Chapter 14: Evidence Unconstitutionally Obtained
Case Study 1
Overview — Based on: Tolbert v. State, 2011 Ala. Crim. App. LEXIS 98 (2011).
Richard Tolbert pleaded guilty to the unlawful possession of a controlled substance, namely dihydrocodeinone (brand name Lortab), in violation of §13A-12-212, Ala. Code 1975. Tolbert was sentenced to 15 years’ imprisonment pursuant to the Alabama Habitual Felony Offender Act. Two police officers, in unmarked cars and plain-clothed, observed a man, who was later determined to be Tolbert, sitting in a black Cadillac. Random individuals repeatedly visited the Cadillac and offered something to the people in the Cadillac, while individuals within the vehicle returned some object to the individuals who had approached the vehicle. To a trained officer’s eye, this conduct appeared to offer evidence that drugs were being sold from the motor vehicle by the individuals who were sitting within it. One of the police officers, Harris, testified that he witnessed numerous vehicles pull beside the passenger side of the Cadillac and stated that he observed hand-to-hand transactions between those vehicles and the front passenger window of the Cadillac.
According to Officer Harris, someone from the other vehicles “would hand an unknown amount of cash, and somebody out of the front passenger position in the Cadillac would hand an unknown object back.” The area was known to be a high-crime area where drugs were often bought and sold. Officer Harris stated that based on his narcotics training and field experience, he suspected illegal drug deals were being conducted from the Cadillac, giving him what he thought was probable cause to arrest those involved. Other officers observed the identical conduct from different vantage points.
The Cadillac left the area but, pursuant to a radio call by the undercover officers, it was stopped by a uniformed officer in a marked car. One of these officers ordered Tolbert from the vehicle and conducted a “pat-down,” wherein he discovered plastic bags in Tolbert’s pants pocket. The officer placed his hands inside Tolbert’s clothing and removed the plastic bags. Based upon the officer’s observation of the plastic bags, he believed that illegal drugs were contained within them. Prior to the pat-down, the officer had probable cause to arrest Tolbert but had not communicated this fact to Tolbert.
The prosecution initially argued that the controlled substances were discovered during a valid stop-and-frisk, where the object may be seized if its illegal quality is immediately known to the officer by the sense of touch. The officer who initially patted down Tolbert did not believe that what he felt was a weapon. The appellate court ruled that stop-and-frisk theory did not permit the seizure of the recreational pharmaceuticals, but it was willing to consider other legal theories.
Yes. Based on prior experience, the police officers collectively knew that the behavior of the men sitting inside the Cadillac was consistent with drug-dealing activity. This conduct was sufficient to give the police probable cause to stop the car, to arrest the occupants, and to search them as incident to the lawful arrests.
No. In order for a search incident to an arrest to produce admissible evidence, the arrest itself must be based on probable cause and, therefore, must be a lawful arrest. Without the lawful arrest, the search incident to the arrest will be deemed illegal and the evidence suppressed.
Yes. A warrantless search preceding arrest is reasonable under the Fourth Amendment, so long as probable cause to arrest existed before the search and if the arrest and search are substantially contemporaneous with each other, even if the arrest came immediately after the search.
Case Study 2
Overview — Based on: State v. Andrews, 2020 N.J. LEXIS 898 (2020)
This appeal presents an issue that the Supreme Court of New Jersey had never been called to decide: Whether a court order requiring a criminal defendant to disclose the passcodes to his PIN/passcode-protected cellphones violated the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey’s common law, constitutional law, or statutory protections against self-incrimination.
Under the facts of this case, Mr. Lowery, a target of a New Jersey narcotics investigation, told police that Defendant Andrews, then a law enforcement officer, had provided him with information about an ongoing drug investigation involving Lowery. He alleged that Andrews had offered him advice on how to avoid criminal prosecution. The target, Lowery, gave statements to investigators that were partly confirmed by the target’s cell phone contents concerning photographs, cell phone calls, text message exchanges, and conversations between target Lowery and the defendant.
