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MEMORANDUM

To: Carol Holm, Supervising Attorney

From: James Alp, Law Clerk

Date: June 25, 2010

Subject: Motion to suppress evidence from Defendant’s cell phone in State v. Tompkins, 2008 CR 03071 /2

QUESTION PRESENTED

Under the Fourth Amendment to the United States Constitution, which

prohibits unreasonable searches and seizures, will the evidence obtained from

an arrestee’s cell phone be admissible in a prosecution for evidence tampering,

when the arrestee has allegedly swallowed illegal drugs during an investigatory

stop, and his cell phone call history and saved contacts subsequently reveal his

contemporaneous contacts with the dealer?

BRIEF ANSWER

Most likely, neither the evidence collected in the search of Tompkins’s or

the other arrestees’ cell phones, nor the fruits of those searches, will be

admissible. Neither of the exceptions recognized in State v. Smith,124 Ohio

St.3d 163, 2009-Ohio-6426, is operative in this case: No threat to the safety of

law enforcement officers was present, nor did any other exigent circumstances

exist to justify a warrantless search of the cell phones in question. Therefore the

evidence collected in the cell phone searches will very likely be suppressed.

More importantly, because the search of the arrestees’ cell phones was a

violation of the Fourth Amendment, any evidence or statements elicited from the

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arrestees under subsequent questioning by police officers as fruit of the improper

searches could also be suppressed pursuant to the U.S. Supreme Court’s

holding in Wong Sun v. United States (1963), 371 U.S. 471, 488.

FACTS

Our client, Daniel Tompkins, was arrested on July 29, 2008, and charged

with evidence tampering. In the course of his arrest, police officers made a

search of the contents of his cell phone and of the cell phones seized from other

persons arrested in the same incident, producing evidence which the State of

Ohio may seek to use against Mr. Tompkins.

On the date of the arrest, Detectives James Mullins and Rodney Barrett of

the Dayton Police Department were in an unmarked vehicle patrolling an area

known for frequent arrests of out-of-town persons for drug-related offenses.

They observed a red Chevrolet Monte Carlo with Indiana license plates as it

pulled into a gas station and later followed the vehicle as it continued driving

around as though its occupants were “looking for someone or something.” When

the car stopped on Elmhurst, a black male later identified as Frederick Tavon

Lightfoot approached the driver’s side window, reached into the car, and walked

away. As he left he had one hand in his pocket, and then he opened a cell

phone with the other hand. Mullins and Barrett concluded that they had

witnessed a drug transaction. Shortly thereafter Lightfoot was arrested while

Mullins and Barrett followed the Monte Carlo until it was stopped by Detective

Joey Myers. The driver, Ashley Reed, complied with Myers’s verbal instructions;

however, as he approached the car Detective Myers reportedly witnessed the

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passenger, Mr. Tompkins, holding an object Myers identified as a gel cap1

After both Reed and Tompkins were handcuffed and Miranda warnings

were given, Mr. Tompkins declined to answer any questions. Detective Mullins

questioned Ms. Reed, who denied doing anything wrong. Mullins described to

her what he had witnessed when the Monte Carlo stopped and Mr. Lightfoot

approached. She admitted that Lightfoot handed them a gel cap but maintained

her innocence by denying that they had given him any money in exchange for it.

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then placing it in his mouth. Detective Myers began to struggle with Mr.

Tompkins through the passenger side window, ordering him to spit out the object.

According to Mullins, several seconds passed before Mr. Tompkins said he had

nothing in his mouth.

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Lightfoot was then brought by other officers to the location where the

Monte Carlo was stopped, and Detective Mullins questioned him. He denied

knowing either Ms. Reed or Mr. Tompkins, and also denied that he had

approached the car. Mullins then described to Lightfoot what he had seen. At

this point Mullins paused questioning and was told by Officer Sean Copley that

Ms. Reed’s and Mr. Tompkins’s cell phones had Lightfoot’s cell phone number

saved, that their phones had been used to call him recently, and that he had

1 The police report describes the object as “a gel cap with what [Detective Myers] recognized to be heroin in it” (emphasis added), but does not state any facts upon which Myers was purportedly able to reach this conclusion. 2 At this point in his report, Mullins describes additional statements made by Ms. Reed in which her initial denials seem to abruptly turn to admissions. It appears that the narrative of Detective Mullins’s police report combines into a single account two separate rounds of questioning of Ms. Reed, the latter of which took place after Mullins had questioned Lightfoot. The break in questioning is indicated only by Mullins’s explanation that “she would later explain to me” certain facts that directly contradicted her earlier denials, including her denial that any money had changed hands. As explained below, Mullins’s report itself clearly states that these later statements made by Ms. Reed occurred after he had questioned Mr. Lightfoot.

