Moats v. State

Berger, J. On July 23, 2015, Timothy Alan Moats (“Moats”), appellant, was convicted in the Circuit Court for Garrett County of one count of possession of child pornography based on an agreed statement of facts. Moats was subsequently sentenced to serve eighteen months of incarceration with all but the time he had already served suspended. Moats was placed on supervised probation for two years and was required to register as a sexual offender. In his timely filed appeal, Moats raises two questions for our consideration, which we have consolidated and restated as follows: 1 ³⁷⁹ Did the circuit court err in denying appellant’s pre-trial motion to suppress evidence?

Discerning no error or abuse of discretion, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL HISTORY One night in early January of 2015, Moats and three other teenagers were riding around Garrett County in Moats’s car. During the drive, Moats, then age eighteen, provided marijuana and suboxone, an addictive prescription medication used to treat opioid addiction, to the other teenagers. Moats, along with the three other teenagers, went to a party where one of them, A.D.C., then age seventeen, was sexually assaulted.

About two-weeks later, A.D.C. reported the sexual assault to the police. In the course of investigating the sexual assault, Sergeant Robert A. Zimmerman of the Garrett County Sheriffs Office interviewed Moats. Moats admitted that he distributed marijuana and suboxone to the other teenagers who were riding in his car on the relevant night in January of 2015, but denied any involvement in the sexual assault of A.D.C. Moats’s admissions were corroborated by the statements the other teenagers made to the police. On January 23, 2015, the police sought and obtained a warrant for Moats’s arrest on charges related to his distribution of drugs.

Moats was arrested and transported to the Garrett County Jail. The arresting officer conducted a search of Moats’s person incident to his arrest and found his cellular phone. After it was seized, the phone was stored in the Sheriffs Office. On January 24, 2015, Moats was released from the detention center.

The Sheriffs Office retained his cell phone, however, believing that it might contain evidence relat ³⁸⁰ ed to Moats’s distribution of drugs and the sexual assault of A.D.C. On January 26, 2015, Sergeant Zimmerman applied for a warrant to search Moats’s phone for evidence related to the drug offenses and the sexual assault of A.D.C. The affidavit in support of the application provided, in pertinent part: On January 21, 2015 your Affiant responded to Garrett Memorial Hospital and met with complainant [A.D.C.], 17 years of age. [A.D.C.] stated approximately 2 weeks ago she was in a vehicle with Timothy “Timmy” Moats, [T.B.], and a white male only known as “[C.].” The four of them drove around the Oakland, Mt Lake Park and Pleasant Valley areas of Garrett County. While out riding around, they stopped and Timmy provided each of them with suboxone. Timmy crushed the suboxone and snorted it with a dollar bill. He then passed it around and provided it to all the individuals in the vehicle, all of them except Timmy are under the age of 18.

She then stated they ended up at a party where she was sexually assaulted. She cannot remember where the party was at and does not know who sexually assaulted her. She said she was “high” from the drugs used, that were provided to her by Timmy and mentioned that at some point she used heroin as well. On January 28, 2015, your Affiant interviewed Timothy Moats.

Timothy admitted that he was with all of the above listed individuals a few weeks ago and identified [C.] as [C.O.]. He further stated that they were all out riding around and he did in fact bring with him suboxone and marijuana. He said that he crushed the suboxone on a CD case using a lighter and snorted it with a dollar bill. He then provided the suboxone to all the individuals in the vehicle.

Furthermore, he admitted to smoking marijuana, bringing it with him and providing it to all the individuals in the vehicle. Timothy denied any knowledge and/or involvement with the sexual assault. Your Affiant then interviewed [C.O.] and [T.B.]. Both provided the same information as listed above regarding the use and distribution of CDS.

They also denied any involve ³⁸¹ ment with the sexual assault, only stating that when [A.D.C.] got into the vehicle with them she said that she was sexually assaulted the night before at a party. Your Affiant then spoke with [R.W.]. [A.D.C.] stated she had told [R.] about the sexual assault. [R.] stated that [A.D.C.] told him she was with the above listed individuals, and [T.] and Timmy got her “high” and shot her up with heroin. He stated that she was later sexually assaulted, and he believes that [T.] and/or Timmy have knowledge and/or are involved. He stated that he saw marks and injuries on [A.D.C.] after the incident, which was not reported at the time.

