*1 of Wisconsin, State Plaintiff-Appellant,
v. Jаmes Carroll, Jermichael Defendant-Respondent-Petitioner.
Supreme Court
September
argument
No. 2007AP1378-CR. Oral
2009.
February
—Decided
For the cause attorney general, Freimuth, James M. assistant with *7 attorney on Hollen, whom general. the brief was J.B. Van ¶ 1. N. PATRICK CROOKS,J. This is a a review of published appeals1 decision court of that reversed by County, an order the Circuit Court for Milwaukee Judge presiding, Kahn, Charles F. Jr. the which suppressed circuit court evidence obtained the from phone pursuant defendant's cell to a The warrant. grounds circuit court based that order the on that by police, searching image gallery phone, the in the cell illegally the obtained evidence that had formed the basis that warrant in violation of the Fourth Amend- ment to the defendant, United States Constitution. The (Carroll), charged Jermichael James Carroll possession with by appeals of a firearm a felon. The court of Carroll, State v. App 2008 WI 314 Wis. 2d N.W.2d404. ruling suppression order, that untainted
reversed the provided police a valid, that later obtained evidence independent for the warrant. basis inquiry our is whether 2. The focus of evidentiary basis for the warrant search cell that the Fourth Amendment to was tainted such Constitution, I, Section 11 the United States or Article requires suppression of Constitution, of Wisconsin following circumstances: that under evidence (1) speeding an had observed Carroll con- officer who his and ordered him to fronted Carroll outside of vehicle object drop hand; in his that he held an unknown (2) recognized object, upon retrieving the officer it that display open and observed on the as image smoking appeared what to be screen an of Carroll (3) phone, marijuana kept blunt; the officer through image gallery, images and other its saw scrolled (4) illegal depicting items; the officer Carroll with incoming pretending Carroll, call to be answered an illegal during conversation, caller ordered that drugs. police to search the The obtained warrant police phone. warrant, obtained time- With stamped digital images phone. It is from Carroll's cell suppress. that Carroll seeks Amendment that neither the Fourth 3. We hold I, nor Article Section to the United States Constitution requires 11 of the Wisconsin Constitution pre- suppressed under the circumstances evidence be *8 holding, In are satisfied that sented here. so we justified seizing in and officer Carroll's cell was image, plain viewing marijuana inwas view. which although justified also con- the officer was Further, tinuing possess phone, are that the we satisfied browsing justified opening officer and was image gallery through cell at the time that he such, took such action. As the evidence that the officer gleaned from that conduct was tainted and could not form the basis for a search warrant. However, based on exigent justified circumstances, the officer was in an- swering incoming phone during call to Carroll's illegal drugs. which the caller ordered That evidence independent was an untainted source that formed a valid basis for the search warrant when combined with knowledge the officer's traffickers and Carroll's juvenile along plain image record, with the view of the marijuana Accordingly, blunt. we affirm the court appeals.
I. BACKGROUND ¶ 4. On 6, 2006, December Detective Belsha of the police department partner Milwaukee and his were conducting part surveillance on a residence as of an robbery investigation. Thеy armed observed a white Ford passed Escort residence, leave that slow down as it squad speed away. their car, and attempted ¶ 5. The officers to catch the vehicle, speeds per which reached of 60 miles hour on residen- speed higher tial streets with limits no than 25 miles per According testimony hour. sup- to Belsha's at the pression hearing, eventually pulled driver, Carroll, abrupt stop" gas the car to "an in a station lot and quickly got holding object out of the car while in his identify hands. The officers could not what Carroll was holding, weapon so Belsha drew his and ordered Carroll drop object get ground, on the which Carroll did. The officers then his handcuffed Carroll behind back. handcuffing
¶ 6. After Carroll, Belsha retrieved dropped object, flip-style phone. which was a lying open ground The cell on the *9 long, image smoking displayed thin, of Carroll a an ("the marijuana image"). object cigarlike Belsha, brown Trafficking Drug High Intensity Area the a member of (HIDTA), Gang Drug he Force testified that Task object marijuana recognized a blunt.2 as identifica- the officers asked Carroll for 7. When gave any have him but tion, Carroll did not with a "routine check" and his name. The officers ran officers driving suspended he license. learned that was with adjudicated delinquent being had a record of Carroll also juvenile.3 felony drug-related years earlier as a for a two placed in of Belsha Carroll the back seat phone, squad sat in the front seat with the car and image opened gallery, menus, where he activated the images showing illegal through it, and saw scrolled large currency. drugs, firearms, of amounts U.S. image Specifically, he Belsha testified that saw gallon-size bag appeared be a Carroll with what marijuana photos depict- teeth, held his and "several showing holding ing including one firearms," Carroll ("the image"). firearm firearm semiautomatic when was The circuit court observed that appeared a label above flipped open, marijuana image with away, Player"; eventually faded reading "Big it Boss that label testify not leaving only marijuana image. Belsha did reading observing or the label. record, that although It it is not clear from the appears, juvenile record. In check" Carroll's
the "routine did reveal Warrant, explained Belsha Support of a Search his Affidavit Carroll, stopped "[a] had check of records with that after he Department Transportation revealed Wisconsin suspended." paragraphs Two driver[']s license of Carroll affidavit, "[a] review of explained Belsha later his Records reveals that County Court Juvenile Milwaukee Circuit offense, posses adjudicated delinquent felony of a [Carroll] was cocaine[,] March 2004." to deliver on sion with intent possess ¶ 9. Belsha *10 While continued Carroll's phone, rang cell it times several and Belsha answered pretending calls, one of those to be Carroll. The caller things; split." asked "four of four for those and a Based on training, recognized his tempting Belsha caller was at- purchase and a half
to four ounces of cocaine. days Two on later, December Belsha sought phone. a search warrant for the cell In his Support Warrant, Affidavit in of a Search Belsha men- incriminating pictures image tioned the gallery; specifically, highlighted he in the saw image
he the firearm as that Carroll was violation the felon possession of a firearm statute. Belsha also described the intercepted phone call. He further stated that commonly phones traffickers use cell to maintain contact with their and sources contents of Carroll's cell provide would evidence of those contacts as well including as evidence related to other offenses, several possession posses- of cocaine intent with and deliver marijuana sion of with intent Moreover, to deliver. explained previously adju- Belsha that Carroll had been delinquent felony, possession dicated for a of cocaine with intent to deliver. In the affidavit, Belsha did not specifically marijuana image describe or mention the picked up phone; that he had observed when he first however, he stated in the that, affidavit based on his knowledge experience, drug commonly and traffickers personalize phones images their cell with of themselves acquired "property drugs." from the distribution of by
¶ 11. A search warrant was issued a court obtaining police After warrant, commissioner. phone, including downloaded data on the cell image. firearm McQuown, Detective who was trained in handling digital prelimi- evidence, the nary hearing at a testified image
that each on the had attached indicating information as "metadata," he described which image He created. at and time which the date on the date is based that the metadata testified also through provided regularly updates time hearing, testimony According meta- at the towers. image created had been firearm that the data indicated possession charged May with Carroll was 22, 2006. on 941.29(2), § by on based felon, a Wis. Stat. a firearm phone, photographic from the cell evidence downloaded 941.29(l)(bm), § language which Stat. Wis. and the adjudicated delinquent person act for an relates to felony. by adult, would be if that, committed suppress ob- the evidence moved 12. Carroll *11 pursuant Milwaukee the search warrant. tained granted Judge County that Kahn, F. Jr. Charles Circuit image of the search Belsha's warrantless motion because justified gallery incident as a search be could not that Carroll was found The circuit court arrest. that, It further held time. arrest at the relevant under police arrest would Carroll, that had arrested even if given questionable been Carroll had that have been suspended driving speeding license, both awith Accordingly, the court concluded offenses. noncriminal viewing the from evidence Belsha obtained that image gallery evidence, tainted; that absent was grounds of the for the issuance insufficient there were pursuant obtained warrant; and that the evidence suppressed.4 had to be warrant was argued that Carroll hearings, the State motion At the suspended driving with a for speeding for under arrest phone browsing through the cell license, Belsha's and that The to arrest. incident justified as a search image gallery was would render exceptions that argue any other did not State party Neither constitutionally