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called them back. Mullins explained these facts to Lightfoot, and asked again if

he knew Ms. Reed or Mr. Tompkins. Lightfoot then admitted he knew them but

claimed they were dealers who had sold him the small quantity of marijuana that

had been found on his person. He denied he was a dealer, calling attention to

the fact that he had only eleven dollars cash in his possession when he was

arrested after walking away from the Monte Carlo.

At this point Detective Mullins returned to Ms. Reed to resume his

questioning of her. (Mullins’s police report states, after his questioning of

Lightfoot, that this was when he discovered the additional information that

follows, which he learned from questioning Ms. Reed.) His report does not

plainly state that he told her about the search of the cell phones or told her that

Lightfoot was now identifying her and Tompkins as dealers. It can be inferred,

however, that he availed himself of the fruits of the cell phone search in this

round of questioning, because he was now able to elicit additional admissions

from Ms. Reed. She told Detective Mullins that the reason no money changed

hands during the encounter he and Barrett had witnessed was because she and

Mr. Tompkins had met Lightfoot earlier and paid him for the gel cap at that time.

In subsequent questioning, Ms. Reed made additional statements describing

heroin use and dealings with Mr. Lightfoot. All three arrestees were booked into

the Montgomery County Jail, and the property seized from them was inventoried.

The police report indicated that Lightfoot’s cell phone had Tompkins’s number

saved, that Ms. Reed’s and Mr. Tompkins’s phones had Lightfoot’s number

saved, and that the phones had been used to call each other within the time

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period after the Monte Carlo was first observed by Dayton Police.

Mr. Tompkins was indicted on September 12, 2008, for evidence

tampering in violation of Ohio Rev. Code § 2921.12(A)(1). Following a period of

absence from the State due to his incarceration in Indiana, he appeared in

Montgomery County Common Pleas Court on April 13, 2010. On May 12,

defense counsel filed a motion to suppress any evidence taken from Mr.

Tompkins’s cell phone on grounds that the search violated the Fourth

Amendment.

DISCUSSION

The Court is likely to grant Mr. Tompkins’s motion to suppress evidence

obtained in the search of the cell phones.

The Fourth Amendment to the United States Constitution protects the

“right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures ...” U.S. Const. amend. IV. It is

long established that “searches conducted outside the judicial process, without

prior approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment – subject only to a few specifically established and well-delineated

exceptions.” Katz v. United States (1967), 389 U.S. 347, 357; see also State v.

Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, at ¶56 (Resnick, J., concurring in

part and dissenting in part). When a search has been conducted without a

warrant, the burden of persuasion is on the State to show that the search was

valid under one of the recognized exceptions. Xenia v. Wallace (1988), 37 Ohio

St.3d 216, 218.

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In State v. Smith, the Ohio Supreme Court held that “[t]he warrantless

search of data within a cell phone seized incident to a lawful arrest is prohibited

by the Fourth Amendment when the search is unnecessary for the safety of law-

enforcement officers and there are no exigent circumstances.” 124 Ohio St.3d

163, 2009-Ohio-6426, syllabus. Although the Smith ruling was announced in

December 2009, more than a year after Mr. Tompkins’s arrest, its holding applies

retroactively to a suppression motion on the 2008 arrest and incident search.

Griffith v. Kentucky (1987), 479 U.S. 314, 328; see also State v. Williams, 8th

Dist. No. 92822, 2010-Ohio-901, at ¶¶3, 18 (Smith cell phone rule applied to

October 2008 arrest).

Post-Smith, evidence obtained from a warrantless search of an arrestee’s

cell phone may be admissible on two possible grounds: (1) when the search is

necessary for the safety of law enforcement officers, and (2) when there are

exigent circumstances that justify conducting the search without a warrant.

Smith, syllabus. Because neither of these exceptions to the warrant requirement

can be established in this case, Tompkins’s motion to suppress will very likely be

granted.

