I’ve been asked several times lately whether it is a good idea for an officer to use his or her personal cell phone to take work-related photographs, such as photographs of a crime scene or photographs of seized items. In this post, I explain why I think that’s OK, so long as it is consistent with agency policy. Continue reading
Tag Archives: cell phones
Law enforcement officers often seek search warrants for suspects’ cell phones. When they do, judicial officials must determine what sort of evidence is needed to support the issuance of a warrant. Many people have their phones with them at all times, and use their phones to document and discuss every aspect of their daily activities. Does that mean that when an officer has probable cause to believe that a suspect committed a crime, the officer automatically has probable cause to search the suspect’s cell phone for evidence of the crime? Or does the officer need a more specific nexus between the crime and the phone?
I’ve had the same question several times recently: can a magistrate issue a search warrant for a computer or a cell phone? The answer is yes. This post explains why that’s so, and why there’s some confusion about the issue. Continue reading →
Courts around the country have struggled to address inappropriate cell phone usage by jurors. Some judges have used their contempt powers to deal with the issue. In Oregon, a judge held a juror in contempt for texting during a trial, and the juror spent a night in jail as a result. In Florida, a judge cited a juror for contempt for using Facebook during trial. And now, the issue has cropped up here in North Carolina. Last week, Superior Court Judge Milton “Toby” Fitch held a juror in a civil case in contempt for using his cell phone to take notes about the trial, and sentenced the juror to 30 days in jail. The Wilson Times has the story here. The News and Observer has an AP story with some additional details here. Continue reading →
The 2014 Cumulative Supplement to Arrest, Search, and Investigation in North Carolina (4th ed. 2011) is now available. It is called a cumulative supplement because it includes the material in the 2013 supplement so you only need the book and the 2014 cumulative supplement to be current. You may order it online here or contact the School of Government Bookstore Manager at 919.966.4120. Continue reading for additional details.
Yesterday, the Supreme Court issued a long-awaited opinion concerning searching cell phones incident to arrest. The Court ruled that the search incident to arrest exception to the warrant requirement doesn’t apply to cell phones. North Carolina law previously allowed such searches, so the opinion is significant.
The facts of the cases. The Court ruled on two cases: Riley v. California and Wurie v. United States. The opinion is captioned with the Riley case name. Riley began with a traffic stop, which led to a gun arrest, which led to a phone search, which revealed evidence that linked the defendant to a shooting. Wurie began with a drug arrest, which led to a phone search, which revealed the location of the defendant’s residence, which enabled officers to obtain and to execute a search warrant for the home, which led to the seizure of drugs and firearms.
The lower court rulings. Both defendants moved to suppress, arguing that the searches of their phones incident to arrest violated the Fourth Amendment. Both motions were denied at the trial level, and both defendants were convicted. On appeal, defendant Riley lost, while defendant Wurie won. The Supreme Court agreed to review the cases together.
The Supreme Court’s ruling. The Court ruled 9-0 for the defendants. The lead opinion was written by Chief Justice Roberts. The Court stated that searches incident to arrest generally are justified (a) to ensure that the arrestee doesn’t have a weapon, and (b) to prevent the arrestee from destroying evidence. But, it continued, cell phone searches don’t implicate those concerns. “[O]fficers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon,” but the data on the phone doesn’t pose a risk of physical harm. And there is little risk that the data on a phone will be destroyed by the arrestee. The Court indicated that an arrestee’s phone may be seized while officer seek a search warrant. The prosecution argued that even seized phones could be locked or remotely wiped if not inspected immediately, but the Court found little reason to believe that these practices were prevalent or could be remedied by a search incident to arrest. Further, the risk of such practices can be managed by using Faraday bags and other tools. Thus, the Court found little justification for allowing phones to be searched incident to arrest.
