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Incident Background Info:

1. In 2015 A suspect is arrested, and is in possession of a Smart Phone which is locked, and needs a password to gain access.

2. Suspect is pulled over for speeding, and a vehicle “frisk” is performed by the Officer, and during which a firearm is found underneath the driver seat of Suspects vehicle, registered in his name with no occupants.

3. The Suspects Smart Phone is in the Suspects passenger seat of the Suspects vehicle at the time of the arrest. Since it’s not on the Suspects “persons” and is located in the Suspects vehicle, the Smart Phone doesn’t go with him to jail to be checked in as property. Instead, an Inventory Log is completed by the arresting officer of the Vehicles contents. When the Officer discovers the Phone in vehicle during the Inventory Log search; the phone is removed, unlocked, data is copied, and the phone is cloned by Officers at the sub-station where vehicle was taken for the Inventory Log to be completed, prior to being towed to impound. Once the Warrantless search and seizure of the Smart Phone is completed, the Phone is placed back in the Vehicle which is them towed to Impound.

4. Suspect is charged, arrested and taken to jail for Possession of an Illegal Firearm.

5. Texas Revised Statutory Code defines this as a State Jail Felony.

Question:

Has a search and seizure of the Suspects ”personal papers and effects” (as expand upon by the US Supreme Court to include Smart Phone and its Digital contents) illegally taken place?

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Unless corrected, where ever there is doubt as to what happened, I will presume innocence on the part of the suspect, unless that detail was not disclosed and meant to be included.

  1. Suspect is pulled over for speeding. He has no outstanding warrant for his arrest in any crime and is not currently serving time for a crime. This is legal.

  2. The suspect's cell phone is in plain view of the officer when he approaches the suspect. As there is no evidence of contraband otherwise, the officer has no need to look at the cellphone.

  3. The police officer performs a warrentless search of the car without the suspect's approval. He has no probable cause to do this. The suspect has not given permission to do this. From here on out, the officer is no performing an illegal search and seizure of evidence against the suspect.

  4. The officer finds the illegal fire arm under the suspects seat, which is not in plane view. The nature of why the fire arm is illegal is not applicable at this point. Possession of this evidence is probable cause to arrest the suspect.

  5. The officer continues the search of the car and siezes it and its contents for evidence processing.

  6. The phone is now evidence and is unlocked against the suspect's will and cataloged for any further evidence of possible crimes.

The case relies on the information in parts 3 and 4 being true. If this is not the case, the an illegal search was performed. First, there was nothing in plain view that would lead the officer to suspect that there was any contraband or criminal evidence within the car (the gun was fully concealed from view of the officer as he was giving the ticket to the suspect). If he did not receive affirmative permission from the suspect, the gun would thus be a product of an illegal search, and thus would be removed from evidence in pre-trial motions.

Now, I know what you're thinking: But I'm asking about the phone, not the gun. Not only is the gun gone, but any evidence that was discovered by the gun is now a product of an illegal search and seizure. The phone is what's called "Fruit of the Poisonous Tree" and is just as dirty evidence against the suspect as the gun was. As is any evidence of a crime found on the phone. So yes, the digital contents search is illegal, but not because of the ruling on it being digital contents but because the reason for it's seizure was because the illegal search took place to get the suspect arrested and find probable cause to seize the phone.

Now, this all assumes that the suspect didn't meet a few criteria... if he was a paroled convict of another crime OR on probation for another crime, the officer may have probable cause to perform the search, even if the weapon wasn't in plain view.

Additionally, for argument's sake, lets say that the suspect was speeding because he had just shot someone with the illegal gun and the police were aware of his connection to the crime in some way, because the last text to the deceased was from this guy and it asked the deceased to meet at the spot the body was found. This means that the cops would at the least be looking for him for questioning, if not already filing a warrant for the contents of his cellphone and possible search of his property for evidence. The cops could argue that they were already looking to for this guy in connection to the crime and they were looking for the phone and evidence on the phone would provide probable cause to search his property and would have found the gun that way. Because they were already looking for these specific items on this specific person, they could established discovery of them would have happened during the course of due process of the law and then the items would be back in play.

