Two (silly?) questions about the cell (smart?) phone cases

In this post, I ask two questions about the Supreme Court’s recent “cell phone” cases.  To be clear, I express no opinion on the merits of pending or impending matters that appear or may appear on my docket as a result of those cases. That said, because it is practical and rule based, I like the Court’s simple approach–get a warrant.  I do have questions though.

First, what is a “cell phone?”  Is a “cell phone” a “smart phone?” Is a “flip phone” that can send and receive phone calls and text message but perform no other function save for maintaining a call log and a contact list, a “cell phone” within the meaning of the Court’s new jurisprudence? If so, why?

samsung-u350-smooth-verizon-2

Second, virtually all smart phones can be locked.  That is, they cannot be opened and operated without using a code or a fingerprint scanner. Indeed, my government iPhone locks itself when no longer than five minutes has expired after the last use and may lock as early as one minute.  At that point, I cannot use the device without unlocking it using a six digit code or a fingerprint scanner. (A terrible pain in the ass.)

If a digital device is easily locked and therefore protected against prying eyes when locked, there is little doubt that the owner has a reasonable expectation of privacy in the massive storage capacity of that device provided the locking mechanism is enabled. A warrant therefore would be required to search the contents of a locked cell phone no matter how one views the Fourth Amendment.

But, if the phone is not set to lock, why should a warrant be required when the owner has not taken a simple and easy step that would protect his or her privacy when out and about in an auto with his smart phone? Why is the search of this vast “open container” lawfully seized by the police, but without a warrant, unreasonable?

unlocked-smartphone

These are probably silly questions. Nonetheless, humor me. What say you?

RGK

 

 

 

27 responses

  1. I know the drugs are taking a toll. Under your rationale could not the police conduct a search of any residence because the doors were not locked? Or any vehicle, building, courthouse?

  2. It appears clear that both a “smart phone” and a “flip phone” are cell phones within the meaning of the Court’s jurisprudence. The phone in United States v. Wurie was a flip phone (slip op. at 3), and the phone in Riley v. California was a smart phone (slip op. at 2), and both cases were consolidated together with a joint opinion.

    Your second question is more interesting. I think the pragmatic reality is that most people do not choose the configuration of their cell phone locking. You could set up your iPhone to lock less frequently. My Android phone by default locks much faster than 5 minutes. I suspect that most people accept the manufacturer’s default guidance on locking and do not make significant adjustments. Further, despite expectation of privacy, I imagine most people do not carefully think of the privacy implications of this choice. Most people do not expect to be arrested and to have their phones potentially subject to search. It seems to me therefore that a rule that, in practice, turns on which brand of phone a consumer purchased is not a very good rule.

    The above is not a legal argument though. Bright line rules are certainly easier to administer than fuzzy rules, and there is a certain convenient simplicity in what the Court has crafted. And yet one imagines this area will rapidly evolve as law enforcement determines which kinds of exigencies may be permitted and which will not.

  3. It would be a simple and easy step for me to put a padlock on my purse, but even without doing so I expect that the police need a warrant (or reasonable grounds, etc., ymmv) before they can search it. I feel the same way about my phone.

    I’m curious as to how this works with laptops or tablets? Since they often have the option of being locked or not locked, does the same logic apply? Surely laptops have been around long enough that there’s caselaw on this.

    Disclaimer that as I’m not American I probably don’t understand the nuances of the Fourth Amendment.

  4. I love it when the Court makes a “simple” case because we spend years litigating it. Let me try and answer the questions.

    First, a cell phone is a large category of phones that include both a smart phone and a flip phone. They are treated the same jurisprudence-wise because we as a society recognize that they are more or less the same thing, despite the differences in capabilities. Flip phones have text and call capabilities, while smart phones have text, call, internet and software capabilities, as well as photographic and (often) GPS navigation abilities abilities.

    However, your first question leads to some interesting concerns about the extent of the opinion. I wonder about the limits of this opinion, especially given the extremely broad privacy discussion found on page 19 onwards of the slip opinion. I don’t see anything logically restricting that discussion to cell phones and not other electronics such as laptops or those new tablets such as ipads. If a police officer seized an electronic device off my person containing an operating system such as Windows, I would probably raise a fourth amendment challenge under this opinion.