On the other side of the ledger, the Court found a strong privacy interest militating against such searches. It noted that phones often contain vast quantities of data, making a search intrusive far beyond the mere fact of arrest itself and far beyond the level of intrusion associated with more traditional searches of pockets, wallets, and purses incident to arrest. Indeed, many phones can access data stored on remote servers, making a search extend far beyond the immediate area of the arrestee. Emphasizing the need to establish a clear and workable rule, the Court therefore categorically exempted cell phones from the search incident to arrest doctrine.
Comments. A few things struck me about the Court’s ruling:
- One, the phone in Wurie was a flip phone, while the one in Riley was a smart phone. The Court’s holding was not dependent on the capacity of the device, and seems certain to apply to other forms of electronic devices that are carried frequently, such as tablets and laptops. In fact, the Court at one point referred to phones as “minicomputers.” More generally, the Court seemed to view the dawn of the digital age as a significant development for Fourth Amendment purposes. Combined with the Court’s 9-0 vote against warrantless GPS tracking in United States v. Jones, it seems that the Court may believe that emerging technologies require a new approach to the Fourth Amendment.
- Two, the Court acknowledged that in some cases, other doctrines might support a warrantless search of a phone. For example, if there were reason to believe that a violent crime were unfolding and that evidence of the crime was on the phone, exigent circumstances might support the search. And of course, officers may ask for consent to search an arrestee’s phone.
- Three, still, this opinion likely will cut down on warrantless phone searches . . . and accordingly may increase the number of search warrants that are sought for phones. Officers should bone up on how to draft warrant applications in such cases, and the courts should prepare to see more applications and to handle more litigation over warrants.
- Four, the opinion suggests that data stored in “the cloud” is protected by the Fourth Amendment. One of the justifications that the Court provides for why cell phone searches are more intrusive than searches of physical objects is that phones may be connected to remote servers. For example, my iPhone is connected to Yahoo!’s servers so that I can access my email. If this feature makes phone searches more intrusive, it would seem to follow that the remote data is generally subject to an expectation of privacy. That suggestion is significant, as many courts have viewed such data as having no constitutional protection as a result of the third-party doctrine of Smith v. Maryland.
- Five, get ready for the debates over retroactivity and related issues.
What’s your reaction to the decision?
Yesterday, the Supreme Court heard two cases regarding whether law enforcement officers may search a suspect’s cell phone incident to arrest. Generally, the answer to that question in North Carolina has been yes, as I discussed here. But it sounds like a new rule may be coming soon.
The cases. In United States v. Wurie, the police arrested the defendant after they saw him sell drugs. They searched his flip phone, finding a phone number identified as “home.” They used the number to find his residence, which they subsequently searched, finding drugs and a gun. In Riley v. California, the defendant was stopped for driving with expired tags. A search of the car turned up two guns, and the defendant was arrested. The police search his phone, finding photographs and call records that helped to link the defendant to a shooting. In both cases, the defendants argue that the cell phone searches violated the Fourth Amendment.
The legal issue. The Supreme Court has long held that law enforcement officers may search arrestees incident to their arrest without a warrant. This is permitted so that officers can prevent the destruction of evidence and uncover weapons, and the search authority extends to items within an arrestee’s immediate control. See, e.g., Chimel v. California, 395 U.S. 752 (1969). The issue in the two cases before the court is whether cellular phones – and by extension, other portable electronic devices like tablets and laptops – may be searched pursuant to this rule, or whether they should be treated differently because they can contain mountains of personal information, far more than can be wedged into a wallet or a purse.
The oral arguments. The transcripts of the oral arguments are here, and articles about the proceedings have appeared on SCOTUSblog, ArsTechnica, the Volokh Conspiracy, and elsewhere. Although predicting case outcomes based on oral arguments is a tricky business, most Justices seemed to think that there should be a different rule for electronic devices, i.e., that a full-fledged search of an arrestee’s iPhone after an arrest for a minor misdemeanor is unreasonable. Yet there was not much support for the idea of always requiring a warrant for such searches. Instead, the Court seemed to be looking for a middle ground, perhaps along the lines of the rule for vehicles announced in Arizona v. Gant, 556 U.S. 332 (2009) (allowing searches of a vehicle incident to the arrest of a recent occupant only when the arrestee is unsecured and could reach into the vehicle or when there is reason to believe that evidence of the crime of arrest will be found in the vehicle). Any compromise rule may be difficult to administer, however.
