- Roberts, ___ CA5 ___, ___ CR3 ___ (21) #C081843:
A thirteen-year-old girl was murdered in a Sacramento County park. Her murder went unsolved until defendant’s DNA was linked to her belt buckle and cigarette butts found at the scene. Defendant’s DNA had been collected after an unrelated felony arrest more than a year after Jessica’s murder. Although that arrest was supported by probable cause, he was not formally charged in that matter. Based primarily on the DNA evidence, a jury found defendant guilty of murder in the first degree. The jury also found true an enhancement allegation that defendant personally used a deadly and dangerous weapon, a knife. Defendant was sentenced to an aggregate term of 26 years to life.
Def’s 1538.5 motion was denied. The Court of Appeal, per Murray, J., affirmed.
The court addressed the issue of whether using a DNA sample taken from a defendant who is validly arrested for a felony on probable cause but never formally charged, violates the defendant’s federal or state constitutional rights against unreasonable search and seizure or his state constitutional right to privacy.
The court held that defendant’s federal right protecting him against unreasonable search and seizure was not violated. Following United State Supreme Court precedent, the court said it was no different than taking fingerprints and photographs of someone arrested on probable cause.
And like fingerprints and photographs, once validly obtained, the later use of that evidence in the investigation of another crime is not constitutionally prohibited.
Independent state grounds are not sufficient under the Truth-in-Evidence provision of Proposition 8.
There is a lengthy treatment of the two leading cases on this issue: King, 569 US 435 (13)and Buza, 4 C5 658 (18), concluding:
We disagree with defendant’s premise that what subsequently happened after booking—that he was neither formally charged nor subject to a probable cause determination by a neutral magistrate—meaningfully alters the Fourth Amendment calculus. The reasoning in King and Buza set forth ante implicitly disposes of defendant’s contentions. Indeed, as noted, the high court in King never suggested the applicability of the governmental interests that attach upon an arrest based on probable cause should be reevaluated or reconsidered depending on later proceedings in the criminal justice process, including a prosecutorial charging declination. No such rule is required for other common identification evidence collected at booking like photographs and fingerprints, and we see no reason why such a rule should be required for DNA profiles generated from junk DNA obtained from a person by buccal swab after a valid arrest as part of the booking process.
A Possible U. S. Supreme Court Case on Cell Phone Searches
We’re a bit low on new California cases this cycle, which gives us time to ponder what will surely be a frequent issue in the years ahead. A petition for certiorari is currently pending before the United States Supreme Court—Ohio v. Deuble.
From the blog of lawyer Michael Delsignore, comes the following facts:
A man by the age of 21 was chatting with a person he met on the lesser-known social media app “Whisper.” The man suspected he was chatting with 15-year-old “Bella Jane.” However, “Bella Jane” was actually a law enforcement officer posing as a teenager online to catch sexual predators.
Respondent initiated the conversation with “Bella Jane” with a bold first message that included a detailed description of his penis. “Bella Jane” responded, and the Respondent messaged back with more crude language and a photo of his penis. That morning, several investigators conducted surveillance, and Respondent sent a message to “Bella Jane” around the time he was supposed to meet her. After more sexting, the Respondent arranged to meet “Bella Jane” later that morning at a park nearby at 10:00 am. He said that he would be driving a green Honda. However, Respondent drove by the park and noticed police vehicles. He then messaged “Bella Jane” and said, “I drove by, and there was a cop, I am not trying to get arrested.”
An hour later, he returned to the park and began playing basketball. The undercover officer continued to message the Respondent through the app. Every time the officer would message the Respondent, the Respondent was observed to use his phone and reply. Based on this observed evidence, the officer radioed another officer to have Respondent arrested.
Once Respondent was detained, the officers collected his phone from the basketball court and sent a “test message.” to confirm that he was the person chatting with the undercover officer. He was taken into a truck for questioning and read his Miranda warnings. He admitted that he had come to the park that day to have sex with a 15-year-old girl. The officers sent a message to Respondent and saw that a notification appeared on the screen. The officers used this information for cause to arrest Respondent. Testimony during the suppression hearing supports the contention that law enforcement officers did not access the phone’s contents but observed a notification on Respondent’s phone screen.
At trial, the Respondent moved to suppress evidence, which the trial court denied. He sought to suppress all evidence at trial, which included his statement and the contents of his cell phone. He asserted that he was arrested without probable cause and that all of the evidence gathered should be excluded under the Fourth Amendment’s right against unreasonable seizure.
The appellate court applied Riley v. California to the case and held that the Respondent had a reasonable expectation of privacy when it came to his phone notifications. However, other circuits have found that there is no such expectation of privacy. Some courts compare notifications to a cell phone ringing; there is no reasonable expectation of privacy when it comes to one’s ringtone. However, notifications are much more detailed and give more information than just a ringtone.
This case presents two questions for the Court:
1) Whether probable cause to detain a person suspected of soliciting sexual activity from a minor (a posed undercover police officer) through social medial, where the person’s identity is corroborated by the actions he takes. The defendant never physically met the “teenage girl” he was sexting online. He agreed to meet girl (the law enforcement officer posing) and was the only person observed at the location using his cell phone as the “girl” sent him messages via social media.
2) Whether a phone is searched even if officers do not access the phone’s content.
Cert. has not yet been granted. Stay tuned.
Key search cases involving cell phones:
CARPENTER, 585 US ___, 138 SC 2206, 201 LE2 507 (18): FBI obtained cell-site information from Def’s cell phone carrier. Used to establish Def at location of robberies. Held, obtaining this information was a search requiring warrant supported by probable cause. 5-4, decision by Roberts, CJ.
RILEY, 573 US ___, 134 SC 2473, 189 LE2 430 (14): Stop for traffic violation and arrest on weapons charge. Offs searched cell phone data and found gang evidence, leading to sentence enhancement. Illegal warrantless search without exigent circumstances. Unanimous. Supersedes contrary Cal. Sup. Ct. decision in Diaz, 51 C4 84, 119 CR3 105, 244 P3 501 (11).
MACABEO, 1 C5 1206, 211 CR3 34, 384 P3 1189 (16): Offs stopped Def on his bicycle for failing to stop at a stop sign. Consented to search of pockets. Cell phone. Search by Off found obscene pics. Invalid under RILEY.