Federal Court Tells ATF It Can't Just Help Itself To Cell Phone Data Seized By Another Law Enforcement Agency

from the at-least-not-without-a-warrant dept

The good news is the Supreme Court's Riley decision forces law enforcement to obtain warrants before searching cell phones. The bad news, apparently, is everything else. To begin with, particularity remains a problem. As the Supreme Court pointed out in its decision, people's entire lives are contained in their cell phones. When searching for what's relevant to the suspected criminal activity, the government is pretty much free to dig through these "lives" to uncover what it needs to move forward with prosecution.

The lack of strict parameters (perhaps an impossibility given the nature of digital communications/data) leads to fishing expeditions operating under the cover of Fourth Amendment adherence. There's no way to prevent trolling for evidence of unrelated criminal activity. The only recourse is to challenge it after it happens. Sometimes the courts find the government has gone too far. Other times, courts say the evidence would have been "inevitably discovered" in the course of the search and prevent it from being suppressed.

Then there are decisions like the one reached by a federal court in South Dakota -- one that says just because one law enforcement agency deployed a warrant to image the contents of a cell phone doesn't mean other law enforcement agencies can take a look at it without obtaining a warrant of their own.

Volokh Conspiracy's Orin Kerr snagged the decision and added some brief analysis. A cell phone seized by local police was also apparently of interest to the federal Bureau of Alcohol, Tobacco and Firearms (ATF), which was running its own investigation on the same subject. The local cops were looking for counterfeiting evidence, while the ATF was interested in firearms-related evidence.

The locals obtained a warrant and imaged the phone's contents. In the course of its investigation, the ATF pulled up the suspect's file and noticed the recent arrest and seizure of the suspect's cell phone. The Huron (SD) police department helpfully informed the ATF that it had a copy of the cell phone's contents that the ATF could take a look at. The ATF accepted the offer, but did not perform the crucial step of obtaining a warrant. That misstep cost the ATF its evidence.

According to the government, all evidence seized -- even if unrelated to the investigation at hand -- should be accessible to any law enforcement agency without obtaining another warrant. Because teamwork. The court disagrees [PDF], pointing out that the government's asking the court to grant it an open-ended fishing license for all electronic devices seized with a warrant:

The government argues that this conclusion is “impractical and is contrary to the nature of police investigations and collaborative law enforcement among different agencies.” The government’s position, however, overlooks the ultimate touchstone of the Fourth Amendment: reasonableness. Riley, 134 S. Ct. at 2482.

According to the government, law enforcement agencies can permanently save all unresponsive data collected from a cell phone after a search for future prosecutions on unrelated charges. If the government’s argument is taken to its natural conclusion, then this opens the door to pretextual searches of a person’s cell phone for evidence of other crimes. Under the government’s view, law enforcement officers could get a warrant to search an individual’s cell phone for minor infractions and then use the data to prosecute felony crimes. No limit would be placed on the government’s use or retention of unresponsive cell phone data collected under a valid warrant.

The court also disagrees with the government's plain view defense. In order for the "plain view" exception to work, there has to be justification for the "view" itself. In this case, the ATF had no justification for viewing the contents of a cell phone seized by another agency for an unrelated investigation.

The government also argued that the exclusionary rule shouldn't be applied to the evidence it obtained without a warrant. The court again disagrees, pointing out that the government will suffer minimally from the exclusion of evidence it apparently wasn't planning to introduce anyway. In addition, a failure to enforce the exclusionary rule in cases like these would just result in more governmental fishing trips.

Here, the cost of applying the exclusionary rule is minimized because the evidence is peripheral in nature and not directly related to the firearms offense. The government’s actions also suggest the evidence is not necessary for a conviction. Prior to Agent Fair’s search of the iPhone data, the government was ready to proceed with trial on January 3, 2017. Minutes before voir dire, the parties addressed a late discovery issue, and the court granted a continuance. If the issue had not come before the court, the government would have tried its case, and the iPhone data would not have been used.

In contrast, the benefits of applying the exclusionary rule in this case are clear. If the exclusionary rule is not applied, law enforcement agencies will have carte blanche authority to obtain a warrant for all data on a cell phone, keep the unresponsive data forever, and then later use the data for criminal prosecutions on unrelated charges—erasing the protections specifically contemplated in Riley.

All well and good as far as it goes for upholding Fourth Amendment protections, but as Orin Kerr points out, the court seems to be balancing the government's losses against the plaintiff's rights before arriving at this conclusion.

