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: Fish-er Cut Bait on the Fourth? Ninth Guts Warrant Requirement for Exigency Cases

Writing for the majority in a very disappointing en banc decision, Judge Tallman (right) holds that a situation creating exigent circumstances -- once underway and if still on-going -- obviates the need for an arrest warrant, even if there is ample time and opportunity to get the warrant. Fisher v. City of San Jose, No. 04-16095,__ F.3d __, 2009 WL 606132 (9th Cir. March 11, 2009) (en banc), decision available here. A divisive opinion that arguably parts way with longstanding Fourth Amendment jurisprudence, and that sparks two forceful dissents.

Players: Decision by Judge Tallman, dissents by Judges Paez and Reinhardt.

Facts: Fisher, drunk, confronted a security guard with a rifle in his apartment complex. Id. at *1. The situation devolved until over sixty San Jose police officers were involved. Id. at *2. Rambling Second Amendment diatribes, Fisher threatened police from inside his apartment and loaded over a dozen rifles stashed in strategic locations. Id. He was last seen holding a rifle at 6:30 am. Id. at *3.

A stand-off developed, until at 2:15 p.m. – twelve hours after the event began – Fisher began to surrender. He was shot with a rubber bullet when he hesitated. Id.

When he sued San Jose and the cops in a § 1983 action, the federal court granted his Rule 50(b) motion, awarded him a buck, and ordered Fourth Amendment training on the theory that the cops had time to get an arrest warrant, and didn’t. Id.

The civil defendants appealed. San Jose and the cops conceded that Fisher was “seized” within the apartment, and Fisher conceded that at 6:30 am (when he last brandished a gun) an exigency existed that justified his warrantless arrest. Id. at *5.

A three-judge panel of the Ninth affirmed the district court’s award (twice); the case went en banc.

Issue(s): “[I]n an armed standoff, once a suspect is seized by virtue of being surrounded and ordered to surrender, [may] the passage of time . . . operate to liberate that suspect, re-kindle the arrest warrant requirement, and require police to assess with each passing minute whether the circumstances remain exigent [?]” Id. at *6.

Held: “We hold that, during such a standoff, once exigent circumstances justify the warrantless seizure of the suspect in his home, and so long as the police are actively engaged in completing his arrest, police need not obtain an arrest warrant before taking the suspect into full physical custody. This remains true regardless of whether the exigency that justified the seizure has dissipated by the time the suspect is taken into full physical custody.” Id. at *1.

Of Note: In a tempered and persuasive dissent, Judge Paez observes that the majority has flatly ignored the second part of the exigency rule: that an exigency exists, “and that there was no time to obtain a warrant before taking action to alleviate the exigencies.” Id. at *14 (emphasis in original). The cops had Fisher pinned down for at least eight hours since the 6:30 exigency, some had gone back to their station, and there was a D.A. and magistrate on call who could have processed an arrest warrant. Id. at *17. In Judge Paez's view, the majority decision “undermines, rather than clarifies, our Fourth Amendment jurisprudence.” Id.

In a less-tempered, but equally persuasive, dissent, Judge Reinhardt (joined by Chief Judge Kozinski and Judges Pregerson, Thomas, and Paez) challenges the majority’s characterization of controlling authority: “The majority may wish the law were different, but we must apply it as it is, and the law as of today limits warrantless intrusions into the home for the purposes of a search or seizure to instances in which exigent circumstances exist - that is, circumstances in which the police do not have time to procure a warrant.” Id. at *22.

How to Use: The dissenters are right: this is a disturbing decision that veers radically from Fourth Amendment precedent. Making matters worse, Judge Tallman makes little effort to limit this dramatic new Fourth Amendment rule to the extraordinary circumstances of this case. Fisher guts 50% of the exigency analysis; the focus, now, must apparently be on whether an actual exigency existed.

Maybe the majority’s phrase in its holding,“so long as the police are actively engaged in completing his arrest,” gives us a little hope for distinction – but this is a faint ember from which to flame an argument.

For Further Reading: This opinion is an example of the “classic 9th U.S. Circuit Court of Appeals contretemps,” opined the Recorder’s Dan Levine. See article here. John Wesley Hall, Jr., over at Fourth Amendment.com, gets it right: “This is another example of hard cases make bad law.” See article here.


