The Supremes take a big step to protect your cell phone data from unreasonable search.

Riley v. California protects all of us from immediate and unwarranted police intrusion. Decided on June 25, 2014, the United States Supreme Court made it the law across the entire Country that our digital information may not be mined from our cell phone simply because we are arrested.  The police may quarantine your phone and remove it from network access, but they must obtain a warrant before digging through your data and apps. The Fourth Amendment to the United States Constitution continues to protect all of us from unreasonable searches and seizures.



The Fourth Amendment assures that:

[t]he 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.

The Supremes have resolved conflicting lower court rulings from California and Massachusetts about whether police search and seizure of cell phone data after an arrest was reasonable, or whether it was unreasonable in the absence of a warrant. The justices were required to apply old principles of Constitutional law to new smart phone technology that a "...visitor from Mars might conclude [is] an important feature of human anatomy." How to apply two hundred year old ideas to technology that was inconceivable just ten years ago?  The court did not have a single prior decision to address the issue, but was required to cobble together an analysis from other "search incident to arrest" cases.

You may ask yourself "what's the big deal, get arrested and deserve what you get, right?"  Then also ask yourself whether you would feel violated if a speeding ticket would be enough justification for law enforcement to scroll through your phone contact list, phone log and social media apps?  And what if substantive criminal charges arose from what the police found on your phone?  That is what happened in the two cases from California and Massachusetts.

California's highest state court affirmed a conviction based on cell phone data retrieved after Mr. Riley was arrested for a traffic violation.  His cell phone was taken from his pants pocket.  The phone contained texts and videos reflecting gang activity leading to additional charges against Mr. Riley.  He was charged in connection with a shooting, and at trial the State of California sought enhanced penalties due to gang affiliation evidenced in the videos.

In Massachusetts the federal appellate court overturned a conviction based on cell phone data in a similar case. In Massachusetts, Mr. Wurie was arrested after being observed in a drug sale.  His cell phone was inspected by the police. They used his call log showing heavy activity with certain cell numbers to obtain a warrant to search his apartment.  The police found drugs, guns and ammo. This lead to additional charges and a conviction.

Older Supreme Court cases give us some protection, already, from unreasonable searches by the police.  Traditional application of older law says that police may search us without need for a warrant  if it is done "incident to arrest." That means a search of our immediate person and vicinity to discern weapons or objects that might harm an officer or facilitate our escape. It also means gathering evidence of the suspected crime before it is concealed or destroyed.

So, where does a cell phone residing in your pocket or purse fall within this analysis? And what of the data and access to further data through your apps fall within this analysis? With an estimated 327 million cell phones in the United States, the answer to these questions impact your privacy, mine, and the privacy of every person linked to us via our smart phones.

The "incident to arrest" search has historically been limited to physical objects. But the intangible data on your smartphone does not quite fit, and it is not the same threat to the cops.  The Government argued in this case that data poses an indirect threat, perhaps, and that preventing remote wiping or data encryption could justify an immediate search incident to the arrest.

The Court rejected all of this, confirming our common sense understanding that comparing the risk to officers caused by physical objects to the risk created by intangible data is like comparing "a ride on horseback" to a "flight to the moon."

The risk of data loss to encryption and remote wiping can be readily mitigated if the phone is segregated from its network, perhaps in a "Faraday Bag," or by removal of its battery. The normal process of obtaining a warrant for further examination can then be obtained by the police in the ordinary course.

Chalk up a victory for your personal privacy. Other aspects of Government intrusion into your life may continue, relatively unabated, but you are slightly more protected from intrusions into your electronic life by the beat cop.

Murder, cell phones and a trip to the mall.

The information generated by your cell phone usage is not private, at least not from the police. In Williams v. State, reported on February 24, 2104, the Maryland Court of Special Appeals confirmed that your cell phone records really are not private, whether you are under arrest, or not.

Why not? Because every phone number received or dialed, and the owner of those numbers, is available to the police by direct inquiry to the cell phone provider. The cell phone company is an "independent source." And under Maryland criminal law, where information is equally available to police from an independent source, it will excuse improper seizure by police of the same information out of your cell phone.

The story behind the case is gruesome, and a bit scary. The victim, 19 year old Rodney Pridget, was shopping at the Towson Town Center Mall with his girlfriend. They made the same stops and detours through the mall that any one of us would have made on a casual shopping trip. Nordstroms Department Store was their last stop before leaving the mall, through the adjacent parking garage.

The couple had no idea that five people, affiliated with a gang, had been tracking them through cell phone calls, as they were shopping.

In the garage, Rodney was murdered in a hail of gun fire that inflicted eight bullet wounds to his head, torso and arms. The ferocity of the attack was summarized by one of the shooters, who called another participant to say "we tore his ass up."

When police arrived, a witness pointed out a suspect running up and down the garage stairs (looking for the getaway car that had abandoned him) while talking frantically into a cell phone. That young man was Mr. Williams.

Mr. Williams was cuffed and searched.  His cell phone was confiscated. When a witness could not positively identify Mr. Willliams, the cuffs were removed. But the cell phone was not returned to him.

Mr. Williams was taken to the police station for more questioning, while being told he was not formally under arrest, but was simply being questioned.

"It was only later that evening, when Officer Jednorski was in the screening room to observe the appellant's interview with Detective Lambert, that Officer Jednorski looked down at the cellphone whenever it would ring and then jotted down the numbers from which the calls had been placed. "

The phone was returned to Mr. Williams when he later left the police station.

