Page 3
Court of Appeal:
Parents’ Consent to Search of Dead Son’s Phone Was Valid
Opinion Says Defendant May Not Rely on Statute Mandating Warrants for Searches of Electronic Information
By a MetNews Staff Writer
Div. One of the First District Court of Appeal held yesterday a criminal defendant was not entitled to the suppression of messages found on a dead man’s phone implicating the accused in drug sales where the warrantless search of the device was authorized by the decedent’s parents who had physical possession of the phone and knew the passcode.
At issue are provisions of the California Electronic Communications Privacy Act (“CalECPA”), codified at Penal Code §1546 et seq., which was enacted to safeguard privacy protections in what the legislative comments described as “the digital age” and requires a warrant, absent certain exceptions, for searches of electronic devices.
Sec. 1546.4 provides:
“Any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of the Fourth Amendment…or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures [governing criminal suppression motions].”
One specified exception to CalECPA’s warrant requirement is when the search is conducted with “the specific consent of the authorized possessor.” An “authorized possessor” is defined as the “possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner.”
Drug Charges
Invoking the statute was Gerald Clymer Jr., who was charged with possession for sale of oxycodone and diazepam, in violation of Health and Safety Code §§ 11351 and 11375, after messages discussing the sales of narcotics were found on a phone belonging to 30-year old Drew McKay after he was found dead in his bed.
McKay’s parents gave permission to police officers to search the phone to “find out what happened” to their son, who had battled substance abuse for over a decade. An autopsy later revealed that McKay did not have opiates in his system and had died from heart failure.
After law enforcement officers, posing as McKay, arranged to buy oxycodone from Clymer, the defendant was detained after he dropped the requested pills in the family’s mailbox. A search warrant was obtained for Clymer’s phone, and the text messages with McKay were on the device.
Clymer moved to suppress the warrantless search of McKay’s phone based on §1546.4 and to squash the search warrant, claiming the authorization was overbroad and supported by evidence illegally obtained from the decedent.
San Mateo Superior Court Judge Sean Dabel granted the motion in part, ruling that the warrant was overbroad to the extent it authorized a search for information preceding the earliest communications between McKay and Clymer. The remaining evidence was ruled admissible.
Clymer pled no contest to possession of diazepam for sale and was placed on probation.
Justice Kathleen Banke authored the opinion affirming the judgment of conviction. Presiding Justice James M. Humes and Justice Monique S. Langhorne Wilson joined in the opinion.
Warrantless Search
The defendant argued that the warrantless search of McKay’s device was not permissible as either a search undertaken with the “specific consent of the authorized possessor of the device” as set forth in §1546.1(c)(4) or based on a good faith exception to the warrant requirement as “an emergency involving danger of death or serious physical injury” as contemplated by subsection (c)(6).
Noting that no “provision of CalECPA addresses who becomes an ‘authorized possessor’ of a device when the owner dies,” Banke opined:
“We conclude under the circumstances that occurred here, McKay’s parents became, at the relevant time, ‘authorized possessors’ of McKay’s devices….[S]ince it is…undisputed McKay died…in the family residence and the devices were…next to his bed, the only persons who then actually possessed, and could possess, the devices at the relevant time, were his parents. Furthermore, McKay’s parents…also knew the passcodes and therefore could access the devices….Indeed…the trial court could reasonably conclude, given the totality of the circumstances, McKay, himself, had authorized his parents to access his devices and they could therefore consent to [the] search.”
The jurist continued:
“Our conclusion is also wholly consistent with the fundamental purpose of CalECPA, which is to protect the privacy interests of owners and authorized users in their electronic devices and electronic information….McKay’s privacy interest in his devices was extinguished upon his death…..Thus, we fail to see how the search of a decedent’s electronic devices can be at odds with CalECPA, particularly where, as here, the persons who are properly in possession of the decedent’s devices at the relevant time, as were McKay’s parents, authorize a search of the devices and supply the passcodes to do so.”
Authorized Not Required
Banke was not persuaded that CalECPA did not contain a “good faith” exception for circumstances where law enforcement officers believe that access is necessary due to an emergency.
She noted that the statute does not require suppression but only authorizes a person to move to suppress evidence obtained in violation of the Fourth Amendment or the terms of CalECPA. The justice remarked that “interpreting section 1546.4…as mandating suppression of any electronic information obtained or retained in violation of CalECPA would ‘be inconsistent with the plain language of similar CalECPA provisions.’ ”
Looking to the legislative history, she pointed out that when the bill containing the proposed language was first introduced, the section provided that “no evidence obtained or retained in violation of this chapter shall be admissible in a criminal…proceeding.” After concerns were expressed about the breadth of the proposed language, the text was amended to reflect the current terms of §1546.4.
Under these circumstances, she reasoned that the changes reflect a rejection of the proposal to exclude any evidence obtained in violation of the statute and said “the amendment, by expressly referencing the Fourth Amendment, also arguably suggests the principles enunciated in Fourth Amendment jurisprudence, including the good faith exception to the exclusionary rule, remain operative under CalECPA.”
However, she declared that “[g]iven our conclusion the trial court was on solid ground in finding McKay’s parents were ‘authorized possessors’ of McKay’s devices, who could, and did, consent to their search, we need not and do not address whether CalECPA’s exigent circumstances provision also applied.”
The case is People v. Clymer, 2024 S.O.S. 3789.
Copyright 2024, Metropolitan News Company