TIMOTHY STEVENSON v. STATE OF MARYLAND
Court of Appeals of Maryland, Barbera, Aug. 31, 2017,
Cell Phone Search- Probable cause existed to support a search warrant of a robbery suspect’s cellular phone even though there was no direct evidence that the phone was used in or during the crime.
(Concur- Adkins with Greene- good faith applies, but warrant was invalid)
Companion case with Moats
Interesting tactic: seizing property and illegally searching it, then getting a new SSW once the defense challenges the search but before the suppression hearing
Facts From the Case
In 2015, Anne Arundel County Police (AACoPD) found David Pethel robbed and beaten in Glen Burnie.
The next day, Stevenson was arrested on an unrelated robbery and Pethel’s wallet was found on him. Police arrested Stevenson and seized his cellular phone.
AACoPD obtained a search warrant for the phone. The warrant authorized police to search “electronic communications information” only. Instead of just searching communication information, AACoPD also recovered six photographs of the victim on the suspect’s phone.
Stevenson challenged the photographs, arguing that they exceeded the scope of the warrant.
Before Stevenson’s trial, AACoPD tried to fix the problem by obtaining a second search warrant. This warrant sought “Any and all information, including but not limited to all pictures, movies, electronic communications in the form of text, numeric, and voice messages, detailed phone records to include all incoming/outgoing calls and Facebook messages contained within phone.”
The warrant application contained a sworn declaration in the affidavit that, based on the affiant’s training and experience, “suspects in robberies and assaults will sometimes take pictures, videos and send messages about their criminal activities on their cellular phones.”
The second warrant didn’t include any mention of the first warrant and was signed by a different judge.
AACoPD then executed the second warrant and found… the same six pictures they had already found.
Stevenson argued that the search-warrant did not have probable cause because the affiant wrote that suspects “sometimes” have information related to the crime on their cellular phone.
The motions judge disagreed and allowed the photos found on the phone to be used as evidence.
Stevenson was convicted of assault and robbery and appealed.
Law from the Case
Held – The Court of Appeals agreed that the warrant was properly issued. The Court held that even if there had not been a substantial basis for the warrant, the “good faith” exception to suppression would have applied.
Search Warrant- Probable Cause- Probable cause requires only a fair probability that contraband or evidence of a crime will be found in a particular place.
Search Warrant- Probable Cause- Probable cause does not require a showing that evidence is “more likely” there than not there (does not require greater than 50% certainty).
From the Case: The affiant’s statement that “sometimes” criminals keep evidence on their phones was sufficient to establish probable cause because the Court held the affiant intended “sometimes” to mean “more than ‘rarely’ and less than ‘more often than not.’”
Search Warrant- Probable Cause- PC for a warrant may be obtained based on circumstantial evidence.
Search Warrant- Probable Cause- PC may be inferred, in light of the officer’s training and experience, based on:
• the type of crime
• the nature of the items sought
• the opportunity for concealment of the item
• reasonable inferences about where the defendant may hide the evidence
Cellular Phones- Search Warrant- Probable Cause- Probable cause that a criminal contains evidence of a crime on his phone is supplemented by the fact that “more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.”
Search Warrant- Courts will uphold a properly obtained search warrant as long as there was a “substantial basis” for issuing it.
Good Faith – Even if it is later determined that a warrant was invalid for lack of probable cause, the reviewing court will not suppress evidence obtained during execution of that warrant if the officers reasonably relied upon the warrant issued by a detached and neutral magistrate (judge).
Good Faith – The good faith exception does not apply if the warrant is based on an affidavit so lacking in probable cause as to render belief in its existence entirely unreasonable (also known as a “bare bones” affidavit).
From the Case: The affidavit in this warrant was not “bare bones”, considering that the vast majority of people keep “a digital record of nearly every aspect of their lives” on their cell phones. Also, two different judges signed a warrant for Stevenson’s phone based on almost the identical affidavit – which would have allowed the police to believe it had sufficient probable cause.