Court Shuts Down Argument That Warrantless Seizures Of Cell Phones Is Fine Because Criminals Use Cell Phones

from the criminals-are-also-know-to-use-cash,-carry-wallets dept

The Boston Police Department advanced a rather novel legal theory in court recently: because criminals are known to use [common item X], [common item X] can be seized without a warrant. Insert any item into that equation and see what it gets you.

The specifics of the case don't make the theory any less dubious. In this case, the item was a phone owned by a high school student. An investigation of a robbery that resulted in the death of a store clerk resulted in BPD investigators believing the student might be a suspect. From the opinion [PDF] (h/t Brad Heath):

The following day, February 24, 2010, the defendant arrived late to his high school. Pursuant to the school's usual practice for all arriving students, he was searched and his "pay-as-you-go" Samsung/Sprint cellular telephone, equipped with a camera, was confiscated. That afternoon, a detective investigating the robbery-homicide met with one of the school's administrators. The administrator told the detective that the defendant had become "agitated" earlier that day and had left the school without picking up his cellular telephone. The detective notified a supervisor that the school was holding the defendant's telephone. \

Neither the detective nor the supervisor had, at that point, any information that a cellular telephone contained evidence of the robbery and shooting, but they were aware, based on their experience, that such devices often contained useful information in cases involving multiple perpetrators. The supervisor instructed the detective to seize the device without a warrant apparently on the basis of his belief that, if the defendant retrieved the device before a warrant could be obtained, he would destroy the device or erase relevant evidence. Thereafter, the device was transported to the police station, where it was logged as evidence and placed in a special bag designed "to prevent remote intrusion." Police did not search the device.

The fact that the phone could have been retrieved by the student and any evidence on it destroyed was the "exigent circumstances" used to justify the seizure. The phone actually sat around in the evidence locker for 68 days before it was searched. However, the "exigent circumstances" argument failed to salvage the warrantless seizure because the state argued it was allowed to seize anything that could conceivably be used by criminals.

Here, prior to seizing the defendant's cellular telephone, police had received information that the robbery and homicide under investigation had been committed by several people, that the defendant likely was one of those people, and that he owned a cellular telephone. They also knew from experience that coventurers often use cellular telephones to communicate with each other, and that these devices may contain evidence of such communications. According to their own statements, however, the detectives here did not have any "information that [a] cell phone was used in the crime under investigation," nor did they claim that there existed a particular piece of evidence likely to be found on such a device. In essence, then, their decision to seize the defendant's cellular telephone was made because (a) they had reason to believe that the defendant had participated with others in the commission of a robbery-homicide and (b) their training and experience in cases involving multiple defendants suggested that the device in question was likely to contain evidence relevant to those offenses.

The shorter version of this legal theory:

A criminal act was committed. Criminals often use cell phones to communicate and/or document their criminal acts. Therefore, any phone can be seized and held without establishing probable cause for the seizure. Just in case.

The court isn't interested in entertaining law enforcement's assertion that it should be able to seize electronic devices speculatively.

In essence, the Commonwealth is suggesting that there exists a nexus between a suspect's criminal acts and his or her cellular telephone whenever there is probable cause that the suspect was involved in an offense, accompanied by an officer's averment that, given the type of crime under investigation, the device likely would contain evidence. If this were sufficient, however, it would be a rare case where probable cause to charge someone with a crime would not open the person's cellular telephone to seizure and subsequent search.

Noting the Supreme Court's Riley decision, as well as other cases relevant to this search and seizure of cell phones, the state court finds that allowing this argument to salvage the warrantless seizure would turn the Fourth Amendment into a meaningless pile of words.

We cannot accept such a result, which is inconsistent with our admonition that "individuals have significant privacy interests at stake in their [cellular telephones] and that the probable cause requirement . . . under both the Fourth Amendment . . . and art. 14 . . . [must] serve[] to protect these interests." '

Furthermore, it finds that the 68-day gap between the seizure and search was unreasonable. The state argued that the investigation was "complex," but the court points out investigators obtained five other search warrants during that same time period.