permissible. search warrantless appealed. appeals, ¶ 13. The State The court of published by Judge decision written Kessler, Joan F. suppression reversed the order. Because the court of appeals held the issue related to untainted evidence was dispositive, police it did not address whether a officer may phone's image gallery part search a cell as of a search incident to However, arrest. conclusion, its appeals improperly the court of assumed that Belsha through phone image gallery scrolled Carroll's cell preliminary without a held, warrant. It as a matter, that the information contained call that Belsha intercepted provided probable sufficient causе for a premise, warrant. Given that the court then assessed legally possessed whether Belsha and, if so, proper incoming whether it was for him to answer the legal possession First, call. it concluded that Belsha had because, under circumstances, Carroll person was under arrest since "a reasonable in Carroll's position would have considered himself to 'in be cus tody,' given degree of restraint under the circum App Carroll, stances." State v. 2008 WI 26, 314 appeals Wis. 2d 762 N.W.2d404. The court of then permissible concluded that it for Belsha to answer incoming exigency potential call based on the evidence would be lost if he did not. It observed that even if it through was unlawful for Belsha to scroll image gallery obtaining before the warrant, the evi *12 intercepted person dence of the attempting call where a was purchase provided "independent
to cocaine probable issuing cause" for ¶ the Id., warrant. 30. The appeals court then held that because the warrant was lawfully acquired, pursuant the evidence obtained to Accordingly, that warrant was admissible. it reversed presented testimony arguments or to the circuit regarding court significance the answering Belsha's incoming the call. petition suppression filed a for order. Carroll then the granted. review, which this court
II. ISSUES PRESENTED AND OF REVIEW STANDARD argues appeal court, this Carroll that 14. On to reversing appeals erred in the trial court's court of the impermissible suppression He asserts that it was order. phone image gallery. In his Belsha to his for search finding the court was correct that view, the circuit and, therefore, Belsha's him, had not arrested officers justified search could not be as a warrantless search that Moreover, Carroll contends incident arrest. illegal, answering incoming cаll was also Belsha's probable that he cause to believe lacked because drug possession. doing he obtain evidence of so would gallery image from both the Because evidence intercepted phone tainted, call was and the search argues, support the issu- such evidence cannot Carroll a valid ance of warrant. call that contends that The State provides intercepted, suf- untainted, if evidence
Belsha probable for issuance of cause ficient establish argues Belsha's continued It further warrant. incoming answering possession of and his regardless permissible was of whether Carroll call were assuming custody concludes, it even Thus, or not. image pro- gallery investigation that Belsha's intercepted phone pro- evidence, call tainted duced independent untainted, source of vided being justify the warrant issued.5 sufficient argument puts The State forth an alternative also it through image gallery legal because browsing Belsha's arrest. Because while was under lawful occurred Carroll *13 agree approach ¶ 16. We with the State's as fol- legality First, lows: we assess the under the Fourth Amendment of each warrantless search or seizure that produced the evidence outlined in affidavit, Belsha's (1) namely: phone; Belsha's initial seizure of the cell (2) possession phone; Belsha's continued (3) browsing through image gallery; Belsha's (4) answering incoming phone Belsha's Second, call. analysis, based on that we determine whether the evi- dence obtained from those seizures and described independent affidavit is an source of untainted evidence justifying the issuance of the warrant. question comports 17. The of whether a search question
with the Fourth Amendment is a of constitu uphold findings tional fact. We the circuit court's evidentiary findings or historical facts unless those are clearly application erroneous. We determine the of con principles evidentiary indepen stitutional dently to those facts appeals, of the circuit court and the court of but analyses. we benefit from those Sanders, courts' State v. ¶ 85, WI Wis. 2d 752 N.W.2d713.
III. DISCUSSION Permissibility A. Constitutional of the Warrantless Searches begin by briefly revisiting general prin- 18. We ciples regarding legality of Fourth Amendment law of warrantless seizures and searches. The Fourth argument State's first that the intercepted phone produced call independent untainted source dispositive on the issues presented here, we need not reach the merits of that second argument. *14 Constitution, United States to the
Amendment Constitution, I, the Wisconsin Article Section right people protect to secure in their of the be "the papers, against persons, houses, effects unreason IV; U.S. amend. Wis. and seizures." Const. able searches Supreme § 11. United States Court I, Const. art. The personal property seizures has viewed warrantless per to be se unreasonable within such as containers meaning United States v. Fourth Amendment. (1983). 696, Place, 462 U.S. Accordingly, exclusionary requires
¶ rule 19. through suppress the ex- to evidence obtained courts Wong illegal ploitation or seizure. Sun v. of an search (1963). 471, 488 This rule States, 371 U.S. United during only primary applies an to evidence seized ac- search, but to unlawful also derivative illegal quired search, unless the State as result of the illegality original from the shows sufficient attenuation Murray dissipate States, taint. v. United 487 U.S. (1988). 533, 536-37 exclusionary course, rule is not abso- 20. Of Supreme has identified The Court
lute. United States by particular limited intrusions circumstances when personal property pass person's in a law enforcement example, Amendment. For muster under Fourth аuthority agents have limited to hold law enforcement probable they temporarily "have a container where contraband or cause to that a container holds believe . . crime, not secured a warrant. but have evidence of exigencies it or circumstances demand if the recognized exception re- warrant some other quirement present." Place, 462 at 701. U.S. Among exceptions 21. the established to requirement Supreme warrant that the United States pertinent Court Place referenced, two are here. Exigent danger circumstances, such as when there is a destroyed that evidence will be or lost the time it agents take for law would warrant, enforcement to obtain a may justify a warrantless search. State v. Faust, ¶99, 2004 WI 274 Wis. 2d 682 N.W.2d Additionally, "plain under the doctrine, view" object falling plain within the view of an officer who rightfully position subject is in a to have that view is may valid seizure and be introduced into evidence. State *15 (Ct. Edgeberg, v. 339, 345, Wis. 2d 524 N.W.2d911 1994) App. (citing Bell, State v. 62 Wis. 2d 540, 215 (1974)). light principles, N.W.2d 535 In of those we examine each of the identifiable warrantless searches leading to the issuance of the search warrant in this (1) namely: case, Belsha's initial seizure of the cell (2) phone; possession Belsha's continued of the cell (3) phone; browsing through image gallery; Belsha's (4) answering incoming phone and Belsha's call.
1. Belsha's Initial Seizure of the Cell Phone
¶ 22. We are satisfied that Belsha's initial seizure
rights
of the cell
did not violate Carroll's
under
Although
appears
the Fourth Amendment.
there
to be
regarding
ability
little Wisconsin case law
an officer's
to
suspect drop
object
demand that a
an
that the officer
weapon,
believes could be a
such a command can be
pat-down.
likened
ato frisk or
In the Matter of J.G.J.,
Cf.
(D.C. 1978) (concluding
chase in a car investigation, robbery armed connection with object. holding quickly an unknown car while exited his been have behavior, the officers would Given objective justified Carroll belief that on the —based conducting holding weapon have been could —in pat-down, have resulted which would frisk or phone. legal possession Hence, of the cell Belsha's object drop his order for Carroll Belsha's actions, and subsequent it reasonable retrieval of were justi- accordingly, initial seizure of his fied. *16 open phone, legally seized the
¶ Belsha 24. After legitimate marijuana image viewing also was the his image plain in Under Wisconsin was view. because that justified under the seizure is law, case a warrantless object plain plain is in view the doctrine where view position lawfully it, the officer's in to see an officer discovery object, in either inadvertent, and the seized officer at the known to the in with facts itself or context supplies probable seizure, time of the cause to believe object that the is connected or used for criminal activity. Sanders, 311 Wis. 2d 37. legal possession Here, Bеlsha was in
phone position display and thus in a lawful to view the according screen, which, to Belsha's uncontroverted tes- timony, open displayed marijuana image. was experience Further, Belsha testified that on based his working recognized object in HIDTA, he Carroll marijuana smoking image was That, in the as a blunt. taken in with context other known to facts Belsha at namely, time, in that individuals involved traffick- ing personalize phones images, often their with such provided probable sufficient cause believe that the activity was an instrument of criminal con- activity. tained linked to that Under the circum- probable stances, had Belsha cause to seize the phone.