Advice for now. Two groups that need to do things now in anticipation of the eventual ruling are defense lawyers and officers. Defense lawyers should be making Fourth Amendment arguments in cell phone search cases to preserve the issue in case the law changes in a direction that is favorable to their clients. And officers may wish to handle cell phone searches more cautiously to insulate their cases from attack under whatever rule the Court eventually announces. For example, where officers have probable cause to search an arrestee’s phone, they may wish to get a warrant rather than conducting a warrantless search incident to arrest. And when an officer does search a phone incident to arrest, the officer may wish to limit the scope of the search to areas where evidence of the crime of arrest may be found.
Stay tuned. Of course, we will blog about the opinion when it comes out. The summer recess isn’t far away, so it won’t be long.
In a post last week, I mentioned that it looks increasingly likely that Supreme Court will grant certiorari in a case considering cell phone searches. In this post, I’ll support that remark by describing two cases in which certiorari petitions have been filed and explaining why each is a strong candidate for Supreme Court review. (Remember that existing North Carolina case law tends to support searching an arrestee’s cell phone incident to the arrest, as I discussed here.)
The First Circuit Case. The first case is United States v. Wurie, __ F.3d __, 2013 WL 2129119 (1st Cir. May 17, 2013). Wurie arose when a Boston officer arrested the defendant for a hand-to-hand drug sale. Shortly after the arrest, officers opened the defendant’s cell phone and reviewed the call log. They noted a phone number in the call log was listed as “my house,” and used an online directory to match the phone number with a physical address. That led the officers to search the residence, where they found drugs and a gun. The defendant was charged in federal court with drug and firearms offenses and moved to suppress, arguing that the officers were not entitled to search his cell phone incident to his arrest, and that the search of the residence was the fruit of that poisonous tree. The district court judge denied the motion, the defendant was convicted, and he appealed.
The First Circuit reversed in a split decision, with two judges reasoning that “that the search-incident-to-arrest exception does not authorize the warrantless search of data on a cell phone seized from an arrestee’s person, because the government has not convinced us that such a search is ever necessary to protect arresting officers or preserve destructible evidence.” As to the possibility of the destruction of evidence, the majority stated that any risk of such destruction could be avoided using techniques such as removing a phone’s battery, encasing it in a shielding enclosure, or copying the phone’s contents without examining them. Cell phones, under the majority’s rule, are a categorical exception to the search incident to arrest doctrine. A dissenting judge argued that settled law allows the police to search, incident to arrest, containers that are immediately associated with the arrestee, and that cell phones are just another type of container, subject to the same rules.
A divided, published opinion of a court of appeals is always a candidate for certiorari review, but what make Wurie an especially strong contender is what happened next. The defendant sought rehearing en banc, and the First Circuit denied it, with the Chief Judge writing a statement on denial of rehearing en banc arguing that the case met the standards for rehearing but that rehearing was inappropriate because “the preferable course is to speed this case to the Supreme Court for its consideration.” United States v. Wurie, 724 F.3d 255 (1st Cir. 2013) (denying rehearing en banc). The statement noted that “[t]he decision in this case creates a circuit split with respect to the validity of warrantless searches of cell phones incident to arrest,” that “[s]tate courts similarly are divided,” and that “[o]nly the Supreme Court can finally resolve these issues.” The original dissenting judge also filed a statement concluding that “this issue requires an authoritative answer from the Supreme Court.”
Wurie filed a petition for certiorari on August 15.
