Court Rejects Evidence From Warrantless Search Of Phone Six Years After The Gov't Seized It

from the doing-nothing-since-2012-doesn't-make-it-still-2012 dept

There are a number of exceptions to warrant requirements, and the government is willing to utilize every one of them to salvage evidence obtained from an illegal search. Sometimes the arguments work. Other times -- like in this instance where six years elapsed between searches -- there's no credible argument for failing to seek a warrant. (via FourthAmendment.com)

Jason Gandy's cellphone was seized and searched "at an international border" in 2012. The phone was held for 48 hours for a forensic search. This did not reveal the contents of the phone, but created an electronic record of what was contained on the phone. The court's description says the search only produced a "technical description" of the phone's contents, but did not expose the contents themselves.

Like it or not, this search -- even a forensic search -- fell under the "border exception" to the Fourth Amendment, which allows law enforcement to search devices for border/national security reasons without having to come up with reasonable suspicion, much less probable cause.

That search was lawful. It was the second search that broke the rules, including one handed down by the Supreme Court in 2014. From the decision [PDF]:

In July 2018, six years after the initial border search, the government conducted a warrantless search of Gandy’s cell phone. On July 11 and 13, 2018, the government produced to the defense the evidence discovered during the search and stated the intent to offer the evidence as evidence.

Maybe the government thought it was grandfathered in to the pre-Riley warrantless phone search standard. Maybe the government just didn't care. Maybe it thought the long list of exceptions would save it, especially the one related to searches at international borders. But it definitely realized it had screwed up when Gandy moved to suppress the evidence, because it did this:

On July 13, after Gandy moved to suppress the newly produced text messages, the government applied for and obtained a warrant to search the phone. The agent who signed the search-warrant affidavit was not the same agent who conducted the 2012 search. The affidavit merely states that the cell phone had been in the Department of Homeland Security’s custody since it was seized at the border in 2012.

The government argued it could perform a warrantless search six years after the phone was seized while nowhere near the border under the border search exception. The court responds with, "Well, why don't we just get rid of the Fourth Amendment altogether, then?"

The government’s second, warrantless search of Gandy’s phone did not occur at a border or at the time of the crossing. It happened six years after Gandy returned to the United States after being denied entry to the United Kingdom. Gandy and his phone have both been in custody since 2012, within the United States. Searching Gandy’s phone had no connection to the government’s interest in preventing illegal entry or contraband smuggling at an international border. Extending the border-search exception to the government’s warrantless search would “both undervalue the core Fourth Amendment protection afforded” cell phones under Riley and “‘untether’ the [border-search] exception ‘from the justifications underlying it.’”

The court also notes that holding a phone for six years before performing a warrantless search removes any question of "exigency" from the discussion. It also refuses to entertain the government's "independent source" argument.

The independent source doctrine does not apply. The government has not shown that the search done—again—after the government got the search warrant was untainted by the earlier, warrantless search. [...] The government has not shown that “there is a reasonable probability that the contested evidence would have been discovered by lawful means in the absence of police misconduct.”

And there's no "good faith" here either. The law was completely settled by the time agents warrantlessly searched Gandy's phone.

The good-faith exception does not apply to the government’s second, warrantless search of Gandy’s phone. That search occurred in July 2018. Under the “law existing at the time of [the July 2018] unconstitutional search,” it is clear that the search was not justified by the border-search exception. The government conducted the search years after the Riley Court clearly held that “what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”

It's a strong opinion that expresses very clearly the multiple ways the government screwed up. Unfortunately, the "border exception" remains intact. This allows the government to seize devices, hold onto them for months or years, and search them at its leisure. If the border exception were truly about preventing the smuggling of contraband or drug/human trafficking, you'd think searches would be performed as soon as possible, rather than allowing more than a half-decade to elapse between searches. But as long as people's property remains solely in the control of the government, the more likely it is that searches will be performed whether or not the government truly has an articulable reason to do so.

Filed Under: 4th amendment, forensic search, jason gandy, phone search, warrants

State Appeals Court Says Exigency Beats A Warrant Requirement If A Phone Has A Passcode

from the there-is-no-'going-dark,'-I-guess? dept

The Supreme Court's Riley decision made one thing clear: cellphones are not to be searched without a warrant. Somehow, the Georgia Court of Appeals has reached a different conclusion than the Supreme Court of the United States, even as it cites the ruling. [h/t Andrew Fleischman]

It's a decision [PDF] that's decidedly law enforcement-friendly. And it's one that will pair nicely with the FBI's overblown "going dark" assertions. An arrested individual requested his phone so he could retrieve a phone number to give to the officers questioning him. Here's what happened once he had retrieved that info.

