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Your Cell Phone And The Fourth Amendment: Police May Not Conduct A Warrantless Search Of Your Cellphone Even After Your Arrest


criminal appeals lawyer, fourth amendment, search of cell phone

People v. Martinez

2014 NY Slip Op 06668

Appellate Division, First Department

Decided on: October 2, 2014

New York Appellate Court Adopts Rule Requiring Warrant For Search Of Cell Phone

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether the District Court violated the Fourth Amendment and the recent decision in Riley v. California, when policemen conducted a warrantless search by looking through Defendant’s phone and procured photographs as evidence against him.

Summary: Defendant was convicted of criminal possession of a weapon. After police arrested Defendant and seized his phone, they went through it without a warrant, and found two photos stored on the phone that depicted a pistol resembling the pistol recovered in this case. Defendant filed a motion to suppress the photographs obtained from his cell phone; the trial court denied that motion. The Appellate Division for the First Department relied on Riley v. California 573 US__, 134 S.CT. 2471 2014, which held that under the Fourth Amendment a cell phone is not a proper subject of a warrantless search incident to an arrest.

See Also: Statutory Interpretation: A Criminal Statute That Begins With The Word ‘Knowingly’ Makes That Mens Rea Applicable For Every Element Of The Crime

Holding: The Appellate Division for the First Department held that a cell phone is not a proper subject of a warrantless search even where Defendant had cellphone on his person post-arrest. Rather than applying for a warrant on the basis of mere probable cause, the officer achieved certain cause by conducting an unlawful confirmatory search, which undermines the very purpose of the warrant requirement and cannot be tolerated.

Facts: Defendant was convicted of criminal possession of a weapon in the second degree. He filed a motion to suppress photographic evidence that was unlawfully seized from his cellphone upon his arrest; the trial court denied that motion. On Appeal, the Appellate Division for the First Department held that the court should have granted Defendant’s motion to suppress photographs obtained from his cellphone. Moreover, the Appellate Division relied on a recent decision of the United States Supreme Court holding that a cellphone is not a proper subject of a warrantless search incident to arrest, Riley v. California, 573 U.S__, 134 S.Ct 2473 2014.

The Appellate Division stated, even if there were independent probable cause for the warrant in this case, it would not immunize the initial warrantless search, or permit the subsequently-granted warrant to render the photos admissible.

Legal Analysis: The Appellate Division for the First Department relied on a recent decision from the United States Supreme Court Riley v. California, 573US, 134 S.Ct 2473 2014, which held that a cell phone is not a proper subject of a warrantless search incident to arrest.

In this case, after arresting a Defendant and seizing his phone, an officer looked through it without a warrant, and found two photos stored on the phone that depicted a pistol resembling the pistol recovered in this case. After finding the photos on the phone, the same officer averred in an affidavit in support of an application for a search warrant, which specifically sought to search photographs among other things on the phone, that there was reasonable cause to believe that evidence concerning Defendant’s possession of a firearm existed on Defendant’s phone.

The First Department held that this evidence demonstrated that the decision to seek the warrant was prompted by what the police had seen during the initial entry, Murray v. United States, 487 UA 533, 542 1988. Rather than applying for a warrant on the basis of mere probable cause, the officer achieved certain cause by conducting an unlawful confirmatory search, which undermines the very purpose of the warrant requirement and cannot be tolerated, People v. Burr, 70 NY2d 354, 362, 1987.

The First Department further held that even if there was independent probable cause for the warrant, it would not immunize the initial warrantless search, or permit the subsequently-granted warrant to render the photos admissible. Nor may the inevitable discovery doctrine be applied to this evidence; the exception does not apply where the evidence sought to be suppressed is the very evidence obtained in the illegal search, People v. Stith, 69 NY2d 313, 318 1987.

     The Appellate Division for the First Department held that the District Court should have granted Defendant’s motion to suppress photographs obtained from his cell phone. Given that the Defendant preserved his specific Constitutional arguments for suppressing the photos, the error in denying his motion requires reversal unless it was harmless beyond a reasonable doubt, People v. Cimmins, 36 NY2d 230, 237 1975. The Appellate Division found that there was reasonable possibility that the error might have contributed to Defendant’s conviction. Accordingly, the Appellate Division for the First Department vacated the conviction and remanded for a new trial.


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