appeared to be child pornography. The Defendant was later indicted for possession of child pornography.

At trial, the Defendant claimed that the frisk and seizure of cocaine that led to his arrest was unlawful, which tainted his consent for the officer the see his cell phone. Nevertheless, the Court held that even if the frisk and seizure were illegal, the Defendant’s several voluntary and independent acts of freewill relieved the search of the Defendant’s phone of any unconstitutional taint, specifically, the Defendant asking several times to see his cell phone so that he could delete the naked images, and the Defendant consenting to a search of his phone after being Mirandized. Nothing was presented at trial that showed the police officers even wanted to search his cell phone. In the words of the Court, “[The Defendant] broached the phone search himself.” Moreover, the Court also cited several intervening events and factors establishing that the Defendant’s “consent was sufficiently detached from the arrest to purge any taint” such as the officers reading the Defendant his Miranda rights, the Defendant’s criminal record, and the Defendant going into his house to retrieve his medicine.

Yet another reason why we advise NEVER GIVE CONSENT TO SEARCH, period.