STATE OF LOUISIANA v. KELLY FOLSE
No. 2018-KK-1518
Supreme Court of Louisiana
June 26, 2019
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #027 FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 26th day of June, 2019, are as follows:
PER CURIAM:
2018-KK-1518 STATE OF LOUISIANA v. KELLY FOLSE (Parish of Jefferson)
On this record, we cannot say whether defendant merely acquiesced to a claim of lawful authority, see Bumper v. North Carolina, 391 U.S. 543, 548-550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968), or validly consented to provide her passcodе in exchange for the phone. We are also unable from this record to determine whether the officer acted reasonably in good faith, as urged by the State, or the police conduct was coercive and indicative of bad faith, as the court оf appeal found. Therefore, rather than rule on the merits of such significant questions on a deficient record, we reverse the court of appeal, and we remand to the district court to conduct further evidentiary proceedings, after which the district сourt is directed to reconsider whether the evidence ought to be suppressed.
REVERSED AND REMANDED.
WEIMER, J., dissents and assigns reasons.
GENOVESE, J., dissents for the reasons assigned by Justice Weimer.
STATE OF LOUISIANA VERSUS KELLY FOLSE
No. 2018-KK-1518
SUPREME COURT OF LOUISIANA
06/26/19
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
PER CURIAM
Defendant, a veterinarian, was charged with aggravated cruelty to animals,
On December 19, 2017, police obtained a search warrant to extract and examine the contents of the phone. On January 3, 2018, defendant came to the Detective Bureau, accompanied by her lawyer, to retrieve her phone. It is not clear how that event was arranged, and the extent of counsel‘s participation in the arrangement is not known. It is clear, however, that she consulted with the attorney who accompanied her as well as with additional counsel by phone.
At some point, she was informed that police had a search warrant for the рhone but they would return it to her after she provided the passcode and they extracted a copy of its contents. However, the 10-day period provided in
Defendant moved to suppress the contents of the phone because the warrant had expired at the time the phone was searched. The district court found that the warrant could not be executed because the 10-day period provided in
The court of appeal held that defendant‘s consent to search her phone was not free and voluntary because it was given only after an officer asserted that she had a warrant to search the phone, citing Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) for the proposition: “[A] law enforcement officer cannot rely upon the authority of a warrant to obtain a person‘s consent to a search of his or her property. Such conduct is coercive and, in our view, indicative of bad faith.” State v. Folse, 18-0458, р. 4 (La. App. 4 Cir. 8/16/18) (unpub‘d). Therefore, the court of appeal reversed the district court‘s denial of defendant‘s motion to suppress and remanded for further proceedings.
The State contends the court of appeal erred because
As to the State‘s remaining claims, the sparse record on those issues also stands as an insurmountable obstacle to their resolution. The circumstances under which the phone was arranged to be returned, and under which defendаnt ultimately agreed to furnish the passcode in exchange, were only skeletally developed at the suppression hearing. The role of counsel, also unknown, may further complicate matters. On this record, we cannot say whether defendant merely acquiesced to a claim of lawful authority, see Bumper v. North Carolina, 391 U.S. 543, 548-550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968), or validly consented to provide her passcode in exchange for the phone. We are also unable from this record to determine whether the officer acted reasonably in good faith, as urged by the State, or the police conduct was coercive and indicative of bad faith, as the court of appeal found. Therefore, rather than rule on the merits of such significant questions on a deficient record, we reverse the court of appeal, and we remand to the district court to conduct further evidentiary proceedings, after which the district court is directed to reconsider whether the evidence ought to be suppressed.
REVERSED AND REMANDED
STATE OF LOUISIANA VERSUS KELLY FOLSE
NO. 2018-KK-1518
SUPREME COURT OF LOUISIANA
06/26/19
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
WEIMER, J., dissenting.
The majority essentially holds that the law regarding cell phone searches has not kept pace with technology and provides the state another opportunity to justify a search of the defendant‘s cell phone when the state‘s first efforts failed to show the search complied with statutory and constitutiоnal mandates. I respectfully dissent.