The California Case. The second case is People v. Riley, 2013 WL 475242 (Cal. Ct. App. 4th Dist. Feb. 8, 2013) (unpublished), a California attempted murder case. The trial court ruled that the defendant’s cell phone was properly searched incident to his arrest. Relying on People v. Diaz, 244 P.3d 501 (Cal. 2011) (ruling that the search of a cell phone incident to arrest is lawful so long as the phone is “immediately associated with [the arrestee’s] person”), an appellate court affirmed.
An unpublished opinion from an intermediate state appellate court is not normally a strong candidate for certiorari, but the defendant has sought certiorari review and there are two reasons to believe that he may get it. First, he is represented before the Court by Jeffrey Fisher of the Stanford Law School Supreme Court Litigation Clinic. Fisher is a former Supreme Court clerk and has argued 21 cases before the Court, so anything he files will be reviewed carefully. Second, the Court’s docket sheet for the case shows several amici have filed briefs at the certiorari stage. I have heard several experienced Supreme Court practitioners say that amicus support at that phase of the case can be critically important in helping capture the Court’s interest. The Court has requested a response to the petition, so the case is at least on the Court’s radar screen.
Stay tuned. I’ll keep you posted about any noteworthy development in these cases.
The Ninth Circuit recently decided a case that addresses a question I’ve been asked several times: may the police answer a seized cell phone? The answer may depend on the basis for, and circumstances of, the seizure. On the facts before the Ninth Circuit, the court answered no.
The Ninth Circuit case. The case is United States v. Lopez-Cruz, __ F.3d __, 2103 WL 4838908 (9th Cir. Sept. 12, 2013). It arose when two border patrol agents working near the Mexican border saw a driver “‘brake tapping,’ behavior that the agent[s] recognized as consistent with people being ‘guided in to pick up somebody or something.’” The agents stopped the car and began talking with the driver. The conversation heightened the officers’ suspicion that the driver was involved in alien smuggling. The officers noticed two phones in the console of the car and one asked the driver, “Can I look in the phones? Can I search the phones?” The driver said yes, and the officer took possession of the phones. One rang several times, and each time the officer answered it, essentially posing as the driver and having conversations about how the pickup was going and where to find the aliens who needed to be picked up.
The driver was charged with alien smuggling, and moved to suppress the information obtained by the agent during the telephone conversations, arguing that the agent exceeded the scope of the defendant’s consent when he answered the phone. The district court judge granted the motion, the government appealed, and the Ninth Circuit affirmed. It ruled that a reasonable person would not have understood from the exchange between the officer and the defendant that the defendant was giving the officer permission to answer the phone. The court emphasized that the officer was “not simply viewing the contents of the phone . . . but instead . . . [was] actively impersonating the intended recipient” of the calls. The court distinguished several cases in which it had ruled that a search warrant authorized officers to answer a telephone, noting that “[a] search pursuant to a warrant is limited by the extent of the probable cause on which the warrant is based,” while “a search pursuant to consent is limited by the extent of the consent given for the search by the individual.”
Other authorities. I’m not aware of a North Carolina case on point. A few minutes on Westlaw revealed several other out-of-state cases in this area. The cases deal with multiple types of seizures, and multiple legal arguments for suppression. For example, some of the cases address whether an officer who answers a phone and poses as someone else unlawfully intercepts a communication, an issue not raised in Lopez-Cruz.
A majority of the cases that I found ruled in the prosecution’s favor, and it may be worth noting that the author of the Ninth Circuit opinion was Stephen Reinhardt, one of that court’s liberal lions and a frequent subject of Supreme Court reversals. Generally, though, I think it’s fair to say that the issue is unsettled. For reasons I may address in a later post, it looks like the Supreme Court may take a cell phone search case in the upcoming Term, and perhaps the Court’s opinion in that case will provide useful guidance on this issue.
