Appeals Court Says No Evidence Suppression For Arrestee Who Tried To Eat Five SD Cards Found In His Possession
There are a few questionable assumptions made by the Fourth Circuit Appeals Court in its denial [PDF] of a suppression request, but the opening suggests drug cartels might want to vet their employees a little better.
David Sierra Orozco was paid to drive a car with over $100,000 in drug-tainted cash hidden in a secret dashboard compartment. When police pulled him over, he acted suspiciously: He quickly shut down the GPS application running on his smartphone and struggled to answer where he was going with the money. His odd behavior continued when he arrived at the station: When police found five SD cards wrapped in a $100 bill in Orozco’s shoe, Orozco tried to destroy them by eating them. When police got a warrant to search the phone and SD cards, things went from bad to worse for Orozco—both the phone and the chips contained graphic and heinous child pornography.
If you want your cash runner to survive detainment and questioning by police, make sure they’ve got a good story to tell and, more importantly, a shoe free of evidence linking them to another crime entirely.
That being said, there are some problematic assumptions made here by the Appeals Court.
Orozco was unable to provide a good cover story during the stop. He also was not the owner of the vehicle he was driving. Officers noticed the dashboard of the car was not flush and bore tool marks, suggesting it had been recently removed. That resulted in the calling of a drug dog to the scene. The dog alerted on the passenger side door, which was apparently enough to justify allowing the dog to search the car’s interior. It alerted on the dashboard. The dash was removed and officers found $111,252 hidden in a secret compartment.
Officers arrested Orozco, seized both cellphones found in the car, and then supposedly added to their probable cause by performing this meaningless act:
In a money line-up, some cash is placed into a bag, and several identical control bags are filled with things other than the cash. The K-9 is then paraded past each bag. Here, the K-9 alerted to only the bag containing the money found in Orozco’s car.
Most cash in circulation has drug residue on it, thanks to cash still being king in drug transactions and cross-contamination occurring in ATMs and other places where cash is stored/distributed. So, a dog alerting on cash should be indicative of nothing more than the presence of US currency.
The next bit of probable cause is Orozco’s fault, though.
At the station, Corporal Robert Kimbrough searched Orozco’s person. He found a folded-up $100 bill in Orozco’s shoe, and as he unfolded it, five micro-SD cards fell out onto the floor. Orozco quickly scooped up two of the cards and shoved them into his mouth. Kimbrough managed to recover one SD card—though chewed and inoperable—from Orozco’s mouth; Orozco apparently swallowed the other.
The officers obtained a warrant to search the seized Samsung phone and the three remaining operable SD cards for “evidence of drug trafficking.” They never got a chance to find drug trafficking evidence, apparently.
Narcotics officers began searching one SD card; they immediately saw what they believed to be child pornography. A second warrant was then obtained for the SD cards; two SD cards contained several hundred images and videos of child pornography. A third warrant was then issued for the Samsung smartphone; its internal temporary storage contained five child pornography images.
This is the equivalent of plain view. Cops were searching for evidence of one thing and came across evidence of something else. Narrowly crafted warrants are supposed to prevent officers from going fishing for other criminal evidence, but it appears in this case, the CSAM was one of the first things seen by the officer perform the search of the SD card.
That leaves Orozco with only one option: asserting officers had no probable cause to perform the search. And, while there are cases where it’s tough to see the connection between seized electronic devices/storage, the court says there was enough here to justify the initial search.
We begin with Orozco’s argument that the warrant affidavit did not give cause to believe he was engaged in illegal drug trafficking. Orozco’s argument essentially boils down to the idea that it “is not illegal to be paid to drive a car” and that “[c]ash is not contraband.” This is true. And so, Orozco insists, driving another person’s car with a large sum of drug-tainted cash stashed in a secret compartment is not enough evidence of drug-trafficking activity to justify further investigation. There, we disagree.
That Orozco might propose an innocent explanation for his conduct does not defeat probable cause.
