Opinion
CR-18-0687
09-11-2020
Antonio Montez REESE v. STATE of Alabama
Lisa M. Ivey of Stubbs, Sills & Frye, P.C., Anniston, for appellant. Steve Marshall, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
Lisa M. Ivey of Stubbs, Sills & Frye, P.C., Anniston, for appellant.
Steve Marshall, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
COLE, Judge. AFFIRMED BY UNPUBLISHED MEMORANDUM.
Windom, P.J., and Kellum and McCool, JJ., concur. Minor, J., concurs specially, with opinion.
MINOR, Judge, concurring specially.
I concur in the Court's affirmance of Antonio Montez Reese's multiple convictions and sentences that stem from an automobile collision in which two individuals were killed and two others were injured. I write separately to address Reese's challenge to a search warrant for the event data recorder ("EDR") from the vehicle he was driving when he caused the collision.
A jury convicted Reese of two counts of reckless murder, see 13A-6-2(a)(2), Ala. Code 1975, two counts of third-degree assault, see § 13A-6-22(a)(2), Ala. Code 1975, two counts of unlawful possession of a controlled substance, see § 13A-12-212, Ala. Code 1975, one count of attempting to elude law enforcement, see § 13A-10-52(b), Ala. Code 1975, one count of second-degree unlawful possession of marijuana, see § 13A-12-214, Ala. Code 1975, and one count of driving while his license was revoked, see § 32-6-19, Ala. Code 1975. The Lee Circuit Court sentenced Reese to sentences of life imprisonment for his convictions for reckless murder, to be served concurrently; 12 months' imprisonment for each of his convictions for third-degree assault, attempt to elude, and second-degree possession of marijuana; 5 years' imprisonment for one of his convictions for possession of a controlled substance; 180 days' imprisonment for his conviction for driving while his license was revoked; and 130 months' imprisonment for his other conviction for possession of a controlled substance.
The evidence showed that around 7:00 p.m. on April 22, 2016, Officer Alex Miranda of the Opelika Police Department saw Reese, who was driving his girlfriend's Chevrolet Malibu automobile, turn without using a signal. Officer Miranda initiated a traffic stop, but Reese fled at a high rate of speed. After Reese almost caused an accident at one intersection, Officer Miranda slowed down and lost sight of Reese. Reese's flight ended when the Malibu he was driving collided with a Toyota Camry automobile that Rhonda Finley was driving and in which Dennis Finley, Thomas Wallace, and Wendi Wallace were passengers. The Wallaces were injured in the crash, and the Finleys were killed.
The registered owner of the Malibu testified that she was in a relationship with Reese at the time of the collision and that he used the Malibu whenever he needed it.
Law enforcement found marijuana, alprazolam, and cocaine in Reese's vehicle, and, pursuant to a search warrant, law enforcement got the EDR from the Malibu after the car was stored in a tow yard. Testimony at Reese's trial described the EDR as "a module ... [that] determine[s] whether ... to deploy [the] airbags ... [and] if it senses an impending collision ... [it will] record any data relating to the event." (R. 808-09.) The EDR records "speed, throttle percentage, accelerator percentage, whether ... the brakes ... [were] active ... [and] any kind of diagnostic trouble codes ... that were wrong with the car." (R. 815.) Data from the EDR showed that in the 5 seconds before impact, the Malibu was traveling between 63 and 68 miles per hour and that the brakes on the Malibu were never engaged during that time. The speed limit on the road where the crash happened was 25 miles per hour.
See Daniel Harper, Automobile Event Data Recorders, and the Future of the Fourth Amendment, 120 Columbia L. Rev. 1255, 1259 (2020) ("Generally, EDRs continuously record at least fifteen data points that describe a car's functioning. The information is not permanently stored (and thus cannot be accessed) unless a car is involved in what's known as a deployment ‘event.’ A deployment event is generally an accident or a particularly harsh braking event, and in the case of such an event an EDR will record, to permanent local storage, the data it monitors for the five seconds prior to the accident. Federal regulations require that data regarding frontal airbag deployment cannot be overwritten by subsequent events, but the other elements need only be retained for up to two events. ... Event data recorders are generally located beneath the carpeting of vehicles, making it difficult to access the devices (and therefore the data contained on them) without physically intruding in the vehicle owner's car to plug into the download port located in the car or to remove the EDR module for later inspection. To download EDR data, a crash investigator generally needs to obtain a specific set of hardware that can communicate with the EDR software. It appears, based on the number of instructional courses available, that use of the hardware requires previous training and is not accessible to the average consumer.").
