Quioly Shikell Demby v. State of Maryland, No. 11, September Term 2014

CONSTITUTIONAL LAW — FOURTH AMENDMENT — SEARCH INCIDENT
TO ARREST — The warrantless search of the digital information on an arrestee’s cell
phone incident to a lawful arrest, save for case-specific exigent circumstances, is
unreasonable in violation of the Fourth Amendment. Under this rule, the police officer
may examine only the physical aspects of a cell phone in the interest of officer safety.
The search of the most recent text messages on an arrestee’s cell phone went beyond the
mere physical search of the phone and violated the arrestee’s Fourth Amendment rights.

CONSTITUTIONAL LAW — FOURTH AMENDMENT — GOOD FAITH
DOCTRINE — Courts generally will not suppress evidence where law enforcement
officers act in objectively reasonable reliance on a warrant or statute or, as was decided in
Davis v. United States, 131 S. Ct. 2419 (2011), binding precedent under which their
conduct is lawful. This principle is known as the good-faith exception to the exclusionary
rule. The police officer’s warrantless search of a cell phone incident to the defendant’s
lawful arrest, prior to the Supreme Court’s decision in Riley v. California, 134 S. Ct. 2473
(2014), was done in reasonable reliance on then-binding precedent, United States v.
Robinson, 414 U.S. 218 (1973). By application of the good faith doctrine, the information
obtained from the cell phone is not suppressed.
Circuit Court for Caroline County
Case No. 05-K-12-009321
Argued: January 8, 2015

                                            IN THE COURT OF APPEALS
                                                 OF MARYLAND

                                                         No. 11

                                                September Term, 2014



                                             QUIOLY SHIKELL DEMBY

                                                           v.

                                               STATE OF MARYLAND



                                              Barbera, C.J.,
                                             *Harrell
                                              Battaglia
                                              Greene
                                              McDonald
                                              Watts
                                              Raker, Irma S. (Retired, Specially
                                              Assigned)
                                                                JJ.


                                               Opinion by Barbera, C.J.


                                                  Filed: July 27, 2015

                                    *Harrell, J., now retired, participated in the
                                    hearing and conference of this case while an
                                    active member of this Court; after being recalled
                                    pursuant to the Constitution, Article IV, Section
                                    3A, he also participated in the decision and
                                    adoption of this opinion.
       Forty-two years ago, the Supreme Court established in United States v. Robinson,

414 U.S. 218 (1973), a bright-line rule authorizing police to search any object found within

the temporal and spatial scope of a search incident to a lawful arrest. Last year, in Riley

v. California, 134 S. Ct. 2473 (2014), the Court held that this exception to the warrant

requirement of the Fourth Amendment does not include the search of cell phone data found

during an otherwise lawful search incident to arrest.     We are called upon in this case to

decide whether Petitioner Quioly Shikell Demby was entitled, by application of the rule

established in Riley, to suppression of evidence obtained as the result of the search of a cell

phone incident to his lawful arrest in 2012.

       For the reasons that follow, we conclude that the officer who searched Petitioner’s

cell phone reasonably relied on Robinson, which at the time of the search was binding

precedent in Maryland.      Consequently, by application of the good faith doctrine, as

explicated in Davis v. United States, 131 S. Ct. 2419 (2011), Petitioner was not entitled to

have the cell phone data excluded at the trial at which he was convicted of a drug-related

offense, based in part on that evidence.

                                               I.

       The following facts were adduced at a hearing conducted on Petitioner’s motion to

suppress the evidence resulting from the search of the cell phone.         Corporal Leonard

Nichols (“Corporal Nichols”), the Maryland State Police officer who arrested Petitioner

and searched the cell phone, was the only witness to testify at the hearing.

       Corporal Nicholas testified that, on May 24, 2012, he received information from a

confidential informant about a potential drug deal at a park on Red Bridges Road in
Caroline County, Maryland. The informant identified one man involved as Steve Lepore

and the other as “Oly.”         Sometime later that same day, the Caroline County dispatch

center relayed that it had received an anonymous call from an individual who saw a person

traveling up and down Red Bridges Road on a golf cart, meeting other subjects in their

vehicles.

