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Blackberry Seized Unlawfully

This post is about a 4^th Amendment case that arose in the U.S. Virgin Islands.

As you may know, the U.S. Virgin Islands are, as Wikipedia explains, a ?group of islands in the Caribbean that are an insular area of the United States.? As Wikipedia also explains, ?an insular area is a United States territory, that is neither a part of one of the fifty U.S. states nor the District of Columbia?. And Wikipedia notes that Congress ?has extended citizenship rights to all inhabited territories? except American Samoa.

For our purposes, what we really need to know is that the U.S. Virgin Islands operates under a legal system that is analogous to the system used in U.S. states. That is, the U.S. Virgin Islands has its own court system (Superior Court and Supreme Court), which administers Virgin Islands law, and a federal court system (U.S. District Court for the District of the Virgin Islands), which administers U.S. federal law. It was that federal district court which issued the opinion we?re going to analyze.

The case is U.S. v. Garvey, 2010 WL 3724694 (U.S. District Court for the District of the Virgin Islands 2010), and this is how the issue we?re concerned with arose:

David Roldan is one of eight defendants charged with conspiracy to distribute 295 pounds of marijuana. In addition, Roldan is separately charged with using a telephone in facilitating the conspiracy to distribute marijuana. On February 16, 2010 Agent Semrick of the Drug Enforcement Agency (DEA) obtained a warrant to search to search the home of Steven Garvey, located at 219 Sion Hill. The warrant authorized law enforcement to search the residence and `[a]ny other buildings, storage sheds or vehicles that are located within the confines of the physical property.? . . . Attachment B of the search listed the property to be seized which included `cellular telephone and other instruments used to communicate with other co-conspirators.?. . .

On February 17, 2010, Special Agent Semrick, Officer Ortiz of the Virgin Islands Police Department and other law enforcement officers executed the search warrant at 219 Sion Hill. At the time of the search, Roldan was located in the carport of 219 Sion Hill. At some point during the search, Officer Ortiz noticed Roldan `trying to hide a Blackberry cell phone.? Officer Ortiz then performed a search on Roldan, found his Blackberry and confiscated it. Law enforcement subsequently searched through the contents of Roldan's Blackberry and found a picture of a DEA agent's car. Upon finding the picture on Roldan's cell phone, Roldan was brought to the High Intensity Drug Trafficking Area Office where he was questioned about the picture.

U.S. v. Garvey, supra.

Roldan filed a motion to suppress in which he challenged

two separate aspects of the police's conduct. First, [Roldan] argues that law enforcement unlawfully searched him whilst he was at 219 Sion Hill. [Roldan] contends that he was not subject to search simply because he happened to be located on property for which the Government had obtained a search warrant. Second, [Roldan] argues that the Government again committed an unlawful search when it examined the data on his phone and found the picture of the DEA agent's car.

U.S. v. Garvey, supra.

In ruling on the motion, the federal district judge explained that at the hearing on the motion to suppress ?Agent Semrick testified that Officer Ortiz `seized? the Blackberry? from Roldan. U.S. v. Garvey, supra. The judge found that this conduct constituted ?a seizure for Fourth Amendment purposes?, which meant that ?the Government bears the burden of showing that this seizure was reasonable? under the 4^th Amendment. U.S. v. Garvey, supra.

As I?ve explained in earlier posts, a seizure of property such as the Blackberry at issue in this case occurs when law enforcement officers ?meaningfully interfere? with an individual?s possessory interests in their property. Soldal v. Cook County, 506 U.S. 56 (1992). As I?ve also explained, to be ?reasonable? a seizure must be conducted pursuant to a warrant (usually a search and seizure warrant for property) or pursuant to a valid exception to the 4^th Amendment?s warrant requirement.

In this case, the ?Government argue[d] that because the search warrant specifically covered cell phones, and because Roldan was located on the property at the time of the search, it had the right to seize his Blackberry cell phone.? U.S. v. Garvey, supra. In ruling on this argument, the federal district court judge noted that the ?leading case on this area of Fourth Amendment jurisprudence is Ybarra v. Illinois, 444 U.S. 85 (1979).? U.S. v. Garvey, supra.

In Ybarra, Illinois officers had a warrant authorizing a search of the ?Aurora Tap Tavern? and ?the person of `Greg,? the bartender? (who was described in the warrant) for ?`evidence of the offense of possession of a controlled substance??. Ybarra v. Illinois, supra. Seven or eight officers went to the tavern to execute the warrant; upon entering, they announced that they were ?going to conduct a `cursory search for weapons?? of each of the ?9 to 13 customers present in the tavern? and proceeded to do just that. Ybarra v. Illinois, supra.

When one officer searched Ventura Ybarra, he found a cigarette package that contained ?six tinfoil packets? of what turned out to be heroin. Ybarra v. Illinois, supra. After that evidence was used to indict Ybarra for the unlawful possession of a controlled substance, he filed a motion to suppress, arguing that the evidence was unconstitutionally seized from him. Ybarra v. Illinois, supra.

The Supreme Court agreed with Ybarra. It held that while the warrant authorized the officers to search the tavern and the bartender for narcotics, the pat-down search and seizure of Ybarra was not constitutionally permissible because there was no reasonable belief that he was either involved in any criminal activity or was armed or dangerous. Ybarra v. Illinois, supra. Basically, the Ybarra Court followed an earlier Court?s reasoning in U.S. v. Di Re, 332 U.S. 581 (1948), which essentially was that simply because someone is on premises that are being searched pursuant to a valid warrant or warrant exception does not mean that he ?loses immunities from search of his person to which he would otherwise be entitled.? U.S. v. Di Re, supra. In other words, mere presence isn?t enough.

And that brings us back to U.S. v. Garvey: After noting that federal courts of appeals have held that ?`a warrant to search particular premises is not alone sufficient to justify a pat down of a person found on the premises at the time of execution?? of the warrant, the federal judge held that ?[t]he warrant is of no help to the government in its attempt to justify the search.? U.S. v. Garvey, supra (quoting Leveto v. Lapina, 258 F.3d 165 (U.S. Court of Appeals for the 3d Circuit 2001)).

The judge then addressed the prosecution?s argument that Roldan?s ?alleged attempt to `hide? the cell phone provided a justification for its seizure.? U.S. v. Garvey, supra. The judge didn?t buy this argument, either:

The Government cites no law supporting its contention that an attempt by a third party to hide his own cell phone during the execution of a search warrant provides justification for a seizure of that phone. . . . [P]olice may permissibly conduct `a reasonable search for weapons for the protection of the . . . officer, where [the officer] has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual.? Terry v. Ohio, 392 U.S. 1 (1968).

But here, the Government advanced no argument that [Roldan] was searched for officer safety and offered no evidence that Officer Ortiz possessed an `articulable suspicion that [Roldan] [wa]s armed and dangerous.? Michigan v. Long, 463 U.S. 1032 (1983). A Blackberry, even one of the earlier clunkier models, poses no serious threat to officer safety. And even if Officer Ortiz searched Roldan out of concern for his safety, this would not justify seizing the phone. Once Officer Ortiz discovered that the object in question was a phone, he was no longer justified in seizing it. . . . Accordingly, the phone and any data obtained from the phone must be suppressed.

U.S. v. Garvey, supra.

This is one of two recently issued opinions that address the propriety of the seizure of a Blackberry. As I?ll explain in a later post, the other case came out very differently.

Full post as published by CYB3RCRIM3 on October 24, 2010 (boomark / email).