2. Belsha's Continued Possession Cell Phone
¶ 26. After Belsha seized the with the mari- juana image displayed, posses- he continued maintain placed squad sion of the after he had Carroll in possession car. We that conclude that continued justified, again following Supreme the United States reasoning in Court's in Place. The Court Place addressed ability agents of law enforcement to seize and detain person's luggage suspicion based on reasonable luggage contained narcotics and under circum- custody stances where that owner was not under or agents arrest. The Court went on to hold that the had authority temporarily narrow to detain a container in though agents such circumstances ex- case authority reaching However, ceeded their to do so. its explained, conclusion, the Court *17 probable authorities have law enforcement Where or holds contraband that a container cause to believe warrant, crime, not secured a of a but have Amendment [Fourth] interpreted has Court a pending issuance of property, permit seizure of the contents, exigencies of the if the еxamine its warrant recognized other demand it or some circumstances requirement present. is the warrant exception to words, law enforcement Place, In other U.S. at 701. 462 continuing seizing justified agents to hold a in and are (1) probable it to believe that is cause if there container (2) exigencies if of crime, a evidence of contains demand it. circumstances although matter, the "contain an initial 27. As luggage, pieces it in were of discussed Place
ers" analogize to the this case the cell reasonable to underlying luggage concern with in Place. The luggage agents' was that Place in Place privacy detention of the expectation contents of had a reasonable protecting bags. a here, the concern is So, too, of his privacy expectation person's in the con of reasonable assessing phone. courts, in Other or her cell tents of his validity warrant, likened a have a without of search phones expectations privacy person's in cell a in his or that closed containers electronic devices Finley, e.g., possession. v. 477 See, States United her 2007) (5th (holding Cir. 259-60 F.3d privacy in his cell interest had a sufficient defendant therein); challenge the search records to call 1996) (7th Ortiz, Cir. F.3d v. United States pager (holding same has the the owner of privacy expectation data as if it were its reasonable Supp. container); Wurie, 612 F. States v. United a closed (D. 2009) ("It indisputable that seems 104, 109 2d Mass. privacy subjective expectation person in the has a Accordingly, phone."). in this of his or her cell contents *18 analogy appears situation, the to a closed container appropriate.6 be question
¶ 28. As to the of whether Belsha had probable cause to believe that contained illegal drug activity, argues that, evidence of Carroll having marijuana image, probable viewed Belsha had only possessed illegal cause to believe that Carroll had drugs, not to that believe he was a trafficker or that the trafficking. disagree. contained evidence of We To probable search, establish cause to the evidence must probability" particular place indicate a "fair that Hughes, contains evidence of a crime. State v. 2000 WI (quoting ¶ 24, 21, 280, 233 Wis. 2d 607 621 N.W.2d (1983)). Gates, Illinois v. 462 U.S. An officer's knowledge, training, experience germane and probable are Supp. Wurie, court's assessment of cause. 612 F. Arvizu, 2d at 108. United States v. 534 U.S. Cf. (2002) (considering subjective 270-71 an officer's inter pretation part totality of facts as of the of circumstances assessing suspicion, in reasonable a determination that assessment). closely probable akin ato cause legally marijuana Here, 29. Belsha viewed the image; along testimony we consider that fact with his training experience, knew, he based on his drug frequently personalize phones traffickers their cell images acquired through with of themselves with items drug activity. personalized Furthermore, it is those phones commonly many on which traffickers make of their Carroll transactions. did not introduce evidence note, however, We analogy that that is limited to circum presented stances like those here and should not be taken as a general holding phones that cell are to be treated as closed contexts, as, containers all search for example, such a search inventory incident to arrest or an search. testimony regard
suggesting in that that Belsha's credible, and we see no reason or not inaccurate all of the circum- satisfied, are under discount it. We whole, information, taken as a here, that that stances probable gave that the cause to believe Belsha activity. illegal drug contained noting. points are worth Two additional totality clarify, goes assessment to the First, to our give prob- that, a whole rise to circumstances taken as recognize phones can be common that cell able cause. We legal only illegal activities but also used not tools testimony, in context Here, Belsha's taken activities. *19 marijuana image plain it and how with the view of phone, provides appeared evidence of sufficient on probable cause. argues
¶ the fact that Second, the State that 31. leaving police a location that Belsha observed Carroll suspected robbery also evidence of an armed contain weight supporting probable significant in this cause adds clearly the record here does not situation. We note that robbery the crimes of armed a nexus between establish trafficking. and probable had cause to that Belsha 32. Given phone produce of the would
believe that a search
posses-
illegal drug activity,
continued
his
evidence of
phone
sought
he
a warrant
sion of
while
permitted
permissible.
that
Belsha to
The same reasons
permitted
phone in
instance
him to
the first
seize the
possess
time after Carroll was
it in the short
continue to
justify
Exigent
circumstances further
secured.
possession.
Belsha returned the
Had
continued
him, Carroll could have deleted
to Carroll and released
incriminating images
data, such as
numbers
and
phone.
calling
Hence,
in the
Belsha's
records stored
and
permissible.
possession
phone was
continued
Browsing Through
Image Gallery
3. Belsha's
Answering
Incoming
Call
things happened
Next,
33.
twо
as Belsha contin-
possess
phone legally.
opened
First,
ued to
he
through
phone's image gallery.
browsed
the cell
Second,
incoming
he answered an
matter,
call. As an initial
image gallery
clearly
contrary
search
seems to be
to the
holding
exigent
in Place because there were no
circum-
requiring
gallery
stances at the time
him to review the
or
phone.
other data
in
stored
That data
was not
danger
disappearing
immediate
before Belsha could
Supreme
Moreover,
obtain a warrant.
the United States
Sanders,
Court
Place invoked Arkansas v.
442 U.S.
(1979),
support
Place,
as
for its rule.
¶
incoming
However,
34.
Belsha's
justified.
again apply
call was
We
the standard from
requires
probable
Place, which
that
the officer had
cause to believe that the device contains evidence of a
circumstances
a
exigent
justify
crime and that
warrant-
Here,
above,
less search.
Ortiz,
an electronic
incident to
officers seized
of heroin.
Because
memory, incoming
may destroy currently
pages
stored
Thus,
pager's memory.
it
telephone numbers
a
...
imperative that
law enforcement officers have the
retrieve,
authority
immediately
or
incident
"search"
arrest,
pager
to a valid
information from a
order to
prevent
as evidence.
its destruction
Ortiz,
adopted
evaluating
when
rationale
officer's
ability
arrest,
search
seized cell
incident to
permitted
and have
law enforcement
to conduct a
phone's
data,
search of a
warrantless
stored
such as
long
made,
records of calls received and
so
as the other
requirements
exception
of the search
incident
arrest
e.g., Finley,
See,
were satisfied.
