State v. Carroll
| Decision Date | 28 October 2008 |
| Docket Number | No. 2007AP1378-CR.,2007AP1378-CR. |
| Citation | 762 N.W.2d 404,2008 WI App 161 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant, v. Jermichael James CARROLL, Defendant-Respondent.<SMALL><SUP>†</SUP></SMALL> |
| Court | Wisconsin Court of Appeals |
Van Hollen, attorney general and James M. Freimuth, assistant attorney general. There was oral argument by James M. Freimuth.
On behalf of the defendant-respondent, the cause was submitted on the brief of Michael K. Gould, assistant state public defender. There was oral argument by Michael K. Gould.
Before CURLEY, P.J., FINE and KESSLER, JJ.
¶ 1
The State of Wisconsin appeals from an order suppressing photographic evidence obtained from a cell phone that was seized from Jermichael James Carroll. We reverse because we conclude that the evidence was ultimately seized pursuant to a valid search warrant.
¶ 2 At issue is an order suppressing evidence obtained from the defendant's cell phone after he was stopped for speeding. The following facts are taken from the complaint, a search warrant application and the detective's testimony at the suppression hearing.
¶ 3 On December 6, 2006, Detective John Belsha and his partner, an FBI special agent, were conducting an armed robbery investigation. They had a particular house under surveillance. They saw a vehicle—which Belsha said may have been related to the armed robbery—depart from a location near the house. Belsha said the vehicle "slowed down and went past us and picked up its speed immediately."
¶ 4 Belsha and his partner pursued the vehicle, which was driven by Carroll.1 To keep up with the vehicle, Belsha had to travel at speeds up to sixty miles per hour while the vehicles were in a twenty-five-miles-per-hour residential zone. Belsha said Carroll eventually pulled into a gas station and "came to an abrupt stop." Belsha testified: Belsha did not immediately retrieve the dropped item, which he said he thought might be a weapon, and proceeded to secure Carroll by handcuffing him and patting him down.
¶ 5 Next, Belsha picked up the item Carroll had dropped, which was a cell phone. Belsha said the cell phone was open and displayed a picture of Carroll smoking "what's commonly referred to as a blunt, a marijuana cigarette, a cigar."
¶ 6 Carroll was asked for identification. Carroll gave his name, but indicated he did not have any identification with him. The officers ran a routine wanted check on Carroll's name and learned that his driver's license was suspended and therefore he should not have been driving.
¶ 7 Belsha testified that Carroll was "taken into custody," although there was no testimony that anyone told Carroll he was under arrest. Carroll was placed in the back seat of Belsha's vehicle.
¶ 8 Belsha said that as Carroll sat in the back of Belsha's vehicle, Belsha scrolled through the cell phone's photo gallery. Belsha testified that he saw "several pictures of what [he] believe[d] to be illegal drugs, firearms and large amounts of U.S. currency."
¶ 9 Subsequently, Belsha filed an application for a search warrant to retrieve from the cell phone "stored telephone numbers, address book names, video clips, photographs, and related information." Belsha's affidavit in support of the warrant stated that he believed that the cell phone would produce evidence of possession of cocaine, possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, and possession of a firearm by a felon. The application explained that Belsha's search of the cell phone had revealed several images of Carroll with a firearm, and that Carroll was not permitted to possess a firearm because he had been adjudicated delinquent for a felony offense.
¶ 10 The application also referenced drugs. It stated: "[T]here are photos of Carroll with what appears to be a quantity of marijuana, photos of what appears to be cocaine, as well as a photo of drugs, money, and a revolver." The affidavit did not mention the photo Belsha observed when he picked up the cell phone after Carroll dropped it on the ground.
¶ 11 Belsha's affidavit stated as follows. While he had the cell phone in his vehicle, the phone rang multiple times. Belsha answered one of the calls and pretended to be Carroll. The caller asked Belsha for "4 of those things; 4 and a split," which, based on Belsha's "training and experience in investigations related to the distribution of controlled substances," Belsha interpreted as a request to purchase four-and-one-half ounces of cocaine.
¶ 12 The warrant was signed by a court commissioner on December 8, 2006. Belsha had the photographs retrieved from the cell phone. They included pictures of Carroll with a semi-automatic firearm and photos of a revolver. Based on these photographs, Carroll was charged with one count of being a felon in possession of a firearm. Following the preliminary hearing, where the trial court heard additional testimony about the guns in the photographs, an information was filed alleging two counts of being a felon in possession of a firearm.
