Spence v. State

BARBERA, C.J. Petitioner Dwayne Spence was convicted in the Circuit Court for Caroline County of possession with intent to distribute marijuana, possession of marijuana, and possession of drug paraphernalia. The principal issue we decide in this case is whether the court was required to deny Petitioner’s motion to suppress text messages that the police obtained during the search of his cell phone incident to his lawful arrest. Petitioner appealed the judgment of conviction to the Court of Special Appeals and, while the case was pending in that court, filed a petition for writ of certiorari, which we granted. ³ We then stayed all proceedings in this case until the United States Supreme Court issued its decisions in Riley v. California, cert. granted, ___ U.S. ___, 134 S.Ct. 999 , 187 L.Ed.2d 847 (2014), and United States v. Wurie, cert. granted, ___ U.S. ___, 134 S.Ct. 999 , 187 L.Ed.2d 848 (2014). On June 25, 2014, the Supreme Court issued a consolidated opinion in those two cases.

Riley v. California, ___ U.S. ___, 134 S.Ct. 2473 , 189 L.Ed.2d 430 (2014). Following the parties’ submission of their briefs, we heard arguments in the case on the same day as two other cases, Demby v. State, No. 11, Sept. Term 2014, and Sinclair v. State, No. 43, Sept. Term 2014. The three cases present the common question of whether, in light of the Supreme Court’s decision in Riley , the respective petitioners were entitled to the suppression of data obtained by the police during a warrantless search of the cell phones incident to a lawful arrest. For reasons we explain later in this opinion, we hold that the trial court in the present case properly denied the motion to suppress the data obtained from Petitioner’s cell phone.

I. The Suppression Hearing, Trial, and Appeal Petitioner sought suppression of text messages, found on his cellphone at the time of his arrest, that the State ultimately used in convicting him of several drug-related offenses. Sergeant Nancy Nagel (“Sergeant Nagel”) of the Caroline County Sheriffs Office testified as the sole witness for the State at the hearing on the motion. Sergeant Nagel testified that, during the early morning hours of January 13, 2011, she responded to a report of a robbery at a mobile home in a trailer park in Preston, Maryland. After completing her interview with the robbery victims, Sergeant Nagel noticed fresh footprints in the snow outside of the victims’ home, leading from a doorstep a few mobile homes away directly to the robbery victims’ home.

While Sergeant Nagel and at least one other officer who had ⁴ arrived on the scene were investigating the footprints, ■ a woman stepped out from the home where the footprints began and identified herself as Tonya LaLone (“Ms. LaLone”). Sergeant Nagel asked Ms. LaLone if she could come inside to speak about the robbery that had just occurred. Ms. LaLone consented and, as they stepped into the home, Sergeant Nagel asked who else, if anyone, was present. Ms. LaLone informed Sergeant Nagel that her two parents, who owned the home, and her three-year-old son were present.

She then pointed to a room where, she said, her son was asleep. Sergeant Nagel heard a loud noise emanating from that room. She asked again who was in the room. Sergeant Nagel then drew her weapon, evidently prompting Ms. LaLone to say that her boyfriend, Dwayne Steven Spence (“Petitioner”), was inside the bedroom.

Sergeant Nagel ordered him out. Sergeant Nagel testified that, as Petitioner exited the bedroom, he had in his hand a cell phone and was using it. Sergeant Nagel and at least one other officer ordered Petitioner to put his hands in the air. He obeyed, keeping his cell phone in his hand.

Sergeant Nagel then asked Petitioner to sit on a chair. As Petitioner sat down, he continued using the phone. Sergeant Nagel asked Petitioner to place the phone on an end table, which he did. At that time, Sergeant Nagel re-holstered her gun.

The officers frisked Petitioner to ensure that he was not armed. Sergeant Nagel then interviewed Ms. LaLone and Petitioner and asked Ms. LaLone to wake her parents. With everyone together, Sergeant Nagel informed them that there had been a robbery in the trailer park and she was searching for shoes matching the imprints outside and the stolen prescription pills. Sergeant Nagel obtained consent to search the home.

While searching the bedroom from which Petitioner had exited, Sergeant Nagel found a black wallet propped against an aquarium and, behind the wallet, a clear bag containing what she recognized as marijuana. The wallet contained ⁵ Petitioner’s identification card. Inside a cabinet in the room were additional bags of marijuana, drug paraphernalia, and a small digital scale. Nagel did not find any evidence linking Petitioner to the robbery.

The police placed Ms. LaLone and Petitioner under arrest. Sergeant Nagel decided to search the cell phone Petitioner had been using when he walked out of the bedroom. She did that “in an attempt to um, possibly discover any other kind of evidence that could be destroyed[.]” Sergeant Nagel described what she did next: “I activated the screen and the message folder. When I opened up the message folder that’s when I found ... located text messages from the previous night leading into that morning ... [wjhere there were text messages that were indicative of the distribution of [controlled dangerous substances].” Sergeant Nagel also saw two messages related to the robbery she was investigating.

Sergeant Nagel could discern that those two messages had not been read or answered. Petitioner informed Nagel that he had no knowledge of the robbery; he was likely asleep when those text messages came in; and the incoming messages were from his brother’s phone. Sergeant Nagel testified that, once she “realized that, that phone had evidentiary value[,]” she “went ahead and seized the phone.” She expressed concerns about either remote or instantaneous wiping of the cell phone. 1 The police later obtained a warrant to search the data in the cell phone. Petitioner also testified at the suppression hearing.