       Corporal Nichols and an undercover police officer arrived at the scene, where

Corporal Nichols observed a golf cart parked beside a Nissan Altima.            A man, later

identified as Steve Lepore, was standing between the vehicles on the driver’s side of the

Altima.     Petitioner was sitting in the passenger’s seat of the Altima, and another man was

sitting in the driver’s seat.

       Corporal Nichols approached the vehicles, identified himself as a police officer, and

told the individuals that he was responding to complaints regarding potential drug activity.

He then asked the individuals if they were in possession of anything illegal.    Mr. Lepore

replied that he had a “bowl” in his pocket.1     Corporal Nichols searched Mr. Lepore and

found a bowl containing marijuana.         Petitioner said that he had pills and presented to

Corporal Nichols an unlabeled prescription pill bottle containing 11 pills. Based on his

experience in the Drug Task Force, Corporal Nichols identified seven pills as oxycodone

and four other pills as oxycodone acetaminophen. Petitioner told Corporal Nichols that

he received a prescription for the pills from the hospital.


1
  Corporal Nichols testified that he believed Mr. Lepore was referring to a device used to
smoke marijuana.
                                             2
       Corporal Nichols arrested Petitioner and, along with other officers who by then had

arrived as backup, searched the vehicle in which Petitioner had been sitting.    During the

search of the car, the police noticed on the dashboard a cell phone repeatedly ringing and

“sending out tones.”    Corporal Nichols testified that the phone was not a smartphone, but

he could not remember whether it was a flip phone or a slide phone, and he could not

determine whether the phone was receiving calls or text messages.       The corporal asked

who owned the phone, and Petitioner said that it was his.

       Corporal Nichols then “opened” the phone and viewed the most recent text

messages.    Based on his training and experience, Corporal Nichols understood the

messages to mean that the senders were looking to buy pills from Petitioner.        Corporal

Nichols took possession of the cell phone and subsequently obtained a warrant to search

the data within the phone.    Execution of the warrant provided the police with the same

data that Corporal Nichols observed at the time of Petitioner’s arrest, and more.

       Corporal Nichols explained his decision to search the cell phone at the arrest scene.

He testified, based on his personal experience, that cell phones can pose safety concerns

for police officers because a suspect might have a plan to notify third parties to show up if

the police arrived.    He added that the evidence on a cell phone may be destroyed by

remote wiping.2    In this case, however, Petitioner was cooperative during the search and

the cell phone was not remotely wiped.


2
  A cell phone can be wiped remotely when, by request to the cellular provider, the
provider resets the phone to factory settings, erasing all data that had been in the device.
                                              3
       Petitioner sought suppression of all evidence seized from him at or about the time

of his arrest arguing, as eventually was held in Riley, supra, that the warrantless search of

a cellular device is unreasonable under the Fourth Amendment.            The court denied the

motion to suppress the cell phone evidence on the ground that it was the result of a valid

search incident to arrest. The court explained that the officer’s search of the cell phone

was “cursory”; the officer merely seized the device and looked at the recent text messages.

The court found “nothing unreasonable in opening the phone and looking at it,” but noted

that “every case is fact specific and . . . if Trooper [sic] Nichols had gone a lot further into

the phone than he did[,]” it may have affected the ruling.

       The court ruled in the alternative that, even if the search was unreasonable, the

evidence derived therefrom nonetheless was admissible by application of the inevitable

discovery exception to the exclusionary rule.      The court reasoned that, even without the

information that the arresting officer obtained from searching the cell phone, the affidavit

in support of the search warrant contained “sufficient evidence to present to a magistrate

[to] indicate that there was drug dealing going on” at the park, and therefore, the police

would have discovered the same data, while executing the warrant, that the arresting officer

had found.