In the trial court, Reese moved to suppress the data extracted from the EDR because, he said, the search warrant requested the EDR, not the data on it. After a hearing, the trial court denied the motion to suppress.
The trial court held that, under this Court's decision in Sullen v. State, 409 So. 2d 903 (Ala. Crim. App. 1981), Reese lacked standing to challenge the warrant. In Sullen, this Court recognized that, to have standing under the Fourth Amendment, "a defendant need no longer ‘establish that he was the owner or possessor of the seized property or that he had a possessory interest in the premises searched.’ " 409 So. 2d at 905 (quoting Waters v. State, 360 So. 2d 347, 353 (Ala. Crim. App. 1978) ). But even under that "liberalized" rule of standing, "a defendant must either be charged with a ‘possession’ crime or be ‘legitimately on the premises’ when the search occurs." Sullen, 409 So. 2d at 905 (quoting Waters, 360 So. 2d at 353 ). This Court held that Sullen thus lacked standing because he was not at the place when the items were seized, nor was he charged with possession of the seized items.
The unpublished memorandum does not address the finding by the trial court that Reese lacked standing under the Fourth Amendment to challenge the search. As the United States Supreme Court recently explained, the concept of standing under the Fourth Amendment "is not a jurisdictional question and hence need not be addressed before addressing other aspects of the merits of a Fourth Amendment claim." Byrd v. United States, 584 U.S. ––––, 138 S. Ct. 1518, 1530, 200 L.Ed.2d 805 (2018).
In Sullen, a jury convicted Sullen of first-degree assault of Ethel Mutchnick. The assault happened during the burglary of Mutchnick's residence when checks and a savings certificate were taken. Law-enforcement officers found Sullen's fingerprints at the scene and, as a part of their investigation, they got a search warrant for Sullen's mother's residence because Sullen sometimes stayed there. While executing the warrant, officers found the stolen checks and the savings certificate.
In his materials to this Court, Reese does not directly address Sullen. The closest he comes in his opening brief is his statement that
"this Court should reject any suggestion by the State that Reese's expectation of privacy was somehow lessened or even negated because this search did not occur during a typical traffic stop or contemporaneously with Reese's occupation of the vehicle. Simply put, the danger of adopting such a rule is apparent; if this were the law, there would be a significant incentive for increased overreaching by law enforcement in separating
suspects from their vehicles to avoid the warrant requirement."
(Reese's brief, p. 40.) Whatever merit there may be in this argument, the danger Reese identifies is not present because law enforcement obtained a warrant before seizing the EDR.
Rather than directly addressing Sullen, Reese focuses his arguments on whether he had a reasonable expectation of privacy in the EDR data. Reese argues, correctly, that "the fact that Reese did not own the car is not dispositive of whether he has an expectation of privacy [in the EDR data]." (Reese's brief, p. 38.) Reese also cites the United States Supreme Court's recent decision in Byrd v. United States, 584 U.S. ––––, 138 S. Ct. 1518, 200 L. Ed. 2d 805 (2018).
In Byrd, the United States Supreme Court addressed "whether an unauthorized driver has a reasonable expectation of privacy in a rental car." 584 U.S. at ––––, 138 S. Ct. 1518 (emphasis added). The defendant in that case, Terrence Byrd, was the driver and sole occupant of a rental car. Law enforcement, as a part of a traffic stop, searched the car without a warrant and found body armor and 49 bricks of heroin. The lower courts held that Byrd lacked standing to challenge the search because, although the individual who had rented the car had given Byrd permission to drive the car, the rental agreement did not list Byrd as an authorized driver.
Addressing standing under the Fourth Amendment, the Court stated that it
"is not distinct from the merits and ‘is more properly subsumed under substantive Fourth Amendment doctrine.’ Rakas [v. Illinois, 439 U.S. 128,] 139[, 99 S. Ct. 421, 58 L.Ed.2d 387 (1978) )].
"The concept of standing in Fourth Amendment cases can be a useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search; but it should not be confused with Article III standing, which is jurisdictional and must be assessed before reaching the merits. Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125, 129[, 131 S. Ct. 1436, 179 L.Ed. 2d 523] (2011) (‘To obtain a determination on the merits in federal court, parties seeking relief must show that they have standing under Article III of the Constitution’); see also Rakas, supra, at 138–140[, 99 S. Ct. 421]. Because Fourth Amendment standing is subsumed under substantive Fourth Amendment doctrine, it is not a jurisdictional question and hence need not be addressed before addressing other aspects of the merits of a Fourth Amendment claim."
