Having one’s cell phone on his person and being directed to come to the scene of the search under a military search authorization [equivalent to a search warrant] does not permit search and seizure of the phone under Summers and Bailey. Here, however, there was an independent source for the information ultimately found, and there was thus no prejudice. United States v. Drinkert, 2021 CCA LEXIS 131 (N.-M. Ct. Crim. App. Mar. 29, 2021):
Because we have determined Appellant’s consent to search his phone was not voluntary, we next look at whether the phone was lawfully obtained under the authority of the search warrant. Specifically, we examine whether law enforcement had the authority to search and seize the phone by virtue of Appellant, who had the phone in his pocket, being on the premises that was the subject of the warrant.
The search warrant authorized law enforcement to search for and seize items of evidentiary value from Appellant’s residence, to include cell phones. It did not authorize a search of Appellant’s person. The presumptive validity of the search warrant was not challenged at trial; however, both sides agreed the warrant only covered phones found inside the residence during the search. As discussed above, the record indicates that once the search of the home was underway, the NCIS agent requested that members of Appellant’s command transport Appellant to the residence and was “pretty sure” Appellant had his cell phone with him. Further, the NCIS agent testified that once Appellant was in the house he immediately conducted an “officer safety” search by asking Appellant to empty his pockets, which led to the discovery of the phone on his person.
As discussed above, we find the NCIS agent’s action runs afoul of Bailey, wherein the Supreme Court held the detention of occupants beyond the immediate vicinity of the premises covered by a search warrant cannot be justified under Michigan v. Summers. In Summers the Court recognized three important law enforcement interests that, taken together, justify the detention of an occupant who is on the premises during the execution of a search warrant: officer safety, facilitating the completion of the search, and preventing flight.38Link to the text of the note However, in Summers and later cases, the occupants detained were found on or immediately outside the premises at the time the police officers executed the search warrant, which is a requirement under the Court’s subsequent holding in Bailey.
Here, Appellant was approximately 20 miles away when he was brought to the residence at the behest of NCIS. While it is not uncommon in the military to have a suspect transported to NCIS in order to conduct an interview (if, after being advised of his or her rights, the suspect elects to participate), here the intent was not to interview Appellant. Rather, it is clear from the record that the reason for having Appellant transported to the residence was to bring the cell phone to the situs of the search. Once there, Appellant was told to empty his pockets and then directed into the kitchen, where the phone became the sole focus of the interaction between law enforcement and Appellant.
We conclude that obtaining the phone in this manner was unlawful under Bailey. As there is nothing in the record to indicate that Appellant was asked to, or did in fact, facilitate the search of his home, we find that when Appellant was brought to the residence by members of his command at the NCIS agent’s behest, there was no valid reason to inject Appellant into the residence during the ongoing search other than to bring him and his phone into the purview of the warrant. As this is precisely the sort of governmental action that Bailey prohibits, we conclude that the phone was not lawfully obtained incident to the search warrant’s authorization to search and seize evidence within Appellant’s residence.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)