Opinion
No. 2020-KK-00527
06-22-2020
STATE of Louisiana v. Kelly FOLSE
Writ application denied.
Weimer, J., would grant.
Genovese, J., dissents and assigns reasons.
Genovese, J., dissents with reasons.
Ms. Folse was arrested and taken into custody at the Jefferson Parish Investigation Bureau on December 19, 2017. Upon arrival, her cell phone was seized by officers. After refusing to consent to a search of her phone, a detective requested a search and seizure warrant. The warrant to search the phone was signed on the same day of her arrest.
On January 3, 2018, Ms. Folse and her attorney appeared at the Jefferson Parish Detective Bureau to retrieve the cell phone, but were advised that a search warrant had been issued for the contents of the cell phone. A detective informed her that the cell phone would be returned after the contents had been downloaded. The officer noted that it was unclear how long it would take to download the contents without the passcode, but that the phone could be returned that day if the passcode was provided. Ms. Folse only then agreed to provide her passcode to avoid the indefinite retention of her phone. The cell phone's contents were thereafter downloaded, and the cell phone was returned to Ms. Folse.
Ms. Folse filed a motion to suppress the contents of the phone because the 10-day period for a search warrant pursuant to La.C.Cr.P. art. 163(C) had expired at the time the phone was searched. The trial court initially found the warrant could not be executed because of the expiration of this time delay, but that Ms. Folse's consent to the search of the phone (by providing the passcode) sufficed to cure this defect. Thus, the trial court denied the motion to suppress. The court of appeal reversed, holding that the consent was not free and voluntary. This Court remanded to develop the evidentiary record. On remand, the trial court denied the motion to suppress, finding the amendments to La.C.Cr.P. art. 163(E) —addressing search warrants for data or information contained on a computer or other electronic device—applied retroactively. This particular amendment considers a warrant to have been executed within the 10-day timeframe if the cell phone was seized before the expiration of the time allowed, or if the device was in law enforcement custody at the time of the issuance of the warrant. The trial court found the amendment was procedural and, therefore, retroactive.
Code of Criminal Procedure art. 163, as amended by 2019 La. Acts 341, provides:
A. A search warrant shall be directed to any peace officer, who shall execute it and bring any property seized into the court issuing the warrant.
B. A search or seizure shall not be made during the nighttime or on Sunday, unless the warrant expressly so directs.
C. Except as authorized by Article 163.1 or as otherwise provided in this Article, or as otherwise provided by law, a search warrant cannot be lawfully executed after the expiration of the tenth day after its issuance.
D. (1) Any examination or testing of any property seized pursuant to the provisions of this Article shall be at the direction of the attorney general, the district attorney, or the investigating agency.
(2) Notwithstanding any other provision of law to the contrary, any examination or testing of the seized property may be conducted at any time before or during the pendency of any criminal proceeding in which the property may be used as evidence.
E. (1) Notwithstanding any other provision of law to the contrary, if a warrant is issued to search for and seize data or information contained in or on a computer, disk drive, flash drive, cellular telephone, or other electronic communication, or data storage device, the warrant is considered to have been executed within the time allowed in Paragraph C of this Article if the device was seized before the expiration of the time allowed, or if the device was in law enforcement custody at the time of the issuance of the warrant.
(2) Notwithstanding any other provision of law to the contrary, if a device described in Subparagraph (1) of this Paragraph was seized before the expiration of the time allowed in Paragraph C of this Article, or if the device was in law enforcement custody at the time of the issuance of the warrant, any data or information contained in or on the device may be recovered or extracted pursuant to the warrant at any time, and such recovery or extraction shall not be subject to the time limitation in Paragraph C of this Article.
The trial court further found that Ms. Folse consented to a search of her cell phone, as the officers were not coercive and made no promises that would negate the voluntariness of Ms. Folse's consent. The trial court also determined the officers' testimony was credible and that they "acted reasonably in good faith" and did not offer anything in exchange for Ms. Folse providing the passcode except that the phone would be returned sooner, which was done at the suggestion of Ms. Folse and her attorney.
I disagree with the majority's decision to deny this writ for a number of reasons. First, it is my view that the amendments contained in La.C.Cr.P. art. 163(E) were substantive. See generally Collins v. Youngblood , 497 U.S. 37, 45, 110 S.Ct. 2715, 2720, 111 L.Ed.2d 30 (1990). Therefore, I do not believe that the amendments apply retroactively.
It is clear from proceedings that the warrant had expired at the time Ms. Folse attempted to retrieve her phone. Nevertheless, a detective falsely represented to her that the warrant was still valid. This does not demonstrate good faith on the part of this officer; thus, no exception to the warrant requirement should apply. Additionally, Ms. Folse was told that her phone would be retained indefinitely if she did not supply her password. Her consent to the search was vitiated by the coercive nature of the request for the passcode. See Bumper v. North Carolina , 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).
The United States Supreme Court stated in Bumper v. North Carolina :
The issue thus presented is whether a search can be justified as lawful on the basis of consent when that ‘consent’ has been given only after the official conducting the search has asserted that he possesses a warrant. We hold that there can be no consent under such circumstances.
When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.
Id. , 391 U.S. at 548–49, 88 S.Ct. at 1791–92 (footnotes omitted) (emphasis added).
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Acknowledging that a person's cell phone now hosts enormous amounts of personal information, the United States Supreme Court has issued recent jurisprudence distinguishing the search of cell phones from other types of searches:
But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone's capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years.
Riley v. California , 573 U.S. 373, 375, 134 S. Ct. 2473, 2478–79, 189 L.Ed.2d 430 (2014). Accordingly, considering the expiration of the warrant here, the coercive nature of the interaction with the officer, and the special privacy consequences implicated in the search of a personal cell phone, I would reverse the trial court in this case and grant Ms. Folse's motion to suppress.