Case o' The Week: Camou no L’Étranger to Cell Phone privacy - Fourth Amendment and Cell Phone Searches

  The risk, for the government, when it “throws it all up against the barn

Hon. Judge Harry Pregerson

to see what sticks?”

   You may draw the wrong barn.

   United States v. Camou, 2014 WL 6980135 (9th Cir. Dec. 11, 2014), opinion available here.

Players: Decision by Judge Pregerson, joined by Judges Fisher and DJ Gwin. Big win for James Fife and Jason Ser, Federal Defenders of San Diego, Inc.

Facts: Border Patrol agents stopped a truck driven by Camou, and found an undocumented alien hiding within. Id. at *1. Camou’s girlfriend was also inside. Id. Agents found a cell phone in the truck. Id. Camou’s girlfriend described smuggling trips, arranged by “Mother Teresa” who would call with details. Id. During the interview Camou’s cell rang, the girlfriend identified the number as belonging to “Mother Teresa,” and Camou admitted the cell was his. Id. An agent searched the phone without a warrant and discovered child porn. Id. at *2. Camou was never charged with alien smuggling, but after an FBI search warrant revealed hundreds of child porn images on the phone he was charged with possession of child pornography. Id. His motion to suppress was denied, and he entered a conditional plea that preserved his right to appeal.

Issue(s): “Camou argues that the warrantless search of his cell phone was unconstitutional because the search was not incident to arrest, and no other exceptions to the warrant requirement apply. Camou also argues that the exclusionary rule bars the admissibility of the images found on his phone.” Id. at *3.

Held: “We agree.” Id. “Agent Walla’s search of Camou’s cell phone was too far removed in time from Camou’s arrest to be incident to that arrest.” Id. at *4. “Given both the passage of one hour and twenty minutes between arrest and search and the seven intervening acts between arrest and search that signaled the arrest was over, we conclude that the search of the phone was not roughly contemporaneous with arrest and, therefore, was not search incident to arrest.” Id. at *5. “Even if there was probable cause to search Camou’s cell phone, we conclude that the government failed to meet the second prong of the exigency exception: exigent circumstances that require immediate police action.” Id. at *6. “If the vehicle exception applies to this case . . . . the one hour and twenty minute delay between the seizure of Camou’s cell phone and the search of its contents would not invalidate the search. We hold, however, that cell phones are not containers for purposes of the vehicle exception.” Id. at *7. “[C]ell phones are non-containers for purposes of the vehicle exception to the warrant requirement, and the search of Camou’s cell phone cannot be justified under that exception.” Id. at *9.

Of Note: A cell phone is not a “container” subject to search incident to arrest. See id. at *9. That logical extension of the Supreme Court’s recent decision in Riley, 134 S.Ct. 2473, 2491 (2014) is the best of many great holdings in this terrific opinion. Judge Pregerson reviews the Supreme’s rejection of cell phones as containers in the vehicle context in Riley, and finds “no reason” not to extend that reasoning to cell phones recovered when our clients are arrested. Judge Pregerson may be the most-senior non-Senior judge in the Ninth Circuit, but this Fourth Amendment jurisprudence on cell phones is bleeding edge, and drags the Ninth back into the modern world on technology issues.  

How to Use: Read Camou. The government takes a shotgun approach to try to salvage this (bad) search, and as the Court methodically knocks each argument down it gives the defense great tools on many fronts for our Fourth arsenal. Search incident to arrest, exigency, the automobile exception – each is covered (well) and merits quotation. Don’t overlook, however, a great Herring “good faith” discussion at the end of the opinion. Id. at *10-11. Judge Pregerson rejects a negligent agent’s attempt to assert the “good faith” discussion – a section that merits heavy quotation whenever the government throws that red Herring into its Fourth Amendment briefing.

                                               

For Further Reading: Little rusty on Riley? For a particularly thoughtful summary of this important decision, see Ten Key Issues from the Riley Opinion Protecting Cell Phone Data Seized During an Arrest, available here. 

Image of the Honorable Judge Harry Pregerson from http://www.usvetsinc.org/salute/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: The Fourth Reappears in Car Searches, Caseres

Did the subject of a warrantless car search have the skill of Houdini and the strength of Hercules? See decision at *20.

