Legal Concepts and Case Law

1. Consensual entry into a residence
2. Probable cause to arrest
3. Searches incident to arrest
4. Consensual search of a residence
5. Search warrants for a residence
6. Warrantless opening of a cellphone upon its impoundment

United States v. Lowe (District of Nevada; Sep. 20, 2024) 2014 U.S. Dist. LEXIS 145457 (District of Nevada; Oct. 10, 2014) 2014 U.S. Dist. LEXIS 145458

Rule: A tenant of a residence may give his or her consent for police to enter a residence absent a co-tenant’s objection. A victim’s report to police of abuse, particularly when supported by visible injuries, supplies the necessary probable cause to arrest. A suspect’s person may be searched without a warrant when incident to arrest. A search warrant to search a residence is valid upon a showing of probable cause. A defendant’s cellphone may be physically opened upon impoundment for the purpose of removing its battery and memory card, and recording its serial number.

Facts: On Nov. 25, 2013, the victim, S.M., called the Las Vegas Metropolitan Police Department to report that her boyfriend, Lanalsikov Lowe, had tried to suffocate her with a pillow and a comforter, and then tried to strangle her while threatening to kill her. Responding LVMPD Officers C. Forson, D. Foster, and M. Grego-Smith contacted S.M. outside of her apartment where she also told them that after the attack and over her objections, the defendant forced her into the bedroom and ordered her to have sex with him, which she complied of out of fear. When the defendant fell asleep on the bed, S.M. snuck outside and called the police. The officers noticed bruising on S.M.’s neck and reddening on her face near her mouth which were consistent with her statement. With S.M.’s verbal consent, and using a key she provided, officers Foster and Forson entered S.M.’s apartment. They found the defendant passed out in the bedroom. Believing that S.M.’s report as supported by her visible injuries supplied the necessary probable cause, the officers arrested the defendant for battery by strangulation and domestic violence. It was soon determined that the defendant had been living with S.M. in her apartment since his “recent release” from prison (apparently two years earlier). Pursuant to a “search incident to arrest,” the officers recovered five grams of cocaine in five baggies from the defendant’s pocket. In Officer Forson’s training and experience, as he later testified, packaging cocaine in one-gram increments is commonly used by drug dealers for the distribution and sale of narcotics. The defendant was therefore charged with possession of a controlled substance with intent to sell, along with the domestic violence charges. A records check confirmed that the defendant was a felon, having been convicted of drug trafficking. Upon being booked, the defendant’s cellphone was put into evidence storage. Prior to being stored, however, officers opened the back cover of the phone and removed its battery and, presumably, its memory card, as well as recording its serial number.

Meanwhile, upon a further interview with S.M., it was determined that the defendant had sold a firearm to another person within the last two weeks. She also told the officers that the defendant sold drugs for a living, saying she’d overheard him discussing the sale of cocaine while on his phone, and that she’d seen drug paraphernalia that brought into her apartment on at least 10 occasions in the past two years. She further reported to having heard the defendant on his phone threaten to shoot people. S.M. signed a consent-to-search form, allowing the warrantless search of her apartment. During the ensuing search, Officer Foster found a 25-caliber semi-automatic pistol, a magazine to a different firearm, and 9-millimeter and other ammunition, all in a pink vinyl basket in a hallway closet. It was later determined that the gun the defendant had sold earlier was also a 9-millimeter pistol.

S.M. told the officers that the basket belonged to her and was where she had stored hair styling products until the defendant took control over it. Officer Foster left the basket and its contents in the closet and notified detectives at the Firearms Investigations Unit. Subsequently, Detectives Fink and Farrington took over the investigation. Out of an abundance of caution, and apparently choosing not to rely on S.M.’s written consent, Detective Farrington obtained a telephonic search warrant that included an authorization for the search for firearms. The resulting search, obviously, resulted in the recovery of the pistol from the closet. Federal authorities subsequently took over the investigation.

On February 13, 2014, federal Special Agent Lavon Cuyler of the Bureau of Alcohol, Tobacco, Firearms, and Explosives submitted a sworn affidavit to a federal court magistrate to obtain a warrant to search the defendant’s cellphone, which had remained impounded since his arrest. The purported reason for the search was to seize evidence related to potential violations of a felon in possession of a firearm and/or possession of a controlled substance with intent to distribute. Based on his own training and experience, in combination with the information related above, Special Agent Cuyler expressed the opinion that probable cause existed to believe that evidence related to the sale of narcotics and/or firearms was contained in the defendant’s cellphone.

