Court Tells Cops They Can't Open A Flip Phone Without A Warrant

from the RILEY-STRAIGHTEDGE dept

Mon, Apr 25th 2016 11:38am — Tim Cushing

Lower courts appear to be taking the Supreme Court's Riley decision seriously -- give or take the occasional "there's no Constitution at the border" decision. If the Supreme Court says there's a warrant requirement for cell phone searches, there's a warrant requirement for cell phone searches.

The Central District of Illinois has just handed down a decision that makes it clear, in no uncertain terms, that any examination of a cell phone's contents, no matter how brief, is a search covered by Riley.

The Pekin Police Department participated in a couple of FBI-assisted controlled buys of weapons and drugs involving defendant Demontae Bell. Shortly thereafter, Bell was arrested.

Upon Bell’s arrest, a black mobile flip phone was located on his person. After Bell was arrested, he was transported to the Peoria Police Department and placed in an interview room. Shortly thereafter, Officer Sinks arrived at the police station (he was not the arresting officer). At the suppression hearing Sinks testified that before interviewing Bell with agent Nixon, he opened the door to the interview room, grabbed Bell’s cell phone from a bag or container outside the door, opened the phone (purportedly to turn it off) and showed the home screen depicting the rifle to Bell with an inquisitive look.

Officer Sinks then powered off the phone. He handed it over to FBI Special Agent Nixon and told him about the photo he had seen. Sinks then removed the phone's battery and recorded the serial number. A little more than a week later, the FBI obtained a warrant to search the phone. Five months later, another search warrant was obtained specifically targeting date/time information related to the photo Officer Sinks saw on Bell's phone.

Seems like a cursory examination of a flip phone would be covered, but Judge James Shadid points out the Supreme Court only allowed warrantless examination of cell phones if there were exigent circumstances or to ensure the phone did not pose a threat to officers (i.e., contain a concealed weapon). The government argued that opening a flip phone is not a "search" and that the photo of a gun the officer saw was in "plain view." The court disagrees, pointing out that "plain view" means "plain view" without law enforcement interaction of any sort.

The government’s response to Bell’s Motion asserts that Officer Sinks’ opening of the flip phone did not constitute a search. While it is true that a “cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a ‘search’ for Fourth Amendment purposes,” Officer Sinks’ opening of Bell’s cell phone exceeded a “cursory inspection” because he exposed to view concealed portions of the object—i.e., the screen. See Arizona v. Hicks, 480 U.S. 321, 328-29 (1987). The Supreme Court specifically addressed this issue in Hicks, noting that the “distinction between ‘looking’ at a suspicious object in plain view and ‘moving’ it even a few inches is much more than trivial for purposes of the Fourth Amendment.” Id. at 325. Officer Sinks’ opening of the flip phone, like the officer moving the stereo equipment in Hicks, “exposed to view concealed portions of the [object]” and thus “produced a new invasion of [defendant’s] privacy.”

Even though the court finds Bell to have a diminished expectation of privacy in the home screen of his phone (as opposed to its contents), that's still not enough to ignore the stipulations of the Riley decision. Lock screens or homescreens may only show limited information in relation to the contents of a phone, but they can still display a wealth of information law enforcement can only obtain with a warrant.

The lens through which all information on a cell phone is observed is the screen. On both flip phones and more modern, advanced devices, “notifications” are regularly displayed on the home screen or lock screen indicating text messages, missed calls, and other alerts. The position that the government advances here—that officers can always open a phone and look at the screen to turn the phone off without conducting a “search” at all—is inconsistent with Riley’s requirement that “unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.”

Just as Riley analyzed and rejected California’s attempt to create across the board exceptions, such as a rule allowing police to search call logs, without a warrant, the Court sees no reason to allow law enforcement to circumvent the warrant requirement in every case under the guise that they discovered evidence when they opened the phone or turned on the screen to turn the phone off.

The government attempted to use two exceptions provided by the Riley decision: officer safety and threat of remote destruction of evidence. Both of these arguments are dismissed just as quickly and soundly as the government's "plain view" argument. The court notes that Officer Sink's actions gave no indication he was worried about a concealed weapon or data being wiped from the phone.

In any case, if remote wiping was a concern, officers could have removed the battery without opening the phone, as was clearly demonstrated by Officer Sinks himself.