Even if it had been more timely in its acquisition of a warrant, that still wouldn't have been able to rescue the evidence it located on the suspect's phone. Because the underlying seizure was performed without probable cause, the use of a warrant for the search did nothing but create a paper trail for "poisoned fruit."

Hopefully this reversal will deter future seizure attempts by state and local law enforcement. Without the ruling in place, anything from cars to computers could end up being taken and held by police under the assumption that criminals use such items. That's not probable cause. That's not even reasonable suspicion. It's fishing expeditions waiting to happen and speculation taking precedent over Fourth Amendment protections.

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Filed Under: 4th amendment, criminals, mobile phones, search, warrants


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  1. identicon
    Jason, 7 Oct 2016 @ 1:23pm

    Pursuant to the school's usual practice for all arriving students, he was searched and his "pay-as-you-go" Samsung/Sprint cellular telephone, equipped with a camera, was confiscated.
    Am I missing something here? Is it really the school's "usual practice" to search all arriving students and confiscate their phones? Even with all the other school-related nonsense these days, that seems way over the line, even if that quote left out the fact that it only applies to "late" students or something.

    reply to this | link to this | view in thread ]

  2. icon
    Norahc (profile), 7 Oct 2016 @ 1:39pm

    Damn Constitution and rogue judges keep getting in the way of the police state. It will be anarchy I tell you...anarchy if law enforcement must follow the law part of their job titles.

    /sarcasm

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 7 Oct 2016 @ 1:46pm

    Re:

    School is little more than a gateway indoctrination system. Sure that is not the idea they had when public school was started but once you build things... they WILL COME!

    As a student you have no rights. You can have all your shit searched without due process and your parents would have to SUE to change shit. You can have your freedom of speech suppressed under the guise of "disruptive to class" ideals.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 7 Oct 2016 @ 2:08pm

    Re:

    Thankfully they're a step closer, now that they only need to have a vague idea of the law or even make it up on the spot.
    Because, admit it, Judge Dredd is pretty cool!

    reply to this | link to this | view in thread ]

  5. icon
    ECA (profile), 7 Oct 2016 @ 2:22pm

    WT??

    Criminals have (_______)(fill in the blank) so we can search it for any reason..
    Terrorists have (_______)(fill in the blank) so we can search it for any reason..
    YOUR MOM has (_____) so we can (_____) is if we want to..
    YOU (_____) so we KNOW you are a (_______)

    God (_____) us, from (______) bastards..

    reply to this | link to this | view in thread ]

  6. identicon
    Quiet Lurcker, 7 Oct 2016 @ 2:28pm

    Without the ruling in place, anything from cars to computers could end up being taken and held by police under the assumption that criminals use such items

    I think the term you're looking for here is 'civil asset forfeiture'.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 7 Oct 2016 @ 2:47pm

    Re: WT??

    It's my (____), I'll (____) if I want to.
    (____) if I want to.
    (____) if I want to.
    You would (____) too, if it happened to you.

    reply to this | link to this | view in thread ]

  8. icon
    Padpaw (profile), 7 Oct 2016 @ 6:58pm

    They really have utter contempt for the laws and the oaths they swore don't they.

    reply to this | link to this | view in thread ]

  9. icon
    Padpaw (profile), 7 Oct 2016 @ 7:09pm

    Re:

    no worries they will continue to do so, they will just lie about how they got the info now.

    reply to this | link to this | view in thread ]

  10. icon
    BernardoVerda (profile), 7 Oct 2016 @ 7:54pm

    Re:

    Pursuant to the school's usual practice for all arriving students, he was searched and his "pay-as-you-go" Samsung/Sprint cellular telephone, equipped with a camera, was confiscated.

    I'm stonkered, too. Being late to class is grounds for search and confiscation? Seriously?

    Whatever happened to "Land of the Free."

    How can crap like this go on, under the radar, in the same society where issues of sensible mental/criminal checks on who can acquire what sort of firearm how quickly and how easily with what sensible precautions, is a majorly contentious political issue?