A warrant to search the phone was obtained with the subsequent search revealing a photograph of a firearm. Pending trial in federal court on firearms and controlled substance charges, the defendant filed a motion to suppress (1) the evidence obtained during the November 25, 2013, consent search of S.M.’s apartment, and (2) the evidence obtained from the search of his phone. The district (trial) court denied his motions. The defendant appealed.

Held: The District Court for the District of Nevada affirmed the denial of defendant’s motions in a magistrate judge’s decision, reported at 2014 U.S. Dist. LEXIS 145457, which was subsequently adopted by District Court Judge Jennifer A. Dorsey at 2014 U.S. Dist. LEXIS 145458.

In this decision, the following issues were discussed:

(1) Warrantless Entry into S.M.’s Apartment; Search Incident to Arrest, and Warrantless Consensual Search of the Apartment: The defendant challenged the legality of the warrantless entry into S.M.’s apartment, the search of his person incident to his arrest, and the warrantless consent search of the apartment. The court found each step taken here in sequence to be lawful and, as required by the Fourth Amendment, “reasonable.”

(1a) The Warrantless Entry into S.M.’s Apartment: As for the officers’ initial entry into S.M.’s apartment, the court first noted that “even with probable cause, ‘searches and seizures inside a home without a warrant are presumptively unreasonable.’” To rebut this presumption, there must be “a showing of (1) exigent circumstances or (2) voluntary consent.” (Payton v. New York (1980) 445 U.S. 573, 586-588, 590; Steagald v. United States (1981) 451 U.S. 204, 212.)

In this case, the officers’ entry into the home was reasonable because S.M. provided the necessary consent. As a legal tenant, S.M. had authority to give consent. And while the defendant, as a resident who was present at the time, had the right to object (see Georgia v. Randolph (2006) 547 U.S. 103), he never voiced an objection. The fact that he was asleep at the time, and thus not in a position to object, is irrelevant.

The court further found that the officers did not exceed the scope of S.M.’s consent when they entered the home to arrest the defendant. The court held that there was sufficient probable cause to arrest him: “Probable cause exists if the facts are such that a prudent man would reasonably believe that a felony had been committed.” (Henry v. United States (1959) 361 U.S. 98, 102.) “(P)robable cause that a felony has occurred combined with consent to enter is sufficient to justify a warrantless arrest in a home.” With the information the officers received from S.M., corroborated by the visible injuries to her face and neck, the officers had probable cause to arrest the defendant without the necessity of obtaining a warrant.

(1b) The Search Incident to Arrest: Other federal circuit courts have held that consent to enter given by a third person with sufficient authority to give consent (such as a live-in partner) justified a warrantless arrest of a person found in that residence when the arrest is supported by probable cause. (See United States v. Shigemura (8th Cir.1982) 682 F.2nd 699, 706 ; United States v. Ruiz-Altschiller, (8th Cir. 1982) 694 F.2nd 1104, 1106-1107; and United States v. Cruz-Mendez (10th Cir. 2006) 467 F.3rd 1260.)

Upon the defendant’s arrest, the search of his person and the area immediately surrounding him was lawful. “Incident to a lawful arrest, police may conduct a warrantless search of the area in possession and control of the person under arrest.” (United States v. Robinson (1973) 414 U.S. 218.) The recovery of the cocaine from defendant’s person, therefore, was lawful as the product of a search incident to arrest.

(1c) Subsequent Search of the Apartment: Following the defendant’s arrest, S.M. signed a consent-to-search form, allowing for a warrantless search of the rest of her apartment. The form itself specifically included the right to search for “firearms, narcotics and narcotics paraphernalia.” It was this search that resulted in the initial discovery of the firearm from the closet, although it was not seized until the later execution of a search warrant obtained by the investigators. The court concluded that: “As the discovery of a gun in a basket in the closet is directly within the scope of the consent given on that form, the gun should not be suppressed.” Whether the officers had probable cause to believe a firearm would be in the apartment was irrelevant given the existence of S.M.’s consent.

