A week or so ago I indicated the Supreme Court of the United States had heard oral argument on the issue as to whether the police may search the content of a person’s cell phone, without a warrant, when that person is arrested.  In Riley v. California, SCOUTS unanimously ruled that such a warrantless search violated the 4th Amendment.  This is the right call.  In fact, the Ohio Supreme Court had already made the same decision a few years ago.

As noted in my earlier post, the argument the state asserted was that the search is constitutional under the “search incident to arrest” exception to the warrant requirement.  That is nonsense.  That exception is aimed at two overriding policy considerations: (1) to protect officers from the use of weapons, and (2) to prevent the destruction of evidence.  Neither of those justifications are present in context of searching data on a cell phone.

Unlike searching the pockets and bags of an arrestee, a cell phone is not capable of concealing a weapon.  Also, any evidence of a crime that may be stored on a cell phone is not in danger of being destroyed once the police seize the phone and the defendant is in handcuffs.  Because neither of the justifications for the exception advanced by the government are even arguably present, the Court ruled that police must seek a warrant.  This is a win not only for privacy, but logic.

I previously wrote about the problem of impeaching one’s own witness.  Generally, a party is not permitted to call a witness solely to impeach him as a backdoor method of getting otherwise inadmissible evidence into the record.  If you recall, Evid. R. 607 requires a party to demonstrate (1) surprise and (2) affirmative damage to their case in order to impeach their own witness with prior inconsistent statements.  But, there is the potential for an end-around this restriction.  Evid. R. 614 allows the court to call someone as the court’s witness.  When this happens, neither the prosecutor nor the defendant are calling the witness and each will be allowed to examine the witness under cross examination, as opposed to direct examination.

This means both parties can lead the witness and, importantly, impeach the witness. Because the recalcitrant witness is not technically being called by the state, the proscriptions in Evid. R. 607 do not apply.  I worked on a case maybe a year or so ago where the state utilized this very method in order to get an uncooperative witness to testify.  This tactic was recently employed by Montgomery County prosecutors again in State v. Christan, 2014-Ohio-2672.

Christan was a Dayton-area restauranteur indicted for several crimes, including making false alarms, insurance fraud and a violation of Ohio’s RICO statute.  The Second District’s decision is lengthy as it resolved a total of eleven assignments of error.  While there are several interesting legal issues involved, I want to focus on one in particular: the extent to which the decision on Evid. R. 614 might give the state the ability to skirt the old “voucher rule.”

In Christian, the court called the defendant’s co-conspirator (Mr. Adams) as its own witness at the request of the prosecution. Mr. Adams had been hired by the defendant to, among other acts, stage a burglary of defendant’s home, stage an arson at one of her restaurants, and fire shots at the defendant’s home to make it look like an enemy was out to get her.  The reason proffered by the state as to why the court should call him as a court’s witness was that Adams had an ongoing relationship with the defendant and would ‘likely be guarded in is testimony, due to his loyalties to the defendant, and the implications his testimony has on his involvement in the defendant’s crime spree.”

So the State wanted to call him, but feared that he may not be all that helpful and sought the ability to elicit testimony as upon cross-examination.  That does, in itself, seem appropriate.  I don’t really have any problems with that portion of the decision as a matter of law. If someone is reluctant to help the state, maybe the court should be able to call that witness so that the state is not limited in what it can elicit by the rules governing direct examination.  I don’t think that’s particularly fair, but under established law, it is right.

What is most important about the decision is how this procedure might be a method to emasculate Evid. R. 607(A).  While the Christian decision does not explicitly mention that the State wanted to cross Adams in order to impeach him with prior inconsistent statements, the opinion does note that “[t]he State also stated that Adams had become less cooperative with the State when he was told ‘he would not receive any consideration with respect to his own pending criminal charges in another county’.” So, it is fair to assume that Adams had at one point cooperated by providing statements adverse to the defendant, and the State was now worried he would testify differently at trial.  Nonetheless, even if this was not the case in Christian, the opinion implies this method of introducing otherwise inadmissble evidence is proper.

In overruling this assignment of error, the Second District cites one of its previous decisions, State v. Hazel, 2012-Ohio-835, in which is stated:

[i]ndeed, a request for designation of a court’s witness often arises precisely because the State has anticipated an unfavorable change in the witness’s account of previous events.”