Byrd, 584 U.S. ––––, 138 S. Ct. at 1530.
In recounting how to determine whether an expectation of privacy is legitimate or reasonable, the Court noted that
"more recent Fourth Amendment cases have clarified that the test most often associated with legitimate expectations of privacy, which was derived from the second Justice Harlan's concurrence in Katz v. United States, 389 U.S. 347[, 88 S. Ct. 507, 19 L.Ed. 2d 576] (1967), supplements, rather than displaces, ‘the traditional property-based understanding of the Fourth Amendment.’ Florida v. Jardines, 569 U.S. 1, 11[, 133 S. Ct. 1409, 185 L.Ed. 2d 495] (2013)."
584 U.S. ––––, 138 S. Ct. at 1526. Turning to the issue before it, the Court continued:
"One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it. More difficult to define and delineate are the legitimate expectations of privacy of others.
"On the one hand, as noted above, it is by now well established that a person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it. See Jones v. United States, 362 U.S. 257, 259, 80 S. Ct. 725, 4 L.Ed. 2d 697 (1960) ; Katz [v. United States, 389 U.S.] at 352[, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967)] ; Mancusi v. DeForte, 392 U.S. 364, 368[, 88 S. Ct. 2120, 20 L.Ed. 2d 1154] (1968) ; Minnesota v. Olson, 495 U.S. 91, 98[, 110 S. Ct. 1684, 109 L.Ed. 2d 85] (1990).
"On the other hand, it is also clear that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it ‘creates too broad a gauge for measurement of Fourth Amendment rights.’ Rakas[v. Illinois], 439 U.S. [128], at 142[, 99 S. Ct. 421, 58 L.Ed.2d 387 (1978)] ; see also id., at 148[, 99 S. Ct. 421 ] (‘We would not wish to be understood as saying that legitimate presence on the premises is irrelevant to one's expectation of privacy, but it cannot be deemed controlling’); Minnesota v. Carter, 525 U.S. 83, 91[, 119 S. Ct. 469, 142 L.Ed. 2d 373] (1998).
"Although the Court has not set forth a single metric or exhaustive list of considerations to resolve the circumstances in which a person can be said to have a reasonable expectation of privacy, it has explained that ‘[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’ Rakas, 439 U.S. at 144, n.12[, 99 S. Ct. 421]. The two concepts in cases like this one are often linked. ‘One of the main rights attaching to property is the right to exclude others,’ and, in the main, ‘one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.’ Ibid. (citing 2 W. Blackstone, Commentaries on the Laws of England, ch. 1)."
584 U.S. ––––, 138 S. Ct. at 1527-28.
Applying those principles, the Court stated that "[t]he central inquiry" for the case before it was "the concept of lawful possession" by Byrd of the rental car and his apparent "right to exclude" others--such as a carjacker--from the car while it was in his possession. 584 U.S. ––––, 138 S. Ct. at 1528-29. The Court held "that the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy." 584 U.S. at ––––, 138 S. Ct. at 1531.
The Court recognized that different facts could change this result--for example, "one who intentionally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime," 584 U.S. ––––, 138 S. Ct. at 1531, presumably would lack standing.
Under Byrd, Reese--who was the driver and sole occupant of the Malibu at the time of the collision--arguably would have had a reasonable expectation of privacy in the EDR and the data on it if officers had seized the EDR at or around the time of the crash. But officers did not seize the EDR at the time of the crash. Instead, they got a search warrant and seized it later. Thus, Byrd is not dispositive. And, as the trial court found, Reese lacks standing under Sullen, supra.
Alternatively, the trial court held that, under the circumstances, the warrant was sufficient because "the [EDR] is synonymous with the information contained in the [EDR]." The trial court reasoned that "common sense would dictate that it was the data, not the pieces of metal [in the EDR], that was the subject of the warrant" and that "the only reason to obtain that [EDR] would be to obtain that information." (R. 254.)
Reese argues on appeal that the trial court erred in that finding because, he says, "[t]he search warrant that was sought and issued authorized a search for the ‘[e]vent data recorder,’ not its content." (Reese's brief, p. 31.) Reese argues that, to comply with the Fourth Amendment, the warrant needed to specify that law enforcement could search the data on the EDR.