interchangeable. Indeed, the court in United States v. (S.D. 2008), Wall, 2008 WL *4 Fla. observed exigent justify that while circumstances could a war- phone, rantless search of a cell tеchnology pagers [t]he differences in between and cell phones [of cut to the heart of this issue whether an reading messages officer's of stored text within a cell phone justified exigent was based on circumstances]. technological The developments that have occurred in decade, decided, significant. last since Ortiz was are Previously, legitimate by there was concern that wait- ing minutes or even seconds to check the numbers pager stored inside a an officer ran the risk that page may destroy another come in and the oldest being platform number stored. This was based on a storage first-in-first-out pagers. of numbers used for messages phones Text on cell are not stored the same message by [I]f manner.... a text is not deleted user, phone will store it. gov- Wall, In the court concluded that the exigency justifying
ernment failed to demonstrate an agent's messages. search of the defendant's text government put There, forth no evidence of the danger messages being destroyed; of the text to the contrary, acknowledged messages generally it that such phone actively remain stored unless a user that, deletes them. Given the court concluded that the messages purely officers' review of the text inves- tigatory and evidence obtained from that review was therefore tainted. Significantly,
¶ 40. at least one court has con- government agent lawfully pos- cluded that when a phone probable sesses a and there is cause to believe it activity, agent illegal drug can answer is used period incoming if arrive in a when it is calls the calls agent impracticable to obtain a warrant first. for the Supp. Paz, La 43 F. 2d United States v. De See 1999). (S.D.N.Y. lawfully agents Paz, La had In De to an a cell incident arrest. While seized agents processing arrest, the defendant's were rang agents nine times and the defendant's unsuccessfully it time. The defendant answered sought each sup- evidence of those calls have pressed. The court concluded that it was reasonable agents the circumstances for the to answer the under *23 suspected in the time of a dealer arraignment, given the arrest and both between timely obtaining allowing impossibility a warrant of losing agents incoming to calls and the risk of answer by leaving As the De evidence those calls unanswered. observed, circumstances, in those "the La Paz court require. agents does not . . Fourth Amendment ignore potential might disappear." evidence that Id. at 375-76. approach
¶ 41. The consistent taken in these the nature of the cases is that the courts scrutinized pager, obtained, i.e., evidence numeric codes on a stored messages, incoming phone calls, text balanced agent reasonably inquiry that with an into whether the required that the situation a search to avoid believed appears assessment, it lost evidence. Based on that that exigent then circumstances the courts reserved exception type for searches directed at the of evidence truly danger being destroyed if that is lost or immediately approach That is consistent with seized. addressing exigent circumstances. Wisconsin case law (stating Faust, 274 Wis. 2d that the rule See determining exigent for whether circumstances are present requires inquiry into whether the officer reasonably delay necessary believed that the to obtain a warrant, under the circumstances, threatened the de- evidence). struction of exigent Hence, we are satisfied that circum- justified answering
stances Belsha's Carroll's cell phone. fleeting аpparent; The nature of a call is picked up, opportunity gather if it is not likely guarantee is to be lost, as there is no —or likelihood—that the caller would mail leave voice or preserve otherwise the evidence. Given these narrow circumstances, had a Belsha reasonable belief that he danger losing potential ignored was in if evidence he Thus, call. the evidence obtained as a result answering call was untainted. Independent
B. Source Doctrine Having ¶ 43. determined warrantless sei- subsequent viewing image gallery zure and on phone produced Carroll's evidence, tainted we turn our question resulting attention of whether warrant conclude, nonetheless valid. for the We *24 below, reasons set forth the call Belsha independent answered is an untainted of evi- source support warrant, dence the search that the untainted previously, evidence, combined, which is as noted with knowledge the officer's traffickers Carroll's juvenile provides probable record, sufficient cause to warrant, result, issue and that as a is warrant valid. independent ¶ 44. The source doctrine derives " principle '[w]hen challenged
from the evi-
327
independent
of such
source, exclusion
an
dence has
position
police
than
put
in a worse
would
evidence
any
they
error or violation.'"
in absent
have been
would
(quoting
Williams, 467
Murray,
Nix v.
U.S. at 537
487
(1984)).
applied to circumstances
As
443
U.S.
both
application
contains
for a warrant
an
where
is
issued warrant
evidence, the
untainted
tainted
support a
is sufficient
evidence
if the untainted
valid
finding
probable
See id. at
the warrant.
to issue
cause
424, 234 N.W.2d
O'Brien,
2d
70 Wis.
542;
v.
State
(1975).
long
"[s]o
later,
seizure
as a
lawful
Indeed,
. .
independent
one .
genuinely
earlier, tainted
of an
why
independent
doctrine
source
reason
there is no
Murray,
Thus,
apply."
our
States "convincing requiring the burden of state to bear illegal gained from information trial court that no entry deci officers' either the law enforcement affected magistrate's decision to or sion to seek a warrant appeals has grant 540. The court it." 487 U.S. at approach: two-pronged the test to be articulated illegal whether, absent First, the court determines sought entry, the search warrant. have the officer would illegally acquired influ if Second, it asks information magistrate's the warrant. to authorize decision enced the (Ct. Lange, 609, 626, 463 N.W.2d 158 Wis. 2d v. State 1990). App. *25 appeals
¶ Moreover, 46. in the court State v. App Herrmann, 38, 2000 WI 2dWis. applied independent
N.W.2d the source doctrine in involving a similar situation search warrant based on Although both tainted and untainted evidence. Murray Lange court in Herrmann did not invoke or analysis, analysis its we are satisfied that principles Herrmann is consistent with the set forth in those cases.
¶ executing Herrmann, In 47. officers were apartment valid search warrant on an in a multi-unit building they leading storage when door found a to a separate apartment although room of a that fact was immediately apparent. not The officers discovered marijuana plants storage in the room's closet before moving They they on to other rooms. then realized that apartment by were in a second warrant, covered they improperly but nevertheless obtained other evi- illegal drug activity they along used, dence of with plants storage evidence of in the closet, room apply apartment. for a warrant to Id., search second ¶ 7. appeals 48. The court of concluded that storage plants
untainted evidence of the in the room independent closet was a source from the tainted evi- police acquired. dence It later further concluded that discovery plants storage in the room closet probable alone was sufficient to establish cause that the apartment contained Id., other related contraband. upheld ¶ 23. Thus, it the search warrant and reversed suppressing the circuit court's order the evidence ob- pursuant tained to the warrant. apply mind, With that case in we circum- inquiry Murray:
stances here to the first set forth illegal whether information obtained from the *26 decision to law enforcement officers' affected the search from the Like the evidence obtained a warrant. seek storage Herrmann, evidence in the untainted closet genuinely incoming phone inde- here was the call from image gallery. viewing pendent As of the of the tainted incoming answering explained call the above, Belsha's legally possessed phone, justified: the he had He was image marijuana plain view, in his that was the viewed drug training experience him traf- informed that illegal typically employ phones such in their fickers circumstances, he was activities, on those and, based losing incoming required ignore risk the call and not activity. provided illegal The caller then evidence by a that dealer Belsha with evidence Carroll placing In did need the short, Belsha not order. gal- image from he had obtained the tainted evidence lery justify answering apрlying for the call or missteps as warrant. Just the officers' search operate place in a them worse Herrmann did not marijuana having legally position after discovered the improper storage plants closet, room Belsha's the viewing image gallery operate to should not they legally penalize police where obtained wholly from the call. That conclusion independent source foun- consistent with the doctrine's policy government "that, should not while the dational placed illegal activity, profit it from neither should be its position than have in a worse occupied."Murray, it otherwise would 542.
487 U.S. at
noting
Lange,
that in
the court of
It is worth
prong
appeals
test,
on the first
remanded based
explicit finding as
law enforce-
for an
to whether the
sought
agents
have
absent
ment
would
warrant
Lange,
also
627-28;
2d at
see
evidence.