       After the motion to suppress was denied, Petitioner waived his right to a jury trial,

was tried by way of an agreed statement of facts on the sole count of possession of

oxycodone with intent to distribute, and was convicted.       He was sentenced to four years

of imprisonment, all suspended, and three years of probation.
                                               4
        Petitioner noted an appeal to the Court of Special Appeals.        On November 22,

2013, we issued a writ of certiorari on our own motion, ordered that the parties file briefs

before this Court, and set the case for oral argument.      We then stayed the proceedings

pending the United States Supreme Court’s decisions in Riley v. California, cert. granted,

134 S. Ct. 999 (2014), and United States v. Wurie, cert. granted, 134 S. Ct. 999 (2014).

On June 25, 2014, the Supreme Court issued a consolidated opinion in those cases, Riley

v. California, 134 S. Ct. 2473 (2014).

        We issued the writ to review the following questions:

        1. Were [Petitioner]’s Fourth Amendment rights violated when an officer,
           pursuant to a valid arrest, read text messages to and from others located
           on his cell phone without a warrant?

        2. Are the independent source or inevitable discovery doctrines applicable
           where an officer, using information found by warrantlessly searching an
           individual’s cell phone, later obtains a search warrant for that cell phone’s
           contents?

                                           II.

        Petitioner’s argument, reduced to its essence, is that, under Riley, the arresting

officer’s warrantless search of his cell phone violated the Fourth Amendment.       Therefore,

Petitioner adds, the evidence obtained as a result of that search should have been excluded

at trial.

        The State’s answer to that argument is multi-faceted.     The State argues, first, that

Corporal Nichols acted reasonably in searching the cell phone incident to Petitioner’s arrest

because, unlike in Riley, the corporal testified that the cell phone was not a smartphone,

                                                 5
but rather, a “flip” or “slide” phone, which he merely “opened” and “observed the first, the

most recent text messages that were currently coming in . . . .”      The State emphasizes

Corporal Nichol’s testimony that he did not search further and, instead, retained the phone

in order to obtain a search warrant.     The State, relying essentially on the “plain view

doctrine”, see, e.g., Horton v California, 496 U.S 128 (1990), argues that the facts of this

case take it outside the reach of the rule, established in Riley, that officers generally must

obtain a warrant before searching a cell phone.

       The State also argues that, even if the Fourth Amendment was violated, Petitioner

was not entitled to suppression of the evidence obtained by the police. In support of that

argument, the State invokes the doctrines of inevitable discovery, see Nix v. Williams, 467

U.S. 431 (1984), and “good faith.” It is unnecessary to address every argument the parties

make in support of their respective sides of the case because, in the end, the question of

whether Petitioner was entitled to suppression of the evidence that the police obtained from

the cell phone is controlled by application of the good faith doctrine.

                                             III.

       Petitioner’s arrest occurred on May 24, 2012, two years before the Supreme Court

issued Riley.   This case, then, is controlled by Spence v. State, ___ Md. ___ (filed July 27,

2015). In Spence, we reviewed Riley3 and determined, by application of its holding, that

the search of Spence’s cell phone at the time of his arrest violated Riley.   We went on to


3
  See also Sinclair v. State, ___ Md. ___ (filed July 27, 2015), for a thorough discussion
of Riley.
                                             6
hold that, under Davis v. United States, 131 S. Ct. 2419, 2427−28 (2011), the police officer

who had searched Spence’s cell phone did so in reasonable reliance on then-binding

precedent in Maryland, United States v. Robinson, 414 U.S. 218 (1973).       Under Robinson,

the search of the cell phone would have been lawful as a search incident to Spence’s arrest.

See Spence, ___ Md. at ___ (slip op. at 12).

       We need not repeat here the analysis that led us to our decision in Spence.           It

suffices that, in material respect, the present case is identical to Spence, and the outcome is

therefore the same.     Corporal Nichols, like the arresting officer in Spence, searched

Petitioner’s cell phone in objectively reasonable reliance upon Robinson and its Maryland

progeny.   By application of the good faith doctrine, Petitioner, like Spence, is not entitled

to suppression of the data obtained from the cell phone.      It follows that the suppression

ruling of the Circuit Court was correct and must be affirmed.

                                           JUDGMENT OF THE CIRCUIT COURT
                                           FOR CAROLINE COUNTY AFFIRMED;
                                           COSTS TO BE PAID BY PETITIONER.




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