Opinion by Justice Crooks, with Justices Bradley, Roggensack, Ziegler, Gableman.
¶2 The focus of our inquiry is whether the evidentiary basis for the warrant to search the cell phone was tainted such that the Fourth Amendment to the United States Constitution, or Article I, Section 11 of the Wisconsin Constitution, requires suppression of that evidence under the following circumstances: (1) an officer who had observed Carroll speeding confronted Carroll outside of his vehicle and ordered him to drop an unknown object that he held in his hand; (2) upon retrieving that object, the officer recognized it as an open cell phone and observed on the display screen an image of Carroll smoking what appeared to be a marijuana blunt; (3) the officer kept the phone, scrolled through its image gallery, and saw other images depicting Carroll with illegal items; and (4) the officer answered an incoming call pretending to be Carroll, and during that conversation, the caller ordered illegal drugs. The police obtained a warrant to search the phone. With the warrant, the police obtained time-stamped digital images from Carroll's cell phone. It is that evidence that Carroll seeks to suppress.Dissent by Chief Justice Abrahamson.
¶3 We hold that neither the Fourth Amendment to the United States Constitution nor Article I, Section 11 of the Wisconsin Constitution requires that the evidence be suppressed under the circumstances presented here. In so holding, we are satisfied that the officer was justified in seizing Carroll's cell phone and in viewing the marijuana image, which was in plain view. Further, although the officer was also justified in continuing to possess the phone, we are satisfied that the officer was not justified in opening and browsing through the cell phone image gallery at the time that he took such action. As such, the evidence that the officer gleaned from that conduct was tainted and could not form the basis for a search warrant. However, based on exigent circumstances, the officer was justified in answering the incoming call to Carroll's phone during which the caller ordered illegal drugs. That evidence was an untainted independent source that formed a valid basis for the search warrant when combined with the officer's knowledge of drug traffickers and Carroll's juvenile record, along with the plain view of the image of the marijuana blunt. ...
¶78 The record in this case falls short of providing the bases for determining (1) whether any information gained from the phone call or the illegal search of the image gallery affected the law enforcement officers' decision to seek a warrant; and (2) whether any information gained from the phone call or the illegal search of the image gallery affected the magistrate's decision to grant the application. What is plainly required, and not present in this record, is for the State to establish as a matter of fact——not as a matter of speculation——that the unlawfully obtained "image gallery" evidence affected neither "the decision to seek the warrant," nor the "decision to issue the warrant." Murray [Murray v. United States, 487 U.S. 533 (1988)], 487 U.S. at 542.Dissent by Justice Prosser.
¶116 Detective Belsha's affidavit to support the search warrant is problematic for several reasons. First, it should not have contained discussion of the pictures in the photo gallery. Second, in my view, it should not have relied upon the intercepted phone call. Third, it did not refer to the blunt photo on the display screen. Fourth, the affidavit is very heavy in boilerplate paragraphs that have nothing to do with the search of a cell phone. Fifth, the affidavit seriously misleads the reader when it says: "A search of the Carroll [sic] revealed a cellular telephone." This passage immediately follows a discussion of the Carroll vehicle and mistakenly implies that the cell phone was taken from the Carroll vehicle. Sixth, the affidavit states: "Your affiant attaches and incorporates into this affidavit a criminal complaint dated May 22, 2006 in which the target . . . was observed to be involved in activity consistent with drug trafficking." The affidavit fails to acknowledge that this complaint was dismissed before the affidavit was filed and that the complaint involved guns, not "drug trafficking." The unspoken implication is that a person is acting "consistent with drug trafficking" if the person possesses a gun.See 2009-2010 Term of the Wisconsin Supreme Court
Court finds privacy in cell phone photos, but..., by Bruce Vielmetti, Proof and Hearsay
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