Image of Judge Richard Tallman from http://www.abanet.org/deathpenalty/recentevents/seattle_probono.html

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

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Case o' The Week: Ninth Falls for Government's Snipe Hunt, New Fourth Rule

Do folks really still fall for the "snipe hunt" gag? The Ninth does here. Judge Bybee creates a new rule -- and a bad one, at that -- for the "emergency" exception to the Fourth Amendment warrant requirement. United States v. Sonny Snipe, __ F.3d __, 2008 WL 216996 (9th Cir. Jan. 28, 2008), decision available here. While Snipe purports to be dictated by a 2006 Supreme Court case, the new Ninth Circuit decision rejects any limitations on a warrant-exception rule that will be quickly abused by law enforcement.

Players: Decision by Judge Bybee, joined by Judges Thompson and Kleinfeld.

Facts: An unidentified, hysterical man called the cops on a non-emergency line at 5:00 am on New Year’s day. Id. at *1. He said “get the cops now,” to the residence of defendant Snipe’s father. Id. Cops reported, and one of them – who lived down the street – noticed i) a strange car in front of the house, ii) someone he didn’t know entering the house, and iii) lights on inside, though the rest of the block was dark. Id.

The cops knocked on the open door, it opened, they went in, and saw a bunch of guys hanging around a table full of drugs. Id. With permission, they looked around. Id. The cops left, got a warrant, returned, found a gun with an obliterated serial number, and charged Snipe. [ed. note: They left the house and went to get a warrant? Only in Idaho – L.A. or S.F. cops would have had everyone in choke holds on entry].

Snipe appealed after a plea. Id. at *2. (Note the government's interesting goof -- this wasn't a conditional plea, but the government forgot to object at the plea and so waived any challenge to appeal). Id. at *2 n.3.

Issue(s): “Snipe challenges his conviction on the ground that the district court erroneously denied his suppression motion.” Id. at *2.

Held: “[W]e affirm Snipe’s conviction. The officers’ initial entry was justified by exigent circumstances, and their subsequent observations of illegal drugs in plain view provided probable cause for the search warrant that led to their finding the firearm with an obliterated serial number.” Id. at *2.

Of Note: This is an important case that changes a longstanding Ninth Circuit rule. The Ninth previously used a three-part test for “emergency entry” cases. See id. at *2 (discussing United States v. Morales Cervantes, 219 F.3d 882, 888 (9th Cir. 2000)). That test – which included a probable cause component – is now gone.

Judge Bybee creates a new test in light of the Supreme Court’s 2006 decision in Bringham City. Snipe, 2008 WL 216996, *3. The new Ninth Circuit test asks whether:

“(1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and

(2) the search’s scope and manner were reasonable to meet that need.” Id. at *4.

What is not in this new test is any showing of probable cause linking the “emergency” and the location searched, or any confirmation that the emergency call was authentic. Id. at *4-*5. (Remember: the call in this case was anonymous, not made to an emergency line, and had no caller ID). As discussed below, anticipate much abuse of this rule.

How to Use: Drug dealers and estranged lovers will love Snipe. Just call the police from a blocked cell number, scream while you anonymously report an “emergency” at your rival dealer’s or ex’s place, then sit back and enjoy the fireworks. There’s no need for any other indicia of reliability that courts annoyingly require for the typical anonymous snitch. Or, to avoid the middleman, a beat cop can “hear” hysterical cries from a suspected drug location and just barge in – the cop’s subjective reason for entering is no longer relevant. See id. at *4 (discussing objectively reasonable basis for search); id. at *3 (discussing Whren).

The Snipe rule will be abused, and quickly. When fighting an exigency search, contrast the depth of supporting facts in the Snipe case. In Snipe, there was:

• a hysterical call asking for a response to a specific address;
• the cop lived on that street and recognized a strange car (only in Idaho);
• the cop who lived on that street saw a stranger enter the house;
• lights were on at 5 am, unlike every other house on the block;
• the entry was just a gentle knock on an open door;
• the cops declined an invitation to kick in the door of a locked room inside the house; and
• the cops went and got a warrant before conducting a full search.

The new Snipes rule is a “totality of the circumstances” test, and few searches (outside of Idaho) will boast as many facts supporting a “reasonable” entry as Snipes.

For Further Reading: For a thoughtful analysis of the objective/subjective Fourth Amendment debate as it was (miserably) played out in Bringham City, see George E. Dix, Subjective “Intent” as a Component of Fourth Amendment Reasonableness, 76 MSLJ 373 (2006).

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

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