Court To Cops: Waiting Sixteen Months To Search A Seized Phone Violates The Fourth Amendment
from the turn-times-so-ridiculous-general-contractors-are-aghast dept
A recent case handled by an Illinois Appeals Court has some interesting things to say about cellphones and searches. It also contains some rather interesting assertions by law enforcement, which apparently didn’t feel all that compelled to search a seized phone for more than a year after it was seized. (via FourthAmendment.com)
It’s a drug and gun case, with the defendant facing two felony charges. Lamar Meakens was arrested following a traffic stop where contraband was discovered and his phone was seized. Here’s how the court sums up that initial interaction in its opinion [PDF]:
Just after midnight on May 28, 2017, a Naperville police officer stopped defendant for speeding. Based on an odor in the car, the officer called for a canine search. The searching officers found eight $100 bills (several of which had identical serial numbers), a loaded .40-caliber handgun, and two unlabeled pill bottles, which in turn contained bags that held pills marked Xanax, a green leafy substance, and a white powder. While defendant was in the back of the squad car, he used the iPhone at issue to make a call.
The cops took everything they found, including the cellphone Meakens was using. The record is unclear as to why the cops took this phone but the court points out in a footnote that it should have been released to Meakens when Meakens was released from custody.
We note that a cell phone is not contraband; therefore, defendant’s cell phone should have been returned to him upon his initial release.
But that’s not what happened. The PD instead decided to hold onto Meakens’ phone for nearly sixteen months. It was only shortly before the trial began that officers finally sought a warrant and performed a search of the seized phone.
When the government was asked why it had taken so long to seek a warrant, it claimed that the delay was irrelevant. After all, taking a person’s phone away for sixteen months hardly inconveniences them. Also Meakens was in jail where he wouldn’t have access to it anyway.
The State, however, argued that an iPhone is, by its nature, easily replaceable. Therefore, the possessory-interest impact of seizing a suspect’s cell phone is necessarily less than, for instance, seizing a suspect’s luggage. The State also argued that defendant’s possessory interests were at a minimum while he was held in jail.
It’s amazing that a government can still pretend the contents of a phone are analogous to the contents of someone’s luggage, as the State implies here. But its explicit argument is even worse: it pretends it’s more of an inconvenience to be without the contents of a suitcase than to be without a cellphone — an item people use to communicate with others, engage in any number of essential services which can be accessed online, and otherwise revolve their lives around.
But that’s the case the State made. And that’s the arguments the trial court sided with.
The Appellate Court is far less sympathetic to the State’s assertions.
Given the extraordinary delay in seeking a warrant and the State’s complete lack of diligence, we conclude that defendant’s possessory interest in the phone outweighed the interest the State had based on its probable cause to search the phone.
To begin with, the State had an obligation to seek a search warrant and perform a search in a timely manner. Waiting more than a year to do so causes more harm to the person deprived of the property since it allows the party doing the seizing to set the timetable for its return to whatever the State wants it to be, rather than what might benefit the person whose property has been taken. Shifting the dynamic completely in favor of law enforcement and its apparently expansive definition of “timely” violates rights.
The State’s diligence in seeking a search warrant also goes to the measure of its interest. Here, the State cannot claim any diligence. It waited until just before trial to obtain a warrant, about 15 months, and it did not explain its delay. We are aware of no delay longer than 13 months that a court has deemed reasonable.
The Court then cites the Supreme Court’s Riley decision, which made it clear a phone was not just some featureless storage device but an often indispensable piece of equipment that’s rarely separated from its owner. The State’s assertion the seizure of a phone is, at best, a minor inconvenience vastly (and deliberately) underplays the role these devices play in people’s lives.
Here, the State argues that, because cell phones in general are easily replaced, the seizure of a smartphone does not place a high burden on the person from whom it is taken. That is not a safe assumption. To be sure, some of the personal data accessed from a smartphone may be in “cloud” storage—“stored on remote servers rather than on the device itself.” Riley, 573 U.S. at 397. As noted in Riley, “users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.” Riley, 573 U.S. at 397. However, if a smartphone is seized, only the data in the cloud is potentially accessible to the user and then not always conveniently. For a typical person, only the seizure of a personal vehicle is likely to cause equal or greater disruption.
Nor are they easily replaced for other reasons. As the court notes, other than vehicles, cellphones might be the most expensive items people own.
The Appellate Court also rejects the assertion that being in jail eliminates someone’s possessory interest in a seized phone. A phone is still a powerful communication tool, whether or not it can physically be accessed by its owner. Seizing this terminates lines of communication that might otherwise have remained open, even for incarcerated people.
A smartphone carries with it a history of a person’s communications. Therefore, if a detainee can give another access to his or her smartphone, that person can serve much more effectively as the detainee’s agent than would be possible if the phone were seized, thus limiting the disruptive effect of the detention. By contrast, a person released on bond will likely be inconvenienced but generally not be rendered incommunicado. It is thus possible that the seizure of a smartphone is more disruptive to a pretrial detainee than to a person who has been released. We thus cannot dismiss defendant’s possessory interest as inherently minimized by his jailing.
And the Court won’t allow the government to reverse-engineer a justification for holding onto the phone for nearly sixteen months.
The State notes that, at defendant’s trial, its witness testified that suspects found with contraband drugs and weapons often use cell phones to photograph the contraband. The State argues, “While [defendant’s] possession of [the] cell phone would ordinarily have no evidentiary value apart from the contents, in this circumstance, possession of a cell phone, and its later discovered contents, corroborated [the inference that] Defendant knowingly possessed contraband.”
This rule, applied to the circumstances here, does not favor the State. The State’s own argument shows why this is so. It was only the “later discovered contents” that gave the phone evidentiary value. If the police had discovered within days of defendant’s arrest that the phone contained only innocuous texts with defendant’s family and cat pictures, then, by the State’s own argument, the phone would have lacked evidentiary value. That discovery would thus remove justification for the phone’s continued seizure. This appears to be an instance of the State attempting to justify the seizure by its fruits. Such arguments are attractive but mistaken; the exclusionary rule would be meaningless if it only excluded the results of fruitless searches.
There goes the search. And there goes the conviction. A new trial awaits and the government will have to do without the evidence it wanted so badly it could barely be bothered to search for it.