The Maryland Court of Appeals debated the contours of the plain feel exception to Fourth Amendment warrant requirement, splitting 4-2 (with one judge concurring only in the result) to hold that a warrantless seizure of a cell phone during a protective frisk of a murder suspect was unconstitutional. State v. Zadeh, No. 25 Sept. Term 2019, 2020 Md. LEXIS 173 (Apr. 3, 2020). The information gleaned from the phone pursuant to a warrant obtained after the seizure, therefore, was the fruit of an unlawful search and should have been suppressed at trial.
Zadeh was driving a car registered to his lover, whose husband was murdered the day before. The police stopped the car to execute a warrant which authorized them to search only the car and to seize, inter alia, any “electronic equipment which stores data.” Zadeh was not named in the warrant, and the police did not yet have probable cause to arrest him. Zadeh and the victim’s wife, however, were suspects because they were having an affair about which they both lied; spoke often on the phone and did so 4 hours before the murder; gave contradictory accounts of what they talked about that morning; and Zadeh had earlier refused to show a detective his phone.
When Zadeh was stopped and removed from the car, the detective conducted what for purposes of the analysis was assumed to be a valid frisk for officer safety. During the pat-down the officer felt what he immediately knew was a cell phone. The phone was removed from Zadeh’s pocket and held pending application for a warrant to search its contents. The question before the Court was whether the phone, which was particularly described in a warrant to search a car, could be seized from the person of the defendant, who was driving the car.
Because the warrant did not authorize a search of Zadeh’s person, the State needed an exception to the warrant requirement to support the seizure of the phone, and plain-feel was the only one available to it. The majority confirmed that “[t]he plain-feel doctrine allows an officer, during the course of a lawful frisk, to seize weapons and nonthreatening contraband, if the incriminating character is immediately apparent.” Slip Op. at 28-9. The incriminating character of an object is immediately apparent only if upon feeling it, the officer has probable cause to believe that the item is contraband or evidence of a crime. Id. at 30. Mere knowledge that the suspects spoke by telephone 4 hours before the murder, “does not rise to the level of a particular fact linking the phone to the murder,” and could not, therefore, establish probable cause for its warrantless seizure.
The majority was in dialogue with the dissent throughout its opinion. It first had to distinguish Moats v. State, 455 Md. 682, 168 A.3d 952 (2017), in which a warrantless seizure of a cell phone was deemed lawful because it was seized pursuant to a lawful arrest. The plain-feel exception never came into play. The dissent read Moats differently, arguing that it stood for a broader proposition that people who commit crimes often document it in some form on their cell phone. That “fact”, coupled with others linking Zadeh to the crime, permitted the seizure. The majority dismissed this argument in a footnote, implicitly suggesting that if there was probable cause to seize the phone at the time of the stop and frisk, the police should have sought a warrant for it beforehand.
More troublesome for the majority was the dissenters’ reliance on McCracken v. State, 429 Md. 507, 56 A.3d 242 (2012), which did permit the seizure and use of a vehicle key fob found during a warrantless frisk of a suspected “hack”. The hack’s passenger claimed that the hack pulled a gun on her during their ride. The officer felt the fob in the suspect’s pocket and upon retrieving it, pressed the alarm button to locate the car. When peering into the car, the police saw a handgun. On these facts, the Court concluded, the police were investigating the crime of “hacking,” so the potential criminality of the key fob to a crime that required a car was immediately apparent to the officer upon feeling it.
Zadeh’s cell phone, in contrast, bore no such obvious or incriminating connection to the murder because “there is nothing inherently or even remotely criminal about a cell phone.” Slip Op. at 34. Unlike the officers in McCracken, the detective in Zadeh had not amassed sufficient evidence such that it was immediately apparent that the cell phone was evidence of the crime under investigation.
Nothing in either Zadeh opinion suggests that the members of the Court were influenced by the peculiar nature of the modern day cell phone for Fourth Amendment analysis. The Supreme Court, however, has observed that a cell phone not only holds what had heretofore been stored in one’s house, “it also contains a broad array of private information never found in a home in any form.” Riley v. California, 573 U.S. 373, 397 (2014). The Court of Appeals touched upon this concern Moats and a companion case, Stevenson v. State, 455 Md. 709, 168 A.3d 967 (2017). Given the wealth of information they contain, cell phones will remain objects enthusiastically sought by criminal investigators. And they will continue to be the subject of future court opinions.