158 Wis.
tainted
acknowledge
Murray,
here, the
¶
satisfied,
51. We
above,
are
based on our
permit
the
that
circumstances here
such
inference to
drawn from
Belsha,
be
which we can conclude that
despite
viewing
image
improper
gallery,
would
sought
reasonably
have
First,
the warrant.
we can
infer
sought
that Belsha would have
the warrant based on his
marijuana
plain
image,
view of the
combined with his
knowledge acquired
training
еxperience
from his
drug
commonly
images
that
traffickers
such
use
phones.
personalize
reasonably
their cell
we can
Second,
sought
infer that Belsha would have
the warrant based
intercepted
on
that he
information
when he an-
coupled
knowledge
call,
swered
with his
of
juvenile
short,
Carroll's
record. In
these circumstances
compel us
that
to conclude
a clear
can
inference
reason-
ably be determined to exist here that Belsha would have
sought
through
the warrant
if he
even
had not browsed
image gallery.8
disagree
We respectfully
argument
with the dissent's
Murray
supports
neither
nor the record
inference. In
this
our
view,
support
the facts here
the clear inference that Murray
demands, and that
inference
clear
is consistent with that case's
language
underlying
Murray,
rationale. See
Murray did not affect that the evidence grant magistrate's warrant, is satis decision provides suf as the untainted fied inasmuch reviewing probable In a warrant. cause to issue ficient supports probable the issuance of the cause whether totality reviewing applies court warrant, the search the facts and asks whether the circumstances standard probable establish sufficient forth in the affidavit set likely police to find items are cause to believe place of a crime to the commission related Kerr, designated 181 Wis. 2d be State v. searched. (1994) (citing Gates, 462 U.S. 511 N.W.2d 238-39). "prob warrant, In the context of search at legalistic concept, but a technical or able cause is not measure of the flexible, common-sense rather, plausibility is a particular human be conclusions abоut Id. at 379. havior." following infor- Here, Belsha included (1) frequently drug traffickers in his affidavit:
mation phones and facilitate most of to communicate use cell (2) person- illegal activities; traffickers often their drugs phones images *28 with their with themselves alize (3) adjudicated paraphernalia; Carroll had been and delinquent juvenile felony, possession with as a for (4) gallery cocaine; the cell intent to deliver (5) images firearm; Belsha of Carroll with a contained incoming pretended he answered an to be Carroll when drugs; during ordered call, which the caller (6) holding photos of Carroll a semiautomatic Belsha saw appears along photos gun, of Carroll "with what with appears marijuana, photos quantity to be of of what be a placing it a worse benefitting illegal from behavior and occupied). than it otherwise would have position photos drugs, money, cocaine, as well as and a revolver." above, 54. As stated we are satisfied that the scrolling through
evidence that Belsha viewed while image gallery was tainted and cannot form the basis for Thus, the following affidavit, warrant. of the above facts in the proper assessing are considerations in whether setting to authorize the second; warrant: the first and knowledge typical ways forth Belsha's in which drug personalize phones, dealers and use their cell such displaying image marijuana image as like the that plain explaining view;9 Belsha saw in third, that adjudicated delinquent felony, Carroll had been for a possession of cocaine deliver; with intent and the detailing incoming phone fifth, call and the order drugs. for
¶ 55. We evidence, conclude that like the storage Herrmann, untainted closet evidence observed in probable is sufficient to find cause to authorize the incoming warrant. The call was an untainted source of independent of the tainted evidence obtained browsing through phone image gallery. from the cell provided incoming Based on the information call, in that taken context with the other untainted evidence that experience in Belsha's Carroll's bore the indicia drug probable trafficker, there was cause to believe pertaining that the illegal drug would contain evidence to the O'Brien,
trade. Accord
valid; as a accompa- image including and its the firearm warrant, nying indicating taken, is admis- it was when metadata suppressed have been should not sible, and that evidence appeals by in did not err The court of circuit court. concluding as much. CONCLUSION
VI. the Fourth Amendment that neither 56. We hold I, Section Constitution, nor Article States to the United requires Constitution, the Wisconsin pre- suppressed under the circumstances be holding, satisfied that In we are here. so sented justified seizing Carroll's officer was plain marijuana image, viewing was in view. which justified although in con- the officer was also Further, tinuing phone, possess satisfied that the we are browsing justified opening not officer was through image galleiy that he at the time the cell that the officer such, As the evidence took such action. gleaned tainted and could from that conduct was However, based on warrant. form the basis for search justified exigent in an- circumstances, the officer was during phone, swering incoming call to Carroll's illegal drugs. That evidence was the caller ordered which independent a valid source that formed an untainted warrant, when combined with basis for the search juve- knowledge drug traffickers and Carroll's officer's image along plain of the record, view nile with marijuana Accordingly, affirm the court of blunt. we appeals. appeals
By of the court of the Court.—The decision is affirmed. (dissent ABRAHAMSON, C.J. SHIRLEY S. majority's analysis agree
ing). Ibut I much of the with *30 requires that the cause be remanded to the believe law for a factual determination the circuit court (1) gained phone any from the call information whether image gallery illegal of the affected the or the search warrant; officers' decision seek law enforcement (2) gained phone any from the whether information and image gallery illegal search of the affected call or the grant application. magistrate's the the decision majority opinion agree ¶ I the that both 58. with lawfully by phone seized Detective and his were Carroll Majority op., ¶ 22. Belsha. majority opinion agree
¶ I the that De- 59. with "marijuana image" viewing was tective Belsha's of the Majority image "plain the was in view." lawful because op., ¶¶ 3, 24. majority opinion agree I the that the with browsing through phone "image
Detective's the cell Majority op., gallery" the Fourth Amendment. violated ¶¶ 3, 33. majority agreed that 61. Even if I with the both "marijuana image" provided probable apply cause to
the
phone1
the contents of the cell
for a warrant to search
majority opinion's
the
significant problems
There are
with
on this basis.
probable
evaluation
cause
"marijuana
did
even mention
Detective Belsha
"marijuana
for a search warrant. This
image"
application
his
"blunt,"
ordinary cigar
an
image"
only
smoking
Carroll
showed
marijuana.
training
If
and
and filled
his
hollowed out
with
by
marijuana
image
him
experience had led
to conclude that
involved in
gave probable cause to believe that Carroll was
itself
drug trafficking
that
the cellular
instrument
trade,
photo
failure to mention this
drug
then his
ignored
He
several
incom-
inexplicable.
warrant
affidavit
also
browsing
image gallery.
ing calls while
existed
exigent
circumstances2
(with-
justified
Detective's
the cell
answering
warrant)3
out a
information
about
get
theory
cannot he
with
These facts
reconciled
that the
"training
by
supported
and experience"
Detective's
themselves
"marijuana photo"
an inference drawn from the
that the
itself,
call,
any incoming
or
would contain
of drug
Rather,
trafficking.
implication
obvious
is that
Detective
relatively
thought
photo
inconsequential,
the initial
and the
by
photos
decision to
the later call was motivated
answer
he
*31
already
image gallery.
had
viewed
2 "Exigent
legal jargon,
circumstances" refers "in
because
profession
speech,"
Collins,
our
plain
disdains
v.
United States
(7th
2007), simply
Notably, Detective himself espoused Belsha never an "exi- gent answering Rather, circumstances" rationale for the call. he proceeding pursuant believed he was a valid to search arrest," "incident to thаt the conclusion circuit court and the majority opinion now set aside.
3 theory majority's "exigent The of the circumstances" unanswered, if the call important rationale —that went evidence would be at ignore lost—is odds with the Detective's decision to previous incoming calls, equally likely all to contain incriminat ing majority op., evidence. 40 (discussing See United States v. (S.D.N.Y.1999) Paz, Supp. De La F. (exigent 43 2d 375 justified agents rationale where every circumstances answered calls)). incoming likely one of explanation, nine The far more disprove, which it is the burden State's is that Detective Belsha did not have sufficient reason to believe contained drug trafficking evidence of until after he began view the image gallery. traffick- relating the information
trafficking,4 the basis for search call still cannot be from the ing cannot determine this record we because on warrant call, and the information answering whether from it, independent" "genuinely from were obtained image gallery.5 search the unlawful warrantless enforcement in which law The sequence information in the is important obtained evidence first 6, law enforcement case. On December present the "mari- with Carroll's cell obtained lawfully traditionally from trial barred exclusionary rule has "The direct during or as a obtained either tangible materials physical, States, 371 Wong v. United invasion." Sun of an unlawful result (1963). U.S. may doctrines source" and "attenuation" "independent The Amend- though a Fourth evidence even suppression of avoid the place. taken ment violation has excep- exclusionary recognized rule Supreme two Court has The surrounding the upon the circumstances that are based tions "independent discovery The of the evidence.
