State v. Carroll

Decision Date03 February 2010
Docket NumberNo. 2007AP1378-CR.,2007AP1378-CR.
Citation778 N.W.2d 1,2010 WI 8
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Jermichael James CARROLL, Defendant-Respondent-Petitioner.
CourtWisconsin Supreme Court

For the defendant-respondent-petitioner there were briefs and oral argument by Michael K. Gould, assistant state public defender.

For the plaintiff-appellant the cause was argued by James M. Freimuth, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

¶ 1 N. PATRICK CROOKS, J

This is a review of a published decision of the court of appeals1 that reversed an order by the Circuit Court for Milwaukee County, Judge Charles F. Kahn, Jr. presiding, in which the circuit court suppressed evidence obtained from the defendant's cell phone pursuant to a warrant. The circuit court based that order on the grounds that police, by searching the image gallery in the cell phone, illegally obtained the evidence that had formed the basis of that warrant in violation of the Fourth Amendment to the United States Constitution. The defendant, Jermichael James Carroll (Carroll), was charged with possession of a firearm by a felon. The court of appeals reversed the suppression order, ruling that untainted evidence that police later obtained provided a valid, independent basis for the warrant.

¶ 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.

¶ 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. Accordingly, we affirm the court of appeals.

I. BACKGROUND

¶ 4 On December 6, 2006, Detective Belsha of the Milwaukee police department and his partner were conducting surveillance on a residence as part of an armed robbery investigation. They observed a white Ford Escort leave that residence, slow down as it passed their squad car, and speed away.

¶ 5 The officers attempted to catch the vehicle, which reached speeds of 60 miles per hour on residential streets with speed limits no higher than 25 miles per hour. According to Belsha's testimony at the suppression hearing, the driver, Carroll, eventually pulled the car to "an abrupt stop" in a gas station lot and quickly got out of the car while holding an object in his hands. The officers could not identify what Carroll was holding, so Belsha drew his weapon and ordered Carroll to drop the object and get on the ground, which Carroll did. The officers then handcuffed Carroll behind his back.

¶ 6 After handcuffing Carroll, Belsha retrieved the dropped object, which was a flip-style cell phone. The cell phone was lying open on the ground and displayed an image of Carroll smoking a long, thin, brown cigarlike object ("the marijuana image"). Belsha, a member of the High Intensity Drug Trafficking Area Drug and Gang Task Force (HIDTA), testified that he recognized the object as a marijuana blunt.2

¶ 7 When the officers asked Carroll for identification, Carroll did not have any with him but gave the officers his name. The officers ran a "routine check" and learned that he was driving with a suspended license. Carroll also had a record of being adjudicated delinquent for a drug-related felony two years earlier as a juvenile.3

¶ 8 Belsha placed Carroll in the back seat of the squad car and sat in the front seat with the cell phone, where he activated the menus, opened the image gallery, scrolled through it, and saw images showing illegal drugs, firearms, and large amounts of U.S. currency. Specifically, Belsha testified that he saw an image of Carroll with what appeared to be a gallon-size bag of marijuana held in his teeth, and "several photos depicting firearms," including one showing Carroll holding a semiautomatic firearm ("the firearm image").

¶ 9 While Belsha continued to possess Carroll's cell phone, it rang several times and Belsha answered one of those calls, pretending to be Carroll. The caller asked for "four of those things; four and a split." Based on his training, Belsha recognized that the caller was attempting to purchase four and a half ounces of cocaine.

¶ 10 Two days later, on December 8, 2006, Belsha sought a search warrant for the cell phone. In his Affidavit in Support of a Search Warrant, Belsha mentioned the incriminating pictures he saw in the image gallery; specifically, he highlighted the firearm image as evidence that Carroll was in violation of the felon in possession of a firearm statute. Belsha also described the intercepted phone call. He further stated that drug traffickers commonly use cell phones to maintain contact with their sources and that the contents of Carroll's cell phone would provide evidence of those contacts as well as evidence related to several other offenses, including possession of cocaine with intent to deliver and possession of marijuana with intent to deliver. Moreover, Belsha explained that Carroll had been previously adjudicated delinquent for a felony, possession of cocaine with intent to deliver. In the affidavit, Belsha did not specifically describe or mention the marijuana image that he had observed when he first picked up the phone; however, he stated in the affidavit that, based on his knowledge and experience, drug traffickers commonly personalize their cell phones with images of themselves and "property acquired from the distribution of drugs."

¶ 11 A search warrant was issued by a court commissioner. After obtaining the warrant, the police downloaded the data on the cell phone, including the firearm image. Detective McQuown, who was trained in the handling of digital evidence, testified at a preliminary hearing that each image on the phone had attached "metadata," which he described as information indicating the date and time at which the image was created. He also testified that the metadata is based on the date and time updates regularly provided through cell phone towers. According to testimony at the hearing, the metadata indicated that the firearm image had been created on May 22, 2006. Carroll was charged with possession of a firearm by a felon, Wis. Stat. § 941.29(2), based on photographic evidence downloaded from the cell phone, and the language in Wis. Stat. § 941.29(1)(bm), which relates to a person adjudicated delinquent for an act that, if committed by an adult, would be a felony.

¶ 12 Carroll moved to suppress the evidence obtained pursuant to the search warrant. Milwaukee County Circuit Judge Charles F. Kahn, Jr. granted that motion because Belsha's warrantless search of the image gallery could not be justified as a search incident to arrest. The circuit court found that Carroll was not under arrest at the relevant time. It further held that, even if police had arrested Carroll, that arrest would have been questionable given that Carroll had been speeding and driving with a suspended license, both noncriminal offenses. Accordingly, the court concluded that the evidence Belsha obtained from viewing the image gallery was tainted; that absent that evidence, there were insufficient grounds for the issuance of the warrant; and that the evidence obtained pursuant to the warrant had to be suppressed.4

¶ 13 The State appealed. The court of appeals, in a published decision written by Judge Joan F. Kessler, reversed the suppression order. Because the court of appeals held the issue related to untainted evidence was dispositive, it did not address whether a police officer may search a cell phone's image gallery as part of a search incident to arrest. However, in its conclusion, the court of appeals assumed that Belsha improperly scrolled through Carroll's cell phone image gallery without a warrant. It held, as a preliminary matter, that the information contained in the phone call that Belsha intercepted provided sufficient probable cause for a warrant. Given that premise, the court then assessed whether Belsha legally possessed the...

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    ...Google email account and internet search history via a lawful, independent source, that evidence should not be excluded. See State v. Carroll, 2010 WI 8, ¶¶44-45, 322 Wis. 2d 299, 778 N.W.2d 1. But the State has forfeited that argument by failing to raise it below. See State v. Counihan, 20......
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