State Appeals Court Says Exigency Beats A Warrant Requirement If A Phone Has A Passcode

from the there-is-no-'going-dark,'-I-guess? dept

The Supreme Court's Riley decision made one thing clear: cellphones are not to be searched without a warrant. Somehow, the Georgia Court of Appeals has reached a different conclusion than the Supreme Court of the United States, even as it cites the ruling. [h/t Andrew Fleischman]

It's a decision [PDF] that's decidedly law enforcement-friendly. And it's one that will pair nicely with the FBI's overblown "going dark" assertions. An arrested individual requested his phone so he could retrieve a phone number to give to the officers questioning him. Here's what happened once he had retrieved that info.

Once [Stephens] unlocked his phone, got the information that he needed, the phone was recovered from [Stephens] at that point. It had not locked out, and having the open pass code at that point, . . . I took the phone down the hall to one of our investigators that’s tech savvy and asked him to plug the phone in and do a phone dump, dump the information without reviewing the information and without advising me of anything if he even got anything off of the dump, that the purpose would be for me to be able to obtain a search warrant for the content of the phone. The experience we have is if the phone goes back to password protection, we’re not able to get into it.

A warrant was sought after the data had already been downloaded. Included in the data dump were photos of a gun prosecutors introduced as evidence. The suppression motion challenged the warrantless search. The lower court found a warrant should have been obtained before the data dump began.

The trial court recognized that Stephens had “a right to privacy in the contents of his cell phone,” and also further acknowledged that per Riley v. California, __ U. S. __ (134 SCt 2473, 189 LE2d 430) (2014), “the police may no longer, without a warrant, search such a phone when seized from an arrestee.”

But it also found the officers had a justifiable excuse for the warrantless data grab.

The trial court, however, found that post Riley, “[e]xigent circumstances – such as the risk of imminent loss of data through a remote wipe of the phone – can justify a warrantless search of a seized cell phone.” And, similarly, according to the trial court, police may “take steps to preserve the digital evidence stored in a cell phone while awaiting judicial authorization to search that evidence.” The trial court held that the measure taken here by police of downloading or “dumping” the contents from Stephens’s cell phone without looking at the contents, was permissible under Riley as a “protective step, taken solely to preserve evidence the detective reasonably believed could be destroyed.”

The appeals court sees the trial court's interpretation of Riley and raises.

Here, pretermitting whether the trial court correctly found that the warrantless downloading of the contents of Stephens’s cell phone was permissible under the exigencies exception to the Fourth Amendment, we hold that even if an unlawful search occurred, the evidence acquired from the downloading was admissible under the independent source doctrine.

[...]

Thus, even assuming that the initial downloading was an unconstitutional search, the information subject to the motion to suppress was obtained through the execution of a valid search warrant.

There you have it: two exceptions to the bright line drawn by the Supreme Court. Riley said warrants are needed to search cellphones. The Georgia Appeals Court agrees, but holds that as long as a warrant is obtained at some point in time, the search can happen prior to the acquisition of a warrant.

In this particular case, there's appears to be minimal intrusion. The information used during the trial wasn't acquired until after a search warrant was obtained, at least according to officers' testimony. But allowing searches to take place prior to the acquisition of a warrant encourages bad behavior -- like checking out data dumps for evidence first and building a warrant request around that, rather than the facts known to officers prior to the (warrantless) search.

It also encourages fishing expeditions because a warrantless search has no boundaries. Warrant requests and the judges that approve them set the limitations on the scope of searches, restricting them to only evidence relevant to the criminal allegations laid out in the affidavit. Working backwards from a search to a warrant means the government can redraft its warrant request prior to delivering it to a judge if it sees something else that might make for a better prosecution.

In this case, no search of the data dump occurred before the warrant arrived. That's good but it's not exactly Riley. Exigent circumstances could theoretically apply to any case involving a phone with a passcode, eliminating the warrant requirement and turning it into an afterthought. "Independent source" does the same thing, granting forgiveness for the constitutional violation as long as a warrant is sought post-search. This hole in Riley is somewhat narrowed by the court noting the warrant request wasn't based on any info derived from the data dump. But that only applies to the specifics of this case and that assumes officers won't lie about the chain of events or engage in parallel construction.