unconstitutional illegally government obtained exception to use allows the source" by evidence means government discovered the if the also exception, The attenuation independent misconduct. of its *32 through the contrast, permits evidence discovered the use of the miscon- between government's if the connection misconduct sufficiently discovery is weak. of the evidence duct and the Exception to the Exclusion- Stratton, Attenuation D. The Brent Logic, Dissipated Principle and Study A in Attenuated ary Rule: (1984). 139, 140-41 Criminology J. Crim. L. & 75 totality of the applies a doctrine of "attenuation" The apply a three-factor evolved to analysis but has circumstances (1) Amend- the Fourth proximity between temporal the test: the acquiring for subsequent basis the ment violation and circumstances; (2) and intervening of evidence; presence the See (3) any official misconduct. flagrancy of purpose the (1975). Illinois, 603-04 v. U.S. Brown juana image" plain view. Lawful search and seizure! immediately The Detective then almost viewed the "image gallery" photos phone. Majority op., on the cell question ¶ 8. The Unlawful search! then is what is the sequence viewing "image gallery" time of the and the answering phone, answering Detective's the after not majority op., ¶¶ several 8, 9, other calls. See Except sup- ¶ 63. for the Detective's affidavit port nothing warrant, of the search in the circuit court answering record refers the Detective's the cell phone. Although majority phone the now relies on this simply evidence, call at the circuit court it was not discussed. Therefore record the does not demonstrate precisely the when Detective answered the call. What is clear from record, however, the the that Detective "image gallery" squad examined the in the car almost immediately рlaced after he recovered the squad Majority op., ¶ Carroll in the car. 8. The time of appears call is but unknown be after the "image gallery." According Detective viewed to the necessarily brief, State's "the cell call came in within four hours after the detective seized had the cell phone." argues "marijuana image" is, Carroll that —that
image smoking of Carroll a "blunt" —at most raises a reasonable suspicion marijuana, that he was smoking probable cause to believe selling drugs. that he was affidavit,
The Detective also stated his part as litany experience, his personalize dealers their cell phones photos. clear, however, with It is not from Detective's "marijuana affidavit image" constituted the relevant "personalizing" phone, when the officer made no refer- image. ence to likely this It is as at least that it was the "image gallery," detailed, whose contents the Detective that constituted "personalizing" phone. relevant
338 sought days a war- later, the Detective ¶ Two 64. very galley" photos, "image same obtain rant to unlawfully.6 already The affida- viewed he had application support did for a search warrant of vit evidence on which the critical mention not even majority "marijuana image," namely which relies, lawfully The affidavit obtained. had enforcement law enforcement obtained information law on the relied of call, the unlawful examination on from the juvenile "image gallery," record and Carroll's on experience complaint, Detective's and on the criminal trafficking. drug with to search for the warrant The affidavit 65. the Re- titled "Basis for includes a section
cell quest that as a Warrant," which details Search
for the training, experience, and Belsha's of Detective result experienced law enforcement other discussions with of distribution the methods officers, he is familiar with by drug traffickers devises used and communication "(i) 1(b) (listed l(k)), Drug including through ¶¶ pho- frequently taken, to be take, or cause traffickers tographs in the associates themselves, their drugs acquired property from distribution trade, kept photographs in their residences are often personalize places tele- business; cellular and/or added). (emphasis phones This such information" with only reference is the in the affidavit statement phones. personalizing 3(a) (in through ¶¶ then lists The affidavit
3(e))
justify
relating specifically to Carroll to
matters
to the warrant
pursuant
of the information obtained
Part
digital photo files that
in the
embedded
was the "metadata"
taken. There
photos
were
and date when
indicates the time
more detailed
this
that the Detective obtained
no indication
receiving
warrant.
the search
prior
information
*34
3(a)
the issuance of a search warrant:
a 2004 criminal
complaint in which Carroll was observed to be involved
3(b)
drug trafficking;
stop;
the details of the traffic
3(c)
phone
images
a search of the cell
that revealed
of
3(d)
juvenile
Carroll
firearm;
with a
court record
showing
adjudicated delinquent
that Carroll was
of a
felony
possession
offense,
with intent to
cocaine;
deliver
3(e)
incoming
phone
and
call on Carroll's cell
from
seeking
buy drugs
someone
to
and an examination of
"incident to Carroll's arrest" that revealed
photographs
numerous
of Carroll with a firearm and
"photos
appears
quantity
of Carroll with what
to be a
of
marijuana, photos
appears
of what
cocaine,
to be
as well
photo
drugs, money,
as a
and a revolver."
¶ 67. To determine whether the warrant
issued
"genuinely independent"
on this basis was
of the earlier
"image gallery"
apply
teachings
tainted
evidence, I
Murray
(1988),
States,
v. United
remand the circuit (1) any gained information determination whether image illegal call search of from the or the *35 gallery the decision to affected enforcement officers' law (2) any gained warrant; and whether information seek a image illegal the call or the search from grant magistrate's gallery the affected the decision to majority op., ¶ application. The burden of See 45. lawfully proving is on the that the evidence is obtained Majority op., ¶ state. 19. examining by
¶ 69. I reach this conclusiоn first holding Murray. Murray, In the federal and the facts investigated activity agents and had had the criminal probable cause sufficient obtained evidence show Illinois, direct. Brown v. between the two occurrences was See 590, (1975), supra 603-04 discussed n.5. 422 U.S.
8 (Ct. 609, 2d 390 Lange, In State v. 158 463 N.W.2d Wis. 1990), open and application the relied on aerial App. warrant acquired investigators made an legally field observations before entry marijuana Only piece the last illegal into defendant's field. yet relied impermissible, on which the warrant was appeals, following Murray, remanded the cause for the court of application the the factual determination of whether warrant piece even the have been made without last would evidence. Herrmann, 135, App 2d v. 2000 WI 233 Wis. State relies, not, my opinion, majority on which
N.W.2d majority acknowledges, Herrmann this case. As the relevant to majority on apply Murray framework which did not opinion depends. engaged
that the were accused extensive trafficking conspiracy. None of this evidence violated Only the Fourth Amendment. this untainted evidence presented application a search on for warrant. Murray problem ¶ 70. The was that le- after gally obtaining agents evidence, this federal ille- gally entered a warehouse and without warrant marijuana Murray, observed bales of numerous inside. agents 487 U.S. at The exited the warehouse disturbing agents ap- without evidence. Then the plied for a warrant. application
¶ 71. In the warrant for a search of Murray, agents the warehouse in the federal made no illegal mention whatsoever of the search or of observations made inside the warehouse. The search only lawfully warrant was issued on the basis of ob- prior illegal entry. tained evidence obtained Murray, at 487 U.S. 535-36. The district court denied suppression the defendants' motion the Court of Appeals Murray, affirmed. at 536. 487 U.S. Murray Supreme
¶ 72. The Court10 reversed Although remanded to district court. the federal *36 appeals court had observed "this is that as clear a case imagined illegally [evidence as can be where the ob- totally served] . . . was the irrelevant" to issuance of the Supreme warrant, at 543, 487 U.S. the Court not was convinced that genuinely the information in the warrant was illegal
independent of the search Supreme warehouse. The Court concerned that agents' by prompted decision to seek the warrant was they during entry what had seen the unlawful into Supreme warehouse. The Court also was concerned 10Murray was decided with Justices Brennan 4— Kennedy participating. not 487 U.S. 544. at during obtained that unlawful if the information magistrate, entry presented unlaw- been to the had might fully his information have affected obtained Murray, 487 at 542. to issue the warrant. U.S. decision Supreme ¶ remanded the cause to 73. The Court "not. .. the district court had the district court because agents sought [found] explicitly a that the would have they if not entered the ware- had earlier warrant house."11 explicit
¶ In for factual to the remand contrast Murray Lange, findings required in here both majority opinion finds a "clear inference" sought" warrant, have even Detective Belsha "would Majority op., ¶ 51. The the tainted evidence. without post legal based on the court's hoc inference seems to be "could rationalization that because Detective Belsha granted a warrant the basis of untainted have" been on sought surely evidence, warrant, he which would have surely granted. is un- would been The inference have by by supported or the record. law appeals 75. As the Wisconsin court observеd Lange, at do not make factual 2d "we Wis. contemplate findings." simply Murray that, in does by fact-finding any court, a trial the absence of relevant appellate reach about court can its own "inference" sought the war- enforcement officers whether law genuinely indepen- on basis of evidence that rant unlawfully obtained evidence. dent of Murray opinion demands 76. Justice Scalia's enough is "clear record from which the inference findings justify the that the District Court's conclusion 11 Murray, U.S. at 543. *37 independent
amounted to a determination of source."12 Murray provided And stronger the facts a much justification "genuine independence" for an inference of present than in the case. Murray, only
¶ 77. In the evidence set forth in the application lawfully for the warrant was evidence ob- agents unlawfully tained obtained additional before evidence that was then omitted from the warrant application. Murray, In the district court and court of appeals suppress refused to the evidence. In contrast, in present suppressed case the circuit court the evi- any dence. If inference could be drawn from the circuit present court's record case, it must be that the evidence from the call was tainted.
