4th Amendment Rights Broken?

[IAmInHurt]

I am currently in quite a predicament. I'll begin with the fact that I am currently on probation, a 10 year suspended sentence in Oklahoma. On Monday my P.O. asked if I had a phone on me and to search it, something they're allowed to do randomly if you are on probation, without a warrant. She claims to have found things to incriminate myself and is asking to have my suspended sentence revoked. But this is where it gets tricky.

The phone is actually not my phone, it was my mother's. She is not on probation. After researching some things, I've concluded, along with her and everyone else I've talked to, that my P.O. violated my mom's 4th Amendment rights because, as per the amendment and a U.S. Supreme Court ruling, in order for law enforcement to seize and search a cellphone, they must obtain a warrant, unless the subject is on probation/parole. My mom is on neither. Another thing that comes into play is the Fruit of the Poisonous Tree Doctrine. It states that evidence obtained illegally (i.e., illegal seizure/search), is not admissible in the court. The phone is also communal, meaning I'm not the only person with access to it. Internet usage cannot be fingerprinted, nor can there really be witnesses. How can they prove who did what when multiple people use the same device?

Immediately after I'd gone back and told my mom what had just transpired, she went into the probation office and demanded her phone back. They acknowledged that it was hers, thus admitting to illegally seizing and searching it, but refused to surrender the phone because there was "incriminating evidence" on the device.

So my question is, has the following situation qualified for this? My mom can prove the device is hers, and did not give them permission to search it, nor did they obtain a warrant or even reasonable cause to search her device. They failed to ask if the phone was even mine, and basically admitted to taking the phone illegally when my mom demanded it back and explained that it was hers. They simply demanded it and began searching through it. Have they violated the 4th Amendment against my mom?

 

[Zigner]

I am currently in quite a predicament. I'll begin with the fact that I am currently on probation, a 10 year suspended sentence in Oklahoma. On Monday my P.O. asked if I had a phone on me and to search it, something they're allowed to do randomly if you are on probation, without a warrant. She claims to have found things to incriminate myself and is asking to have my suspended sentence revoked. But this is where it gets tricky.

The phone is actually not my phone, it was my mother's. She is not on probation. After researching some things, I've concluded, along with her and everyone else I've talked to, that my P.O. violated my mom's 4th Amendment rights because, as per the amendment and a U.S. Supreme Court ruling, in order for law enforcement to seize and search a cellphone, they must obtain a warrant, unless the subject is on probation/parole. My mom is on neither. Another thing that comes into play is the Fruit of the Poisonous Tree Doctrine. It states that evidence obtained illegally (i.e., illegal seizure/search), is not admissible in the court. The phone is also communal, meaning I'm not the only person with access to it. Internet usage cannot be fingerprinted, nor can there really be witnesses. How can they prove who did what when multiple people use the same device?

Immediately after I'd gone back and told my mom what had just transpired, she went into the probation office and demanded her phone back. They acknowledged that it was hers, thus admitting to illegally seizing and searching it, but refused to surrender the phone because there was "incriminating evidence" on the device.

So my question is, has the following situation qualified for this? My mom can prove the device is hers, and did not give them permission to search it, nor did they obtain a warrant or even reasonable cause to search her device. They failed to ask if the phone was even mine, and basically admitted to taking the phone illegally when my mom demanded it back and explained that it was hers. They simply demanded it and began searching through it. Have they violated the 4th Amendment against my mom?

No. She asked for YOUR phone and YOU handed it over. You had possession and were using the phone, thus it is subject to search and seizure. At this point, your phone is being held as evidence in a criminal investigation.. If your mom doesn't want her phone searched and seized, then she ought not give it to her child to use.

 

[PayrollHRGuy]

Had you walked alone into your PO's office carrying your mother's purse do you think that the PO would have had the right to search it?

Even if you don't the PO had no reason to believe that the phone wasn't yours because she asked for YOUR phone and you handed her a phone.

 

[justalayman]

ownership is irrelevent when determining whether it is your phone or not for purposes such as this. It was in your possession and you expressed control as an owner would and that makes it your phone. Since your argument about your 4th amendment rights does not apply due to that, the rest of your inquiry is moot.

 

[quincy]

I am curious: Under exactly what circumstances did your probation officer ask to see your (your mom's) phone? I understand that random searches are allowed.

I imagine your mother was none too happy to learn her phone might have been used by you for a nefarious purpose. If you live with her, she should know that her computer can be subject to search as well.

I recommend you contact your attorney. Your attorney might be able to work some miracles to keep you out of jail. A 10 year suspended sentence? Wow.

 

[justalayman]

I recommend you contact your attorney. Your attorney might be able to work some miracles to keep you out of jail. A 10 year suspended sentence? Wow.

he’s staring right down that horses throat. Some people never learn.

 

[quincy]

he’s staring right down that horses throat. Some people never learn.

Right.

There is another cell phone/4th Amendment case out of Michigan set to be heard by the US Supreme Court at the end of the month and, although it seems a VERY remote connection at best, I am curious about what led to the "random" search here.