Nearly five years ago, the United States Supreme Court described in great detail the constitutionally-protected privacy interests that are presented when, as here, the government wishes to search a cell phone that is been seized incidental to an arrest. Riley v. California, 573 U.S. 373 (2014). The Court observed that “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Id. at 393. “Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy.” Id. Now, however, a cell phone may contain “[t]he sum of an individual‘s private life,” with details such as bank statements, addresses, messages, notes, prescriptions, photographs, and videos. Id. at 394. To this litany, I add medical records, which are among the most private of matters that should be safe from government view.
The search warrant the state obtained herе was consistent with the Riley Court‘s
No technological issue stymied the state and caused its search warrant to go stale. This case should, therefore, be analyzed under well-established principles to ascertain whether an exception to the warrant requirement applies.
The state argues that the officer acted reasonably in good faith beliеving the search warrant applied,1 defendant consented to the search,2 or the inevitable discovery exception to the warrant requirement applies.3 Whether relying on the good faith exception, the inevitable discovery exception, or defendant‘s consent, in each instance the State ultimately carries the burden of proof. See United States v. Gant, 759 F.2d 484, 487-89 (5th Cir. 1985); State v. Vigne, 01-2940, p. 9 (La. 6/21/02), 820 So.2d 533, 539 (citing Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984)); State v. Edwards, 434 So.2d 395, 397 (La. 1983).
The court of appeal held that defendant‘s consent to search her phone was not free and voluntary because it was given only after an officer asserted that she had a warrant to search the phone, citing Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). That rationale is self-explanatory and is amply supported by the evidentiary record. However, the appellate court also noted-but did not analyze-the coercive рower of the officer promising to return the phone only after defendant complied with the search. Coercion, this court has explained, can defeat a person‘s consent to search. See State v. Howard, 15-1404, pp. 8-9 (La. 5/3/17), 226 So.3d 419, 425-26 (“To be valid, consеnt must be ... free and voluntary, in circumstances that indicate the consent was not the product of coercion, threat, promise, pressure or duress that would negate the voluntariness ... .“).
To the Riley Court‘s observations about the private materials cell phones may contain, I add the following additional observations about why the state held a coercive advantage when the officer told the defendant she needed to unlock her cell phone and consent to its search as a condition for police to return it. Cеll phones are frequently a person‘s sole means of tracking schedules and appointment calendars, as well an exclusive means of telecommunication, since reliance on cell phones has led to few people maintaining landlinеs. Cell phones are also quite expensive, and purchasing a replacement phone and service contract could be difficult for a suddenly unemployed defendant facing extensive legal bills. Without her phone, defendant likely had no easy way to communicate with her family, or even contact emergency services if need be. Communicating with
As part of the justification for remanding this matter, the majority notes that the defendant was actually accompanied by her lawyer when she went to retrieve her cell phone from the police. The majority appears to view as an open question why the lawyer did not become more involved in the transaction with police. Under the law, this is not an open question. Under the law, it is neither police, nor defense counsel, who decide whether a warrant is valid; the law reserves that decision for judges. See, e.g.
As noted earlier, the state urges that police reasonably relied on an apparently valid search warrant that was only later discovered to be stale. Hоwever, the state does not provide any evidence to support this argument. Relatedly, the state argues that it inevitably would have validly searched the cell phone after seeking and obtaining a “fresh” warrant. The record on that latter point, however, is developed but does not support the state‘s position. At the suppression hearing, a case detective acknowledged on cross-examination that “there‘s nothing specific about this case that caused [her] to believe that there was going to be evidence on [defendant‘s] phone,” beyond her general “experience as a police officer that oftentimes people will have incriminating information on their phone.” This testimony reveals the opposite of probable cause to believe the cell phone contained evidence germane to this case. See
In sum, I would affirm the court of appeal‘s ruling, which reversed the district court, concluding that the evidence seized from defendant‘s phone must be suppressed.
STATE OF LOUISIANA VERSUS KELLY FOLSE
No. 2018-KK-1518
SUPREME COURT OF LOUISIANA
06/26/19
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
Genovese, J., dissents for the reasons assigned by Justice Weimer.