946 N.W.2d 807
Mich. Ct. App.2019Background
- Undercover officers, via a confidential informant, learned Jessica Engisch sold cocaine and could obtain drugs from Mark Katzman.
- Police executed a warrant on Engisch’s motel room and seized cocaine and her cell phone.
- Officers used Engisch’s seized phone to send a text (posing as Engisch) inviting Katzman to the motel.
- When Katzman arrived he admitted to prior cocaine sales to Engisch; he was arrested and charged with two counts of delivery of <50 grams of cocaine.
- Katzman moved to suppress his statements, arguing the police exceeded the warrant by using Engisch’s phone to message him and invaded his privacy; the trial court denied the motion.
- On appeal the court affirmed, holding Katzman lacked Fourth Amendment standing to challenge the search/use of Engisch’s phone and rejecting his trespass theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge search/use of third-party cell phone | Katzman lacks standing; he did not own/control Engisch’s phone and exposed texts to her | Katzman had a reasonable expectation of privacy in texts from Engisch and can challenge the phone’s use | Katzman lacks standing because he had no ownership/possession/control of Engisch’s phone and lost any privacy interest once he sent texts to her; appeal fails |
| Whether police use of seized phone to send texts was a Fourth Amendment trespass | Sending a message is an electronic communication, not a physical trespass under Jones; proper test is reasonable expectation of privacy | Use of the phone to send texts was a “digital trespass” (Jones) and exceeded warrant scope | Jones (physical trespass) inapplicable; no physical occupation of Katzman’s effect and the claim fails under reasonable-expectation analysis; suppression denied |
Key Cases Cited
- People v Daoud, 462 Mich 621 (2000) (standard of review for suppression rulings)
- People v Mahdi, 317 Mich App 446 (2016) (standing factors: ownership, possession, control, historical use, ability to regulate access)
- People v Mead, 503 Mich 205 (2019) (expectation-of-privacy test and substantive Fourth Amendment analysis)
- Rakas v. Illinois, 439 U.S. 128 (1978) (limitations on third-party challenges to searches)
- Katz v. United States, 389 U.S. 347 (1967) (public exposure and reasonable expectation of privacy)
- United States v. Jones, 565 U.S. 400 (2012) (trespass test: physical occupation of property)
- Riley v. California, 573 U.S. 373 (2014) (cell phones contain extensive private data and implicate privacy concerns)
- United States v. Gardner, 887 F.3d 780 (6th Cir. 2018) (recognizing a cell phone as an “effect” for Fourth Amendment purposes)