Friday, July 1, 2011

Caretaking search ruling

Here's an interesting write up on a recent ruling regarding the warrantless search of cell phones.

Re: People v. Schutter, Supreme Court of Colorado, 2011
From PATCtech.com's Chuck Washburn:

One of the exceptions to the search warrant requirement is commonly called the “community caretaking” search. This search, as the name implies, is not conducted to collect evidence of a crime, but rather to assist members of the community. For example, an officer can search a lost purse to discover the name of the owner so that the purse can be returned. Of course, if evidence of a crime is discovered during a typical “community caretaking” type search, the evidence is normally admissible in court.

On March 28, 2011, the Supreme Court of Colorado decided the People v. Schutter which illustrates the first requirement of a “community caretaking” search of a cellular phone, particularly that the cell phone actually be lost, mislaid or abandoned. In Schutter, the defendant accidentally locked his iPhone in the restroom at a convenience store. Schutter asked the clerk for assistance retrieving his phone, and the clerk told him that he was currently too busy. The clerk told Schutter that he would have to come back later. Schutter then left the convenience store and did not return for over an hour. Meanwhile, the clerk retrieved the cell phone and gave it to a police officer that came into the store. The officer looked at the text messages in order to try and determine the owner. The officer also answered several phone calls made to the phone and also called the dispatch center with the phone in order to obtain the caller ID information on the phone. During this initial “community caretaking” warrantless search of the phone, the officer discovered information that provided probable cause that evidence of illegal drug sales would be contained on the phone. Later that evening, Schutter came to the police station to pick up his phone. The police would not release the phone. Instead, an officer obtained a search warrant for the phone and discovered information that provided probable cause to support a search warrant of Shutter’s residence. A search warrant was obtained for Schutter’s residence and during the search, the evidence to charge Schutter with various felony drug offenses was located. Schutter was arrested.

Schutter then filed a motion to suppress and argued that the initial warrantless search of his iPhone was unreasonable under the Fourth Amendment. The district court granted the motion to suppress and the government appealed.

The government argued that “an otherwise reasonable expectation of privacy in personal property is diminished when that property is lost or mislaid because it is only reasonable to expect that an officer coming into possession of the property will examine it to learn how it can be returned to its owner.” In support of their argument the government cites numerous cases where these “community caretaking” types of searches have been upheld in other jurisdictions. For example, the court noted

A handful of courts from other jurisdictions have apparently assumed, for widely-differing purposes and according to widely-differing theories, that officers would be justified in conducting at least some limited inspection of lost property to discover the owner's identity.

However, the Supreme Court of Colorado stated that they will not be able to decide the parameters of the “community caretaking” search with this case. Instead, they identified the issue as whether Schutter had in fact “abandoned, lost, or mislaid” his cell phone such that the police would have any valid reason to attempt to ascertain the owner.

The court noted that the following facts were relevant to the issue above. First, the officer that took the phone knew (1) that Schutter inadvertently left it in the store's locked restroom and knew precisely where it was; (2) that his immediate demand for its return had been refused by the store clerk, who had been too busy to access the restroom; (3) that he left the area only when he was told by the clerk that he would have to come back later to retrieve his phone; and (4) that it was approximately 4:20a.m., and Schutter had only been gone for about an hour. Based on these facts, the court then held

Under the undisputed facts of this case, the defendant's iPhone was neither abandoned, lost, nor mislaid such that the Aspen police would have had any cause to identify the owner to return it.

Thus, the Supreme Court of Colorado upheld the motion to suppress."

Click here for the printable version of this article.

Enjoy.

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