Officer Feehan testified that the policy was put in place partly because snooping software could be used to listen in on conversations when the phone is turned off but still connected to the battery, and other methods could “compromise data” on the phone. While the procedure may be outdated as applied to modern cell phones that lack removable batteries, that problem was not present here, and the video later showed Officer Sinks removing the battery. Where officers have two equally effective options to turn off a phone, they should choose the less intrusive option. That was not done in this case, and as a result, incriminating evidence was found.

The result is suppression of the evidence specific to the Constitutional violation: the picture of an AK-47 Officer Sinks saw when he opened the phone. Because warrants were obtained for a more thorough search, supported by probable cause unrelated to the photo Sinks saw, the suppressed evidence is pretty much reinstated in whole as the incriminating photo was located on Bell's phone. While it doesn't do much for Bell, it does at least send a message to law enforcement that the Riley decision is to be respected and that cutting corners or skirting around the edges of the ruling won't be tolerated.

Cell-Phone-Search (PDF)Cell-Phone-Search (Text)

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Filed Under: 4th amendment, flip phones, privacy, riley, supreme court, warrants

19 Comments

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Anonymous Coward, 25 Apr 2016 @ 11:43am

"Where officers have two equally effective options to turn off a phone, they should choose the less intrusive option. "

I'm not sure I agree that physically removing the battery is less intrusive than turning the phone off.
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Gumnos (profile), 25 Apr 2016 @ 11:52am

officers could have removed the battery without opening the phone

Well, until evidence such as LSD tabs or a hit-list falls out of the battery compartment. If there's no warrant and it's not in plain view, it's an illegal search. Full stop.
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TKnarr (profile), 25 Apr 2016 @ 11:53am

Re:
It's more physically intrusive, but it avoids revealing the data on the phone which is what the courts consider private.
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Anonymous Coward, 25 Apr 2016 @ 11:53am

Re:
In this sentence, the intrusiveness is with regard to the citizen's privacy interest. Disabling the phone without viewing potentially private/protected information is considered more desirable than disabling it through a means that reasonably might allow viewing such information. The court asserts that this phone could be disabled with approximately equal physical effort either way, so the officer ought to have chosen the method that minimized his chance of encountering private information.

Also, removing the battery is a more reliable method of disabling the device. Modern devices rely heavily on software-controlled power management, so a sufficiently sneaky device could treat your press on the power button as a request to pretend to power down, so that you would leave it alone while it goes about its evil actions. Removing the battery overrides any sneaky software, since malicious software cannot direct the phone to keep running despite a lack of electricity.
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Ninja (profile), 25 Apr 2016 @ 11:57am

Re:
It doesn't allow any 'final' verifications on the network or on remote servers via data connections. Sure it may not be the case of this specific phone. In case the phone cannot be turned off it should be isolated from any external signals and kept plugged in to avoid automatic shutdown.
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Ninja (profile), 25 Apr 2016 @ 12:01pm

Re:
Good point. But then again if it's standard procedure it can't be an illegal search. The only way would be to cut the phone from the world with some metallic case or bag and then keep it charged and on while stored to avoid remote wiping an whatever. You'd need to make it some sort of operational standard.
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Anonymous Coward, 25 Apr 2016 @ 12:05pm

While it is true that a “cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a ‘search’ for Fourth Amendment purposes

So by the logic in the article a cop can ask you for a piece of paper containing your medical records if it just so happens to be in plain sight, laying around, or just in hand and this is not a search or seizure?

Glad to see that logic is still flimsy on these things.

The moment an Officer touches or asks to touch an object it should be considered as nothing other than a search & seizure.
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Anonymous Coward, 25 Apr 2016 @ 12:15pm

Re:
Well, if it's lying in plain sight, then yes, he's not required to close his eyes. If you're holding it in your hand and he needs to handcuff you, he's allowed to touch it to set it down. But he can't rifle through a sheaf of papers looking for something (even if the sheaf is in plain sight) unless he has a warrant, permission, or exigent circumstances.
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DannyB (profile), 25 Apr 2016 @ 12:17pm

Exigent Circumstances
Judge James Shadid points out the Supreme Court only allowed warrantless examination of cell phones if there were exigent circumstances or to ensure the phone did not pose a threat to officers
But your honor! We had reason to believe that an explosive device might be concealed in the cell phone, so we had to search it.

Honest!

We're cops. We're the good guys. You can trust us.
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Anonymous Coward, 25 Apr 2016 @ 12:46pm

Re: Re:
In pretty much all cases the in plain sight justification is over used because the officer 'inserts' themselves into situations where it becomes much easier to have things in plain sight.

