supreme court decision; court of appeals decision; for Carroll: Michael K. Gould, SPD, Milwaukee Appellate
Frisk – Demand that Suspect Drop Object
Frisk analysis applies to police demand that suspect drop object in hand, ¶22.
¶23 Here, Carroll led officers on a high-speed chase in a car that the officers had been observing in connection with an armed robbery investigation, and exited his car quickly while holding an unknown object. Given that behavior, the officers would have been justified——based on the objective belief that Carroll could have been holding a weapon——in conducting a frisk or pat-down, which would have resulted in Belsha’s legal possession of the cell phone. Hence, Belsha’s order for Carroll to drop the object and his subsequent retrieval of it were reasonable actions, and accordingly, his initial seizure of the phone was justified.
Plain View – Cell Phone, Image on Display Screen
Displayed image on cell phone satisfied plain view doctrine (lawful position of officer, inadvertent discovery, probable cause to be images displayed contraband), ¶¶23-25.
Detention of Property of Suspect not in Custody: Probable Cause + Exigency
Continued possession of Carroll’s cell phone justified, though Carroll not in custody. Expectation of privacy in cell phone analogous to that attending “closed container” such as luggage, as to which detention of container must be supported by probable cause to believe it contains evidence of crime and by exigent circumstances, ¶¶25-27.
¶29 Here, Belsha legally viewed the marijuana image; we consider that fact along with his testimony that he knew, based on his training and experience, that drug traffickers frequently personalize their cell phones with images of themselves with items acquired through drug activity. Furthermore, it is those personalized cell phones on which drug traffickers commonly make many of their transactions. Carroll did not introduce evidence suggesting that Belsha’s testimony in that regard was inaccurate or not credible, and we see no reason to discount it. We are satisfied, under all of the circumstances here, that that information, taken as a whole, gave Belsha probable cause to believe that the phone contained evidence of illegal drug activity.
¶32 Given that Belsha had probable cause to believe that a search of the phone would produce evidence of illegal drug activity, his continued possession of the phone while he sought a warrant was permissible. The same reasons that permitted Belsha to seize the phone in the first instance permitted him to continue to possess it in the short time after Carroll was secured. Exigent circumstances further justify that continued possession. Had Belsha returned the phone to Carroll and released him, Carroll could have deleted incriminating images and data, such as phone numbers and calling records stored in the phone. Hence, Belsha’s continued possession of the phone was permissible.
Exigency – Browsing through Image Gallery of Lawfully Cell Phone Unsupported
Exigent circumstances did not support browsing through image gallery of lawfully seized cell phone: “That data was not in immediate danger of disappearing before Belsha could obtain a warrant,” ¶33.
The court of appeals had merely assumed that such browsing was improper on the facts, but the supreme court now distinctly holds “that that search was indeed improper and that the evidence obtained from that search at that time was tainted,” ¶33.
Exigency – Answering Incoming Call, Lawfully Seized Cell Phone Image Supported
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.
Attenuation of Taint – Search Warrant: Independent Source Doctrine, Generally
¶44 The independent source doctrine derives from the principle that “‘[w]hen the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.'” Murray, 487U.S. at 537 (quoting Nix v. Williams, 467 U.S. 431, 443 (1984)). As applied to circumstances where an application for a warrant contains both tainted and untainted evidence, the issued warrant is valid if the untainted evidence is sufficient to support a finding of probable cause to issue the warrant. See id. at 542; State v. O’Brien, 70 Wis. 2d 414, 424, 234 N.W.2d 362 (1975). Indeed, “[s]o long as a later, lawful seizure is genuinely independent of an earlier, tainted one … there is no reason why the independent source doctrine should not apply.” Murray, 487 U.S. at 542. Thus, our next task is to determine whether the untainted evidence——i.e., evidence Belsha obtained from the incoming phone call——is “genuinely independent” of the earlier tainted evidence——here, Belsha’s viewing of the image gallery.
¶45 For courts determining whether untainted evidence provides an independent source, the United States Supreme Court in Murray set forth a standard requiring the state to bear the burden of “convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it.” 487 U.S. at 540. The court of appeals has articulated the test to be a two-pronged approach: First, the court determines whether, absent the illegal entry, the officer would have sought the search warrant. Second, it asks if information illegally acquired influenced the magistrate’s decision to authorize the warrant. State v. Lange, 158 Wis. 2d 609, 626, 463 N.W.2d 390 (Ct. App. 1990).
Holding of State v. Kenneth M. Herrmann, 2000 WI App 38, specifically approved, as “consistent with the principles set forth” by the court, ¶46.
Attenuation of Taint – Search Warrant for Cell Phone, Probable Cause Independent of Tainted Evidence
Untainted evidence supported probable cause for warrant to search cell phone, independent of tainted evidence.
¶51 We are satisfied, based on our analysis above, that the circumstances here permit such an inference to be drawn from which we can conclude that Belsha, despite the improper viewing of the image gallery, would have sought the warrant. First, we can reasonably infer that Belsha would have sought the warrant based on his plain view of the marijuana image, combined with his knowledge acquired from his training and experience that drug traffickers commonly use such images to personalize their cell phones. Second, we can reasonably infer that Belsha would have sought the warrant based on the information that he intercepted when he answered the phone call, coupled with his knowledge of Carroll’s juvenile record. In short, these circumstances compel us to conclude that a clear inference can reasonably be determined to exist here that Belsha would have sought the warrant even if he had not browsed through the image gallery.8
¶54 As stated above, we are satisfied that the evidence that Belsha viewed while scrolling through the image gallery was tainted and cannot form the basis for the warrant. Thus, of the above facts in the affidavit, the following are proper considerations in assessing whether to authorize the warrant: the first and second, setting forth Belsha’s knowledge of the typical ways in which drug dealers personalize and use their cell phones, such as displaying an image like the marijuana image that Belsha saw in plain view; the third, explaining that Carroll had been adjudicated delinquent for a felony, possession of cocaine with intent to deliver; and the fifth, detailing the incoming phone call and the order for drugs.
¶55 We conclude that that evidence, like the untainted storage closet evidence observed in Herrmann, is sufficient to find probable cause to authorize the warrant. …
Keep in mind that the trial court suppressed the evidence seized under the search warrant and conducted no fact-finding on what impelled the police to seek the warrant. The upshot, as the dissent warns:
¶79 The majority opinion reaches a conclusion of law——whether the affidavit stripped of the unlawful “gallery images” is genuinely independent of the unlawfully obtained evidence——by impermissibly making a factual inference about the Detective’s decision to seek the warrant and the magistrate’s decision to issue it.
¶80 The majority opinion’s logic permits an 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 long and short of it seems to be that the appellate court will be strongly tempted simply to find attenuation as a matter of law, purely on the basis of untainted probable cause—something that increases the pressure to convince the trial court if at all possible to hold an evidentiary hearing on whether “information gained from the illegal[ity] affected … the law enforcement officers’ decision to seek a warrant,” 487 U.S. at 540; “whether, absent the illegal[ity], the officer would have sought the search warrant,” ¶45.