CHARLESTON – Circuit Judge Jack Alsop fears the Supreme Court of Appeals diminished privacy rights in electronic devices.
The 14th Circuit Court judge partially dissented on Aug. 18 as a substitute Justice in a Jackson County murder case that detectives cracked with a cellular telephone.
He agreed that Larry White deserved a life sentence without mercy for killing his woman's husband, but disagreed on treatment of evidence from the phone.
The majority held that from now on, officers searching a vehicle pursuant to a valid warrant don't need another warrant to examine phones they find.
"I am fearful that the majority opinion goes too far and addresses a developing area of constitutional law that would be best left for another day," Alsop wrote, saying the majority cited no authority for their proposition. He wrote that it may not be permissible under the U.S. Constitution.
He said he would have avoided the issue as Circuit Judge Thomas Evans did at trial, by ruling that White lacked standing to move for suppression of phone evidence.
Alsop declared Evans absolutely correct.
"Mr. White was not the owner of the vehicle searched and therefore, is not entitled to any constitutional protections with regard to expectations of privacy," he wrote.
He wrote that "if a person is in such a position that he cannot reasonably expect privacy, the court may find that an unreasonable Fourth Amendment search has not taken place."
The phone belonged to White, but partner Roseann Osborne used it.
On the murder date, she drove a truck that belonged to husband Muhamed Mahrous.
He drove her car, and they met at Riverfront Park in Ravenswood.
White approached, carrying a plastic bag that concealed a hammer.
Three blows with the bag ended Mahrous's life.
Osborne dialed 911, reported the crime, and lied as she described the attacker.
Detectives impounded the truck and the car at Ravenswood city garage.
They obtained a warrant to search the truck and seize any personal property belonging to Mahrous or Osborne.
They found the phone and extracted evidence pointing to White.
With further search warrants, they opened his account, counted his calls, and identified the towers that bounced his words.
They traced him to Indiana, and he said he was there when Mahrous died.
They told him a tower in Ravenswood picked up his calls that day.
They told him he and Osborne exchanged 59 calls, seven just before the murder.
He confessed, and grand jurors indicted him and Osborne for murder and conspiracy.
In separate trials, jurors convicted them on both charges.
On appeal, White challenged everything from jury selection through admission of evidence to denial of motions for new trial.
On evidence from the phone, he argued that officers who seized it needed a separate warrant to search its contents.
He argued Evans should have suppressed all evidence that flowed from the phone.
In February, the Justices rejected all his challenges.
Justice Robin Davis wrote that he didn't allege officers seized the phone improperly.
She quoted a decision of the U.S. Supreme Court that once a suspect's property is lawfully in the state's control, the state may perform tests and use the results in criminal investigations without violating Fourth Amendment rights.
"Accordingly, we now expressly hold that, when searching a vehicle pursuant to a valid search warrant, no additional search warrant is required to examine the contents of items that are properly seized in the execution of the warrant, including, but not limited to, cellular telephones," she wrote.
Alsop reserved the right to file a concurring opinion, but as months passed he chose to express partial dissent.
"I am of the opinion this broad language may be ill advised," he wrote.
He wrote that a challenge to a search depends not upon a person's right in a place or a thing but upon a person's legitimate expectation of privacy in the place or the thing.
He wrote that the area of law as to search and seizure of electronic devices continues to develop under the U.S. Constitution.