    As to your second question, that one is simpler. Locking your cell phone, as you’ve noted, is not necessarily a privacy choice, it’s just following manufacturer settings. I’ve seen cases where police officers have abandoned cell phones and guess the combinations (the brainiacs lock them with ‘1234’).

    If you take a look at page 21 of the slip opinion, they specifically reject the open container philosophy when it comes to cell phones, and, as I’ve noted above, probably with all personal electronics. The problem with the open container issue is that cell phones contain access to data that is stored in different places. Your cell phone numbers may be stored on the phone itself, but your facebook profile and your bank account are stored online. Rather than trying to split hairs on this distinction, the Court rejects it and rules that all data is treated the same.

    Okay enough side-tracking. You ask whether they should have a warrant for an unlocked cell phone. I say yes, because the focus of the decision is on the privacy interests concerned, not an individual manifestation of the expectation of privacy. The Court didn’t draw a line between a locked phone and an unlocked one, and that’s because, as John notes above, manufacturers lock the phones, not individuals. Sure, you can change the password, but what kind of legal rule would allow police to open ones that use the manufacturer password but not a user-based password? That would be impossible to enforce.

    I personally like this rule. Yes it’s a pain for law enforcement, but I think it’s a good pain. Members of my generation have always hated the broad cell phone search rules because we believe that are online lives are mostly private, and should remain so. It’s just how we view the world. This decision recognizes this societal understanding.

  5. I can’t speak to the legal question as I am not a lawyer. My background is engineering and I can perhaps offer some insights in this area.

    The flip-phone pictured above is a Samsung u350. It stores much, much more than just a call log and contact list. Even this basic phone contains a GPS, camera, and 64MB of storage. It can contain locations, images, or audio. It can store my entire personal and professional calendar. The storage capacity is not large by today’s standards, but today’s standards are enormous. The phone has more storage capacity than an entire household might have had 30 years ago. One could store several lifetimes worth of textual financial and medical records on this device if one were so inclined.

    Even our most simple devices today have incredible capacity for information storage.

  6. Dear Judge Kopf,

    The companion case, which was from the First Circuit, involved an old-fashioned flip phone, and the search was primarily of its call log and address book. The Government argued that searching a phone’s call long was no different than using an old-fashioned pen register, which doesn’t require a warrant and isn’t deemed a “search.” The Court rejected that analogy in a single paragraph that distinguished the pen register cases because examining the call log of the cell phone was indisputably a “search.”

    Given how far the Court’s opinion went, I doubt that failure to activate the lock makes any difference. First, the opinion seems to be all about bright-line rules (see Justice Alito’s concurring opinion). Second, a warrant is needed to search a house even if the front door is left unlocked. Now that we know from this decision that there is a protected privacy right in the contents of a cell phone, it’s hard to imagine that failure to use the lock negates the expectation of privacy that the Court has clearly established.

    I wonder if this is a “cell phones are different rule,” or if the holding here leads to a requirement that the police obtain a warrant to search an arrestee’s papers. Consider, e.g., a reporter’s notebook or the financial records in the briefcase of a criminal enterprise’s bookkeeper. Very different societal interests, but each very sensitive in its own way. If one assumes that the holding applicable to smart phones extends to tablets (iPads and such), what’s the principled difference between paper records and electronic devices that are used as a substitute? I would say “none,” but I’m just a patent lawyer with an interest in criminal procedure. Probably the response would be “there may not be a principled difference, but we need bright-line rules in 4th Amendment jurisprudence.”

  7. Is a cellphone anything that I can make or receive conversations, text or email with? If so, this widens the group to include iPads, notebooks and a multitude of other held held devices capable of doing all of the above including accessing the internet. These devices are in essence handheld computers. I do believe that in order to obtain information from my computer a warrant is required.

  8. Charles,

    Like all good patent lawyers, you are practical and thoughtful and word-wise. I agree that probably “there may not be a principled difference [between a pile of tangible papers sitting next to the driver and a cell phone, tablet, iPad and such with those same papers stored thereon sitting in the same place], but we need bright-line rules in 4th Amendment jurisprudence.” Thanks for your engagement.

    All the best.

    RGK

  9. Mark,

    When you say that you “know the drugs are taking a toll” I assume you are talking about the evident chemo fog that motivated my silly questions.. Just kidding.

