Wednesday, February 3, 2010

Hold That Call

The Wisconsin Supreme Court upheld the admission of most of the evidence obtained after seizure of the cell phone of an arrested defendant:

The focus of our inquiry is whether the evidentiary basis for the warrant to search the cell phone was tainted such that the Fourth Amendment to the United States Constitution, or Article I, Section 11 of the Wisconsin Constitution, requires suppression of that evidence under the following circumstances:  (1) an officer who had observed Carroll speeding confronted Carroll outside of his vehicle and ordered him to drop an unknown object that he held in his hand; (2) upon retrieving that object, the officer recognized it as an open cell phone and observed on the display screen an image of Carroll smoking what appeared to be a marijuana blunt; (3) the officer kept the phone, scrolled through its image gallery, and saw other images depicting Carroll with illegal items; and (4) the officer answered an incoming call pretending to be Carroll, and during that conversation, the caller ordered illegal drugs.  The police obtained a warrant to search the phone.  With the warrant, the police obtained time-stamped digital images from Carroll's cell phone.  It is that evidence that Carroll seeks to suppress.

We hold that neither the Fourth Amendment to the United States Constitution nor Article I, Section 11 of the Wisconsin Constitution requires that the evidence be suppressed under the circumstances presented here.  In so holding, we are satisfied that the officer was justified in seizing Carroll's cell phone and in viewing the marijuana image, which was in plain view.  Further, although the officer was also justified in continuing to possess the phone, we are satisfied that the officer was not justified in opening and browsing through the cell phone image gallery at the time that he took such action.  As such, 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 circumstances, the officer was justified in answering the incoming call to Carroll's phone during which the caller ordered illegal drugs.  That evidence was an untainted independent source that formed a valid basis for the search warrant when combined with the officer's knowledge of drug traffickers and Carroll's juvenile record, along with the plain view of the image of the marijuana blunt.  Accordingly, we affirm the court of appeals.

(Mike Frisch)

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