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This content was written for Cale Law Office

If you’re looking for a criminal defense lawyer, contact Tulsa criminal defense attorney Stephen Cale at 918-277-4800. Attorney Cale the Cale law office will fight hard for you. He always tries to obtain the best result for you. Sometimes that means getting a case dismissed before it even can go to trial. Your initial consultation is free.

One of the ways to get a case dismissed is what’s called a motion to suppress. This is a way of excluding the state’s evidence. Often times so much evidence will be suppressed from the state that they can no longer move forward with their case. That instance, the prosecution will dismiss the case, said Tulsa criminal defense attorney Stephen Cale.

Let’s take a look at a 2014 Oklahoma Court of criminal appeals case called state vs. Thomas. In that case Mister Thomas was charged with one count of possession of a controlled dangerous substance, that be a marijuana, and a count of possession of a firearm after former conviction of a felony. Thomas moved to suppress the evidence against against him. The judge denied the motion in part and granted in part. By doing so, he’s pressed evidence obtained as a result of the search of Thomas’s cell phone.

Officer searched defendant cell phone without his permission after they arrested him for small amount of marijuana. The saw pictures of him holding firearms, cash, and drugs. Officers use the information from those pictures to the search warrant the contents of the phone. The pictures formed the basis for the charge of possession of a firearm after former conviction of a felony.

The Oklahoma Court of Criminal Appeals reviewed the trial court’s decision for an abuse of discretion. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of Faxon law pertaining to the issue. It is a clearly erroneous conclusion and judgment, meaning clearly against the logic and effect of the facts.

The initial issue is whether or not Thomas had an actual, subjective expectation of privacy in the contents of his cell phone. Warrantless searches are unreasonable on the fourth amendment unless they fall under a a few specifically est. and well delineated exceptions. The state argued that the officers initial search of the phone was lawful is a search incident to arrest. Search incident to arrest may include the person’s body in the area within his immediate control, meaning where he gets reach for a weapon or destroy evidence.

The US Supreme Court recently decided cell phone searches incident to arrest and two cases and held that without emergency circumstances or some other exception, placements the war before searching the data on cell phone. This was the decision in Riley vs. California. The state in Thomas’s case argued that because a selfless container in a search incident to arrest of the containers lawful, then consequently, the search was lawful. The state was relying on the US Supreme Court case of United States first Robinson. He argued that any container found on the rest person must be search incident to the arrest, whether or not in my hold a weapon or contraband. However, the US Supreme Court rejected this argument and declined to extend Robinson beyond searches of data on cell phones.

Tulsa criminal defense attorney Stephen Cale said than the Riley case, the US Supreme Court considered the characteristics of cell phones the context of certain exceptions of officer safety and preservation of evidence. The court first noted that data stored on cell phones cannot itself be used as a weapon to harm in arresting officer or to effectuate the arrestee’s escape.

Part of the reason for a search incident to arrest is that an arrestee has a diminished expectation of privacy. However, even with that diminished expectation, were privacy is important concern, I warrant may be necessary. The Oklahoma Court of Criminal Appeals found that the trial court, which anticipated the decision Riley, correctly found that Thomas his right to privacy in the contents of his cell phone prohibited searching it incident to his arrest. Therefore, the trial court did not abuse its discretion in granting Thomas’s motion to suppress the evidence came from the illegal search.

However, the state argued that the evidence should not been suppressed because the officers only download the pictures of the cell phone after they got a warrant and that was probable cause for the warrant. The state noted that the defendant was walking in a high drug area, next the houses under surveillance for drug activity and for which police had search warrants, and that he possessed marijuana when he was stopped. Stay contends that all this would’ve supported a finding of probable cause for the search warrant. However, the warrant itself expressly states that while looking through Tulsa’s phone, and the officer saw several pictures of Thomas holding crack cocaine, guns and cash. The officer in a sworn affidavit use these photographs as a basis for probable cause for the search warrant. The state admitted that the affidavit relied solely on the warrantless, unconsented search,. It argued only that it should not be void because the other information the want to establish probable cause. The Oklahoma Court of Criminal Appeals said that while the other information one of establish cause to arrest and search Thomas, it did not establish probable cause to search the contents of his phone.

Concurring in the result, judge Lumpkin held that when the officers search the contents of Thomas’s phone, it was warrantless and not supported by emergency circumstances. Therefore it was an unlawful search under Riley. The Oklahoma Court of Criminal Appeals has recognized that Oklahoma’s Constitution in article 2, and the fourth amendment to the U.S. Constitution contain almost exactly the same wording and are practically identical in the rights protected. As a consequence, the appellate court follows US Supreme Court precedent concerning the fourth amendment. This is especially true with the good faith exception to the exclusionary rule. The exclusionary rule does not apply when law enforcement has conducted a search in an objectively reasonable reliance upon the search warrant issued by Judge and law enforcement is abiding by the terms of the warrant. The good faith exception turns on an objective reasonableness.

If police have confiscated your cell phone, call Tulsa criminal defense attorney Stephen Cale at 918-277-4800. It’s important that you call right away. Schedule your free initial consultation with him now.