Recent Evidentiary Decisions of the United States Supreme Court
Written by Michael B. Chapiro, J.D. and Peter W. Fenton, J.D.   

In the September-October 2014 issue of Evidence Technology Magazine, Christa M. Miller posed the question: “Can you use electronic warrants to search mobile devices?” The article noted that some states have permitted local law enforcement to request and obtain search warrants electronically, and referenced a recent Supreme Court case that may have “accelerated the trend towards [electronic] warrants”. Given that the Supreme Court has issued several recent decisions regarding the collection and admissibility of evidence in criminal cases, the authors thought a short recap was in order.

 

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Forced Blood Tests in DUI/DWI Cases
 
In the 2012-2013 term, the United States Supreme Court decided, among other cases, Missouri v. McNeely, 569 U.S. ___ (2013), which dealt with forced blood draws of DUI/DWI suspects. In McNeely, the Court addressed whether the natural dissipation of alcohol in the bloodstream constitutes an exigency (emergency situation) in every case sufficient to justify police conducting a blood test without a warrant. This issue had previously been decided nearly 50 years ago in Schmerber v. California, 384 U. S. 757 (1966), where the Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because a police officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” The holding distinguished Schmerber, because in that case “special facts” existed and the officer was delayed by the need to investigate an accident and transport an injured suspect to the hospital. It also noted that 47 years of advances “allow for the more expeditious processing of warrant applications.” Because some cases may involve longer-than-normal delays, whether a warrantless blood draw was permissible involves examining the “totality of the circumstances” and this must be determined on a case-by-case basis. The Court rejected a blanket or per se rule that would always permit warrantless blood tests as inappropriate.
 
The 5-4 decision concluded “that 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.”
 
Drug Detection Dogs
 
Also in the 2012-2013 term, the Court decided two cases dealing with the use of drug detection dogs:
In Florida v. Jardines, 569 U.S. ___ (2013), police—responding to an unverified tip that Jardines was growing marijuana in his home—took a dog trained to detect drugs onto Jardines’ front porch. The dog alerted, indicating the strongest odor emanated from the front door. Police applied for and received a search warrant. When the warrant was executed, marijuana plants were discovered and Jardines was charged with trafficking.
 
The trial court suppressed the evidence as being the result of a residential search unsupported by probable cause, and the Supreme Court of Florida affirmed that decision. In the subsequent appeal, the Supreme Court of the United States concurred with the lower courts, finding that the investigation of Jardines’ home was a “search” within the meaning of the Fourth Amendment, which protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures….” “That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.”
 
The other drug detection dog case was Florida v. Harris, 568 U.S. ___ (2013), where the Court addressed the reliability of a dog trained to identify narcotics. The issue was whether law enforcement’s assertions that the dog is trained or certified is sufficient to establish probable cause for a search of a vehicle under the Fourth Amendment to the United States Constitution. The Court maintained its long-standing position that a dog sniff is a reliable basis for establishing probable cause, and further reasserted that a dog sniff is not a “search” under the Fourth Amendment.
 
While the Jardines and Harris cases may appear to be similar, it is important to distinguish them. In Jardines, the Court had to consider whether taking the dog onto the porch prior to having a search warrant constituted a search in violation of the Fourth Amendment’s protection of “persons, houses, papers and effects.” The porch is within the “curtilage” of the home (imagine the area inside a Colonial Era home’s white picket fence), where constitutional protections are the greatest and people have a “reasonable expectation of privacy” (see Katz v. United States, 389 U.S. 347 (1967)). Thus, the ruling was that the search itself was unconstitutional and the evidence of the dog’s alert must be excluded and could not support the later acquired search warrant.
 
In contrast, in Harris, the Court was relying on the prior ruling in Illinois v. Caballes, 543 U.S. 405 (2005), where it had held that there is no “reasonable expectation of privacy” in the “free air” around a vehicle on a public street. The dog in this case alerted to the trunk of Caballes’ car, who had been stopped for speeding, and a large quantity of marijuana was seized. Therefore, the issue in Harris was not whether the search itself was permissible under the Fourth Amendment, but rather the dog’s reliability.
 
Searching Cellular Telephones
 
Finally, during the most recent (2013-2014) term of the Court, two cases dealing with warrantless searches of cellular telephones following arrest were decided together. In Riley v. California, 573 U.S. ___ (2014), which also included the companion case of United States v. Wurie, the Court unanimously held that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional.
 
Riley and fellow gang members shot at a passing rival gang member, then fled in Riley’s vehicle. Nearly three weeks later, Riley was stopped while in a different vehicle with expired tags. Riley’s driver’s license was in suspension, so police impounded the car and, in keeping with departmental policy, they performed an inventory of the vehicle’s contents. During this inventory, police located two guns and arrested Riley for possession of the firearms. Riley’s cell phone was taken from his pocket at the time of arrest and a gang unit detective analyzed videos and photographs of Riley making gang signs and other gang indicia stored on the phone. Riley was tied to the earlier shooting via ballistics tests, and additional charges were brought against him.
 
Chief Justice Roberts, writing for the unanimous Court, held that the Chimel v. California, 395 U.S. 752 (1969) warrantless search exception following an arrest exists for the purposes of protecting officer safety and preserving evidence, neither of which is at issue in the search of digital data. Digital data cannot be used as a weapon to harm an arresting officer, and officers have the ability to preserve any possible evidence while awaiting a warrant by disconnecting the phone from the network and placing the phone in a “Faraday bag,” which blocks the phone’s reception of electronic signals. Cell phones act as minicomputers, filled with massive amounts of private information, and this distinguishes them from the traditional items that can be seized from an arrestee’s person, such as a wallet. The Court went on to conclude that, since information accessible via the phone can be stored remotely using “cloud computing,” some information is not even “on the arrestee’s person.” The Court did acknowledge that some warrantless searches of cell phones might be permitted in an emergency, such as when the government’s interests are so compelling that an immediate warrantless search would be reasonable.
 
About the Authors
 
Michael B. Shapiro, J.D., Clinical Instructor of Criminal Justice, Georgia State University, is the former Executive Director of the Georgia Indigent Defense Council and a Past President of the Georgia Association of Criminal Defense Lawyers.

Peter W. Fenton, J.D., Assistant Professor of Criminal Justice, Kennesaw State University, is a former police officer and has been teaching at the college level for more than twenty years.

Both are graduates of the Emory University School of Law.
 
 
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