Once [Stephens] unlocked his phone, got the information that he needed, the phone was recovered from [Stephens] at that point. It had not locked out, and having the open pass code at that point, . . . I took the phone down the hall to one of our investigators that’s tech savvy and asked him to plug the phone in and do a phone dump, dump the information without reviewing the information and without advising me of anything if he even got anything off of the dump, that the purpose would be for me to be able to obtain a search warrant for the content of the phone. The experience we have is if the phone goes back to password protection, we’re not able to get into it.

A warrant was sought after the data had already been downloaded. Included in the data dump were photos of a gun prosecutors introduced as evidence. The suppression motion challenged the warrantless search. The lower court found a warrant should have been obtained before the data dump began.

The trial court recognized that Stephens had “a right to privacy in the contents of his cell phone,” and also further acknowledged that per Riley v. California, __ U. S. __ (134 SCt 2473, 189 LE2d 430) (2014), “the police may no longer, without a warrant, search such a phone when seized from an arrestee.”

But it also found the officers had a justifiable excuse for the warrantless data grab.

The trial court, however, found that post Riley, “[e]xigent circumstances – such as the risk of imminent loss of data through a remote wipe of the phone – can justify a warrantless search of a seized cell phone.” And, similarly, according to the trial court, police may “take steps to preserve the digital evidence stored in a cell phone while awaiting judicial authorization to search that evidence.” The trial court held that the measure taken here by police of downloading or “dumping” the contents from Stephens’s cell phone without looking at the contents, was permissible under Riley as a “protective step, taken solely to preserve evidence the detective reasonably believed could be destroyed.”

The appeals court sees the trial court's interpretation of Riley and raises.

Here, pretermitting whether the trial court correctly found that the warrantless downloading of the contents of Stephens’s cell phone was permissible under the exigencies exception to the Fourth Amendment, we hold that even if an unlawful search occurred, the evidence acquired from the downloading was admissible under the independent source doctrine.

[...]

Thus, even assuming that the initial downloading was an unconstitutional search, the information subject to the motion to suppress was obtained through the execution of a valid search warrant.

There you have it: two exceptions to the bright line drawn by the Supreme Court. Riley said warrants are needed to search cellphones. The Georgia Appeals Court agrees, but holds that as long as a warrant is obtained at some point in time, the search can happen prior to the acquisition of a warrant.

In this particular case, there's appears to be minimal intrusion. The information used during the trial wasn't acquired until after a search warrant was obtained, at least according to officers' testimony. But allowing searches to take place prior to the acquisition of a warrant encourages bad behavior -- like checking out data dumps for evidence first and building a warrant request around that, rather than the facts known to officers prior to the (warrantless) search.

It also encourages fishing expeditions because a warrantless search has no boundaries. Warrant requests and the judges that approve them set the limitations on the scope of searches, restricting them to only evidence relevant to the criminal allegations laid out in the affidavit. Working backwards from a search to a warrant means the government can redraft its warrant request prior to delivering it to a judge if it sees something else that might make for a better prosecution.

In this case, no search of the data dump occurred before the warrant arrived. That's good but it's not exactly Riley. Exigent circumstances could theoretically apply to any case involving a phone with a passcode, eliminating the warrant requirement and turning it into an afterthought. "Independent source" does the same thing, granting forgiveness for the constitutional violation as long as a warrant is sought post-search. This hole in Riley is somewhat narrowed by the court noting the warrant request wasn't based on any info derived from the data dump. But that only applies to the specifics of this case and that assumes officers won't lie about the chain of events or engage in parallel construction.

It also invites officers to use the "going dark" theory of unbreakable encryption to claim exigent circumstances guide phone searches, rather than the warrant requirement SCOTUS handed down. With cellphone encryption, any momentarily-unlocked phone creates a convenient "exigent circumstance" that's unlikely to be seriously challenged by courts. Even if other tools and workarounds can be used to crack a locked phone, the presence of one temporarily free of roadblocks will be searched to ensure maximum operational efficiency, rather than adherence to the Fourth Amendment as defined by the Riley decision.

This is a bad call by the Appeals Court. It could have found a way to deter future abuse without actually suppressing the evidence. Instead, it gave Georgia law enforcement a road map for warrantless phone searches.

Filed Under: 4th amendment, exigency, georgia, passcode, phone search, privacy, riley, warrant