This Court, in its unpublished memorandum, holds that the warrant was sufficient to authorize a search of the data on the EDR. This Court relies on State v. Hunt, [Ms. CR-18-0886, May 29, 2020] 316 So. 3d 271, 285 , 2020 WL 2829683 (Ala. Crim. App. 2020) (opinion on application for rehearing), in which this Court held that a search warrant for certain premises authorized a search for an electronic device and of that device's contents. In Hunt, we held:
"[I]n cases involving the seizure and search of electronic devices containing data, such as cellular telephones and computers, a second search warrant is not required to search the contents of such devices when the initial search warrant is based on an affidavit that demonstrates probable cause to believe that the evidence sought is contained within those devices. This determination will of necessity depend on the specific facts of each case, but ‘ "where the evidence [sought to be] obtained in the search [does] not exceed the probable cause articulated in the original warrant," ’ [United States v.] Evers, 669 F.3d [645,] 652 [(6th Cir. 2012)] (quoting [United States v.] Richards, 659 F.3d [527,] 539 n.10 [(6th Cir. 2011)] ), then the original search warrant is sufficient to permit a law enforcement officer not only to seize the electronic device, but also to view the contents of the device and to extract data consistent with that search warrant. Evers, supra."
Hunt, ––– So. 3d at ––––, 2020 WL 2829683. In its unpublished memorandum, this Court states the test as: "[I]f the search warrant for Reese's Malibu to seize the EDR is based on an affidavit that demonstrates probable cause to believe that evidence of reckless murder is contained within the EDR, then no second search warrant to search the contents of the EDR was required." The Court holds that the warrant meets this test, reasoning:
"The only way that the EDR could constitute evidence of reckless murder would be if the EDR and the data within the EDR are synonymous. In other words, the search warrant for Reese's Malibu to seize the EDR is based on an affidavit that demonstrates probable cause to believe that evidence of reckless murder is contained within the EDR. Thus, no second search warrant to search the contents of the EDR was required in this case."
Under the facts of this case, I agree with this holding. I believe that the affidavit and the warrant were sufficient to authorize the search of the data on the EDR.
This case is yet another example of how technological innovations present novel questions for analysis under the Fourth Amendment. Although law enforcement took the cautious step of securing a warrant in this case, the better practice is for law enforcement to seek a warrant specifically for the data on an electronic device they want or expect to seize--even if that requires seeking a second warrant. As Chief Judge Dillard of the Court of Appeals of Georgia has correctly noted:
"I feel compelled to [admonish] law enforcement that the better course of action in cases like this is to obtain a warrant before retrieving [EDR] data. Indeed, as Fourth Amendment jurisprudence struggles to keep pace with technological advances and the consequent blurring between our private and public lives, novel cases (such as this one) will become increasingly common. And faced with such rapidly evolving challenges affecting the way in which investigations are conducted and evidence is obtained, ... law enforcement will be better served by erring on the side of caution and obtaining a search warrant in such cases.
"....
"... [L]aw enforcement will find it increasingly tricky to navigate the crossroads of ever-advancing technology and personal privacy as they relate to Fourth Amendment prohibitions. And this difficulty is only exacerbated by the fact that the decisions of the Supreme Court of the United States establish that warrantless searches are typically unreasonable where ‘a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing.’ But as the Supreme Court emphasized once again in Carpenter v. United States [––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018)], there remains a tried and true means of safely traversing these crossroads when law enforcement's specific obligations under the Fourth Amendment are in doubt--get a warrant. This default position seems especially wise in light of the ‘equilibrium-adjustment’ the Supreme Court of the United States recently made in Carpenter. And while obtaining a warrant may not always lend itself to expediency, our republic's Fourth Amendment jurisprudence has ‘historically recognized that the warrant requirement is "an important working part of our machinery of government," not merely an inconvenience to be somehow "weighed" against the claims of police efficiency.’ I am confident the vast majority of our law enforcement officers will err on the side of caution and liberty, and get a warrant in cases like the one before us. The law always seems to be several steps behind technology, and this approach strikes me as the most prudent course of action going forward."
Mobley v. State, 346 Ga. App. 641, 648, 651, 816 S.E.2d 769, 775, 777 (2018) (Dillard, C.J., concurring specially), rev'd, 307 Ga. 59, 834 S.E.2d 785 (2019) (emphasis added).