The Ninth ain't buying it, in a wonderful decision that restores some of the battered Fourth Amendment protections associated with car searches. United States v. Caseres, No. 06-50546, 2008 LEXIS 15575 (9th Cir. July 21, 2008), decision available here.

Players: Important win by CD Cal AFPD Jonathan Libby. Decision by Judge Pregerson, joined by Judges Bright (8th Cir.) and Wardlaw.

Facts: An unmarked L.A. cop car tailed Caseres’s car for blocks at 9:45 p.m. The cops were suspicious of Caseres’s failure to signal a turn and the car’s tinted windows. Id. at *2. [Ed. note: see what Whren has wrought!]

When Caseres lawfully parked, a uniformed cop got out and told Caseres to stop as he walked toward his house. Id. at *3. “Fuck you, I’m home,” the defendant replied. Id. As the cop tried to stall for time Caseres opined, “I’m going to kick your fuckin’ ass,” which earned him a shot of pepper spray, which then devolved into a footchase. Id. at *4-*5.

“Well after” he had been taken into custody, the cops searched his car and found a gun and ammo. Id. Caseres was charged with § 922(g), and entered a conditional plea to preserve his suppression motion. Id. at *6.

Issue(s): “We must decide whether Lt. Murphy had a reasonable basis to detain Caseres, and whether the warrantless search of the passenger compartment of Caseres’s car was constitutional as a search incident to a valid arrest, an inventory search, or a parole search.” Id. at *6.

Held: 1. Incident to Arrest? “The district court improperly held that the search of Caseres’s car was constitutionally permissible as a search incident to arrest. [W]e conclude that the search of Caseres’s car was characterized by neither the spatial nor the temporal proximity to the place and time of the arrest required to constitute a valid search incident to arrest.” Id. at *11.

2. Inventory Search? “We reverse and hold that the police lacked the authority to impound and conduct an inventory search of Caseres’s car – which was lawfully parked on the street two houses away from his residence – because doing so did not serve any community caretaking purpose.” Id. at *25.

3. Parole Search: “Because the record does not establish that Lt. Murphy was aware that Cal. Pen. Code § 3607 applied before he ordered the search of Caseres’s car, the search is not justified by the state’s interest in supervising probationers.” Id. at *30-*31 (emphasis in original).

Of Note: Because there’s so much of value to mine in Caseres, the parole search issue is an easily-overlooked nugget. Note that Caseres was on parole, and the cops knew it before the search. Id. at *29. In California, parolees for offenses committed after January 1, 1997, must agree to a warrantless search condition. Id. at *29. Here, however, the cop didn’t determine whether Caseres was on California parole, for a post-‘97 offense, before the car search. Id. at *29.

Hence a good, common-sense rule: the cops have to know the subject is on parole and has a search condition before that favorite excuse works for a warrantless search. Id. at *30-*31.

How to Use: The “search incident to arrest” holding is probably the rule with the broadest potential application in Caseres. The Court reviews the confusing law on this warrant exception. Id. at *12. In sum, there’s much conflicting law on the temporal and spatial limitations permitted to still permit a search. (“So much for bright lines.”) Id. at *23.

Caseres gathers the different scenarios, and concludes that – in this case – the defendant had been gone from the car too long, and was too far away, to justify the search. Caseres should be the starting point for this fact-intensive analysis in future “incident to arrest” search cases.

For Further Reading: Unfortunately, it is Judge – and not Justice – Pregerson, so he can’t decide the big issue: “whether law enforcement officers must demonstrate a need to preserve evidence relating to the crime of conviction to justify a warrantless vehicular search incident to arrest.” Id. at *20.

That’s the question the Supremes have up in Arizona v. Gant, 128 S. Ct. 1443 (2008). What the Honorable H.P. can do is to emphasize that Belton – the vehicle search case – has been “sharply criticized” by many Justices. Id. at *12 & n.5.

Judge Pregerson’s footnote five is the starting point for the right result in Gant. Of course, the right result is not always the SCOTUS outcome. See "Simple Justice" blog commentary here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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