 

[adjusterjack]

Have they violated the 4th Amendment against my mom?

No.

Had you been driving her car, the car would have been subject to search.

Had you been living in her house, the house would have been subject to search.

 

[quincy]

No.

Had you been driving her car, the car would have been subject to search.

Had you been living in her house, the house would have been subject to search.

I agree but ... cell phones searches have raised a number of privacy concerns, hence the USSC's past and current interest in addressing them.

This is not to say that there is a 4th Amendment problem with the search of IAmInHurt's phone, though. I don't see offhand that there is.

 

[Taxing Matters]

Have they violated the 4th Amendment against my mom?

Here’s the problem: you have no standing to protest the search, and to the extent you are charged with a violation of probation or with additional crimes you cannot get the evidence from the phone suppressed when used against you. Now, if your mother gets charged with some offense out of this, then your mother can explore with her lawyer whether she has a good illegal search argument to make.

The police acknowledged that it was your mother’s phone when she went to claim it, per your version of the facts. But of course that was AFTER the search, and so the police may have learned it was her phone only after searching it. Did you tell the cops that it was your mother’s phone prior to handing it over for the search? If the answer is no, how then would they have any idea it was not your phone? If they reasonably had the belief that it was your phone, the search generally would be good, notwithstanding that it turns out the phone was not yours.

And if you did tell them, the issue then becomes whether your possession of that phone (and presumed ability to use it) would entitle the cops to search it. I’m having difficulty framing a real strong argument in her favor that the search was illegal. Allowing her son, whom she knows to be on probation, to have possession of and use of her phone does not make a strong argument that she had a compelling privacy interest in what was on that phone. Her lawyer can argue the matter in a suppression hearing — if she ever gets charged.

But again, you won’t have any good suppression case to make out of this.

 

[quincy]

Actually, there may indeed be an issue with the cell phone search. Cell phone searches as a condition of probation can be legally problematic.

I will provide links to a few cases for review in awhile (People v. Bryant and People v. Lent, to name two) but I want to check Oklahoma.

IAmInHurt will want his attorney to personally review the facts of the search.

 

[quincy]

To start is a link to People v. Lent, Supreme Court of California, 1975:
https://scocal.stanford.edu/opinion/people-v-lent-23007

From Lent: "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality ..."

United States of America v. Paulo Lara, US Ct of Appeals for Ninth Circuit, March 3, 2016: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/03/14-50120.pdf

From Lara: [W]hen 'privacy-related concerns are weighty enough, a search may require a warrant, not withstanding the diminished expectations of privacy of the arrestee."

I have limited time tonight so will leave more for later.

 

[Taxing Matters]

Actually, there may indeed be an issue with the cell phone search. Cell phone searches as a condition of probation can be legally problematic.

I will provide links to a few cases for review in awhile (People v. Bryant and People v. Lent, to name two) but I want to check Oklahoma.

IAmInHurt will want his attorney to personally review the facts of the search.

I did not see any Oklahoma cases that would indicate that there would be any problem with a search of the probationer’s mobile devices as a condition of probation. While the OP he might be able to raise it as the case of first impression in that state, given the particular facts involved it would not be a simple one to litigate and no guarantee the OP would succeed. As I said before, I am having trouble coming up with real compelling argument in his favor on this one, but perhaps his lawyer will succeed at that.

You posted some cases out of California. It is worth noting that CA courts and the federal Ninth Circuit are notably (or notoriously, perhaps ) more liberal than the Ok state courts and the federal 10th Circuit, so even if those CA courts might have a problem with it, there is no guarantee that the OK courts and the 10th Circuit would go along with that.

 

[quincy]

I did not see any Oklahoma cases that would indicate that there would be any problem with a search of the probationer’s mobile devices as a condition of probation. While the OP he might be able to raise it as the case of first impression in that state, given the particular facts involved it would not be a simple one to litigate and no guarantee the OP would succeed. As I said before, I am having trouble coming up with real compelling argument in his favor on this one, but perhaps his lawyer will succeed at that.

Thanks for checking Oklahoma. Did you check the 10th Circuit?

I have some "real work" to complete tonight and haven't been able to spare much time for research but I think the cell phone search as a condition of probation has been a noted problem in several cases. The Lara case quotes from the USSC but I am sure I ran across a more on-point case ... somewhere.

At any rate, with the risk of a probation revocation and a 10 year sentence hanging in the balance - and, of course, depending on facts not disclosed like what his crime was - IAmInHurt will want his attorney to review the search.

 

[Taxing Matters]

Thanks for checking Oklahoma. Did you check the 10th Circuit?

I did a search for related 10th Circuit cases when I did the Ok search and came up with no cases on point there either.

At any rate, with the risk of a probation revocation and a 10 year sentence hanging in the balance - and, of course, depending on facts not disclosed like what his crime was - IAmInHurt will want his attorney to review the search.

Absolutely. There is a lot at stake here.