    IDGI

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 7 Oct 2016 @ 11:44pm

    Re:

    Normal high schools don't search students for cell phones on arrival, but special schools for students who've been expelled from other schools in the district might. Given that a HS student with a clean record is unlikely to to be on police radar or participate in a murder, I'd guess this student had also had some issues at school.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 7 Oct 2016 @ 11:58pm

    Court Shuts Down Argument That Warrantless Seizures Of Cell Phones Is Fine Because Politicians Use Cell Phones. Must admit I no longer own a functioning one, and never will again.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 8 Oct 2016 @ 2:15am

    Criminals also eat, drink, sleep, and breathe oxygen.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 8 Oct 2016 @ 7:05am

    Re: Re:

    "School is little more than a gateway indoctrination system"

    Schools v. Prisons

    Have bars on windows -- check
    Have razor wire on fences -- check
    Have body scanners at entrances -- check
    Confiscate cellphones -- check
    Have guards stationed in hallways -- check
    Spend more on security than education -- check
    Constitution suspended within -- check

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 8 Oct 2016 @ 3:14pm

    Re: Re:

    "School is little more than a gateway indoctrination system"

    Charter schools are much worse in this regard. We need to keep corporate influence and corruption out of our education system.

    reply to this | link to this | view in thread ]

  16. icon
    FichenDich (profile), 8 Oct 2016 @ 7:00pm

    in loco parentis

    The original cops completely blew it. They SHOULD have asked the principal, "May we take the phone and look for evidence on it ?"

    Surely in the everything changed on 9/11 world permission would, without an instant's hesitation, have been granted.

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 9 Oct 2016 @ 1:04am

    Re:

    Well it was in 2010. I was in High School a few years before and the policies were "can't be seen with it during school hours". The school districts like all bureaucracies public or private things lag behind with their policies and are very localized so variance is to be expected. A paranoid "pockets out" check doesn't sound too far-fetched.

    Both policies were drastic improvement over previous 80's assumptions where a beeper or cell phone meant you were clearly a drug dealer and thus so totally expelled.

    By now I've heard that schools have not only accepted kids having phones along with everyone else as a useful tool (helicopter parents doing good if only accidentally) but have in some cases integrated its usage.

    reply to this | link to this | view in thread ]

  18. identicon
    Anonymous Coward, 9 Oct 2016 @ 1:11am

    Re: Re:

    Because they are minors. The whole law is built on special pleading when it comes to minors. Tried as a juvenile - except when they feel like trying as an adult. The right to free speech doesn't end at the gates - except the school can still punish for outside activities of speech that is viewed as drug related (thanks Morse_v._Frederick).

    That is without going into the fashion of the time of the media demonizing minors and then later wondering why their viewer/reader numbers were lower with the younger generations that they both insulted and refused to adapt towards.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 10 Oct 2016 @ 6:21am

    Third party doctrine?

    According to our majestic Supreme Court, since the phone and the information therein were now in the possession of a "third party" (the school), wasn't there "no expectation of privacy" and thus exempt from fourth amendment warrant requirements?

    reply to this | link to this | view in thread ]

  20. identicon
    fisht, 11 Oct 2016 @ 11:26am

    Cops are truly Lazy

    What this story tells me is that Cops are so lazy that they cant do any actual investigation and instead want only the easiest prosecution possible. Unionized Police are the problem not the answer.

    reply to this | link to this | view in thread ]

  21. identicon
    SDN, 11 Oct 2016 @ 12:05pm

    Re: Re: Re:

    Union corruption, however, is just fine.

    reply to this | link to this | view in thread ]

  22. identicon
    TMLutas, 12 Oct 2016 @ 3:53am

    truancy laws

    Combine mandatory searches on arrival at school with truancy laws forcing school attendance and you've got mandatory daily searches, five days a week.

    Something's got to give there.

    reply to this | link to this | view in thread ]

  23. identicon
    Tom D Perkins, 12 Oct 2016 @ 6:58am

    Seizures without warrants or probable cause.

    Absent such a determination by the courts, police are incentivized to act like this:

    "We know they are guilty so we will take all their stuff. This inconveniences them so bad they will plead to some misdemeanor even if we can't hitch them up as they deserve, just to get their stuff back. The fact they plead to something gives us cover to have taken it in the first place, so it's all good."

    reply to this | link to this | view in thread ]


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