This language seems to say that it is appropriate for the Court to help the state out by calling a witness precisely to allow the state to then elicit the prior inconsistent statements.  There is a major problem with this view: prior inconsistent statements are inadmissible hearsay.  While a party is always permitted to impeach a witnesses’ credibility with prior inconsistent statements, the prior statements are not to be considered substantive evidence toward any element of the offenses.  In other words, you can use prior inconsistent statements to show the jury this guy is a liar and should not be believed, but the earlier, conflicting statements are not ordinarily to be considered as affirmative evidence of the crime at issue.  Why did I use the term ordinarily? Well, because like most legal rules, there are exceptions.

Evid. R. 801 defines what is and what is not hearsay.  Subsection (D)(1) states that prior inconsistent statements are not hearsay when:

The declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is (a) inconsistent with declarant’s testimony, and was given under oath subject to cross-examination by the party against whom the statement is offered and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (b) consistent with declarant’s testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive, or (c) one of identification of a person soon after perceiving the person, if the circumstances demonstrate the reliability of the prior identification.

So, does this make the prior inconsistent statements admissible as substantive evidence?  Not in most instances.  As the rule clearly states, the prior inconsistent statement has to be made under oath, subject to cross-examination, and subject to the penalty of perjury to be considered non-hearsay.  This is hardly ever going to be met in a criminal case.  Statements to detectives are not made under oath or subject to cross examination, period.  What about grand jury testimony, you ask?  Well, yes it is made under oath and subject to the penalty of perjury, but there is almost never any cross examination.  Rarely are defendants present at grand jury proceedings. Most often, the defendant is not even aware of when the grand jury is going to hear the case.

Unless the court believed that Adams’ prior statements met this standard, the statements are hearsay, and not relevant to prove any fact of consequence. Sure, the state could show his testimony at trial is not credible due to his prior statements, but that does nothing to prove the defendant is more likely to have committed the offenses at issue. It proves only that this man is a liar.

If a witness is impeached for the prior inconsistent statements, it would be proper for the judge to provide a “limiting instruction” to the jury.  Basically, the court should tell the jury that it may consider those prior statements in assessing this man’s truthfulness as a witness, but it may not take those statements into account when evaluating the evidence of the defendant’s guilt.  Do these work? Not really. Jurors are people and it’s hard to “un-hear” what you heard.

So if the defendant requests and receives a limiting instruction, the damage has been done anyway.  This is precisely why the state likes to get the statements before the jury.  In a purely legal sense, it does nothing for their case.  It’s the practical affect of the statements that provides the benefit. This is why courts should be reluctant to call a witness when the sole reason to put him on the stand is to elicit the prior inconsistent statements.  The procedure should be utilized only when a witness simply doesn’t want to say much and cross-examination will ease in the elicitation of evidence relevant to guilt or innocence.

Everyone has a cell phone these days.  And we do a lot of our daily tasks on our cell phones.  They really are mini computers, not merely our primary way of communicating to one another. Like watches used to be, we feel naked when discovering we don’t have our phone. It is almost always with us.  That is probably a good thing.  However, if you engage in criminal conduct, cell phones have become a major problem as they contain a lot of information about where we are, where we have been, who we communicate with, and what we communicate.

Privacy issues with cell phones are heating up in a variety of contexts.  To what extent does the 4th Amendment protect citizens from police intrusion into the data stored or transmitted by our cell phones?  Let’s look at two of the major issues moving their way through the courts.

Warrantless Search Of Cell Phones.

The United States Supreme Court recently heard oral argument in two cases dealing with the warrantless search of an arrestee’s cell phone, U.S. v. Wurie and Riley v. California.  The government contends that police should be permitted to search the content of a person’s cell phone, without a warrant based upon probable cause, whenever that person is under arrest.  The government claims the “search incident to an arrest” exception to the warrant requirement is applicable.  This particular exception is well established.

Police are allowed to rummage through your pockets and open your pack of cigarettes to see whats inside before they place you in the cruiser and take you downtown.  The idea behind the exception is that if the police are going to take someone into custody, it is reasonable for them to search the person for evidence or weapons in order to prevent destruction of evidence and to protect officers. Because the 4th Amendment only prohibits “unreasonable searches,” a warrantless search under these circumstances is constitutional.

The incident to arrest exception has been extended to permit warrantless searches of the areas immediately surrounding the physical location of the arrestee.  This is often referred to as the “Chimel” area, which is named after the Supreme Court case in which the rule was established.  The Chimel area consists of drawers, cabinets, and closets within the reach of the arrestee.  Subsequent cases further give police the right to search the interior of a car where a person in arrested.

