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Exigency – Answering Incoming Call, Lawfully Seized Cell Phone Image Supported

State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding: Answering call on lawfully seized cell phone proper, given existence of “probable cause to believe that the cell phone was a tool used in drug trafficking,” plus exigent circumstances (danger of evidence destruction), ¶¶35-42.

Probable cause, of course, is typically fact-specific and in that sense the court’s discussion (¶¶25-29) is mundane. The impact of this case will be felt relative to exigent circumstances: the court’s analytical approach applies at a fairly high level of generality, not merely to other sorts of electronic devices such as pagers, ¶36 (though the court does caution that “cell phones and pagers are not interchangeable,” ¶38), but more importantly to devices seized outside of the arrest context, ¶35 n. 7. In other words, the result is not dependent on a search-incident rationale.

¶41      The consistent approach taken in these cases is that the courts scrutinized the nature of the evidence obtained, i.e., numeric codes on a pager, stored text messages, and incoming phone calls, and balanced that with an inquiry into whether the agent reasonably believed that the situation required a search to avoid lost evidence. Based on that assessment, it appears that the courts then reserved the exigent circumstances exception for searches directed at the type of evidence that is truly in danger of being lost or destroyed if not immediately seized. That approach is consistent with Wisconsin case law addressing exigent circumstances. See Faust, 274 Wis. 2d 183, ¶12 (stating that the rule for determining whether exigent circumstances are present requires an inquiry into whether the officer reasonably believed that the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence).

¶42      Hence, we are satisfied that exigent circumstances justified Belsha’s answering Carroll’s cell phone. The fleeting nature of a phone call is apparent; if it is not picked up, the opportunity to gather evidence is likely to be lost, as there is no guarantee——or likelihood——that the caller would leave a voice mail or otherwise preserve the evidence. Given these narrow circumstances, Belsha had a reasonable belief that he was in danger of losing potential evidence if he ignored the call. Thus, the evidence obtained as a result of answering that phone call was untainted.


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