    As for your parade of parade of horribles regarding the “locked” or “unlocked” issue, I was concentrating on a search incident to address as a part of a motor vehicle stop since that was the context of the cases. The Court has consistently treated this cases as different, although the precise reason for doing so is often confused. Anyway, as Justice Alito suggests, you can make a pretty good historical argument that when a person ventures out upon the public highways with his possessions with him, the privacy interests protected by the Fourth Amendment were never intended to shield the traveler from evidence based searches of objects found on or near the driver or passenger.

    All the best.

    Rich

  10. RGK, I believe that Riley‘s majority opinion is silent on whether a pager is covered.

    But given the reasons that a cell phone is covered, and that a pager is clearly distinguishable from a cell phone and tends to lack the features of a cell phone: “many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras,video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. One of the most notable distinguishing features of modern cell phones is their immense storage capacity.” (slip op. at 17) —

    — I would not read the opinion to cover pagers. (Despite the fact that yes, pagers clearly contain microprocessors and could be construed as falling within the Court’s definition of “minicomputer.”)

    But this is surely left to Article III judges in your Honor’s shoes to decide, and may well be fact-specific.

    All the best.

  11. It’s an interesting question and I certainly don’t know precisely where the line has moved in terms of law.

    From an engineering perspective, pagers may well no longer exist as simple non-computer devices. As technology progresses, general purpose CPUs and large-scale storage become so cheap we find them embedded in even the most simple of objects. It would cost more to build a non-general purpose device.

    An example: Cheap fingernail-sized flash cards contain embedded processors the size of a pin-head with approximately as much processing power as a top of the line personal computer from 1990, with a cost of around 20 cents: http://www.bunniestudios.com/blog/?p=3554

    The question of simple devices may become academic, if it isn’t already.

  12. I say you are getting a pass on discussing your views on life, liberty and the pursuit of happiness. I called it judicial realism at my hearing, which ultimately led to my removal. We bring to the bench our thoughts. Tell them. And let them adjust the themes. Lucky for you. You had friends. You had relatives. You had partners. People trust you. Me. Gutter ball. What’s the dress for a Gutter Ball?

  13. In no particular order, it seems to me that Justice Alito’s list of what devices a cell phone might easily be called was illustrative, not exhaustive. What Alito was writing was that any electronic device that stores data–that does more than make or break telephone calls–all that stuff would be subject to the need to get a warrant to look inside.

    The purpose of the search incident to an arrest (vis., a traffic stop) is to protect the cop from harm by the arrestee and to protect evidence from destruction before it can be legally looked at. It’s legitimate to search; ascertain that, yes, the arrestee has a (smart) phone; and to take possession of the phone for two reasons: preventing harm to the cop and preventing harm to the phone’s contents as potential evidence.

    Yes, a smart phone can be used to harm the cop: many have styluses for interacting with the phone, and in the hands of just the sort of traffic stop arrestee about whom the cop need worry, makes a fine weapon.

    The phone’s contents-as-evidence can be protected from destruction by putting the phone into a Faraday cage in the cop’s cruiser trunk–a box that can be made with $20 worth of metal window screening.

    There’s thus no urgent need to peruse the contents, of which the owner does have a reasonable expectation of privacy: get a warrant.

    And yes, a pager is (should be) covered by this ruling. The pager stores, among other things, who called, who to call back, and often pidgen code concerning the nature of the call (prefacing the callback number with “911” to indicate urgency, for instance). All of these data are either personal or business proprietary. Get a warrant here, too.

    Even the idea of locked or unlocked has already been answered by several cases concerning “in plain view.” Those cases have all said it’s not a search (much less an illegal one) for a cop to see what’s plain to see and to take advantage of that information, but the cop isn’t allowed to manipulate the things in order to produce a “plain to see” condition.

    Eric Hines

  14. How does one treat a phone in use? It’s obviously not locked and it’s impossible to know whether or not the owner would lock it. Or how about one with a give minute lock? Is it searchable without a warrant for those five minutes but not afterwards? Seems to me that simplicity here is a virtue.

  15. Pingback: Unchained Subjective Expectations | Simple Justice

  16. Sal,

    No question, the “get a warrant” rule is relatively simple and easy to use. But as SHG states at Simple Justice (see the ping back below), the real question is defining the doctrine that the Supreme Court is employing in the search incident to arrest and auto situation? Does a reasonable expectation of privacy matter, or is it enough that smart phones have a lot of data storage enough to trigger absolute protection without a showing of a reasonable expectation of privacy. All the best.

