Evidence from cell phone improperly suppressed

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Where the trial court ruled that police improperly seized an unclaimed cell phone from a vehicle as evidence of a crime, this was error. A cell phone, standing alone, “is typically a common, unsuspicious item[.]” But when coupled with the fact that marijuana and guns were in the vehicle, along with two other cell phones that went unclaimed by the vehicle’s occupants, “an officer could reasonably conclude the unclaimed phone at issue was evidence of a crime and seize it.”

Background

“Henrico County Police Department officers saw appellee get in the back passenger seat of an already-occupied sedan. Five people were in the car[.] …

“The officers knew appellee had an outstanding warrant for misdemeanor trespass and another passenger had a warrant for failing to appear in court. Multiple police cars stopped the sedan to execute the warrants.

“The officers conducting the stop got out of their cars, approached the sedan with their guns drawn, and ordered everyone out of the sedan.

“The officers immediately arrested appellee. When they searched him, they found he was carrying a ‘digital scale’ with a ‘white powder substance’ on it.

“During the stop, the officers had a K-9 trained in drug detection scan the outside of the car. When the dog alerted to the car – indicating the presence of illegal drugs – the officers began to search the car.” The search revealed firearms and marijuana.

Police also recovered six cell phones, “some of which were claimed by the car’s five occupants. In addition to the four phones in the tote bag, a fifth phone was found in the center console (which the female driver claimed), while the sixth phone was found on the male passenger who sat in the front seat.

“At the scene, the woman who had been sitting in the back passenger seat claimed the tote bag and one of the four phones inside; she said none of the other three phones in the bag belonged to her, and she did not know how they got inside the bag.

“With her permission, investigators retained her phone as well as the three remaining unclaimed phones from the bag. One of the seized phones from the bag – the phone at issue in this appeal – had a picture of appellee as the lock screen, but appellee never claimed any of the phones, nor was he carrying one when he was arrested.

“After officers arrested appellee, took him to police headquarters, and gave him his Miranda warnings, appellee invoked his right to have his attorney present for questioning. An investigator then immediately asked him if any of the unclaimed phones belonged to him. He replied, ‘No.’

“Investigators later obtained a search warrant for the phone at issue and then a subsequent search warrant for the phone’s records from T-Mobile. Appellee was then indicted on multiple charges alleging his involvement with [an] alleged murder.”

Appellee moved to suppress the cell phone evidence. The trial court granted the motion. The court “applied the plain-view doctrine.

“Although the court acknowledged the detective’s testimony that cell phones can sometimes serve as evidence of drug distribution, it concluded that because ‘cell phones are ordinary items which are legal to possess and have legitimate purpose,’ the phone could not be seized under the plain-view doctrine.

“The court thus ruled inadmissible the phone and any evidence obtained as a result of its seizure.”

Appellee appealed. We reverse.

Discussion

“The plain-view doctrine ‘is exclusively a seizure rationale,’ and thus applies only when there is ‘a properly issued and executed [search] warrant or some other properly applied exception to the warrant requirement.’ …

“Specifically, the plain-view doctrine requires 1) that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, 2) that the incriminating character of the evidence must be immediately apparent, and 3) that the officer must have a lawful right of access to the object itself. …

“In this case, the automobile exception to the warrant requirement provided the justification to search throughout the car for evidence of narcotics, satisfying the plain-view doctrine’s first and third requirements. That leaves only the question of whether the phone’s ‘incriminating character’ was ‘immediately apparent.’ …

“In assessing an object’s ‘incriminating character,’ the probable cause standard applies. … Evaluating probable cause demands a review of the totality of the circumstances. …

“The trial court focused only on the fact that a cell phone, on its own, is a common, unsuspicious item. That approach, however, fails to consider the totality of the circumstances – and here, the totality of the circumstances gave the officers probable cause to believe the unclaimed phone was evidence of a crime. …

“The search of the car yielded three handguns and two bags containing 1.25 pounds of marijuana. Moreover, appellee was carrying a scale with a white, powdery residue.

“Those circumstances already raised the possibility that those items were related to drug distribution. On top of that, there were six phones in the car and only five occupants.

“Of the four phones in the tote bag, only one was claimed. As the trial court acknowledged, a detective testified that cell phones, in conjunction with other evidence, can sometimes indicate drug distribution. Indeed, the law has consistently recognized as much. …

“The trial court correctly noted that a cell phone alone is typically a common, unsuspicious item. But considering the totality of the circumstances here – including the guns and marijuana found in the car, the number of phones, and the fact that three phones went unclaimed – an officer could reasonably conclude the unclaimed phone at issue was evidence of a crime and seize it.”

Reversed and remanded.

Commonwealth v. Hudson Jr., Record No. 0359-23-2, July 18, 2023. CAV (unpublished opinion) (Huff). From the Circuit Court of the City of Richmond (McClenney). Jason S. Miyares, Lauren C. Campbell, Robert D. Bauer for appellant. Abigail L. Paules for appellee. VLW 023-7-277, 8 pp.