The prosecutors applied for and received an arrest warrant for the defendant and search warrants for defendant’s Apple iPhones, which were seized. The police could not access the phones because the iPhones could not be “cracked open” without the PINs. A court ordered Andrews to give police the codes to the phones. He continued his refusal. The search warrants were properly limited to discovery of the defendant’s alleged drug crimes, and other material was not to be revealed or otherwise obtained if it appeared on his iPhones.
Defendant Andrews alleged that the United States Constitution under the Fifth Amendment as applied to the states and New Jersey’s common law and statutory protections against compelled self-incrimination protected his disclosure of the passcodes. The lower New Jersey courts held that the self-incrimination clauses offered the former police officer no protection because the codes alone did not incriminate him. Accordingly, the courts ruled that he had to reveal his passcode/PINS to the investigators.
The State claimed that Andrews, a former Essex County Sheriff’s Officer, revealed an undercover narcotics investigation to its target Lowery. Andrews told Lowery to “get rid of” his cell phones because they were tapped due to warrants. Further investigation following Lowery’s statements largely corroborated his allegations. Lowery’s Samsung Galaxy S5 cellphone was sent to the Cyber Crimes Unit for data extraction. The extraction report revealed that Lowery changed his telephone number shortly after he claims Andrews informed him of a potential wiretap. At one point, Lowery received a text message from one of Andrews’s cellphone numbers two days after Lowery had texted Andrews stating, “Bro call me we need to talk face to face when I get off.”
According to the State, its Telephone Intelligence Unit was unable to search Andrews’s iPhones — an iPhone 6 Plus and an iPhone 5s — because they “had iOS systems newer than the 8.1 version, making them extremely difficult to access without the owner/subscriber’s pass code.” When served with the phone search warrant and court order, Andrews opposed the motion with the renewed claim that compelling his disclosure of his passcodes violated his protections against self-incrimination afforded by New Jersey’s law and the Fifth Amendment In effect, Andrews was being forced to give information that would incriminate him, he contended.
The basic legal position of the defendant was that the New Jersey statutory law and the New Jersey Constitution, as well as federal law under the Fifth Amendment, allowed him to refuse to reveal information that might tend to incriminate him, directly or indirectly. His fear was that giving access to the phone would reveal information on the cell phone that might serve as a link to other information that would help incriminate him. He believed that revealing his PINs for the cell phones would be the beginning of having to give information against himself that was stored on his cell phone.
The government’s position seemed to be that merely giving out his cell phone PINs was giving no information that could incriminate him because they were simply digital codes that opened up the phones. In essence, the prosecution contended that, by collecting information on his phone the defendant was not required to reveal anything in a testimonial manner. Additionally, the prosecution argued that communication between conspirators had no special privacy status, that the government had already established, from evidence given by a conspirator, that it already knew what was on the phones.
The prosecution alleged that the PINs were simply a group of random numbers or letters that possessed no testimonial significance and that their compelled disclosure did not conflict with the guarantees of the Fifth Amendment’s Self-Incrimination Clause. New Jersey argued that the Fifth Amendment’s privilege did not permit noncompliance with a search warrant that was valid under the Fourth Amendment. As a general rule, the privilege against self-incrimination protects a witness or a defendant only from having to give testimonial evidence that would tend to incriminate that person; it does not cover physical evidence like a fingerprint, a picture, video, or other physical evidence like a DNA profile.
It should be noted that the defendant did not contest revealing his cell phone PINs on Fourth Amendment grounds such as lack of probable cause or a defective warrant or some procedural Fourth Amendment issue. Also, the defendant could have offered a traditional due process clause argument that it was simply unfair to require him to reveal his PINs.
No. The New Jersey Supreme Court phrased the issue as whether defendant can be compelled to disclose the passcodes to his cellphones seized by law enforcement pursuant to a lawfully issued search warrant.
The top state court noted that the Fourth Amendment to the United States Constitution and Article I, paragraph 7, of the New Jersey Constitution protect individuals’ rights “to be secure in their persons, houses, papers, and effects” by requiring that search warrants be “supported by oath or affirmation” and that warrants describe with particularity the places subject to search and people or things subject to seizure. Searches executed pursuant to warrants compliant with these requirements are presumptively valid.
