from the RILEY-STRAIGHTEDGE dept
Lower courts appear to be taking the Supreme Court’s Riley decision seriously — give or take the occasional “there’s no Constitution at the border” decision. If the Supreme Court says there’s a warrant requirement for cell phone searches, there’s a warrant requirement for cell phone searches.
The Central District of Illinois has just handed down a decision that makes it clear, in no uncertain terms, that any examination of a cell phone’s contents, no matter how brief, is a search covered by Riley.
The Pekin Police Department participated in a couple of FBI-assisted controlled buys of weapons and drugs involving defendant Demontae Bell. Shortly thereafter, Bell was arrested.
Upon Bell’s arrest, a black mobile flip phone was located on his person. After Bell was arrested, he was transported to the Peoria Police Department and placed in an interview room. Shortly thereafter, Officer Sinks arrived at the police station (he was not the arresting officer). At the suppression hearing Sinks testified that before interviewing Bell with agent Nixon, he opened the door to the interview room, grabbed Bell’s cell phone from a bag or container outside the door, opened the phone (purportedly to turn it off) and showed the home screen depicting the rifle to Bell with an inquisitive look.
Officer Sinks then powered off the phone. He handed it over to FBI Special Agent Nixon and told him about the photo he had seen. Sinks then removed the phone’s battery and recorded the serial number. A little more than a week later, the FBI obtained a warrant to search the phone. Five months later, another search warrant was obtained specifically targeting date/time information related to the photo Officer Sinks saw on Bell’s phone.
Seems like a cursory examination of a flip phone would be covered, but Judge James Shadid points out the Supreme Court only allowed warrantless examination of cell phones if there were exigent circumstances or to ensure the phone did not pose a threat to officers (i.e., contain a concealed weapon). The government argued that opening a flip phone is not a “search” and that the photo of a gun the officer saw was in “plain view.” The court disagrees, pointing out that “plain view” means “plain view” without law enforcement interaction of any sort.
The government’s response to Bell’s Motion asserts that Officer Sinks’ opening of the flip phone did not constitute a search. While it is true that a “cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a ‘search’ for Fourth Amendment purposes,” Officer Sinks’ opening of Bell’s cell phone exceeded a “cursory inspection” because he exposed to view concealed portions of the object—i.e., the screen. See Arizona v. Hicks, 480 U.S. 321, 328-29 (1987). The Supreme Court specifically addressed this issue in Hicks, noting that the “distinction between ‘looking’ at a suspicious object in plain view and ‘moving’ it even a few inches is much more than trivial for purposes of the Fourth Amendment.” Id. at 325. Officer Sinks’ opening of the flip phone, like the officer moving the stereo equipment in Hicks, “exposed to view concealed portions of the [object]” and thus “produced a new invasion of [defendant’s] privacy.”
Even though the court finds Bell to have a diminished expectation of privacy in the home screen of his phone (as opposed to its contents), that’s still not enough to ignore the stipulations of the Riley decision. Lock screens or homescreens may only show limited information in relation to the contents of a phone, but they can still display a wealth of information law enforcement can only obtain with a warrant.
The lens through which all information on a cell phone is observed is the screen. On both flip phones and more modern, advanced devices, “notifications” are regularly displayed on the home screen or lock screen indicating text messages, missed calls, and other alerts. The position that the government advances here—that officers can always open a phone and look at the screen to turn the phone off without conducting a “search” at all—is inconsistent with Riley’s requirement that “unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.”
Just as Riley analyzed and rejected California’s attempt to create across the board exceptions, such as a rule allowing police to search call logs, without a warrant, the Court sees no reason to allow law enforcement to circumvent the warrant requirement in every case under the guise that they discovered evidence when they opened the phone or turned on the screen to turn the phone off.
The government attempted to use two exceptions provided by the Riley decision: officer safety and threat of remote destruction of evidence. Both of these arguments are dismissed just as quickly and soundly as the government’s “plain view” argument. The court notes that Officer Sink’s actions gave no indication he was worried about a concealed weapon or data being wiped from the phone.
In any case, if remote wiping was a concern, officers could have removed the battery without opening the phone, as was clearly demonstrated by Officer Sinks himself.
Officer Feehan testified that the policy was put in place partly because snooping software could be used to listen in on conversations when the phone is turned off but still connected to the battery, and other methods could “compromise data” on the phone. While the procedure may be outdated as applied to modern cell phones that lack removable batteries, that problem was not present here, and the video later showed Officer Sinks removing the battery. Where officers have two equally effective options to turn off a phone, they should choose the less intrusive option. That was not done in this case, and as a result, incriminating evidence was found.
The result is suppression of the evidence specific to the Constitutional violation: the picture of an AK-47 Officer Sinks saw when he opened the phone. Because warrants were obtained for a more thorough search, supported by probable cause unrelated to the photo Sinks saw, the suppressed evidence is pretty much reinstated in whole as the incriminating photo was located on Bell’s phone. While it doesn’t do much for Bell, it does at least send a message to law enforcement that the Riley decision is to be respected and that cutting corners or skirting around the edges of the ruling won’t be tolerated.