Federal Court Says Sneaking A Warrantless Peek At A Cellphone Lock Screen Violates The Fourth Amendment

from the hang-back-a-bit,-g-men dept

Keep your mitts off cellphones if you don't have a warrant. That's the message at least one court is sending to law enforcement. A 2014 decision by the US Supreme Court introduced a warrant requirement for cellphone searches. Since then, cops mostly seem to be complying with the mandate. Of course, this half-assed analysis of mine rests solely on federal cases I've managed to catch drifting downstream in the internet flotsam, so it's far from conclusive. But -- unlike the SCOTUS decision erecting a warrant requirement for historic cell site location info -- there doesn't seem to be much gray area in the Riley decision for law enforcement to explore.

But what exactly is a "search" in the Fourth Amendment/Riley context? It depends on which court you ask. The most straightforward reading of the Riley decision would be a warrant requirement for a search of a phone's contents. But a couple of courts have read this decision even more narrowly. Riley doesn't just cover full-fledged searches of device contents. It also covers more sneaky peeks of suspects' phones.

In 2016, a federal court ruled that the FBI's opening of a flip phone (roughly one week after the suspect's arrest) violated the Fourth Amendment. Even the recognition that the home screen of a phone was subject to a "diminished" expectation of privacy couldn't save the feds' search. The court said the FBI's search of the unexposed area of the phone -- the closed screen -- was a search and subject to Riley. To rule otherwise would be to allow the government to use similar cursory examinations to dodge the warrant requirement or unlawfully seek info to buttress affidavit claims in warrant requests for a more thorough search.

[T]he 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.

A similar case has come to similar conclusions in a Washington federal court (via FourthAmendment.com). Flip phones may have been (mostly) resigned to the scrap heap of cellphone history, but the precedent -- if not the emphasis -- remains. Lock screens are still protected under the Fourth Amendment. From the decision [PDF]:

Here, the FBI physically intruded on Mr. Sam’s personal effect when the FBI powered on his phone to take a picture of the phone’s lock screen. See United States v. Jones, 565 U.S. 400, 410 (2012) (plurality opinion) (holding Government searched a car by attaching a GPS device to the car); Bond v. United States, 529 U.S. 334, 337 (2000) (concluding Border Patrol agent searched a bag by squeezing it); Arizona v. Hicks, 480 U.S. 321, 324–25 (1987) (holding officer searched stereo equipment by moving it so that the officer could view concealed serial numbers). The FBI therefore “searched” the phone within the meaning of the Fourth Amendment. See Jardines, 569 U.S. at 5. And because the FBI conducted the search without a warrant, the search was unconstitutional. See Vernonia Sch. Dist., 515 U.S. at 653.

This may have had something to do with the delay between the seizure and the search, which gave the FBI ample opportunity to ask for judicial approval for a search. Sam's phone was seized by police officers on May 15, 2019. The FBI didn't peek at the phone until nearly eight months later: February 13, 2020. As the court notes, the original seizure (and possible search) is completely separate from the FBI's warrantless look months after the original seizure.

In their respective briefs, Mr. Sam and the Government treat the police’s and FBI’s examinations as legally indistinguishable. They are not. The police’s examination took place either incident to a lawful arrest or as part of the police’s efforts to inventory the personal effects found during Mr. Sam’s arrest. The FBI’s examination, by contrast, occurred long after the police had arrested Mr. Sam and inventoried his personal effects. Those examinations present significantly different legal issues…

The government tried to argue a lock screen contains no privacy interests. The court disagrees. Even though the information gleaned might be minimal (the FBI agent was likely looking to verify the phone was still in "airplane" mode), the expectation of privacy remains… as does the warrant requirement. It's the intrusion that matters -- not the government's subjective beliefs about the contours of privacy protections.

The Government argues that the FBI did not need a warrant because Mr. Sam had no reasonable expectation of privacy in his phone’s lock screen. But that expectation is irrelevant. [...]

[W]hen the Government gains evidence by physically intruding on a constitutionally protected area—as the FBI did here—it is “unnecessary to consider” whether the government also violated the defendant’s reasonable expectation of privacy.

The PD's search -- while more intrusive -- remains in a gray area of law. The court isn't confused. But the record is, making it impossible for the court to consider the Constitutional ramifications of the PD's search of Sam's phone. The department that took control of the seized phone did not clarify what it did to the phone or attempt to justify any actions it took by citing PD policy. Apparently an argument was raised that a lock screen peek was necessary to "inventory" the phone, but the PD submitted nothing that stated this step was normal or needed.

[T]he record does not show why the Tulalip Police Department felt it necessary to power on or manipulate Mr. Sam’s cell phone to properly inventory the phone. The record also does not show whether the Tulalip Police Department’s established procedures require its officers to power on every cell phone that they inventory. Indeed, the record does not even show whether the Tulalip Police Department searched Mr. Sam’s cell phone. Accordingly, the Court cannot resolve Mr. Sam’s motion to suppress as to the police’s examination of the phone.

But that only deals with the PD's possible search of Sam's phone. The FBI's involvement is much clearer and more easily resolved. Powering up a phone to look at the lock screen is a search and requires a warrant. Even if the lock screen contains nothing more than a nickname (as this one did), it may still indicate ownership or possession which has evidentiary value in an investigation and prosecution. If the FBI wants to take a brief look at this information, it needs to get a warrant.

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Filed Under: 4th amendment, lock screen, warrants