Cell Phones, Passwords, and Search Warrants
| Publication year | 2015 |
| Pages | 47 |
| Citation | Vol. 43 No. 8 Pg. 47 |
Articles Criminal Law
Cell Phones, Passwords, and Search Warrants
By Gregory R. Werner.
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
About the Author
Greg Werner is a District Court Judge in El Paso County—gregory.werner@judicial.state,co.us.
Police must generally obtain a search warrant before conducting a search of a cell phone. This article explores Fifth Amendment considerations associated with obtaining the password for that phone and the parameters regarding the search of the phone itself.
On June 25, 2014, the U.S. Supreme Court announced its decision \n Riley v. California,[1] holding that police must generally obtain a search warrant before conducting a search of a defendant's cell phone. However, as with many decisions involving the use of evolving technology, the case leaves a number of important questions unanswered. This article provides a framework for analyzing those unanswered questions.
The Riley Decision
Riley involved a consolidated appeal of two separate cases. In the first case, David Riley was stopped by police for driving with expired license plates. During the stop, police learned that Riley's license had previously been suspended. As a result, they impounded Riley's car and conducted an inventory search of it. The inventory search revealed two handguns hidden under the car's hood. Other items suggested Riley was associated with the "Bloods" street gang. A cell phone was seized from Riley's pants pocket. The officer accessed information on the phone, including photographs of Riley standing in front of a car they suspected had been involved in a shooting a few weeks earlier. Riley was ultimately charged with that shooting.
Before trial, Riley moved to suppress the results of the search of the phone on the grounds that the phone had been searched without a warrant and there were no exigent circumstances that justified a warrantless search of the phone. The trial court rejected that argument. The evidence was admitted and Riley was convicted on all counts. Riley appealed his conviction to the California Court of Appeals, which affirmed.[2] The California Supreme Court denied certiorari.
In the second case, a police officer observed Brima Wurie make an apparent drug sale from a car. Officers arrested Wurie and seized two cell phones from him. One of the cell phones was a "flip phone." While Wurie was being processed at the station, the officers noticed the phone was repeatedly receiving calls from a source identified as "my house." The police opened the phone and saw a photograph of a woman and a baby as the phone's wallpaper. The police accessed the call log for the phone and pressed another button to determine the phone number associated with the "my house" label. Police subsequently used an online phone directory to trace that phone number to an apartment building.
After obtaining the address for the apartment building, officers went to the building, where they saw Wurie's name on a mailbox and observed through a window a woman who resembled the woman in the photograph on Wurie's phone. Using this information, they secured the apartment while obtaining a search warrant. After executing the warrant, they found and seized 215 grams of cocaine, marijuana drug paraphernalia, a firearm and ammunition, and cash. Wurie was then charged with possession with intent to distribute.
Wurie was prosecuted in federal court. He moved to suppress the evidence obtained from the search of the apartment, claiming it was the fruit of an unconstitutional search of his cell phone. The district court denied the motion. Wurie was convicted on all counts and appealed his conviction to the First Circuit Court of Appeals. A divided court reversed the trial court's ruling on the suppression issue, holding that, due to the amount of personal data cell phones contain and the negligible threat they pose to law enforcement interests, cell phones are distinct from other physical possessions that may be searched incident to arrest and, thus, a warrant is required for such a search.[3]
The U.S. Supreme Court granted certiorari in both cases. In an otherwise unanimous opinion written by Chief Justice Roberts in which Justice Alito separately concurred, the Court concluded that a cell phone was a new and unique device that required a different analysis than was traditionally given to other kinds of personal property.
The government had argued that a search of all data stored on a cell phone is "materially indistinguishable" from searches of other sorts of physical items, such as pockets, wallets, purses, cigarette packs, and other common items found on a person. Justice Roberts responded by writing:
[T]hat is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.[4]
The Court went on to state:
[T]here is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day.[5]
The Court noted both the volume and the nearly endless variety of records that may be stored on a cell phone:
[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 any 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.[6]
The Court also rejected the government's alternative suggestion of a so-called "analog test," which would require trial courts to determine whether the particular information sought had a similar analog version and then determine whether Fourth Amendment principles applied to the analog version. In doing so, the Court stated, "an analog test would launch courts on a difficult line-drawing expedition to determine which digital files are comparable to physical records,"[7] and would "keep defendants and judges guessing for years to come."[8] Instead, the Court adopted the general rule that police are prohibited from searching a cell phone unless they have first obtained a warrant.
Riley was a Fourth Amendment decision, and was therefore grounded on the Court's conclusion that modern cell phones simply have too much private information in them to be subject to warrantless searches. But that does not necessarily mean the privacy concerns extend to all electronically stored data in all of its forms. Thus, one federal trial court has held that Riley does not extend to the information contained on a magnetic strip of a credit card because the information stored on it is intended to be read by third parties;[9] nor does it mean there is one test for all kinds of holders of cell phones. The U.S. Supreme Court itself has long recognized that probationers and parolees have diminished expectations of privacy;[10] a warrant therefore may not be required for a search of their cell phones, as at least one federal trial court has now held.[11]
Or consider a classic case of stalking in which the defendant sent certain messages to the victim. At least one court in Oregon has taken the position that the sender has given up his privacy interests in the content of the text message by sending it to the victim, and therefore that Riley does not apply at all.[12] That precise issue has not been reached by Colorado appellate courts, but they have addressed the issue of authentication of the text messages themselves.
In People v. Bernard,[13] the Colorado Court of Appeals held that a stalker's text message could be authenticated by introducing testimony that it is what it purports to be or through consideration of distinctive characteristics shown by an examination of its contents in light of the circumstances of the case. However, in that case, the prosecution used text messages received by and obtained from the victim's phone, not the defendant's phone. If the prosecution seeks access to defendant's phone not to show the content of the messages, but rather to establish that the messages were in the possession of the defendant and actually sent by him, a warrant will be required.
Even when a cell phone is seized pursuant to a warrant, Riley leaves open two significant questions: Can a defendant be compelled to provide a password to the phone? What is the proper scope of the warrant to be issued and the resultant search?
Passwords
The Riley Court recognized that law enforcement is very unlikely to come upon an unlocked phone "because most phones lock at the touch of a button or, as a default, after some very short period of inactivity."[14] Therefore, if incriminating information exists on a telephone, law enforcement will most likely need the defendant's assistance to gain access to the secured, and sometimes encrypted, information. In addition, because the password is held by the defendant and unique to that particular phone, a search warrant issued to a cellular service carrier or data provider will not yield the information necessary to unlock the phone.
Some courts have examined the issue of whether a defendant can be required to provide a password, but all the...
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