¶ 78. provid- The record in this case falls short of (1) ing determining any bases for whether informa- gained tion illegal from the call or the search of image gallery affected the law enforcement officers' (2) decision to any seek a warrant; and whether infor- gained illegal mation from the call or the search image gallery magistrate's affected the decision to grant application. plainly required, What is and not present in this record, is for the State to establish as a speculation matter of fact—not as a matter of —that 12Id. The only instance in the Murray opinion in which Justice Scalia discussed an inference is as follows: sure, To be the District Court purpose did determine that the entry part guard warrantless against "to the destruction possibly evidence," critical perhaps and one could infer from this agents entry already planned who made the to obtain that through "critical evidence" a warrant-authorized search. That not, however,
inference is
enough
justify
clear
the conclusion
findings
that the District Court's
amounted to a determination of
independent source.
Murray,
unlawfully "image gallery" evidence affected obtained warrant," the "the decision to seek nor neither Murray, U.S. at the warrant." 487 "decision to issue majority opinion ¶ reaches a of 79. The conclusion stripped the affidavit unlawful law—whether genuinely independent "gallery images" of the unlaw- is by impermissibly making fully a obtained evidence— Detective's decision to seek factual inference about the magistrate's to it. and the decision issue warrant logic permits majority opinion's ¶ an of- 80. The already sufficient evidence for a ficer who has obtained proceed one, to nevertheless without search warrant actually suspected confirming that the exists avoiding apply to a warrant until and thus need for already my suspicions In the opinion, have been confirmed. ignores majority underlying deterrence exclusionary exclusionary rule. The rationale prevent, repair. purpose to Its rule "is calculated compel respect for to deter —to the constitutional is guaranty only effectively way by available re- — moving disregard Elkins v. United the incentive to it." (1960). court should not States, 364 U.S. 217 This mentality,"13 support a" later' first, 'search warrant justification using "post a for hoc shоuld not fabricate already illegally had obtained."14 information that been 13 at n.2. Murray, 487 U.S. 540 (9th 1981). Taheri, v. 648 F.2d Cir. United States police impermissibly opened package a and seized Where first test, drug-sniffing a drugs perform a chemical then used sought a dog package alert on the and afterwards warrant alert, the reasoned only dog's on the of the court basis government's position policy be with the [t]he cannot reconciled exclusionary rule: the effective deterrence unlawful behind the argument be] more [Such . .. would no than searches and seizures. already post justification using for information that had been a hoc I forth, 81. For the reasons set dissent. (dissenting). PROSSER, 82. DAVID T. J. The phone photo in this cell issue case whether a holding weapon, defendant semi-automatic and other photos depicting sup- firearms, should be pressed dispute as no evidence. There is adjudicated delinquent juve- had defendant been as a drug-related felony. dispute nile There is no for also *39 unlawfully possessed that the defendant firearm a after felony adjudication. question his The here is whether law enforcement obtained this crime in conformity the with Fourth Amendment. Because I police procedure have serious reservations about in obtaining pivotal respectfully I evidence, dissent.
I Wednesday, ¶ 83. The facts are as follows. On police a December Milwaukee detective and an special agent conducting FBI were surveillance of a in the house City area of 21st and West Brown Streets in the approximately p.m. It of Milwaukee. was The law investigating enforcement officers were an armed rob- bery they monitoring and, in connection, were a suspect near vehicle the house. The vehicle was a white Although question may Ford Escort. in housе have occupied by been the house aunt, the defendant's there illegally permit obtained. To evidence to be admitted under these encourage police ignore circumstances would officers to the dic- conducting investiga- tates the fourth amendment initial application Wong .. . tions. of the traditional Sun Mechanical "independent analysis source" where search a warrant subse- quently supported by albeit commissioned affidavit that relies evidence, upon independent police would treat allow officers to requirement merely formality. post warrant as an ex facto Id. (internal omitted). citations or in the record that either defendant is no evidence charged has ever been in connec- the defendant's aunt robbery receipt or with the of stolen tion with robbery. property from a
¶ Ford "left the 84. The Escort location" white driving on Streets, south 21st to Vine 21st and Brown Street, to 24th then south on Street, then west on Vine Avenue, on to 27th 24th to Lisbon then west Lisbon gas Street, turned station on where it into northeast corner of 27th Lisbon. John of the Milwaukee 85. Detective Belsha Department Ford drove testified that the Escort
Police by quickly slowly Street, on then his vehicle 21st gave up. speeded The consis- The officers chase. Ford traveling tently speed as 60 limit, as fast exceeded the per Avenue, Lisbon with officers miles hour on pursuit. does not indicate whether hot The record squad marked car or flashed their officers were in a lights they pursued the defendant's car. as overhead gas station, At the defendant "exited something very quickly He had his seat .... driver's *40 weapon his service hand," so that Detective Belsha drew drop in his defendant what was and ordered the "to ground." get on the hand down object, dropped which 87. The defendant phone. a U.S. Cellular Audiovox cell turned out be "flip phone a on the a with camera The cell was display [had] it, a clock It a clock on a little with front. on it." Belsha later testified that when 88. Detective open dropped phone, or it was either
the defendant ground. flipped open detective, it hit the The who when him, Carroll, handcuffed did not defendant know phone, briefly then asked him examined his gave identify his name but did himself. The defendant After have identification with him. the defendant gave name, his the officers ran "a routine wanted check" up suspended on him and "it came with a status for driver's license." picked up
¶ 89. When Detective Belsha the cell phone, display picture he on the a noticed screen "smoking commonly defendant what's referred to as a marijuana cigarette." blunt, a custody ¶ 90. The defendant taken into was placed police of the back vehicle. Detective Belsha photo sat in the front seat the vehicle and activated a gallery phone. point pictures in the At that he observed illegal large drugs, currency, a amount of and fire- including picture holding arms, of the defendant weapon. picture semi-automatic He also encountered a holding appeared gallon of the defendant what to be a baggie marijuana size in his teeth.