(2) Search of Defendant’s Cellphone: The defendant’s phone was taken from him during his arrest and stored in evidence. Upon doing so, officers opened the back cover of the phone, removed its battery (and possibly its memory card), and apparently recorded the phone’s serial number. The defendant’s motion raised two questions: (1) whether the affidavit in support of the search warrant lacked probable cause and (2) whether the government’s removal of the back cover of the phone prior to obtaining a search warrant was lawful under the Fourth Amendment.

On the probable cause issue, the defendant argued that (a) the information contained in the affidavit was stale, and (b) the affidavit lacked a sufficient nexus between the criminal conduct and the phone. The court rejected both arguments. As for being stale, the court barely even addressed this issue other than to note that the police had already recovered a gun at S.M.’s apartment, to which the defendant had access, and which according to S.M., he “took possession” of in late 2011. As such, it was not unreasonable for the officers to believe that the defendant’s phone might contain information relative to the illegal possession of firearms.

On the issue of the “nexus” between criminal conduct and the defendant’s phone, the court held that facts existed in the affidavit to support a reasonable belief that the warrant was based on probable cause to search the phone for evidence related to both drug trafficking and firearms. Specifically, aside from what was already known concerning the defendant’s recent possession of firearms, he had previously been convicted of drug trafficking. S.M. told officers that she had seen drug paraphernalia in the apartment at least 10 times in the two years they lived together. Also, the defendant had cocaine on his person at the time he was arrested, and S.M. said that he sold narcotics for a living. Lastly, S.M. stated that she overheard the defendant discussing selling cocaine while on his cellphone. The warrant authorizing the search of his cellphone was therefore upheld.

On the issue of removing the back cover of the cellphone as it was booked into evidence, the court first noted that it is well settled that the government may search a prisoner’s possessions held in inventory. Specifically, it is reasonable for an officer to conduct an inventory search of the personal effects of an arrestee incident to the booking and jailing of a suspect. (Illinois v. Lafayette (1983) 462 U.S. 640, 643, 646.) The justification for such a search rests on the reasonable and orderly police administration such as protection of the arrestee’s property from theft, and as such, probable cause is unnecessary. The police are “entitled to inspect a legally seized item, even if inspection is not required to protect officer safety, to preserve evidence, or whether a less intrusive means exists.” (Ibid; see also United States v. Mines (9th Cir. 1989) 883 F.2nd 801, 804.)

Secondly, a cellphone’s serial number is not the type of “sensitive personal information” that requires a search warrant under the U.S. Supreme Court decision of Riley v. California (2014) 573 U.S. 373. Officers are permitted to examine “physical aspects of a phone” for certain purposes. The court held that this includes the recording of the serial number. Opening the defendant’s cellphone for that purpose was therefore lawful.

Conclusion: The defendant’s motion to suppress was therefore properly denied, and his conviction upheld.

Note: The officers here did an excellent job in both obtaining S.M.’s second consent in writing, when it was practical to do so, and then erring on the side of caution when they apparently weren’t sure of the rules as to whether a warrant was necessary to search the entire residence.

Getting a homeowner’s consent in writing is not legally required, but goes a long way in helping to later prove that the victim’s consent was “free and voluntary” should that person later claim that his or her consent was coerced by the police, which happens more often than you might think.

Having gotten a written consent from the victim, and also stopping to obtain a search warrant when not necessarily needed, might have taken the officers and federal agents a couple extra hours during the investigation, but saved them from having to spend a couple of days waiting in a courthouse hallway to testify, while also risking the potential loss of evidence.

Of particular importance was the ruling as it relates to opening the defendant’s cellphone to record the serial number and remove its battery and memory card. I’ve read elsewhere that removal of the battery and/or memory card is necessary to prevent a defendant from remotely cancelling out the information on that card with the obvious result of losing some very important evidence.

All this is lawful despite Riley v. California, where the U.S. Supreme Court held warrants are required, as a general rule, to get into a defendant’s cellphone. For these reasons, this is a good case for officers and prosecutors to study and be familiar with.

The defendant, by the way, is currently serving a seven-year, three-month federal prison sentence after a jury found him guilty on all charges. Lastly, note that this is a federal district (trial) court’s decision, and is thus subject to appeal to the Ninth Circuit Court of Appeals. He may be appealing his conviction as well, so we might hear about this case again.