James Walker

LEPSL 530: Public Safety law

University of San Diego: Professional & Continuing Education

Memorandum: Exceptions to Warrants

Recently we have been faced with numerous cases being dismissed due to suppression

motions regarding our lack of a warrant while seizing digital information. Based on my research

of the case law from Riley v. California, US v. Camou, and other supplemental research I have

selected the best two options to use as an exception to the warrant rule. I want to start by making

some recommendations on exceptions to avoid, and first I want to focus on searches incident to

arrest. The Ninth Circuit has clearly ruled that searches incident to arrest do not provide exigency

to access someone's phone. In order to have exigency in that situation there needs to be a threat

to the officer, or of imminent destruction of the evidence, neither of which are provided by arrest

solely. Secondly I want to recommend avoiding the vehicle exception as once again the courts

have made some definitive rulings in regards to its application to digital media and cellphones.

With the vehicle exception an officer can search a vehicle and any containers inside of it if they

have probable cause to do so. The Ninth Circuit has ruled that cell phones are not considered

containers and thus not to covered by the vehicle exception. Before continuing onto the

exceptions we should be using I want to emphasize a very important point. We have already

eliminated the 2 largest exceptions to the warrant rule, exigency and the vehicle exception, and it

is clear the courts are cracking down on warrantless access to phones and digital media. With

Senate Bill 178 (California Electronic Communications Privacy Act) having come into effect on

January 1st of this year the legislature is getting involved as well. If you take away one thing from

this memo above everything else it should be this, officers need to be getting warrants and not

trying to utilize exceptions. In his opinion on US v. Camou, Chief Justice Roberts specifically
referenced the fact that a telephonic search warrant takes around 15 minutes to get now, meaning

there is no excuse to try to use an exception unless it is CLEARLY and UNDOUBLTEDLY

applicable. There should be no walking the line or gray area involved. The final two exceptions

that I recommend using apply more to what happens after the search has already been completed.

The first exception that I recommend using is the inevitable discovery rule. For the inevitable

discovery rule to apply the government must prove under a preponderance of the evidence that

illegally acquired evidence would have "inevitably" been discovered anyways. An important key

to this is that having probably cause to get a search warrant and electing not do does not apply to

this exception. The final and in my opinion best exception is the good faith exception. Under this

exception as long as a simple mistake is the cause of the acquisition of improper evidence and

not malicious intent or negligence the evidence will be admissible. This final exception is very

important in that if officers are trying in good faith to do their job correctly and with appropriate

knowledge the evidence that they gather should be admissible in court.