It also invites officers to use the "going dark" theory of unbreakable encryption to claim exigent circumstances guide phone searches, rather than the warrant requirement SCOTUS handed down. With cellphone encryption, any momentarily-unlocked phone creates a convenient "exigent circumstance" that's unlikely to be seriously challenged by courts. Even if other tools and workarounds can be used to crack a locked phone, the presence of one temporarily free of roadblocks will be searched to ensure maximum operational efficiency, rather than adherence to the Fourth Amendment as defined by the Riley decision.

This is a bad call by the Appeals Court. It could have found a way to deter future abuse without actually suppressing the evidence. Instead, it gave Georgia law enforcement a road map for warrantless phone searches.


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  • identicon
    Anonymous Coward, 11 Jul 2018 @ 12:07pm

    The court also gave people a roadmap for avoiding the problem: shut up and don't unlock your phone or do anything else without a lawyer present. In fact, don't unlock your phone for any reason if you cannot control possesion of it.

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

    • identicon
      Anonymous Coward, 11 Jul 2018 @ 12:25pm

      Re:

      True, but that advice is in the same group as: "Don't talk to cops without a lawyer present."; "Don't cooperate in any way not required by law (and don't trust the cops to tell you what the law requires)"; etc. Good advice, but hardly new, and we routinely see people - some guilty, some not - fail to follow it for a variety of reasons. Protection under the law should not require that every detainee be or retain an expert lawyer just to head off law enforcement corner-cutting.

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

      • icon
        Ninja (profile), 11 Jul 2018 @ 12:27pm

        Re: Re:

        Also, there's plenty of examples of people being compelled to unlock their stuff, justice be damned. By courts on top of that. Of course you can choose to remain locked indefinitely if you don't want to comply.

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

      • identicon
        Anonymous Coward, 11 Jul 2018 @ 9:54pm

        Re: Re:

        The reality is that while citizens are expected to have the legal knowledge of top attorneys, cops knowing the laws they're supposed to enforce is far too hard for their little snowflake brains.

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

  • icon
    Ninja (profile), 11 Jul 2018 @ 12:25pm

    They need warrants to search homes that will contain photo albums, receipts, personal documents protected by a lock and the likes but they don't need it when it's a cellphone that will contain photo albums, receipts, personal documents protected by a lock. Awesome reasoning.

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

    • icon
      Bamboo Harvester (profile), 11 Jul 2018 @ 1:05pm

      Re:

      This WILL be cited as case law WHEN cops illegally search a house and find evidence in those photo albums, receipts, and personal documents, and THEN get a search warrant.

      Incredible.

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

  • identicon
    Anonymous Coward, 11 Jul 2018 @ 12:29pm

    if this is the case and the Georgia Appeals Court can make it's determinations of the law, what the fuck is the point of having the Supreme Court of the United States, let alone have it to make country-wide laws that are supposed to be followed? basically, what this seems to mean is that as long as what the security forces want to do can be done, the local/state courts can make up their own laws and implement them INSTEAD of what the Supreme Court has ruled! why not just do away with the whole legal system and have the country run as a complete police country? it's damn near that anyway considering you can be shot or otherwise killed by the police for doing nothing and never an officer gets prosecuted!!

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

  • icon
    ShadowNinja (profile), 11 Jul 2018 @ 12:30pm

    How is this not grouds for removal from office?

    Seriously, how is this judge's actions not grounds for immediate removal from office for so blatantly violating an order from the SCOTUS?

    Roy Moore got removed from office as Chief Justice of Alabama's State Supreme Court TWICE for this kind of stuff. The last time he was removed he openly defied the SCOTUS's ruling legalizing same sex marriage nationwide, when he ordered Alabama clerks to not issue them to same sex couples.

    I don't see how this blatant violation of the SCOTUS on cell phone warrants doesn't warrant the same removal from office for violating people's civil rights guaranteed under the US constitution.

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

    • icon
      Uriel-238 (profile), 11 Jul 2018 @ 9:14pm

      "How is this not grouds for removal from office?"

      Easy. Grounds for removal from office is what you have on enemies. The judges on this Georgia Supreme Court bench have only friends around them, none of whom see those grounds.

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

  • identicon
    Anonymous Coward, 11 Jul 2018 @ 12:33pm

    What should be and reality are rarely the same. If the government wants to make everything an us vs. them conflict, then the only choice is to ensure that we are playing the same game. The situation will only change if it becomes painfully obvious that the us vs. them mentality is a losing proposition for the government.