1. There Were No Exigent Circumstances that Justify Searching

Tompkins’s Cell Phone Without a Warrant.

The search of Mr. Tompkins’s cell phone without a warrant cannot be

justified by the existence of any exigent circumstances.

Exigent circumstances are said to exist when a situation calls for

“immediate action” so that the “usual procedures”—such as the warrant

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requirement—may justifiably be circumvented. Black’s Law Dictionary 277 (9th

ed. 2009). These situations typically arise when there is a need to “protect or

preserve life or avoid serious injury,” or when a governmental interest

outweighing the privacy interest of the individual is at stake. State v. Davis, 5th

Dist. No. 2009CA0023, 2009-Ohio-5888, at ¶17 (quoting State v. Price (9th Dist.

1999), 134 Ohio App.3d 464, 468, and Mincey v. Arizona (1978), 437 U.S. 385,

392-93). Put simply, when the delay that may result from seeking a warrant is

likely to result in endangering police officers or others, or the loss or destruction

of evidence, a search may permissibly be conducted without a warrant. Katz,

Ohio Arrest, Search and Seizure (2009 Ed.), § 9:1.

Evidence may need to be preserved against threat of loss, destruction,

removal, hiding, or even dissipation. State v. Moore, 90 Ohio St.3d 47, 2000-

Ohio-10, slip op. at 8. The special category of warrantless searches of

automobiles to prevent the destruction or removal of evidence secured therein

has been justified by their “inherent mobility.” State v. Jordan, 2d Dist. No.

18600, 2001-Ohio-1630, slip op. at 8.

In United States v. Santana (1976), 427 U.S. 38, the warrantless entry into

a home was justified to prevent the destruction of marked bills used by

undercover officers in an arranged heroin buy when the suspect was seen

retreating into the home as police approached the front door. In State v. Fisher

(Feb. 13, 1996), 3d Dist. App. No. 1-93-71, 1996 WL 65487, a suspect was seen

putting something into his mouth during an investigatory stop. Fisher at *3. The

appellate court concluded that because the suspect was attempting to destroy

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evidence by swallowing it, it was reasonable for an officer to grab the arrestee’s

neck and use physical force to make him expel the object. Id.

Similarly, the exception for a search incident to arrest, originally justified

on exigency grounds, see Arizona v. Gant (2009), 556 U.S. ___, and State v.

Lee, 2d Dist. No. 18517, 2001-Ohio-1457, slip op. at 7, is recognized to carry

both a “proximity” requirement, meaning that a weapon or any potentially

destroyed evidence must be within the arrestee’s reach for an exigent

circumstance to be found, see Chimel v. California (1969), 395 U.S. 752, 762-63,

as well as a requirement of “contemporaneity,” State v. Combs, 2d Dist. No.

22346, 2008-Ohio-2883, at ¶4, because threats to officer safety and evidence

preservation are minimized after the suspect has been placed “securely in

custody.” United States v. Chadwick (1977), 433 U.S. 1, 15.

By similar reasoning, the Ohio Supreme Court in Smith held that a warrant

will be required to search the contents of a cell phone once the phone is in

custody of law enforcement. 124 Ohio St.3d 163, 2009-Ohio-6426, at ¶23. Yet

because of the finite storage capacity of even the most technologically advanced

cell phones, a phone in police custody may nonetheless present some risk of

imminent destruction of evidence. However, to establish an exigent

circumstance justifying a warrantless search of a cell phone’s call history, the

state must prove that call records were not available from the arrestee’s cell

phone service provider. Id. at ¶25.

In this case, the search of the contents of the three cell phones at issue

was made during the interrogation of the suspects, when all three had already

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been handcuffed, given Miranda warnings, and were no longer capable of

gaining control of their phones. This case is therefore distinguishable from

Santana, which epitomizes the exigent-circumstances exception because the

entry to the home was made immediately after the suspect ran inside and before

the evidence being sought by police could be destroyed. Here, in contrast, the

search being challenged took place after the alleged act of evidence tampering.

Likewise, the facts of this case are unlike Fisher, since although physical force

would be reasonable to attempt to recover an item of evidence a suspect has

placed in his mouth, once Tompkins had swallowed the object (as Detective

Myers alleged occurred before Tompkins was removed from the vehicle), the

only emergency calling for immediate action had been dispelled. At that point

there was no longer any governmental interest in preventing destruction of

evidence that so outweighed his privacy interest as to justify searching the

contents of his cell phone without first obtaining a warrant.