Your Affiant knows through his training and experience as a Criminal Investigator that individuals who participate in such crimes communicate via cellular telephones, via text messages, calls, e-mails etc. Your Affiant avers, based on the information received from the aforementioned sources, your Affiant’s observations, training, knowledge and expertise as a member of the Garrett County Sheriffs Office, Criminal Investigation Division, that there is probable cause to believe and does believe, that evidence of violations of the laws relating to Sexual Offense and related crimes, as well as the Possession and Distribution of controlled Dangerous Substances as herein before cited, is contained in and upon the aforementioned cellular telephone. A district court judge approved the application and issued the search warrant authorizing the police to search the electronic data contained in Moats’s cellular phone. In the course of the search, the officers discovered sexually explicit photos and a video of a young woman that had been saved on the cellular phone. The officers later identified the young woman in the photos and video as Moats’s then fifteen-year-old girlfriend.

On March 10, 2015, Moats was charged with three counts related to his possession of child pornography and one count of second degree assault. Prior to trial, defense counsel filed a motion to suppress the photos and videos recovered from ³⁸² Moats’s cellular phone, arguing, in part, that the search warrant was not supported by sufficient facts to establish probable cause. Following a hearing on June 18, 2015, the trial court denied the defense motion to suppress, reasoning: The purpose of this hearing is to determine whether this evidence is admissible in court and the standard to be used at this hearing is to look at all the facts and circumstances in the light most favorable to the State. The burden is not as high as the burden of proof in proving criminal guilt or innocence. * * * ...

Mr. Moats was arrested on January 23, 2015. As part of that procedure of arrest, he is taken into custody. He is searched. His personal property is confiscated, and he’s put into a jail cell.

The next day he was released, and his phone was not released to him. I think that to try and make this analogous to a case with a firearm does not really carry a lot of weight here. In addition to that, trying to make this analogous to a search of a home, which is really just a storage repository, the home itself wouldn’t be evidence; it would be what you could find in that home. That’s not the case with a cell phone.

A cell phone is a portable items [sic]. It’s something that we have to take recognition in the 21st Century in our lives today, it’s an integral part of how many of us live. Certainly, the younger you are, it seems it becomes an even more integral part. It’s probably not as important to me, since I’m older, but I think to a lot of young people, it would be very hard to live without it, and it’s something that becomes part of their lifestyle.

In looking at the search warrant that was issued on the January 26th, and I think Defense Counsel has even alluded to it, that the affiant, through his training and experience as a criminal investigator, that individuals who participate in such crimes, typically drug crimes—at January 26th, we’re talking about drug activity, because that’s what he had been ³⁸³ arrested for—that people who participate in such crimes typically communicate via cellular phone, text messages, calls, e-mails, et cetera. And I think that while that may not always be an accurate statement, I think that it does show that the person submitting the search warrant, Sergeant Zimmerman, was acting in good faith. There was no bad faith here in asking for this search warrant, that the search warrant application was submitted in good faith. And, in addition, in reviewing the search warrant that was signed by Judge Stephan Moylan, in reviewing that, it—if I can find it here, it specifically indicates that the phone can be searched for evidence of drug or sexual crime violations.

It’s not a general warrant. It doesn’t say just take Mr. Moats’ phone and look at it and see what you can find. The warrant that was signed by Judge Moylan is specific to looking for evidence of crimes of drug activity, illicit drug activity, or sexual offenses. So, I think that the search warrant application and the search warrant of January 26th was valid.

On July 23, 2015, Moats agreed to plead not guilty to an agreed statement of facts on one count of possession of child pornography. As part of the agreement, all other charges pending against Moats, including the drug charges, were dropped. The court found Moats guilty and sentenced him to eighteen months of incarceration, suspending all but the time he had already served. Moats was ordered to serve two years of supervised probation and was required to register as a sexual offender.

Moats noted a timely appeal on July 30, 2015. ANALYSIS Moats contends that the circuit court erred in denying his motion to suppress the photographs and videos of his teenage girlfriend that were saved on his cellular phone. Specifically, Moats asserts that the court erred by concluding that the warrantless seizure of his phone after he was released from jail following his initial arrest on drug charges was legal. Moats further contends that the court erred when it upheld ³⁸⁴ the validity of the search warrant for his phone, “because the application for the warrant did not provide any nexus between the alleged criminal activity and the phone.” Moats also questions whether the suppression court utilized the correct standard of review in assessing the merits of his pretrial motion to suppress.

The standard of review for motions to suppress is well-established: Our review of a circuit court’s denial of a motion to suppress evidence under the Fourth Amendment, ordinarily, is limited to the information contained in the record of the suppression hearing and not the record of the trial. When there is a denial of a motion to suppress, we are further limited to considering facts in the light most favorable to the State as the prevailing party on the motion. Even so, we review legal questions de novo, and where, as here, a party has raised a constitutional challenge to a search or seizure, we must make an independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts and circumstances of the case. We will not disturb the [circuit] court’s factual findings unless they are clearly erroneous.