For a sampling of the cases in this area, see the following:
- Commonwealth v. Rosa, 21 A.3d 1264 (Pa. Super. 2011). The court considered two functionally identical cases. In each, narcotics officers seized arrestees’ phones, answered the phones when they rang, and arranged drug deals that resulted in the arrests of additional defendants. In each case, the trial court ruled that the officer’s use of the phone violated the state’s wiretap laws and therefore suppressed the resulting evidence. The state argued that the officers did not intercept a communication, but rather participated in one, but the court ruled that they did so “under false pretenses, posing as the owners of the respective phones in order to exploit the trust of the callers,” and that each officer was “not the party to whom the phones were registered . . . [and] was not the individual [the callers] expected to reach.” The court relied on Commonwealth v. Cruttenden, 976 A.2d 1176 (Pa. Super. 2009) (similar ruling where officer used arrestee’s cellular phone to text message with defendant, with arrestee’s consent), and distinguished Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001) (finding no interception where defendant communicated by computer with an officer posing as an underage girl, because the officer/girl was the intended recipient of the communication).
- Hawkins v. State, 704 S.E.2d 886 (Ga. Ct. App. 2010). A mother contacted the police and gave them her son’s cell phone, which she said contained many drug-related text messages. The defendant texted the phone asking about drugs, and an officer posed as the son and arranged a transaction. As a result, the defendant was arrested. She moved to suppress, arguing that the officer lacked the authority to use the son’s cell phone and that his conduct in doing so was “comparable to a wiretap interception.” Both the trial and the appellate court rejected this argument, the latter stating that it did not “warrant much discussion” because “[t]he officer was a party to the text message communications, notwithstanding that [the defendant] did not know his true identity at the time.” The court reasoned that the situation was “comparable to dialing a wrong number and speaking with someone that you believe is another.”
- State v. Carroll, 778 N.W.2d 1 (Wis. 2010). An officer saw the defendant speeding away from a residence that was under surveillance as part of an armed robbery investigation. The officer pursued the defendant, who abruptly stopped at a gas station. The officer approached him, and “ordered him to drop an unknown object that he held in his hand . . . upon retrieving that object, the officer recognized it as an open cell phone and observed on the display screen an image of [the defendant] smoking what appeared to be a marijuana blunt . . . the officer kept the phone, scrolled through its image gallery, and saw other images depicting [the defendant] with illegal items; and . . . the officer answered an incoming call pretending to be [the defendant], and during that conversation, the caller ordered illegal drugs.” The officer then obtained a warrant to search the phone, which yielded additional evidence that the defendant subsequently moved to suppress. Inter alia, the court ruled that the officer properly answered the phone because he had probable cause to believe that the call would contain evidence of drug crimes and exigent circumstances required answering the call or allowing the evidence to dissipate. The court relied on United States v. De La Paz, 43 F.Supp.2d 370 (S.D.N.Y. 1999) (officer answered calls on drug arrestee’s cell phone; court ruled that this was a Fourth Amendment search but that it was justified by exigent circumstances and the impracticability of obtaining a warrant immediately after an arrest).
- United States v. Rodriguez-Lopez, 565 F.3d 312 (6th Cir. 2009). Officer answered drug arrestee’s phone several times, and each time, the caller was seeking drugs. The callers’ statements were not inadmissible hearsay, because the government did not seek to admit them for the truth of the matter asserted.
Search warrants distinguished. As the Lopez-Cruz court noted, whether officers may answer a phone while executing a search warrant is a different question, one that courts have often answered in the affirmative. See Wayne R. LaFave, Search and Seizure § 4.10(d) (stating that courts, “on a variety of rationales,” have allowed officers who are executing search warrants to answer the telephone while doing so).
I wrote here about how law enforcement officers may obtain historical information about the location of a suspect’s cellular phone. There have been several developments in the law since then, including earlier this week when the Fifth Circuit rendered its decision in In re Application of the United States of America for Historical Cell Site Data.