At one time, police were actually allowed to search the interior of a car in which an arrestee had recently been, but was no longer located.  In other words, up until recently, the supreme court had allowed police to observe someone exit a vehicle, arrest them outside of the vehicle, secure the person in the back of a cruiser and then search the interior of the vehicle in order to prevent the arrested person from destroying evidence or grabbing a weapon.

One can see the justification for searching the guys physical person and areas he can reach.  That actually has some logic.  But, the question now is why would police need to search the data on a cell phone?  No one hides weapons or drugs in a cell phone.  And if they are worried about the guy destroying evidence on the cell phone, they can simply seize it and obtain a warrant to search.  To my knowledge, no criminals I’ve ever met can delete illegal content on a cell phone with his handcuffs on.

The obvious answer as to why police do not want to have to get a warrant is that they might not have any probable cause to believe there is evidence of a crime on the phone. They want to get the guy’s contacts so they know who he gets his drugs from and who he sells to.  The state can’t just come out and say that, though, so they made up a lot of illogical reasons why searching the phone would promote to two overriding policies behind the exception: (1) preservation of evidence and (2) officer safety.

While I don’t know how the supremes are going to view the case, we already have a ruling in our great state.  The Supreme Court of Ohio has already held that police must get a warrant to search the content of a cell phone taken from an arrestee.  In State v. Smith, the Court stated in summation:

“We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the  search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. Because the state failed to show that either of these exceptions to the warrant requirement applied, the search of Smith’s cell phone was improper, and the trial court was required to exclude from evidence the call records and phone numbers taken from the cell phone.”

It will be interesting to see how SCOTUS rules.

Third Party Data

Another important question related to cell phones is to what extent does someone have the right to prevent government intrusion into data conveyed to third parties (i.e., the provider’s records or the webpages visited, etc). The answer here is, not much.  The 4th Amendment precludes the government from searching or infringing on reasonable privacy interests.  If a person subjectively has a reasonable expectation of privacy and society objectively recognizes that expectation as reasonable, 4th amendment protections apply.  The government must then have probable cause to invade that protected interest.

If, however, the claimed privacy interest is not reasonable, the 4th amendment is not implicated and the police may search and seize as they see fit.  By way of illustration, it would be a violation of the 4th Amendment for the police to bug your home and listen to your living room conversations (without a warrant).  But, if you have that same conversation in a coffee shop, the police are fully entitled to sit at the table next to you and eavesdrop.  It is unreasonable for someone to believe that his public conversations couldn’t be overheard by third parties, whether detectives or the nosy neighbor-type. If you didn’t want others to hear what you said, you should have said it in a private place.

The idea that whatever information you voluntarily provide to others is no longer “private” has allowed the government to get all sorts of information on prospective defendants from telecommunications companies.  Once you send information via cell phone to third parties, that information is no longer subject to the 4th Amendment’s protections.   Police will not need a warrant.  They may not even need a subpoena, depending on how helpful the company wants to be.

This issue is illustrated by the Second District’s recent decision in State v. Taylor, 2014-Ohio-2550.  Taylor, his brother and a third accomplice had driven from his home in Detroit, Michigan to Dayton, Ohio.  Rather than taking in a Dragon’s game, they held up a pawn shop.  Bullets proceeded to fly and after the dust settled, two people were dead – the pawn shop owner and the accomplice.  Taylor was ultimately convicted of two counts of murder.

At the trial court level, Taylor filed a motion to suppress the evidence obtained from the warrantless searches of his cell phones, including GPS data that tracked his location at various times as he traveled to and from the crime scene.   The police had submitted a request form to the telecommunications provider requesting the “ping” history of two cell phones.  As the decision states, “pings are GPS locations that are [emitted] from phones that will give geographic location of the phone, and it will range usually in meters …” Essentially, the cell phone pings provided a map of everywhere Taylor had been, which, unfortunately for him, included the pawn shop at the time of the murders.

Taylor claimed that the tracking of the cell phone pings constituted a search and required a warrant.  The court overruled his motion, determining that he had no legitimate expectation of privacy in this information collected and stored by the phone company.  The Appellate panel agreed.

The decision cites several cases in which information conveyed to third party providers loses any expectation of privacy, including electricity usage bills and phone logs collected by the phone company. Therefore, the information is not protected by the Fourth Amendment.  Not only do the police not need a warrant, they don’t even need probable cause.  As part of its analysis, the Second District included the following quote:

“The Supreme Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”

That pretty much sums it up.  Just because you may not expect the police to be snooping around your cell phone records, or anticipate that your service provider will allow them, doesn’t mean it is unconstitutional.  Anything you voluntarily convey to third parties is not protected by the 4th Amend and is fair game for authorities to search and seize.