Given your story, it's likely that all evidence of the gun charge would be tossed out as valid to your case, and without evidence of a crime, the suspect will go free. The gun will not be returned as he cannot lawfully posses it, but his phone would be returned and all date the police took from it would be destroyed.

If you would like to change the circumstances of the situation, give me a heads up.

  • One point i’d appreciate your views on in terms of the circumstances: In my question it was stated that a vehicle “frisk” was done, not a vehicle search, after a traffic stop for speeding which doesn’t require probable cause in the state of TX; how does this impact the legality of the unlocking and data mining of smart phone, if at all? – user15669 Mar 23 '18 at 19:38
  • @user15669: The officer would need to have reasonable suspicion of a gun being present to "frisk" the car and it must be an objective reason so the officer's "Fear for his own safety" does not count as reasonable. Now, this reasonable suspicion exists if the accused indicates that he could be carrying whether he said something or not. Gang colors, a past conviction and current parole, ect. Could count as reasonable suspicions. However, absent these factors, the officer cannot conduct a frisk just because the stop occurred. – hszmv Mar 26 '18 at 15:34
  • @user15669: Had the "frisk" not occurred, the officer would not have found evidence of the crime, and had that not occurred, the phone would not have been seized and later accessed by authorities. This all assumes that the police had no reason to believe your speeder was armed and dangerous at the time the officer frisked the car. I suggest that you make sure that the officer had reasonable suspicion he would find the weapon prior to frisking the car. – hszmv Mar 26 '18 at 15:37
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Riley v. California is the applicable law regarding cell phone searches, where the Supreme Court was pretty clear IMO. "The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested". There are narrow exceptions to the 4th Amendment warrant requirement. Searches on or near an arrestee are legal if they are limited to the area within the arrestee’s immediate control, where it is justified by the interests in officer safety and in preventing evidence destruction (Chimel v. California, 395 US 75). Arizona v. Gant, 556 US 33 concludes that this "permits searches of a car where the arrestee is unsecured and within reaching distance of the passenger compartment, or where it is reasonable to believe that evidence of the crime of arrest might be found in the vehicle". Riley finds that cell phone data cannot threaten the arresting officer. Once seized, there is no further threat of destruction of evidence, so a seizure but not a search could be reasonable. The court recognized the obvious privacy interest in cell phones. So as described, the search of the cell phone is unconstitutional, and anything gained from that search is inadmissible.

Suppose, to up the ante, that suspect had a kilo of heroin under the seat. Still, that does not overcome the requirement that the search of the cell phone be reasonable, which means, with a warrant. The cell phone search would not bear on the gun search, though. As far as the legality of the gun search is concerned, there isn't enough information to clearly say yes or no. It depends on what all of the facts are, specifically, what did the officer observe that could have reasonably triggered a search. For example, a smell could indicate the presence of meth, which constitutes probable cause for a warrantless search; or was the driver's behavior in some way threatening. Did he say somethat that gave the officer a reasonable suspicion that he was armed and dangerous; did he joke about the gun under the seat? An officer can order the driver out of the car (Pennsylvania v. Mimms, 434 U.S. 106), and that could bring the weapon into plain sight. However, if this was a normal speeding-ticket interaction where the driver handed over his documents, didn't have any warrants, and kept his mouth shut, the odds are lower that a front seat inspection for guns would be legal. The details matter.

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    And all this is further overruled as the described scenario of finding contraband under the seat requires a warrant as the cop would not be able to see it from his/her point of view... unless the suspect was stupid and gave the cop the permission to do a full search, the cop would not find it. – hszmv Mar 23 '18 at 19:18
  • @hszmv as stated, a vehicle “frisk” which doesn't require probable cause, search warrant or driver/owners consent, not a full search, led to the discovery of the gun, or kilo, in the vehicle. Does this impact the legality of retrieving the data from the phone at that point? – user15669 Mar 23 '18 at 19:43
  • @MrThoughtIKnewItAll what is a "frisk" in terms of vehicles? – JAB Mar 24 '18 at 13:29
  • @MrThoughtIKnewItAll A Frisk is a limited scope search for weapons when the officer has an objective reason to believe that the person has a weapon within his or her reach during the course of a stop. – hszmv Mar 26 '18 at 15:39

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