Summary of Prior Law. Law enforcement usually seeks historical cell site location information under the Stored Communications Act, 18 U.S.C. § 2701 et seq. The SCA generally prohibits providers of “electronic communications services,” such as cellular telecommunications companies, from disclosing subscribers’ records or other information absent appropriate legal authority. 18 U.S.C. § 2702(a)(3). What legal process is necessary? Under 18 U.S.C. § 2703(c)(1), law enforcement may obtain a “record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications)” by obtaining a search warrant or by obtaining a court order. Officers tend to prefer to seek a court order, because the standard for issuance is lower. To obtain a court order, the applicant need only present “specific and articulable facts showing that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). This showing is less than the probable cause required for a search warrant.
Most courts have found no Fourth Amendment problem with this statutory scheme because the subscriber voluntarily conveys his or her location to the cellular service provider by choosing to have a cellular phone and to turn the phone on. Cf. Smith v. Maryland, 442 U.S. 735 (1979) (no expectation of privacy in telephone numbers dialed, because the numbers are conveyed voluntarily to the phone company). On this view, by requiring a court order, the SCA actually provides more protection than the Constitution requires.
Origins of the Fifth Circuit Case. The Fifth Circuit case began when “the United States filed three applications under § 2703(d) of the Stored Communications Act . . . seeking evidence relevant to three separate criminal investigations. Each application requested a court order to compel the cell phone service provider for a particular cell phone to produce sixty days of historical cell site data and other subscriber information for that phone.” The applications were submitted to a federal magistrate judge, who “granted the request for subscriber information but denied the request for the historical cell site data,” even though the Government met the “specific and articulable facts” standard. The magistrate judge concluded – contrary to the conventional analysis set forth above – that cell site location information was subject to a reasonable expectation of privacy, and that “warrantless disclosure of cell site data violates the Fourth Amendment.” The district court judge agreed, and the Government appealed.
The Fifth Circuit’s Ruling. In a 2-1 decision, the court ruled for the Government. The majority endorsed the conventional view of the Fourth Amendment issue. It stated that subscribers are aware that their cell phones are communicating with cell towers, and that service providers may record that information. When the Government “merely comes in after the fact and asks a provider to turn over records the provider has already created,” it is obtaining the provider’s records, not the subscriber’s, and is obtaining information that the subscriber has voluntarily conveyed to the provider. Under Smith and other “business records” cases, this does not intrude on the subscriber’s reasonable expectation of privacy.
National Context and Impact on North Carolina. Whether law enforcement access to location information collected by cellular service providers implicates the Fourth Amendment is a hot question right now, fueled in part by the Supreme Court’s ruling on the related issue of GPS tracking in United States v. Jones, 556 U.S. __ (2012) (holding, as I discussed here, that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’”). For example, the New Jersey Supreme Court just ruled unanimously in State v. Earls, __ A.3d __, 2013 WL 3744221 (July 18, 2013), that the New Jersey Constitution generally requires a warrant before obtaining cell site location information. The Third Circuit ruled a few years ago that judicial officials may, but are not required to, require a showing of full probable cause rather than merely specific and articulable facts before issuing an order for disclosure of historical cell site location information. In re Application of the United States, 620 F.3d 304 (3d Cir. 2010). And several similar cases are pending in other federal appellate courts, including the Fourth Circuit. (Readers interested in the Fourth Circuit case can check out this brief, signed in part by IDS Director Tom Maher in his capacity as Vice Chair of the NACDL’s Fourth Circuit Amicus Committee.)
There’s no case on point from our appellate division. A North Carolina judge considering an application for cell site location information is bound by none of the above cases, but may be persuaded by any of them. Unless and until the United States Supreme Court or a North Carolina appellate court rules on these issues, they remain open questions. Because there is at least some uncertainty about the Fourth Amendment issue, a cautious officer may prefer to use a full probable cause warrant or order rather than a specific and articulable facts order when possible.
Further Reading. The New York Times has a story about the Fifth Circuit case here. Leading network surveillance scholar Orin Kerr, who was involved in the case as an amicus, analyzes the opinion here.