    RGK

  17. One related issue that I haven’t seen raised: under current fifth amendment jurisprudence, one cannot be trivially coerced to produce a password or other knowledge to the government.

    However, one CAN be forced to produce one’s finger to unlock the phone with an ordinary subpoena or other court order.

    I don’t cross international borders without a “clean” phone and computer because of the absence of fourth amendment protection. It seems bizarre that I should also consider using a password instead of a fingerprint on my phone.

  18. I’m not going to go into all the nuanced analysis, mainly because I’m working on a paper and my head already hurts. 🙂

    Officers in the field need a simple rule, and need judges to enforce that rule. In this case, on a cell phone, they need to get a warrant. Period. If you leave wiggle room, they will always be looking for a way to push the envelope a little further, and unless there are truly exigent circumstances, they can wait.

    Let me give you a wildly overstated analogy. Before you joined the bench you were in private practice and one of your clients wanted to turn himself in to the police at your office. The police come in, arrest your client on the warrant. Only now the officers want to seize every file cabinet that you have in the office, because it might contain evidence that can be destroyed. I mean, he could have brought in a weapon and stashed it in a drawer, or a confession, etc. Then they can hold the files until they get around to obtaining a warrant.

    There is no difference in my smartphone to your file cabinets. I keep files in Dropbox (for now), which can be accessed via my phone. My calendar is on my phone. My contact list. Westlaw. A law library. Etc.

    If they can convince a judge that they need access, fine. Otherwise they need to stay out of peoples business. That’s why simple rules are best for cops. Just let us know to get a warrant and don’t carve out exceptions to a bright line rule.

    P.S. Get better – we need you around.

  19. ExCop-LawStudent,

    As I just indicated regarding your post at Simple Justice, I agree that bright line rules for cops are better than the alternative even when they cause us doctrinal confusion. All the best.

    RGK

  20. John,

    Typically, evidence seized by the police remain in the custody of the police until offered into evidence. Once offered into evidence, the Court takes the item and holds it much like a custodian. And, yes, it sometimes goes into a vault–in our case a big one, with a heavy door sufficient to deter Ma Barker.

    All the best.

    RGK

  21. An engineer’s thoughts on phones: flip, smart and otherwise:

    a) Flip phone is as imprecise a term as you want it to be. Is the phone impertinent in the face of authority, al-la Archie Goodwin? Did it belong to the late Mr. Wilson? [I can’t resist adding “Here come da judge…” ] I’d say the term describes the phone’s physical outer shell; “a phone with a hinged cover..” vice “candy bar” shaped one etc.

    In general, most flip phones and candy bar phones have less capability than {newer} smart phones; which have large graphical displays with touch sensitivity vice a separate physical keyboard. [Do I throw in “Crackberries” here, further confusing the discussion?]

    While virtually all smart phones have locks, so do many flip and candy bar phones.

    In my view, the function of the faux-lock is not to keep Officer Obie from dumping the contents; it’s there to prevent the inevitable “butt-dial” embarrassment. Ergo, flip phones are less likely to be locked.

    The faux-lock may also forestall a casual snoop such as your presumptive SO picking it up and realizing [s]he is less exclusive than [s]he thought. The lock would only slightly delay even a semi-skilled attacker with physical access to the phone.

    Even with 2nd paragraph above, the simplest flip/candy bars have *more* than enough capability to send its user [..or the other party..] up the river. They often have cameras capable of video with sound, as well as still photography. They store call logs and SMS text traffic. They can keep calendars & notes; some people even {stupidly} store their other passwords on them.

    And I give Ex-Cop-Law-Student a thumbs-up; the wiggle room point is dead-on.

    ps:

    Given my readership of shg’s & ECLS’s blogs, to me the important issue unaddressed by the recent SCOTUS’s decision [& other venues] is LEO confiscation of such and spoliation of evidence therein, outside of arrest. Re: the oft-repeated “I thought it was a weapon…” fantasy/excuse, I submit that the classic G1 Western Electric 500 handset is far more potentially lethal than any cellphone. It is the right shape and heft to deliver a significant wallop to an opponent. You do not need a carry permit. I suggest you keep one next to your gavel.

  22. George B.,

    I know when I have been “taken to school.” Your comment was one of those moments. Thanks for the information. All the best.

    RGK

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