¶ 91. vehicle, While Detective Belsha was his phone rang the defendant's cell than once. On more one occasion, the detective answered the and heard interpreted request buy what he as a cocaine. The things; split." caller "4 of asked for those 4 and a
II suppression hearing photos ¶ 92. A on firearm sessions, held in two on March and March County Judge 2007, before Milwaukee Circuit Charles Judge F. Kahn, Jr. At session, the second Kahn exаm- phone, ined the defendant's cell which had been re- police department property trieved from the room, and he described the for the He record. then stated legal the issue as whether Detective Belsha had the *41 authority, viewing display picture after the cell of go smoking and look blunt, "to further a the defendant electronically pictures in the cell saved at the other phone itself." argued further that "a search
¶ The State 93. justified of the to the arrest incident was only based not arrest, said, it was defendant." Carroll's license) suspended driving (e.g., speeding but and on in terms of the of the officer "the also on observations phone." of the contents Detective
¶ The defendant asserted 94. expose phone menu to the cell Belsha's activation pictures photo gallery evidence, for "a search was in the required inventory a search search," and thus not an warrant. Judge that the cell
¶ concluded Kahn 95. danger there posed and that "because was to officers no phone, search of the cell until after the arrest made no phone... private which the cell information on [for subsequent] [a search warrant for the basis formed prop- illegally" phone] and could not obtained reviewing by erly commissioner the court be considered the search warrant. for the affidavit that the search warrant It should be noted 96. part supporting at of the record it were the affidavit hearing. suppression makes reference The affidavit interception phone call after Belsha's Detective to reviewing photo gallery. pictures was, There in the interception testimony at the about this however, no hearing, suppression did not refer to and the State suppression argument interception hear- at the in its ing. Judge dis- the nub of this Kahn identified
pute Belsha could Detective he asked whether when phone photo single rely the defendant on smoking at circumstances blunt, the other known *42 justification photo gallery time,
the as to search the phone obtaining within the without a warrant. A re- question single phone photo lated is whether the cell of 19-year-old smoking together defendant blunt, give with other circumstances, known was sufficient to authority begin answering the detective to phone defendant's cell calls. totality
¶ In short, did the of the evidence gas give police probable available at the station photos cause to search the defendant's cell for intercept obtaining his calls without first a search warrant? majority searching 99. The concludes that phone photo gallery on this unlawful, evidence was agree. majority goes
and I But the then on to conclude single display photo smoking of the defendant enough permit police interception a blunt was defendant's calls to avoid the destruction of evi- analysis argued dence. This was not court, the trial by nor considered the trial court. It is inconsistent with ruling photo gallery my this court's on the and, in view, privacy at odds with the of citizens.
Ill ¶ 100. The defendant had a U.S. Cellular Audio- phone. flipped vox cell open, When this it (LCD) liquid crystal display reveals a top screen at the keypad multiple and a activate functions of the Normally, flip-type phone at the bottom. is not open being Consequently, photo unless it is used. smoking normally the defendant a blunt would not be plain view, it as was to Detective Belsha. The flipped defendant makes no claim that the detective phone open photo to see the on the LCD screen. photo on time, the defendant's 101. At the same significance рhoto in the critical the LCD screen—a majority opinion in the detective's never mentioned —is report. six-page police It mentioned the affida- is not application supporting warrant. It is for a search vit complaint. it is And in the criminal not mentioned preliminary hearing. transcript in the mentioned *43 photo in the record to the blunt There is no reference response to the motion until the State filed its majority suppress. attributes I it curious that the find phone photo significance this court to a cell that such key in this case did and that the officer has never seen highlight the defendant's until three months after arrest. hearing, suppression
¶ the State took 102. At the position the contents officer could examine that the phone— phone conduct a search of the cell i.e., of — The circuit court to the defendant's arrest. incident in defendant was cus- found, however, that while the police placed tody car, he he in the back of when was search of until after the officer's was not under arrest majority any phone. event, the concludes In activating photo not lawful when menu was photo. principally on the blunt activation was based IV support of a in Detective Belsha's affidavit part: in the cell reads search warrant for of phone incident to the arrest examination of said [A]n photographs, revealed numerous Jermichael Carroll Jermichael photos including firearms. several of the in a firearm one possession in of Carroll only the separate photo of same with a photographs, that based photo. Your affiant states firearm in another your upon training experience, affiant[']s and the your the photo, appears examination of it affiant to Additionally, be an semi-аutomatic firearm. actual photos appears there are of Carroll with what to be a marijuana, quantity photos appears of what of to be cocaine, photo drugs, money, as well as a of and a revolver. According majority opinion,
¶ 104. to the none these statements should have been included in only photo affidavit. The statement about entitled detective was to cite the affidavit was photo smoking that he a observed Jermichael Carroll marijuana cigarette, plain display view on the phone. screen of Carroll's But such statement was not included in the affidavit. course, 105. Of Belsha Detective did offer addi-
tional information the affidavit. He said that while possessed phone, he the defendant's cell
said ring; your continued to affiant answered one calls made said on December *44 pretended to be Jermichael Carroll. Your affiant your states caller that the asked affiant for "4 of those things; split," upon your 4 and which a based affiant's experience training and in investigations related to the slang, distribution of controlled is a request substances 1h ing purchase of quantity cocaine, a ounce drug trafficking. consistent with quite compelling. ¶ 106. This evidence is an phone If person's affidavit for a warrant to search a cell person adjudicated were to assert that has been delinquent possession for with intent to deliver cocaine (a felony), person's phone picture cell features a person smoking marijuana cigarette, a and that intercepted person's phone the affiant a call to the cell probable purchaser, from a cocaine the affidavit would probable person's cause to search the cell contain question phone. The critical is whether Detective intercept entitled to the call to the Belsha was resulting phone defendant's cell and then use the infor- mation in his affidavit. testimony quite
¶ 107. It is clear from Belsha did not the defendant's Detective answer impersonate the until he had defendant after pictures phone. photos examined all the inside the The provided grounds phone, the defendant's but answer lawfully photos the detective could not examine those without a warrant. question Thus, 108. is whether Detective intercept
Belsha was entitled to the defendant's only following call on information: (1) up person An turned in the unknown location of a house under in connection with a surveillance robbery.
(2) person speeding The after he left the area trying possibly surveillance, that he to evade a car may may police a or not have known was car.
(3) person's suspended. The license to drive was (4) person's picture The cell showed marijuana cigarette. smoking him (5) Drug frequently take, traffickers or cause to photographs illegal taken, have of themselves with drugs personalize phones and then their cell with those pictures. majority syllogism appears The that the
rely on is as follows:
(1) Drug frequently personalize traffickers their phones pictures possessing with of themselves illegal drugs.
(2) smoking him The defendant's cell shows marijuana cigarette. a
(3) probably drug Therefore, the defendant is a trafficker. majority
¶ 110. Then the adds that because the drug probably police defendant trafficker, a are intercept telephone entitled to his calls without a war- they drug dealing. rant so that will not lose evidence of my analysis up mind, 111. To this does not hold justify by interception or a search warrantless defendant's exigent calls. The facts here do not establish permitting police dispense circumstances with a warrant.
¶ 112. The officers did not know who Carroll was felony adjudication and did not know of his at the time intercepted post Detective Belsha the call. Carroll did a picture smoking marijuana phone, of himself on his but marijuana he could have been an occasional in- user drug many stead of a trafficker. The internet features pictures marijuana people employ can as "wall- paper" phone display on cell their screens. After this impersonal picture illegal drugs decision, will an on a phone provide probable cause for a search of the phone without a warrant?
¶ 113. There is no the record that charged any Carroll has been with offense other than being possession drug Thus, felon aof firearm. pictures drug did not lead to additional evidence or drug-related charges. may
¶ 114. Law enforcement have been able to photos obtain a search warrant without reliance on the photo gallery intercepted in the or reference to the telephone they not, call. If should have been able to intercept call without warrant.
¶ 115. This case is different from United States v.
(5th
2007).
Finley,
Finley
incorporates complaint into this affidavit a criminal May target. in which the . . was ob- dated activity to be consistent with served involved acknowledge trafficking." The affidavit fails to that this complaint was dismissed before affidavit was filed complaint guns, "drug and that the involved traf- *47 ficking." unspoken implication person The is that acting drug trafficking" person if "consistent with possesses gun. photos reasons, 117. For all these suppressed, or,
defendant with a firearm should be at a minimum, this case should be remanded to the circuit hearing court for a to determine whether informa- gathered illegal tion ing from searches and other mislead- improperly
information
tainted the
affidavit
court commissioner's decision to issue the warrant. See
(1988).
Murray
States,
v. United