Were You Lying Then, Or Are You Lying Now?

In Riley v. California, 134 S. Ct. 2473, 2477, 189 L. Ed. 2d 430 (2014), the Supreme Court considered whether police officers could search the contents of a smart phone incident to an arrest. In Riley, an alleged gang member was arrested for possession of a concealed firearm. At the precinct, a police officer went through the arrestee's smart phone looking for evidence of other crimes and found a picture of the arrestee next to a car connected to a drive-by-shooting.

Before determining whether the search violated the Fourth Amendment, the Court looked to a trilogy of case.

The first two cases, Chimel v. California, 395 U.S. 752 (1969) and U.S. v. Robinson, 414 U.S. 218 (1973), held that searches incident to arrests are proper when necessary to protect evidence or officers.

The third, Arizona v. Gant, 556 U.S. 332 (2009), held that police may search a vehicle when it is reasonable to believe that evidence relevant to the crime of arrest may be found, including containers located in the vehicle.

The Supreme Court determined that none of the justifications in the above cases were present in Riley. Unlike Chimel and Robinson, neither the evidence, i.e., the phone, nor the officers were in danger. While officers may examine the physical aspects of the phone to ensure that it will not be used as a weapon, a phone, once secured, poses no threat. Further, multiple options are available to prevent the destruction of evidence without invading the privacy of the arrestee, such as disconnecting the phone from the network or placing the phone in a "Faraday bag."

The Court also considered the prosecution's argument based upon Gant, which compared a cell phone to a physical container. In rejecting this rationale, the Court commented that classifying a smart phone as a physical container is "like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together." The Court's analysis was informed by the vast storage capacity of the modern cell phone.

In conclusion, the Supreme Court held that a smart phone could not be searched incident to arrest under the facts of the case. It will be interesting to observe the extent to which the Court's acknowledgment of the privacy concerns involved in smart phone technology may creep into civil discovery and evidentiary disputes.

The recent decision in Gibson v. Wal-Mart Louisiana, LLC, 20-0033 (La. App. 4 Cir. 8/27/20), 2020 WL 507804 re-affirms that a workers’ compensation claim based on an unwitnessed accident is subject to pretrial dismissal where there is no corroborating evidence.

In Gibson, the plaintiff, a department manager for Walmart, claimed injury while picking up boxes. Although no one witnessed the incident, the plaintiff claimed that two managers working nearby were made aware of the accident and injuries almost immediately.

Walmart denied the claim in response to numerous “red flags.” For example, the two managers identified by the claimant denied any knowledge. Also, the first reference in a medical record to the alleged June accident came in mid-October.

Walmart filed a motion for summary judgment arguing that plaintiff did not satisfy her evidentiary burden. In response, Gibson countered that the conflict between her testimony, the co-workers’ testimony, and the medical records created genuine issues of material fact to be decided at trial. The OWC trial court granted summary judgment and the plaintiff appealed.

In affirming the dismissal, the Fourth Circuit Court determined that Gibson’s testimony, standing alone, did not create a genuine issue of material fact. The general rule regarding unwitnessed accidents in worker’s compensation cases is well defined. Under this rule, an employee may prove by his or her testimony alone that an unwitnessed accident occurred only if the employee can establish that: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. Ardoin v. Firestone Polymers, L.L.C., 10-0245 (La. 1/19/11), 56 So. 3d 215, 218.

Because evidence such as the delay in medical treatment raised doubt and Gibson lacked other corroboration, the dismissal of her claim was upheld. Gibson reminds that questionable unwitnessed accident claims without corroborating evidence can and should be dismissed via pretrial motion, notwithstanding the “relaxed rules of evidence and procedure” in workers’ compensation courts.

Ed Stauss is a partner with Keogh Cox. His practice relates mainly to workers compensation defense and the subrogation recovery. Ed is an avid and long time fan of the professional and major college sports teams in the area. He also enjoys running year-round, from 2 milers & 5Ks in the spring and summer to half marathons and full marathons in the fall and winter.

In Dunlap v. Empire Trading Group, LLC, the buyers of a home sued the seller and the seller’s real estate agent for fraud after the home flooded three times in the first year after they bought the home. The seller was a home-flipper who disclosed two prior flooding incidents, both of which occurred during the ten months the seller owned the home.

However, the plaintiffs later discovered the home had a substantial flooding history when they requested a flood insurance quote from the National Flood Insurance Program. The quote included a report that identified eighteen incidents of flooding and flood insurance claims at the property over the ten years before the plaintiffs purchased their home.

The plaintiffs argued the seller’s agent committed fraud because she concealed her knowledge of previous flood claims. The seller’s agent moved for summary judgment, arguing that the plaintiffs could not prove that she knew about any of the prior undisclosed flooding incidents. The plaintiffs had no direct evidence to dispute the agent’s defense.

Instead, they argued that circumstantial evidence was sufficient to defeat the motion. They claimed that because the seller had a flood policy on the home, it also would have received the same flood claim history the plaintiffs received in connection with the same federal program. However, the plaintiffs had no evidence to show the seller, or anyone affiliated with the agent’s firm, actually received the flood claim history as they alleged.

Based upon these facts, the court agreed that without evidence that the seller’s agent actually received the flood claim history or otherwise had knowledge of it, the plaintiffs could not carry their burden of proving misrepresentation by the agent.

Case Reference: Dunlap v. Empire Trading Group, LLC, 2021-0180 (La. App. 1 Cir. 10/18/21), 331 So. 3d 932.