As I have written before, I don’t think it works to do this kind of case-by-case cost/benefit balancing when applying exclusionary rule precedents. But if the evidence isn’t important, the government isn’t going to file an appeal of the decision granting the motion to suppress. This decision is likely the end of the road in terms of judicial review of the Fourth Amendment issue.

They don't call the exclusionary rule a RULE for no reason. When rights are violated, exclusion is the proper remedy. Whether or not it damages the government's prosecution should be a distant secondary concern.

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Filed Under: atf, fourth amendment, phone data, privacy

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  • icon
    Anonymous Anonymous Coward (profile), 27 Feb 2017 @ 10:00am

    To constitute or not to constitute, that is the question

    Between parallel construction and our three letter agencies proclivity to collect it all, neither Joe Six Pack nor anyone else will have a chance of NOT living up to Cardinal Richelieu's famous quote (disputed):

    "If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him."

    Governments hatred (aka fear) of the limitations the Constitution place upon the government will help us to get the 'interesting times' a purported Chinese curse bestows upon us. The question will come in the form of which side you are on in relation to which side is in power.

    If the exclusionary rule gets in the way, there are other opportunities, unfortunately.

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

    • identicon
      vorte, 27 Feb 2017 @ 10:52am

      What 4th Ammendment ??

      4th Amendment has been so neutered by the courts... that it's hardly worth discussing anymore.

      But under the original text & concept of 4A ... the cops don't get a free pass to seize/search everything in a digital device... just because it's inconvenient, difficult or impossible to isolate the "particular" item(s) "specified" in the court search warrant.
      If police can not physically execute a search warrant 'without' seizing 'everything' at a specified location -- then they can NOT legally execute that warrant. The basic private right guaranteed by 4A takes precedence over government snooping desires.

      As an analogy, consider if a search warrant authorizes search/seizure of all written letters to/from a person named Hoorace Gulenfoffer which there is legal probable-cause to be located in a house at a specific street address -- the cops can NOT just go and load every moveable item in that house into a moving van, take it to a government warehouse, keep it as long as they want, and search it all. That would be a blatantly illegal, non-particularized search and seizure under 4A. Any warrant that authorized such a search would be unconstitutional on its face.

      Same exact principle with cell phones/devices -- if a particularized search can not be reasonably conducted -- then NO search/seizure may be conducted.
      Tough Luck, Cops ! The government does not have an unlimited authority to search/seizure --- it is sharply restricted by 4A, for very very good reason.

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

      • icon
        The Wanderer (profile), 28 Feb 2017 @ 4:38am

        Re: What 4th Ammendment ??

        For another comparison: consider a warrant to search the contents of a locked container, such as a safe or a jewelry box, based on probable cause to believe that evidence of a crime is contained within that container.

        If the container is easily found, no further analysis is needed.

        But if the container is hidden and you don't know where it is, the warrant to search the container does not - by itself - grant you the authority to search the house looking for the container. That should require its own warrant, based on probable cause to believe that the container is in fact within the house.

        (It's entirely possible to present both types of probable cause in the same warrant application, and have one warrant cover both points, but it's also easily possible to have a warrant that covers only the former.)

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

  • icon
    Advocate (profile), 27 Feb 2017 @ 10:54am

    As long as they control the rules, they'll eventually find a way to manipulate them to do any damned thing they please. No one is watching the watchers. Separation of power hasn't worked, transparency is impossible, and it can only get worse. Crony capitalism, like bureaucracies exists to perpetuate itself. It's a virus now, not a government. Everything is Not for the people and we are all doomed to despotic fascism or revolution.

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

  • identicon
    Anonymous Coward, 27 Feb 2017 @ 4:52pm

    Let's face it. Law enforcement and prosecutors view the Bill of Rights as something to be worked around because it hinders them doing what they see as their job.

    Newsflash people...The Bill of Rights is supposed to be a hindrance to the government.

    I find it interesting that in the opinion, the Court starts to recognize that we're heading down the path to the return of General Warrants, if the government could get it's way. They've been nibbling at the edges for decades (Third Party Doctrine, Plain View Doctrine, Inevitable Discovery, etc...)

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

  • identicon
    Anonymous Coward, 27 Feb 2017 @ 5:14pm

    Exclusionary Rule vs. Exclusionary Suggestion

    What law enforcement thinks it is.

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

    • icon
      qu1nn (profile), 16 Mar 2018 @ 5:53pm

      Re: Exclusionary Rule vs. Exclusionary Suggestion

      pretty much, yeah. given the number of messed-up warrants for PHYSICAL evidence that have gotten citizens, pets, and cops killed i do not even want to guess at how fucked-up searches for technological evidence can potentially be.

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

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