[[ The case is United States v. Mayo, No. 2:13-CR-48 (D. Vt. Nov. 6, 2013). (the link here is to the order denying suppression - more on that below).
Defendant's Motion to Suppress
Government's Opposition to MTS
Def. Response to Gov't Opposition to MTS
Def. Post-Suppression Hearing Memo
Gov't Post- Suppression Hearing Memo
Def.'s Supplemental Filing re: the Katzin decision ]]
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A Vermont Federal District Court, by rejecting the idea that cell phones are "containers" under the Fourth Amendment, took a noticeable step away from the judicial propensity to force today's technology into property-based notions of the Fourth Amendment (see, e.g., the constable in Jones) in a misguided attempt to address emerging technology. While law will never keep pace with technology's march onward, and at times we must rely on the open texture of the law (see H.L.A. Hart), it is always refreshing to see the judiciary recognize that strained reverse engineering of anachronistic precedent must yield when the prevailing analogy becomes unmoored from the underlying legal issue. The court held that warrantless searches of cell phones, incident to arrest or under the automobile exception to the Fourth Amendment, were unconstitutional.
The court recognized, in reaching its holding, that the amount of information a cell phone could contain is limitless, taking into consideration that cell phones can now access/store information in the cloud (vastly expanding their on-board/physical storage capabilities); that alone, the court noted, was sufficient to distinguish a cell phone from a container. The end result:
the Court chooses to adopt a bright-line rule here: cell phones properly seized pursuant to the search-incident-to-arrest exception or the automobile exception cannot be searched without a warrant. Case-by-case analysis is not appropriate in this context, and the Government has not demonstrated any reason that such a warrant requirement would be unduly burdensome. As a result, the Court hereby holds that law enforcement must obtain a warrant before performing such searches in the future.The court's reasoning (quoted at length because it is fascinating, both in a legal and literary sense):
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…the Fourth Amendment requires that law enforcement obtain a warrant before performing a forensic search of lawfully seized cell phones.
The physical containers at issue in Robinson and Belton, and, indeed, even the cell phones in Finley, could not begin to approximate the amount of information that may be stored on a cell phone today. The Government states again and again in its briefings and at the hearings that the only difference between cell phones and conventional containers is that cell phones are “capable of storing large amounts of information.” Gov’t Post- Hr’g Mem. Mot. Suppress 13. The Government posits that this capability does not justify any differentiation between cell phones and traditional containers, but, in the Court’s view, this is precisely the factor that makes all the difference. The container analogy fundamentally fails to address the magnitude of modern cell phone storage capacity. Furthermore, it fails to consider the fact that many modern smartphones can access the Internet, opening up limitless additional storage. Because of these capabilities, modern cell phones can no longer fit comfortably within the Supreme Court’s original conception of a “container.” ...
Several courts have recognized the storage capacity of modern cell phones as a basis for refusing to permit a warrantless search. Most notably, the First Circuit recently determined that the search-incident-to-arrest doctrine “does not authorize the warrantless search of data on a cell phone seized from an arrestee’s person.” Wurie, 728 F.3d at 13. A significant concern underlying the First Circuit’s decision was the amount of information that would be accessible via a cell phone search. Id. at 9 (noting that individuals today “store much more personal information on their cell phones than could ever fit in a wallet, address book, briefcase, or any of the other traditional containers that the government has invoked”); see also Park, 2007 WL 1521573, at *9 (suppressing evidence from a warrantless search of defendant’s cell phone and analogizing modern cell phones to computers); State v. Smith, 920 N.E.2d 949, 954 (Ohio 2009) (“Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container. We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.”).
