Under arrest? Then consider your call logs and phone contacts fair game for police search.
In United States v. Martin, 2012 U.S. Dist. LEXIS 183511 (E.D. Mich. 2012), in denying a motion to suppress evidence, the court held that officers were authorized to search defendant’s phone records during arrest.
In 2006, a series of drug related investigations culminated in the arrest of the defendant for conspiracy to distribute heroin. During the arrest, officers seized the defendant’s phone.
The defendant contended that the arresting officers had no right to either answer any of his incoming calls or search his contact list during the arrest.
The defendant argued that he had a privacy interest in his cell phone similar to that found in computers and emails.
While the court acknowledged the technological similarities between cell phones and computers, the court rejected the notion that the similarity translated to a constitutional bar on phone searches during arrest.
Following the persuasive precedent of other circuits, the court ruled that officers could search defendant’s phone “because there was a risk that if the phone was not immediately searched pursuant to the arrest, the information stored in the contact list or call logs of the phone would be permanently lost.”
In refusing to extend the expectations of privacy usually found in computers and emails to cell phones, the court focused on the absence of contention that the officers searched through emails, messages, saved websites, or documents on the defendant’s phone.
In this age and time, this superficial demarcation is problematic. The current homogeneity of phones, tablets and computers makes the court’s rationale behind the different privacy interest seem like legal conjecture at best.
By focusing on the nature of the search, the court’s decision indirectly implies that call records (from Skype, etc.) and contact data stored on computers, tablets, etc., are subject to warrantless searches upon arrest.
In light of the insurmountable technological advances made in the last decade, courts should err on the side of applying the same level of privacy expectation to personal telecommunication devices.
I agree that the distinction between searching the phone for phone records and searching the phone for email or document records is pretty spurious. Especially today (the incident was in 2006), smartphones have become computers. I would not, however, place a bet that the Fourth Amendment's "reasonable person," as construed by the courts, is aware of this development.
ReplyDeleteI also think, however, that the court is not wrong to consider the fact that automatic deletion (implicitly including remote-wipe) may be available in the event of arrest. If the arrestee's impounded device is controlled by a legitimate company, it may even be subject to the company's lost-device remote wipe policy; if such a device can be reported lost before police can communicate to the company not to wipe it, the evidence may be irretrievable. If this becomes a serious enough problem for investigators, they may need to keep the device in a faraday cage to preserve their evidence. Although we don't yet know whether remote-wipe is a large problem, it is so inexpensive that sophisticated criminals may well be using it already.
If law enforcement possessed legitimate worry about remote wipe, why not just remove the sim card or other reasonable precautions? Oh, I know, because then the police couldn't be able to justify fishing around, plus they wouldn't be able to watch/reply to texts as they came in.
ReplyDeleteNot like a warrant is particularly hard to get right now anyways, and digital search warrants have almost no limitations on reasonableness because the judiciary is from a generation that generally fails to understand the role technology plays in an average citizens lives, or that digital searches can be limited. I am painting with a broad brush, but drug and CP cases haven't painted a very savvy picture of the current federal judiciary.
In order for someone to notify a company, or to initiate a remote wipe would necessitate witnesses to the arrest. Someone would have to be watching the guy all the time. Is that common practice?
ReplyDeleteI have one criminal working my business for me, then I have a second criminal to watch the first criminal in case he is ripping me off. Then I need a third criminal to watch the second criminal watch the first criminal because there is a risk of collusion between criminal number 1 and criminal number 2.
There was no real risk of losing information if the phone was not searched immediately.
Remote wipe is a legitimate concern. However, my uneasiness was with the distinctions the court tried to make between phones and other telecommunication devices. The court could have found a legitimate privacy interest in the cell phone similar to that found in computers and gotten to the same result based on an exception (like the "search incident to arrest" exception). Making these mild distinctions between the privacy interests found in devices that have a growing similarity both in use and function could have murky implications.
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