His version of events surrounding the search of the cell phone was almost identical to that of Sergeant Nagel. He clarified that the phone was a “flip phone,” new to him at the time of his arrest. He added that the cellphone was a “smartphone” with internet capabilities and a touch screen. ⁶ The court denied the motion to suppress the drug-related text messages that Sergeant Nagel read at the time of Petitioner’s arrest as well as the additional text messages that were produced later, as the result of the search warrant. The court ruled that the warrantless search of the cell phone was reasonable under the Fourth Amendment.

The court reasoned that the warrantless search was limited to the few text messages that Sergeant Nagel had read. Moreover, based on Sergeant Nagel’s observing Petitioner earlier using the phone, the sergeant reasonably could be concerned about destruction of evidence and that Petitioner might have been notifying others about the presence of law enforcement. The court concluded that the exigency of the situation — an armed robber on the loose and police suspicion that Petitioner may have been communicating with the perpetrator or a third party about police presence — validated the immediate search of the phone. On August 24, 2011, Petitioner appeared before the court and, in a colloquy with the trial judge, waived his right to a jury trial.

Following that colloquy, the parties proceeded to trial based on an agreed upon statement of facts. Included in that statement were facts relating to the text messages that Petitioner sought to suppress. Petitioner was convicted and sentenced, and this appeal followed. The Search Incident to Arrest Exception — Then and Now The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In furtherance of that protection, it has long been understood that searches made without a warrant are presumptively unreasonable.

Kyllo v. United States, 533 U.S. 27, 32 , 121 S.Ct. 2038 , 150 L.Ed.2d 94 (2001). Yet, over time, the Supreme Court has recognized, as reasonable under the Fourth Amendment, a number of exceptions to the warrant requirement. One such exception, often relied upon by law enforcement, permits officers to conduct a search incident to a lawful arrest. The ⁷ origin of this exception is found in Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969).

In Chimel , the Supreme Court defined the contours of the search incident to arrest exception and, in doing that, identified officer safety and prevention of evidence destruction as the rationales for the exception. The Supreme Court explained that, when an officer makes an arrest, “it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated.” Id. at 763 , 89 S.Ct. 2034 . It is also “reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction[,]” and for the same reasons to search “the area into which an arrestee might reach in order to grab a weapon or evidentiary items[.]” Id. at 763 , 89 S.Ct. 2034 .

The Court concluded that the potential for any of this to occur during an arrest provides “ample justification” to search “the arrestee’s person and the area ‘within his immediate control’ ” Id. The Supreme Court further developed the scope of the search incident to arrest exception in United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973). Robinson had been arrested for driving on a suspended license. The arresting officer, while conducting a pat down of Robinson, felt an object in his coat pocket that the officer could not identify.

The officer removed that object — a crumpled cigarette packet — opened it, and found capsules of heroin inside. Id. at 220-23 , 94 S.Ct. 467 . The Court upheld the warrantless search as a proper search incident to Robinson’s arrest. The Court emphasized that “[t]he authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” Id. at 235 , 94 S.Ct. 467 .

Instead, a “custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth ⁸ Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Id. Robinson created a bright line rule — eliminating the need for police officers and courts to assess on a case-by-case basis the danger to the arresting officer or the likelihood of destruction of evidence. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” Id. at 235 , 94 S.Ct. 467 . The Supreme Court left intact the search incident to arrest doctrine, as explicated in Robinson, until deciding Riley v. California, ___ U.S. ___, 134 S.Ct. 2473 , 189 L.Ed.2d 430 (2014). 2 The Court held, in an opinion consolidating two cases, Riley and United States v. Wurie, that searches of cell phones fall outside the permitted scope of the search incident to arrest, thereby creating a sea-change in this area of Fourth Amendment jurisprudence.

Id. at 2480 . In Riley , the officer stopped Riley for driving on expired registration tags. During the stop, the officer arrested Riley, searched him, and found a cell phone and other evidence on his person linking him to a criminal gang. The officer’s search of the contents of the cell phone revealed messages ⁹ that he believed further connected Riley to a gang.

Id. at 2480 . In Wurie, an officer had observed Petitioner Wurie make an apparent drug sale from his car. The officer arrested him and took him to the police station. While at the police station, Wurie’s flip phone kept ringing and with each ring, “my house” would appear on the phone’s main screen.

Officers eventually opened Wurie’s flip phone, observed a picture on the screen, and searched through the phone to find the phone number associated with “my house.” Id. at 2481 . The Supreme Court held, in both cases, that the warrantless searches of the cell phones did not fall within the search incident to arrest exception and, consequently, were done in violation of Riley’s and Wurie’s Fourth Amendment rights. Id. at 2484-85 . The Court, observing that today’s cell phones are “based on technology nearly inconceivable just a few decades ago, when ...

Robinson [was] decided[,]” id. at 2484, concluded that the search of a cell phone’s data cannot be justified by either officer safety or prevention of the destruction of evidence, the two traditional rationales that make a warrantless search incident to arrest reasonable under the Fourth Amendment, id. at 2485-88. Consequently, in the context of cell phone searches, application of Chimel , as further explicated in Robinson , does not comport with the dictates of the Fourth Amendment; therefore, “officers must generally secure a warrant” before conducting “searches of data on cell phones[.]” Id. at 2485. The Court was careful to note that concern for officer safety justifies a limited physical inspection of a cell phone, within the scope of the search incident to arrest exception: “Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon — say, to determine whether there is a razor blade hidden between the phone and