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

  • icon
    Anonymous Anonymous Coward (profile), 11 Jul 2018 @ 1:52pm

    Exigency

    The trial court, however, found that post Riley, “[e]xigent circumstances – such as the risk of imminent loss of data through a remote wipe of the phone – can justify a warrantless search of a seized cell phone.”

    They never heard of a Faraday bag? There is no exigency, just a blind desire to 'get' someone, for anything, at anytime, in anyway.

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

  • icon
    That Anonymous Coward (profile), 11 Jul 2018 @ 2:19pm

    "we hold that even if an unlawful search occurred, the evidence acquired from the downloading was admissible under the independent source doctrine."

    Good faith exceptions...

    It might be time to remind the legal system that they are supposed to represent BOTH sides & there are laws governing their actions but they mean jack shit if you give them a pass every single time they look at you with the puppy dog eyes and say oopssie...

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

  • identicon
    Anonymous Coward, 11 Jul 2018 @ 4:01pm

    On the other hand...

    "But allowing searches to take place prior to the acquisition of a warrant encourages bad behavior"

    Agreed. But there was no search made here prior to acquisition of a warrant. Copying and searching are not the same thing.

    What the police did here was duplicate the contents of the phone without a warrant, potentially bypassing anticircumvention locks (DMCA) to do so. The police have a pass to legally circumvent digital locks as far as I know.

    I'm not saying that what they did was right, but I don't think Riley actually covers their creative solution, any more than it would cover the police photographing the contents of someone's car without a warrant, but not looking at the photo until after a search warrant was obtained.

    vis: search and observation/duplication are not the same thing. Taking someone's phone without permission? Different argument, probably legal for police. Pretty much the same rules apply to searching a handbag; if the police take it somewhere secure until they get a warrant and THEN search it, it's allowed.

    Basically, we don't seem to have laws that treat personal data as something that can be trivially duplicated for later examination.

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

    • icon
      Anonymous Anonymous Coward (profile), 11 Jul 2018 @ 4:48pm

      Re: On the other hand...

      U.S. Constitution - Amendment 4

      Amendment 4 - Search and Seizure

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      Seems to me this Amendment mentions both search and seizure. Why should there be different treatment between the two? That 'and effects' seems to cover digital 'effects'. But that is just me. A citizen reading the Constitution. I don't have all the palaver needed to 'interpret' the Constitution that courts and law enforcement have. They have 'special' insight that is far beyond our simple ability to read and comprehend simple English.

      Not that that is right or correct. The Constitution, IMHO, should be interpreted without the palaver.

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

    • identicon
      Anonymous Coward, 11 Jul 2018 @ 5:09pm

      Re: On the other hand...

      I know what you are saying, but it still rests an awful lot on the words of the officers in question. In law enforcements current state, their word doesn't mean much to me.
      I agree that there can be a danger of someone remote wiping a phone, but in order to prevent that you keep it off the global network until the warrant arrives. That means jamming the signal. They can afford to buy the tech for catching people and surveil everyone, so they can surely spend just a fraction on equipment to protect our rights. A small room where they could place the phones or even a jamming box would be enough.
      There is just too many who are willing to let it slide (or even commend them) if the officers chose to look through all the data and build their case around that, for me to trust them.
      If things were different and I could actually see some sort of responsibility being upheld with actual punishments when they step over the line, then I would be willing to give them the benefit of the doubt.

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

  • icon
    That One Guy (profile), 12 Jul 2018 @ 6:39pm

    Another entry on the list...

    ... of why trying to be 'helpful' is a bad idea and silence is your friend. If answering a question posed to you requires unlocking your phone or other electronic device refuse, as cases like this allow police to take that inch and run a marathon with it.

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

    • icon
      Uriel-238 (profile), 12 Jul 2018 @ 6:57pm

      This reminds me of a scene in The Client

      The Client was a 1994 vehicle for Susan Sarandon and Tommy Lee Jones and the movie of a John Grisham novel featuring running theme of law enforcement and the Department of Justice overstepping the rights of an under-informed child, Mark Sway (Brad Renfro) who was accidentally a witness to a confession by a mob lieutenant).

      In an early scene, a friendly officer offers Sway a soda, only later to collect the discarded the can, which he promptly dusts for Sway's fingerprints which are used to place the kid at the site of the confession.

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


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