State v. Wallace, 372 Md. 137, 144 , 812 A.2d 291 (2002) (internal citations omitted). In this case, it was necessary for the trial court to apply different standards of review when it was addressing the warrantless seizure of Moats’s cell phone and the subsequent search of the data contained in the cell phone pursuant to a warrant. Our review of the record demonstrates that the suppression court’s comments on the record were primarily directed at the second question regarding the search of the phone pursuant to a warrant. As such, the court correctly, albeit perhaps inartfully, noted that the court was to consider the evidence contained in the affidavit in the light most favorable to the State and that the burden of proof was less than the “beyond a reasonable doubt standard” necessary to prove that an individual is guilty of a criminal offense.

Indeed, as we shall discuss below, substantial basis review is highly ³⁸⁵ deferential and requires viewing evidence in the light most favorable to the State. Accordingly, the trial court did not err in denying Moats’s motion to suppress the evidence. The suppression court did not clearly explain its ruling regarding the warrantless seizure of Moats’s cell phone for two days before the police obtained a warrant for their search. We note, however, that the facts presented in this case regarding when and why the police seized Moats’s cell phone are not in dispute.

Because we review the court’s legal conclusions de novo, whether or not the suppression court applied the correct standard of review is of little consequence to our determination of this appeal. Regarding the merits of Moats’s motion to suppress, we first consider whether the suppression court erred by determining that the warrantless seizure of Moats’s cellular phone following his arrest and the retention of the cellular phone after he was released from jail was legal. The Fourth Amendment of the United States Constitution guarantees individuals the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures_” U.S. Const. amend. IV, cl. 1.

This constitutional mandate is made applicable to the states through the Fourteenth Amendment and is embodied in Article 26 of the Maryland Declaration of Rights. 2 Corbin v. State, 428 Md. 488, 499 , 52 A.3d 946 (2012). Subject only to a few specifically established and well-delineated exceptions, 3 a war- ³⁸⁶ rantless search or seizure that infringes upon the protected interests of an individual is presumptively unreasonable. Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967); Belote v. State, 411 Md. 104, 112 , 981 A.2d 1247 (2009) (citations omitted). The government bears the burden of overcoming the presumption that a warrantless search or seizure is illegal.

Southern v. State, 371 Md. 93, 105 , 807 A.2d 13 (2002). An individual demonstrates that he or she had a protected interest in a place or property by showing that “he or she maintained ‘a legitimate expectation of privacy’ in the house, papers, or effects searched or seized.” Whiting v. State, 389 Md. 334, 346 , 885 A.2d 785 (2005) (citing Katz, 389 U.S. at 353 , 88 S.Ct. 507 (additional citations omitted)). The individual must “demonstrate an actual (subjective) expectation of privacy in the item or place searched, [and] prove that the expectation is one that society is prepared to recognize as reasonable.” Williamson v. State, 413 Md. 521, 534-35 , 993 A.2d 626 (2010) (citing Katz, 389 U.S. at 361 , 88 S.Ct. 507 (Harlan, J. concurring)). In the last several years, various courts have noted the unique role cellular phones play in our lives and have recognized the protected interest individuals have in the data contained in their cellular phones.

See e.g. Riley v. California, — U.S. -, 134 S.Ct. 2473, 2484, 2489 , 189 L.Ed.2d 430 (2014) (characterizing cell phones as “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy” and acknowledging that these “minicomputers that also happen to have the capacity to be used as a telephone” also function as “cameras, video players, rolodexes, calendars, ³⁸⁷ tape recorders, libraries, diaries, albums, televisions, maps, or newspapers”); State v. Andrews, 227 Md.App. 350, 354 , 134 A.3d 324 (2016) (describing cell phones as “a piece of technology so ubiquitous as to be on the person of practically every eitizen”). Accordingly, courts have extended the protection of the Fourth Amendment to cellular phones and now require that, in most cases, the police obtain a warrant before searching the digital contents of a cell phone even when that phone was validly seized incident to a legal arrest. Riley, 134 S.Ct. at 2493 ; Sinclair v. State, 444 Md. 16, 38-39 , 118 A.3d 872 (2015) (discussing Riley).

In this case, prior to his arrest, Moats had confessed to the police that he had distributed marijuana and suboxone to the other teenagers and that he was present at the party where A.D.C. was purportedly sexually assaulted. His drug distribution and his presence at the party were corroborated by the accounts of the other witnesses. In addition, his participation in the distribution of heroin and his knowledge of and/or involvement in the sexual assault of A.D.C. was alleged by more than one witness. The police obtained a warrant and arrested Moats on January 23,2015.

In his appeal, Moats does not contend either that his arrest on the drug charges was illegal or that the initial seizure of his cellular phone during the search incident to his arrest on January 23, 2015, was unreasonable. Instead, he asserts that the police did not have probable cause to retain his phone after he was released from jail on January 24, 2015, and that the suppression court utilized the wrong standard of