The court notes the probable cause is still a pretty low bar and officers are not expected to consider every conceivable innocent explanation for things they’ve observed when seeking a warrant.
But there also must be a nexus — something linking the items being searched to the suspected crime. And Orozco pretty much defeated any inference of innocence in the SD cards by doing what he did when they were discovered by an officer.
We begin with the SD cards, which Orozco hid in a $100 bill inside his shoe. That alone is suspicious and might reveal a connection between those SD cards and Orozco’s ongoing criminal conduct. But we need not fret about whether it is by itself suspicious enough to establish probable cause to search the cards. Because after dropping the cards on the ground, Orozco shoved some in his mouth and started chewing, and apparently swallowed one.
The court says this action pretty much undermines Orozco’s assertions that officers did not have probable cause to believe the SD cards contained evidence of wrongdoing.
Orozco does not argue that chewing memory cards is typical, innocent behavior. Chewing on the chips can be taken only as an attempt to hide something. Orozco just insists that the “something” is not necessarily evidence of his crime. And so, he argues, more was required of the warrant application to tie the SD cards to the crimes for which he was being investigated.
Orozco’s contentions defy longstanding legal principles. Intentionally destroying an item before it can be examined would permit someone to believe the item is inculpatory.
Because the most logical assumption was that Orozco was trying to destroy evidence related to the suspected crime he was arrested for, a warrant to search the cards for evidence of that crime was enough to justify the search that uncovered a completely separate crime. Not only was this evidence in plain view (seen “immediately” by investigators), it would also have been inevitably discovered during the course of the search.
Orozco took a bad situation and made it immediately worse. That it likely would have ended up just as badly for him by the time the searches were performed is unfortunate (for him), but without the attempted (and apparently partially successful) ingestion of SD cards, he would have at least had a better shot as disproving the nexus between the SD cards in his shoe and the alleged drug money in his dashboard.
That being said, the court says something really interesting about the Supreme Court’s Riley decision that seemingly inverts the Supreme Court’s findings in that case, which established a warrant requirement for cellphone searches incident to an arrest. Justifying the warrant requirement, the Supreme Court said searching a smartphone is like searching someone’s house. Every phone contains a wealth of private information, making it far more intrusive than simply searching an address book or wallet or suitcase (analogies made by the government).
Here, the court says that because phones are like houses, that’s pretty much all the probable cause anyone needs to secure a warrant.
Though smartphones were decades away at the time of Anderson, the Supreme Court has since noted that searching one’s smartphone is like searching his home. See Riley v. California, 573 U.S. 373, 395–97 (2014). Much like homes, cellphones contain “a digital record of nearly every aspect of [their owner’s] lives—from the mundane to the intimate.” A phone will often contain the suspect’s “Internet browsing history, a calendar,” “photographs labeled with dates, locations, and descriptions,” a “record of all his communications” with various associates, and location information allowing one to “reconstruct [his] specific movements down to the minute.” The all-encompassing information on cellphones explains why unconstrained warrantless cellphone searches, like warrantless home searches, contravene the Fourth Amendment. But it is also why phones “can provide valuable incriminating information about dangerous criminals.” So just as it is sometimes reasonable to believe that a suspect’s home may contain evidence of their crimes, it might be reasonable to believe that his cellphone will. At least this might be true for crimes like drug trafficking that involve coordination.
Maybe the Appeals Court isn’t reading Riley the way it comes across here. At least I would hope not. The point of the Riley decision was that searching a phone is as intrusive as searching a house. This footnote implies something else: that the nexus between phones and suspected criminal activity is pretty much a foregone conclusion. Fortunately, the court only says it “might be reasonable to believe” phones contain evidence. But it’s a twist on Riley I didn’t see coming.
A suppression challenge requires several things to be successful. Attempting to eat SD cards, however, definitely isn’t one of those things. Suppression denied.
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August 5, 2022 at 03:45PM