WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT,
PARISH OF JEFFERSON
a veterinarian, was charged with aggravated cruelty to
animals, La.R.S. 14:102.1, and illegal use of a weapon,
La.R.S. 14:94, arising from the allegation she shot her
neighbor's dog in River Ridge. Defendant was arrested and
her home was searched pursuant to arrest and search warrants.
Her iPhone was seized at the time of her arrest. Access to
the phone was locked by a passcode.
December 19, 2017, police obtained a search warrant to
extract and examine the contents of the phone. On January 3,
2018, defendant came to the Detective Bureau, accompanied by
her lawyer, to retrieve her phone. It is not clear how that
event was arranged, and the extent of counsel's
participation in the arrangement is not known. It is clear,
however, that she consulted with the attorney who accompanied
her as well as with additional counsel by phone.
point, she was informed that police had a search warrant for
the phone but they would return it to her after she provided
the passcode and they extracted a copy of its contents.
However, the 10-day period provided in La.C.Cr.P. art. 163(C)
("a search warrant cannot be lawfully executed after the
expiration of the tenth day after its issuance") had
passed at that time. It is not clear who (if anyone) was
aware of that fact. Under circumstances that were not well
developed at the evidentiary hearing, defendant ultimately
provided her passcode, her data was extracted, and her phone
returned to her.
moved to suppress the contents of the phone because the
warrant had expired at the time the phone was searched. The
district court found that the warrant could not be executed
because the 10-day period provided in La.C.Cr.P. art. 163(C)
had passed. However, because defendant, with the assistance
of counsel, consented to the search by providing her passcode
in exchange for the return of her phone, the district court
denied defendant's motion to suppress.
court of appeal held that defendant's consent to search
her phone was not free and voluntary because it was given
only after an officer asserted that she had a warrant to
search the phone, citing Bumper v. North Carolina,
391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) for the
proposition: "[A] law enforcement officer cannot rely
upon the authority of a warrant to obtain a person's
consent to a search of his or her property. Such conduct is
coercive and, in our view, indicative of bad faith."
State v. Folse, 18-0458, p. 4 (La.App. 4 Cir.
8/16/18) (unpub'd). Therefore, the court of appeal
reversed the district court's denial of defendant's
motion to suppress and remanded for further proceedings.
State contends the court of appeal erred because La.C.Cr.P.
art. 163(D)(2), which pertains to the examination or testing
of seized property, authorized the police to extract the data
from defendant's phone notwithstanding the 10-day period
limiting the execution of the search warrant established in
La.C.Cr.P. art. 163(C). Alternatively, if La.C.Cr.P. art.
163(D)(2) does not apply, the State argues that the officer
acted reasonably in good faith believing it applied,
defendant consented to the search,
the inevitable discovery exception to the warrant requirement
examining La.C.Cr.P. art. 163(D)(2) in its context, one thing
is certain: The legislature has failed to keep pace with
developing information technology as it involves the enduring
rights to be free from unreasonable search and seizure.
Cf. Fed. R. Crim. P. 41(e)(2)(B). We are not
prepared to adopt the State's expansive and novel reading
of Art. 163, as applied to the poorly developed facts here,
particularly given the record before us, which includes an
evidentiary hearing that contains just under a dozen pages of
testimony, and which inspires more questions than it answers.
Therefore, we decline to consider the State's first
argument regarding the applicability of La.C.Cr.P. art.
163(D)(2), particularly in light of what might amount to a
concession in the court below that this provision does not
the State's remaining claims, the sparse record on those
issues also stands as an insurmountable obstacle to their
resolution. The circumstances under which the phone was
arranged to be returned, and under which defendant ultimately
agreed to furnish the passcode in exchange, were only
skeletally developed at the suppression hearing. The role of
counsel, also unknown, may further complicate matters. On
this record, we cannot say whether defendant merely
acquiesced to a claim of lawful authority, see Bumper v.
North Carolina, 391 U.S. 543, 548-550, 88 S.Ct. 1788,
1792, 20 L.Ed.2d 797 (1968), or validly consented to provide
her passcode in exchange for the phone. We are also unable
from this record to determine whether the officer acted
reasonably in good faith, as urged by the State, or the
police conduct was coercive and indicative of bad faith, as
the court of appeal found. Therefore, rather than rule on the
merits of such significant questions on a deficient record,
we reverse the court of appeal, and we remand to the district
court to conduct further evidentiary proceedings, after which
the district court is directed to reconsider whether the
evidence ought to be suppressed.
WEIMER, J., dissenting.
majority essentially holds that the law regarding cell phone
searches has not kept pace with technology and provides the
state another opportunity to justify a search of the
defendant's cell phone when the state's first efforts
failed to show the search complied with statutory and
constitutional mandates. I respectfully dissent.
five years ago, the United States Supreme Court described in
great detail the constitutionally-protected privacy interests
that are presented when, as here, the government wishes to
search a cell phone that is been seized incidental to an
arrest. Riley v. California, 573 U.S. 373 (2014).
The Court observed that "[m]odern cell phones, as a
category, implicate privacy concerns far beyond those
implicated by the search of a cigarette pack, a wallet, or a
purse." Id. at 393. "Before cell phones, a
search of a person was limited by physical realities and
tended as a general matter to constitute only a narrow
intrusion on privacy." Id. Now, however, a cell
phone may contain "[t]he sum of an individual's
private life," with details such as bank statements,
addresses, messages, ...