The Government, in its continued attempt to downplay the quantity of information available on a cell phone, argues that the amount of data available should not matter because exceptions to the warrant requirement have been applied to large vehicles and motor homes. Gov’t Post-Hr’g Mem. 13 (citing California v. Carney, 471 U.S. 386, 388-89 (1985) (applying the automobile exception to a motor home); United States v. Gagnon, 373 F.3d 230, 240 (2d Cir. 2004) (tractor-trailer); United States v. Cruz, 834 F.2d 47 (2d Cir. 1987) (tractor-trailer truck)). This analogy demonstrates the Government’s misconstruction of the problem: the issue is not how large the container is, but that in the context of cell phones there is no limit to what the purported “container” may contain. See Schlossberg v. Solesbee, 844 F. Supp. 2d 1165, 1169 (D. Or. 2012) (finding that warrantless search of a digital camera violated the Fourth Amendment in part because “the storage capability of an electronic device is not limited by physical size as a container is”). Because modern cell phones can connect to the Internet, their storage capacity is nearly infinite. A tractor-trailer may be much larger than a sedan, but it still has tangible confines. A cell phone, by contrast, has no defined boundaries. Thus, allowing warrantless searches of cell phones pursuant to the search-incident-to-arrest exception would provide law enforcement with a giant exception to the warrant requirement without any limiting principles.
Consider, for purposes of illustration, C.S. Lewis’s famous wardrobe. See C.S. Lewis, The Lion, the Witch, and the Wardrobe (1950). There is no question that the search-incident-to-arrest doctrine extends to a conventional wardrobe (in the unlikely event that one is found in a vehicle or on an arrestee). While this would be a search much more intrusive than Robinson’s cigarette pack, it still fits within the container doctrine because it has easily discernible limits: the container is large, but it is contained. Contrast this with the eponymous cabinetry in The Lion, the Witch, and the Wardrobe. Because the magical wardrobe is also a container, the Government would argue that it also fits within Robinson and Belton. However, this particular wardrobe also serves a second function. It opens up to another world, and because of this, it ceases to be merely a container—it is also a portal. Today’s cell phones, with their capacity to reach the Internet, the cloud, and to store millions of documents and photographs, can no longer analogize to a run- of-the-mill wardrobe. Instead, they are also a portal: a portal to the vast cosmos of the Internet. ... If the container rule were to apply to such a portal, a container search of Lewis’s wardrobe would extend to all of Narnia. But where a physical object is a portal to another world, there is a critical difference between a search of the object and a search of the worlds “contained” within the object.
Thus, it is simply inappropriate to analogize cell phones to cigarette packs, purses, and address books; the more apt comparison is to computers. . . . Courts have consistently found analogies between computers and conventional containers to be problematic. For example, the Tenth Circuit found that “analogies to closed containers or file cabinets may lead courts to ‘oversimplify a complex area of Fourth Amendment doctrines and ignore the realities of massive modern computer storage.’” United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999) (quoting Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. J.L. & Tech. 75, 104 (1994))(further citations omitted).
The Government alternately seeks to justify the warrantless cell phone search as a container search under the automobile exception (as distinct from the vehicular prong of the search- incident-to-arrest doctrine). Gov’t Opp’n 7–8. However, the container rule under the automobile exception does not compel a different conclusion. The automobile exception allows law enforcement to search a vehicle and its contents that may conceal the objects of a search without a warrant so long as there is probable cause. Wyoming v. Houghton, 526 U.S. 295, 301 (1999) (quoting Ross, 456 U.S. at 823) (finding that the automobile exception “justifies the search of every part of the vehicle and its contents that may conceal the object of the search”). Several district courts have found that this exception extends to the warrantless search of a cell phone found in a vehicle searched with probable cause, so long as there is probable cause to believe the phone contained evidence of a crime. (citations omitted)
These courts, like the courts in the search-incident-to- arrest context, all found that the searches were constitutional by analogizing cell phone searches to container searches. (citations omitted). Because the Court finds that this container analogy is no longer workable, the automobile exception does not require a different analysis. Instead, cell phones seized pursuant to the automobile exception, like those under the search-incident-to-arrest doctrine, are also properly analogized to computers, not containers.
Not only have cell phones outgrown the original conception of a conventional container under the search-incident-to-arrest and automobile exceptions, but warrantless cell phone searches also can no longer be justified by the rationales underlying these exceptions. In Wurie, the First Circuit found that the Government could not demonstrate that warrantless cell phone searches are “ever necessary to protect arresting officers or preserve destructible evidence.” Wurie, 728 F.3d at 13 (citing Chimel, 395 U.S. at 763).