And there is no exigent circumstances or plain sight exceptions allowed by the Constitution either. It says without a warrant Officers can't do shit to their person, house(s), paper(s), or effect(s)! Sure, there are a lot of folks like the Supreme court and you that cook up this magic shit to remove protections but there is no exigent circumstances provided in the 4th as a work around so stop putting that shit up!

If the officer has no warrant they cannot so much as read shit that is easily considered a personal object of the person or not the target of a warrant. If you are not prepared to defend the Constitution to the last letter then you have no standing to challenge the removal of other rights. How about we take your freedom away and make you a slave... exigent circumstances after all!

If it is important enough the person can be arrested and a warrant secured to search or read documents, phones, or effects!

Damn, this shit is not hard, inconvenient for law enforcement sure... but NOT FUCKING HARD!
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Arthur Moore (profile), 25 Apr 2016 @ 3:27pm

Re: Exigent Circumstances
Ehh, I like the decision but this was probably more of an issue with policy and training than anything else. I'm perfectly willing to believe the officer was following poorly written instructions or not even thinking about how he turned the phone off.

I'm glad the court didn't go with a 'just this one time' it's ok decision though.
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Anonymous Coward, 25 Apr 2016 @ 5:39pm

It was a cursory examination but it was only a cursory examination after the officer "opened" the flip phone, flipping the cover to the open position. Officers are not allowed to do that, even if it's not locked. They first need to obtain a warrant before they can "flip" the phone to reveal the image on the home screen.

It's the same with a laptop. Officers cannot flip the laptop open to view whatever is displayed on the monitor, without a valid search warrant.
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Anonymous Anonymous Coward (profile), 25 Apr 2016 @ 7:13pm

Local
Is the Central District of Illinois farther than 100 miles from a port of entry, including all international airports? If not whom do they think they are kidding.
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Anonymous Coward, 25 Apr 2016 @ 9:52pm

Re: Re: Re:
And there is no exigent circumstances or plain sight exceptions allowed by the Constitution either. It says without a warrant Officers can't do shit to their person, house(s), paper(s), or effect(s)!

The Fourth actually says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

It actually doesn't say you need a warrant to see what's in front of you - if all that's needed are open eyes, that's not an *unreasonable* search. If you take this too far, you get ridiculous situations like someone tries to rob the police station and the police aren't allowed to notice that he has a gun because they don't have a warrant to search him. The police are allowed to have open eyes and notice what's in front of them.

Now, perhaps they went too far in this case by actually opening the phone - the information here was NOT in plain view. But that's not the same thing as saying that the plain view exception doesn't exist.
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Jim Ardis, 26 Apr 2016 @ 1:55am

After Bell was arrested, he was transported to the Peoria Police Department and placed in an interview room.
...
the suppressed evidence is pretty much reinstated in whole as the incriminating photo was located on Bell's phone.
Good try, Demontae, but not good enough. Next time, don't short the big dog.

Trill as evah,
J.A. ;)
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Gumnos (profile), 26 Apr 2016 @ 3:58am

Re: Re:
Options include accepting the spoliation of evidence as collateral damage for the illegal search; coming up with a Faraday-bag style isolation like you describe; or being willing to accept that a remote wipe is a possibility. If the phone's owner has been arrested, it's less likely that they have capabilities to execute a remote wipe, but it's a possibility.

However, it's possible to force either the potential spoliation-of-battery-case-evidence or device-gets-wiped situation by writing some sort of "wake every 30 minutes and check if my owner has entered their pass-code at any time in the last 24hr, and if not, wipe myself" program.
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Anonymous Coward, 26 Apr 2016 @ 6:12am

The same government that screams bloody murder at the existence of "warrant free zones" (encryption) creates a warrant free zone at the border.
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That One Guy (profile), 26 Apr 2016 @ 7:33am

'No no silly peon, the government can't be hypocritical, says so right in the (classified) definition of the word.'
Think of it like one way windows. They want the ability to look at you, but they don't want you to have the ability to look at them. Likewise you're not allowed to hide stuff from them, but they can absolutely hide stuff from you.
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darren chaker (profile), 6 May 2016 @ 12:12am

4th Amend Alive and Well
I write on 4th Amend and technology, http://darrenchaker.us Good to see the courts are keeping the Riley decision alive and well. Opening a phone, is just as the court in this case, altering its current state. Obtaining a warrant is why police have access to on call judges 24/7. Police need to follow the law to get the people who do not follow the law in jail. If police fail to do so, it results in evidence getting kicked out of court, and often times the case follows.
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