by Tim Cushing
Techdirt. / 2016-12-20 19:22
Two juveniles fled their vehicle during a traffic stop, with one of them (referred to as “K.C.” in the ruling) leaving behind his cellphone on the car’s seat. This phone — whose lockscreen featured a photo of someone who “looked similar” to “K.C.” — was taken by the officer.
Several months later, the PD’s forensic lab was asked to determine ownership of the phone. The phone was locked with a passcode, but the lab was able to unlock and retrieve this information. No warrant was obtained and the search apparently wasn’t limited to determining ownership. The use of evidence obtained from the phone was challenged, but the state felt it had plenty of warrant exceptions to save its search.
K.C. was charged with burglary of a conveyance. He moved to suppress the contents of the cell phone, from which the police had obtained his name, on the ground that the phone was searched without a warrant. After the presentation of the foregoing facts, the prosecutor argued that the phone was abandoned, and the owner had no expectation of privacy in the phone once abandoned.
Generally speaking, abandonment of property results in privacy expectations being stripped. In this case, however, the court found that K.C.’s use of passcode meant that he retained an expectation of privacy even after leaving the phone behind.
The court points to the Supreme Court’s Riley decision, noting that today’s smartphones are not simply “locked containers.” They are more equivalent to a locked house, considering the wealth of information contained in them. If law enforcement can’t search a house without a warrant simply because the resident fled when seeing them (“abandoning” the house), it can’t search a locked cellphone simply because it was left behind by a fleeing suspect.
It quotes this section of the Riley decision on the way to its conclusion:
In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F.2d 202, 203 (C.A.2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.
It then addresses the state’s claim that abandoned property of all types no longer carries an expectation of privacy.
Our supreme court has recognized that “[t]he test for abandonment is whether a defendant voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy…”
While we acknowledge that the physical cell phone in this case was left in the stolen vehicle by the individual, and it was not claimed by anyone at the police station, its contents were still protected by a password, clearly indicating an intention to protect the privacy of all of the digital material on the cell phone or able to be accessed by it. Indeed, the password protection that most cell phone users place on their devices is designed specifically to prevent unauthorized access to the vast store of personal information which a cell phone can hold when the phone is out of the owner’s possession.
It’s the steps taken to protect the phone’s contents that determines the expectation of privacy in abandoned phone. The court doesn’t appear to be extending this protection to all abandoned cellphones.
The court also points out that, given the circumstances of the case, seeking a warrant would have been a very minor inconvenience.
Where a cell phone is “abandoned,” yet its contents are protected by a password, obtaining a warrant is even less problematic. In this case, how difficult and inefficient would it have been for the officer to obtain a search warrant, when the cell phone in question was in police possession for months?
Also of note: the good faith exception was never raised, otherwise this decision may have gone the other way. That’s rather surprising, considering it’s almost always raised when evidence might be suppressed, no matter how far away removed from any common definition of “good faith” the government’s actions were.
It would also be interesting to see this line of thinking applied to the Third Party Doctrine. If attempts are made to limit the generation of third-party records (the use of VPNs/Tor for web browsing, shutting off GPS location for phones, etc.), does that give the records that are still generated a greater expectation of privacy? Or would it simply be assumed that, no matter what efforts are made by cellphone/computer users, anything held by a third party can still be obtained without a warrant?