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Wurie’s concern with “general evidence-gathering” is plainly applicable to this case. The search of Mayo’s cell phones was very invasive and performed without any limitations on law enforcement. Furthermore, it was not justified by the rationales underlying the search-incident-to-arrest and automobile exception doctrines. In fact, the Government has not demonstrated that such intrusive warrantless searches are ever necessary absent exigent circumstances. The search-incident-to- arrest exception “derives from interests in officer safety and evidence preservation.” Gant, 556 U.S. at 338 (citing Robinson, 414 U.S. at 230–234; Chimel, 395 U.S. at 763). Similarly, the automobile exception is rooted in the need to preserve evidence. See Ross, 456 U.S. at 806-07 (noting that in the automobile context, “immediate intrusion is necessary if police officers are to secure . . . illicit substance[s]”). Obviously, officer safety considerations are not implicated here. However, the Government has not demonstrated that such searches are necessary for evidence preservation either.
In the past, courts have allowed warrantless cell phone searches because they found it necessary to allow police officers to search a cell phone based on the need to preserve evidence. (citations omitted). However, once law enforcement has seized and secured a cell phone, the risks regarding evidence preservation diminish. While courts have voiced concerns about the danger that internal data could be remotely erased, see Flores-Lopez, 670 F.3d at 807-08, there are simple methods available to protect a seized cell phone from remote modification. For example, in Vermont, it is state law enforcement’s practice to turn seized smartphones to “airplane” mode to disconnect them from outside interference, or to place them in a device that protects the phone from outside disruption. Suppression Hr’g Tr. 11:25-12:6, 13:14-20, Sept. 30, 2013. Thus, the Government has not shown that evidence preservation considerations justify the warrantless search of a seized cell phone.
Moreover, the Government has not demonstrated that it would be an undue hardship for federal law enforcement to obtain a warrant before performing forensic analysis on a cell phone. Indeed, this is already standard operating procedure for Vermont state law enforcement.
…Thus, the Court finds that Mayo’s Fourth Amendment rights were violated when law enforcement searched his phone without a warrant.For those who read the foregoing language as a slam dunk, I suggest you hold your applause. While the court announced a prophylactic rule for the future, the defendant here was torpedoed by the Good Faith Exception (despite an admirable attempt to avail himself of the recently published Katzin opinion from the Third Circuit - see more Cybercrime Review posts, here: Katzin Coverage). The court's reasoning on the Good Faith argument:
... the Third Circuit declined to apply the good faith exception where police relied on out-of- circuit precedent. Katzin, 2013 WL 5716367, at *16-17. Mayo cites Katzin to argue that the good faith exception should not apply in this case because there is no on-point authority from the Supreme Court or the Second Circuit.
In Katzin, however, there was a significant circuit split on the issue in question. . . .Thus, law enforcement would not have been able to reasonably rely on out-of-circuit precedent, as there was no consensus. In other words, the law could easily be characterized as the type of “unsettled” law contemplated by Justice Sotomayor’s concurrence. In this case, by contrast, there was no circuit split as of March 2013; all of the circuits to address the issue had permitted such searches. While there was no binding Second Circuit authority, law enforcement acted reasonably in reliance on a general out-of-circuit consensus. Because Katzin is distinguishable from this case, the Court finds that application of the good faith exception remains appropriate.I questioned this type of argument in a previous post (see here: OH App Ct: Warrantless GPS tracking OK despite no precedent; My take on the "good" left in the good faith exception), so I won't belabor the point further, except to say that I take issue with out-of-circuit precedent providing sufficient "cover" to allow Fourth Amendment protections (or, if you please, Fourth Amendment restrictions on permissible law enforcement methods) to rise or fall with assurances that law enforcement understood existing non-precedential law and decided to act based on such notions instead of shooting from the hip.
Again, stripped of all of the rhetoric, I find this opinion important because it advances a conception of technology I have repeatedly argued for - one that sheds physical analogies that are ill suited to cyberspace and analogies which, standing alone, call for further judicial acknowledgment, or legislative action to ameliorate the growing distance between law and technology.
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