Write the argument section of a motion to suppress data taken from a phone seized during an arrest. You have 90 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.
The assignment
To: Associate. From: Devon Achebe, Public Defender. Re: State v. Farrow. Our client, Jamal Farrow, was arrested for a robbery, and the officer looked through his phone at the scene and found messages that the State will use. Please draft the Argument section of our motion to suppress. Argue that the search of the phone was unlawful and that the messages must be suppressed, and respond to the State's likely arguments that the search was incident to arrest and that the officers would have found the messages anyway. Use only the Library. Follow the format in the file, use headings that state a conclusion, and do not include a statement of facts.
File
Police report excerpt
On June 2 at 9:40 p.m., Officer Lena Ruiz arrested Jamal Farrow at a bus stop for the robbery of a pharmacy that occurred earlier that evening. She handcuffed Mr. Farrow and placed him in the back of her patrol car, and she took his phone from his jacket. The phone was locked with a passcode, but she asked Mr. Farrow for it, and he gave it because, he says, she said he had to. She opened his messages and found a text from 8:15 p.m. that read, 'Store is empty, go now.' She did not seek a warrant. The phone was taken to the station and entered into evidence. A detective later obtained a warrant for the phone's cloud account on June 5, based on information about the account that came from the officer's search.
Supervising attorney's instructions on format
Use point headings that are complete sentences. Cite only authorities in the Library. Explain how each case applies to our facts and answer the State's best counterarguments.
Library
Constitution, Article I, section 8 (Franklin)
The people shall be secure in their persons, houses, papers, effects, and electronic data against unreasonable searches and seizures, and no warrant shall issue but upon probable cause, particularly describing the place and things to be searched.
State v. Delacroix, 52 Fr.3d 301 (Fr. Sup. Ct. 2017)
An officer arrested a defendant for burglary and searched the defendant's person, finding a phone, which the officer opened without a warrant. The State argued the search was incident to arrest. Held: for the defendant. The search-incident-to-arrest exception permits an officer to search the arrestee's person to remove weapons and to preserve evidence within reach, but the digital contents of a phone cannot harm the officer and are not in danger of being destroyed once the phone is in police custody. The court held that police must generally get a warrant before searching the digital contents of a phone seized from an arrestee. The physical phone may be seized and secured while a warrant is sought. The court noted that a true emergency, such as a threat to a person's life, may excuse the warrant.
State v. Whitlock, 55 Fr.3d 17 (Fr. Ct. App. 2019)
After an unlawful search of a defendant's phone, officers used information from it to obtain a warrant for the defendant's cloud storage. The State argued inevitable discovery. Held: evidence found in an unlawful search and evidence obtained from a warrant based on that search are both suppressed unless the State shows by a preponderance that lawful means, actively being pursued at the time of the unlawful search, would inevitably have led to the evidence. A warrant that rested on facts learned in the illegal search is not an independent source. The State's argument that officers might have applied for a warrant is speculation.
What graders look for in this task
Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.
Uses complete-sentence point headings and no statement of facts
Argues Article I, section 8 covers electronic data and that a phone search needs a warrant
Applies Delacroix to reject search incident to arrest because the phone posed no danger and was in custody
Notes that Ms. Ruiz could have secured the phone and sought a warrant
Rejects any emergency exception on the facts because the suspect was handcuffed and nothing suggested a threat
Applies Whitlock to argue the June 5 cloud warrant rests on the illegal search and is not an independent source
Answers inevitable discovery by pointing out that no warrant application was under way
Argues persuasively but candidly acknowledges the emergency exception