It was important to the New Jersey Supreme Court that Andrews had not challenged the validity of the search warrants issued for his cellphones. He did not argue that the phones were unlawfully seized or that the search warrants authorizing the police to search the contents of the phones were unsupported by probable cause.
The New Jersey Supreme Court noted that a lawful seizure does not allow compelled disclosure of facts otherwise protected by the Fifth Amendment. It cited the case of In re Search of a Residence in Oakland, 354 F. Supp. 3d 1010, 1014 (N.D. Cal. 2019) and also referenced a law review article by Michael S. Pardo, Disentangling the Fourth Amendment and the Self-Incrimination Clause, 90 Iowa L. Rev. 1857, 1860 (2005).
The Fifth Amendment to the United States Constitution reads that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” (U.S. Const. amend. V). According to the Supreme Court of the United States, the right against self-incrimination “applies only when the accused is compelled to make a testimonial communication that is incriminating.” Fisher v. United States, 425 U.S. 391, 408, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976).
Thus, criminal defendants may lawfully be compelled to display their physical characteristics and commit physical acts because the display of physical characteristics is not the same as testifying about one’s criminal activities. Among those acts are not self-incriminatory in a testimonial sense are the creating or offering handwriting samples. The court cited cases regarding voice samples; blood, hair, and saliva samples; standing in a lineup; and donning particular articles of clothing. Similarly, giving a DNA sample is not considered to be testimonial in nature and is not covered by the privilege against self-incrimination.
The top New Jersey court reviewed how other courts have resolved the issue of opening electronic devices through the use of biometric features such as a face image or the use of a fingerprint. Most courts have determined that using biometric features does not implicate Fifth Amendment self-incrimination clause. Courts tend to view the use of biometrics as a non-testimonial form of communication. Not all courts are in agreement about using biometrics to open digital electronic devices, however. Having to “give up” a passcode is different than using a biometric feature to unlock a device since “giving up” information may arguably be testimonial in nature.
After reviewing other cases, the New Jersey top court indicated that it shared the concern voiced by other courts that holding passcodes exempt from production because of the inherent compulsion whereas biometric device locks may be subject to compulsion creates inconsistent approaches based on form rather than substance. The distinction becomes even more problematic when considering that, at least in some cases, a biometric device lock can be established only after a passcode is created, calling into question the testimonial/non-testimonial distinction in this context. They cited a law review article for more discussion: Kristen M. Jacobsen, Note, Game of Phones, Data Isn’t Coming: Modern Mobile Operating System Encryption and its Chilling Effect on Law Enforcement, 85 Geo. Wash. L. Rev. 566, 582 (2017).
In reaching its conclusion in this case, the Supreme Court of New Jersey held the compelled act of producing the PINs in this case to be nontestimonial. Justice Solomon contended that the privilege against self-incrimination under the Fifth Amendment is to be applied only when it requires the compelled person to make a testimonial communication that is itself incriminating. Any action that a person might be required to perform, if it does not speak to his guilt or implicate him in criminal activity, such communications are not protected under the Fifth Amendment. The court held that, although the act of production is testimonial, PINs/passcodes are merely a series of characters without independent evidentiary significance and are therefore of little or no testimonial value since their value is limited to communicating the knowledge of the passcodes.
The State established that the passcodes exist. They determined the cellphones’ contents are passcode-protected. Also, the trial court record revealed that the cellphones were in Andrews’s possession when seized and that he owned and operated the cellphones, establishing that he possessed knowledge of the passcodes and that the passcodes enable access to the cellphones’ contents. The prosecution knew that the PINs/passcodes existed due to Andrews’s previous possession and operation of the cellphones. The passcodes’ self-authenticating nature renders the issue here one of surrender, not testimony. Therefore, in the context of this case, the Fifth Amendment does not protect Andrews from being compelled disclose the PINs/passcodes to his cellphones.
The court also reviewed state common law, state statutory law, and the state Constitution, and found that there was no basis to allow the defendant to refuse to reveal his PINs/passcodes to the cell phones. Unless additional appellate activity occurs that proves to be in the defendant’s favor, he must reveal his PINs/passcodes or be held in contempt of court. [In this case, there was a well-reasoned dissent by Justice LaVecchia that could be consulted by the interested student.]