¶ 13 Carroll moved to suppress the evidence seized from the cell phone. He argued that Belsha's warrantless search of his cell phone's photo gallery at the scene of the traffic stop was unlawful. He further argued that the evidence obtained through the search warrant should have been suppressed because the warrant application was based on information gathered during the warrantless search of the cell phone. In response, the State argued that Carroll was under arrest when Belsha looked through the cell phone's photo gallery, and that the viewing of the cell phone's photo gallery was part of a lawful search incident to arrest.
¶ 14 The trial court accepted Belsha's testimony and made the following findings of fact. Carroll dropped the cell phone when Belsha ordered him to do so. The cell phone landed in an open position, revealing a single photo of Carroll smoking what Belsha believed to be marijuana. When Belsha observed that photo, it was in plain view.2
¶ 15 The trial court concluded that the search of the cell phone's photo gallery was illegal, and that the evidence gained from that illegal search had formed the basis for the search warrant. It specifically held that without the information obtained from scrolling through the cell phone, there were insufficient grounds to issue the search warrant. Thus, the trial court granted the motion to suppress evidence obtained pursuant to the search warrant.
¶ 16 In making its ruling, the trial court found that Carroll was not under arrest when the cell phone's photo gallery was viewed. The trial court also observed that if Carroll had been under arrest, the search of the cell phone would not have been appropriate to insure officer safety, but perhaps could have been legal based on court decisions that have allowed searches incident to arrest. In any event, the trial court said, the search of the cell phone was illegal because Carroll was not under arrest. The State now appeals the order suppressing the photographic evidence seized from Carroll's cell phone.
¶ 17 "[W]hether a search or seizure is reasonable under the Fourth Amendment is a question of constitutional fact." State v. Kieffer, 217 Wis.2d 531, 541, 577 N.W.2d 352 (1998). We uphold the trial court's findings of evidentiary or historical fact unless those findings are clearly erroneous and then independently apply the law to those facts. State v. Hughes, 2000 WI 24, ¶ 15, 233 Wis.2d 280, 607 N.W.2d 621. In this case, no one challenges the trial court's findings, which accepted Belsha's testimony as true and accurate. Thus, we will apply a de novo analysis of the law to those facts in order to determine whether the evidence gathered from Carroll's cell phone should have been suppressed. See id.
¶ 18 The State challenges the suppression of photographic evidence seized from Carroll's cell phone. It argues the detective lawfully searched the cell phone's photo gallery as a valid search incident to arrest, and that the evidence gathered during that search, as well as during the subsequent search under the search warrant, is admissible. In the alternative, the State argues that even if the warrantless search of the cell phone's photo gallery was invalid, the subsequent search under the warrant was valid because untainted evidence (i.e., evidence that a person called Carroll's cell phone and asked to buy drugs) provided probable cause for the warrant. We conclude that the second issue is dispositive and, therefore, we do not address whether an officer can search a defendant's cell phone's photo gallery as part of a search incident to arrest. See State v. Blalock, 150 Wis.2d 688, 703, 442 N.W.2d 514 (Ct.App.1989) ().
¶ 19 We begin our analysis with the warrant application. We assume for purposes of this opinion that evidence gathered when Belsha scrolled through the cell phone's photo gallery was improperly obtained. The key remaining evidence offered in the warrant application was Belsha's assertion that he answered Carroll's cell phone and the caller asked Belsha for "4 of those things; 4 and a split," which, based on Belsha's "training and experience in investigations related to the distribution of controlled substances," meant a request to purchase four-and-one-half ounces of cocaine. We conclude that if this cell phone call evidence was properly obtained (an issue we analyze in Section II below), it provided probable cause to justify the warrant.
¶ 20 "[W]...
To continue reading
Request your trial
-
State v. Carroll
...in Carroll's position would have considered himself to be `in custody,' given the degree of restraint under the circumstances." State v. Carroll, 2008 WI App 161, ¶ 26, 314 Wis.2d 690, 762 N.W.2d 404. The court of appeals then concluded that it was permissible for Belsha to answer the incom......
-
State v. Anker
...to a mixed question of fact and law, with the ultimate determination that an arrest was made subject to de novo review, see State v. Carroll, 2008 WI App 161, ¶ 25, 314 Wis.2d 690, 762 N.W.2d 404, aff'd, 2010 WI 8, 322 Wis.2d 299, 778 N.W.2d 1.5 We observe that Horne informed dispatch he ha......