N.D.Ind.: “No harm, no foul” on no exclusion for illegal cell phone search mentioned

An officer involved in the case conducted an illegal warrantless, albeit limited, search of defendant’s cell phone, realized it was wrong, and then stopped and didn’t tell the case agent or anyone else what he’d done. Later, he “came clean” to the AUSA who told the defense. It was explored at a hearing, and the court suggests “no harm, no foul” [see Treatise § 2.01 No. 1, at n. 14] is reason not to apply the exclusionary rule and declines to suppress. United States v. Pecina, 2014 U.S. Dist. LEXIS 163121 (N.D. Ind. November 21, 2014):

After seeing the officers on the stand and hearing the testimony outlined above, I find the officers credible. Officer Carmin was over-eager and decided the day after the arrest to plug in the phones to see if there was any bombshell evidence. He printed out the contents of the phones and began searching commercial databases to connect numbers to names. It then occurred to him that the phone searches might not be lawful, so he stopped his review and decided to pretend it had never happened. It wasn’t even his case, and he figured if he didn’t mention it and influence the investigation then it would be as if the search had never happened; no harm, no foul. Officer Carmin seems to have come to his senses during the pretrial preparation session, and he came clean to the Assistant U.S. Attorney and the other police officers. The government promptly complied with its disclosure obligations and turned over the information to the defense the next day.

There has never been any suggestion that Officer Carmin’s phone search was followed up on, or that it had any impact whatsoever on the prosecution of this case. The defense suggests that it’s implausible that the police wouldn’t follow up on phone evidence as part of its investigation. Maybe in an ideal world law enforcement would have the time and resources to run down every lead in every case. But frankly, as far as I can tell, the investigation pretty much started and ended on November 14, 2013. The police found the methamphetamine and got a confession — as far as they were concerned, case closed. The government’s case at trial, from all indications, was going to consist of Officer Young explaining the traffic stop and search, an expert on the drug business to explain things like street value of drugs, and a scientific expert to explain the lab analysis of the methamphetamine. Officer Carmin doesn’t appear to have been involved with the case after Pecina’s arrest and his initial court appearance the next day. There is no reason that Agent Leary would or should have asked Officer Carmin about the phones because Officer Carmin wasn’t supposed to be working on the case. As for Officer Young, he’s a patrol officer and he wouldn’t be involved in a targeted drug investigation (to whatever extent there even was one). He made the arrests, got back in his patrol car, and moved on.

It wasn’t textbook police work, but it makes sense. I believe that Officer Young and Agent Leary didn’t know about the phone searches until November 2014, and so they didn’t participate in withholding that information from the prosecutor (and, by extension, from the defense). Given that, I still believe Officer Young’s and Agent Leary’s testimony from the initial suppression hearings. Furthermore, Officer Carmin’s withholding of information doesn’t bear on the car stop and search, or the questioning of Pecina that happened before the phone search did (so the questioning and confession couldn’t possibly have been based on the phone search). Therefore Pecina’s motion for reconsideration of his motion to suppress evidence is denied.