The cell phones, once in police custody, were no longer within the

arrestees’ reach, and clearly lacked the “inherent mobility” that might justify a

search of the passenger compartment of the vehicle. Finally, nothing in the

police report indicates that the officers knew whether the call records for any of

the cell phones could be obtained from the service provider(s), as the law now

requires post-Smith.

In light of the totality of these circumstances, there was no likelihood of

risk to evidence preservation from a delay to allow for judicial involvement prior to

conducting the cell phone search. It is therefore highly likely that the state will be

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unable to meet its burden of showing the existence of exigent circumstances

justifying the officers’ warrantless search of Mr. Tompkins’s cell phone.

2. The Search of Tompkins’s Cell Phone Was Not Necessary for the

Safety of Law Enforcement Officers.

There is no evidence suggesting that officers could have reasonably

believed that a search of Mr. Tompkins’s cell phone was necessary to protect

their own safety or the safety of others.

Generally, warrantless searches to protect the safety of police officers and

the public will be justified when there is a reasonable belief that an emergency

situation poses a threat to life and limb. State v. White, 175 Ohio App.3d 302,

2008-Ohio-657, at ¶18 (citing State v. Applegate (1994), 68 Ohio St.3d 348,

350). The presence of a methamphetamine laboratory does call for the sort of

“immediate action” giving rise to a finding of exigency. Id. at ¶19. An unsecured

firearm in an arrestee’s home also presents an exigent circumstance justifying a

search, so long as there is a reasonable belief that another person is inside.

State v. Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, at ¶¶50-51.

Other circumstances held to justify warrantless searches to protect life and

limb include the sound of screaming from within the home, see State v. Berry,

167 Ohio App.3d 206, 2006-Ohio-3035, at ¶¶12-13; a suspect’s bloody hands,

false alibis, history of domestic violence, and agitated behavior, see State v.

Nields, 93 Ohio St.3d 6, 2001-Ohio-1291, slip op. at 15; and the risk of fire, see

State v. Berry, 167 Ohio App.3d 206, 2006-Ohio-3035, at ¶14, and State v. Roe,

164 Ohio App.3d 733, 2005-Ohio-6655, at ¶¶4, 18-19.

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On the other hand, a warrantless entry to make a DUI arrest cannot be

justified under the exigent circumstances exception. State v. Johnson, 173 Ohio

App.3d 669, 2007-Ohio-6146, at ¶15. Nor does a noise ordinance violation,

followed by the suspect’s refusal to answer the door. State v. Price (9th Dist.

1999), 134 Ohio App.3d 464.

In this case, it is overwhelmingly clear that the state will be unable to

establish a threat to the safety of any person that made it necessary for the

search of Tompkins’s cell phone to be conducted without a warrant. There is not

a shred of evidence supporting a reasonable belief that anyone involved in this

investigatory stop faced an emergency of the immediacy and seriousness typical

of circumstances that threaten life and limb; certainly not between the time

Lightfoot, Tompkins, and Reed were handcuffed and when the search of the

arrestees’ cell phones was made. There would have been no risk to the safety of

officers or the public from the delay caused by first seeking a search warrant.

CONCLUSION

Because there were neither exigent circumstances nor any threat to the

safety of the officers or the public that would justify a warrantless cell phone

content search under Smith, the search conducted in this case will very likely be

suppressed as a violation of the Fourth Amendment. Moreover, it is a distinct

possibility that additional evidence developed during the questioning of Mr.

Lightfoot and Ms. Reed, subsequent to the illegal cell phone search and using

information from that search to elicit admissions from them, may also be

suppressed as the “ ‘fruit of the poisonous tree.’ ” Wong Sun v. United States

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(1963), 371 U.S. 471, 488.

A favorable ruling on this suppression motion would leave prosecutors

with little or no evidence that the gel cap contained any heroin, besides Detective

Myers’s conclusory statement to that effect. The State would therefore likely

have considerable difficulty establishing one of the essential elements of the

offense of evidence tampering under R.C. 2921.12(A)(1), namely that Tompkins

swallowed the gel cap “with purpose to impair its value or availability as

evidence” in an official investigation. The final result may therefore be dismissal

of the charge against our client.