Mr. Williams and others were charged. Mr. Williams was the one who ordered the murder, and he was convicted of first degree premeditated murder. He did not appeal from the finding of his guilt.  He appealed the trial court failure to suppress information taken from his cell phone- the numbers and identities of his fellow co-conspirators and murderers.

And while some find it distasteful that a convicted murder should have any appeal rights, this is an important issue for all of us who use cell phones- Can the police seize them and use information found on them against us?

It is pretty settled in Maryland that when you are under arrest, the police absolutely are authorized to search through your cell phone.

"If the thing seized as an incident of an arrest turns out to be an instrumentality of crime (a weapon), a fruit of crime (stolen goods), contraband, or other evidence, it may be retained even after the arrest to which its search and seizure were incident has itself come to an end. If none of those categories is satisfied before the arrest is terminated, however, there is no longer a justification for retaining the property of the former arrestee. The property should be returned and is not vulnerable to further examination."

In Mr. Williams' case, the cuffs had been removed from Mr. Williams at the parking garage, before he was transported to the police station for questioning.  He had been "under arrest" when the cell phone was taken, but he had been "un-arrested" before traveling to the police station. And yet, the police maintained possession of his phone and mined for information while he was being questioned. 

So, do you think the issue was resolved based on the court's analysis of whether Mr. Williams was "under arrest" at the time the phone was mined for data? No. The court relied upon the broad application of the "independent source" doctrine to rule no-harm-no foul.

"When the police subsequently asked the phone company for the appellant's cellphone records, even assuming they needed his cellphone number to make the initial request, they had it from the independent source as well as from looking at the cellphone itself. This is a classic application of the independent source principle."

* * * *

"At trial, Detective Lambert and Detective Chuck Gruss provided the jury

with detailed descriptions of the cellphone records not only of the appellant but also of Jermell Brandon, William Ward, Crystal Harris, and Marilyn "Baby Sis" Hollemand, all of whom were in regular contact with each other before, during, and after the shooting of Rodney Pridget. This detailed analysis was based on the telephone company records, not on the observations of Officer Jednorski. The source of the information was an independent source not subject to Fourth Amendment exclusion. Thus, the independent source alternative route takes us safely around the search incident quagmire.3 Evidence of the various phone calls was properly not suppressed."

If there is an independent source for your cell phone information, regardless of whether the information was first discovered on your phone, or through the independent source, the evidence need not be suppressed.  You simply have no practical expectation of privacy in your phone records....ever.

The Real Judges of New Jersey

The nationwide debate about limits on texting while driving blew up in an August 27, 2013 New Jersey appellate decision. A three judge panel for the Superior Court ruled that the individual SENDING a text to the driver of a car, who is then in an accident while reading the text, can be sued for injuries caused in the accident.

This is quite an expansion on the tort concept of reasonable forseeability.

Kubert v. Best includes this grisly description of the accident:

On the afternoon of September 21, 2009, David Kubert was riding his motorcycle, with his wife, Linda Kubert, riding as a passenger. As they came south around a curve on Hurd Street in Mine Hill Township, a pick-up truck being driven north by eighteen-year-old Kyle Best crossed the double center line of the roadway into their lane of travel. David Kubert attempted to evade the pick-up truck but could not. The front driver's side of the truck struck the Kuberts and their motorcycle. The collision severed, or nearly severed, David's left leg. It shattered Linda's left leg, leaving her fractured thighbone protruding out of the skin as she lay injured in the road.

Best stopped his truck, saw the severity of the injuries, and called 911. The time of the 911 call was 17:49:15, that is,fifteen seconds after 5:49 p.m. Best, a volunteer fireman,aided the Kuberts to the best of his ability until the police and emergency medical responders arrived. Medical treatment could not save either victim's leg. Both lost their left legs as a result of the accident.

Here is the bike, after the accident:

The Kuberts sued the driver, who was described as "steering with his elbows," and his 17 year old girlfriend. It was alleged that she sent him a text moments before the accident, and that the driver was distracted by that text at the moment of impact.

The claim against the girlfriend did not get to the jury. The trial court kicked the claim out on the defendants motion for summary judgment. The appellate court affirmed the grant of summary judgment, but said that a remote texter CAN BE SUED for causing an accident if the texter actually knows, or has a special reason to  know that the driver of a car will be distracted by the text.

It appears that routine discovery will now include a subpoena for all of your cell phone records on the day of an accident.  And any texts that were received by your phone (but not necessarily read by you) will permit a good faith claim against the person who was texting you. It will remain a matter of later proof to determine whether your correspondent knew or had special reason to know that you would be distracted (if you read the text, at all).

In this case, there was evidence that the driver was "steering with his elbows" with his head down. But what if there were no such testimony?

I once helped defend a railroad crossing accident case where the dead driver's contributory negligence was demonstrated by witness testimony that the driver and passenger's heads were turned toward each other, as if in conversation, as they were obliterated by the locomotive. But absent that testimony, who knew? The only other evidence was an absence of skid marks.

It will take a few more lawsuits to flesh out the New Jersey court's pronouncement of what is now possible to allege in a tort case (that's right, why limit the ruling to auto accidents?  What if an errant text causes Jethro to lose control of his riding mower, and he buzzes over the neighbor's champion poodle?).

Ideally, there would be no more cases. Just shut your phone off. I'll hit you back at the next rest stop.

Peace.

Will your dumb smart phone give you up to the police?

The police want access to your cell phone! And courts across the country are unsure about whether you are protected. What, exactly, is on your cell phone that you hope will remain private from government intrusion? Most everything, I am sure.

 

 

The Fourth Amendment of the United States Constitution protects us from warrantless searches and seizures by the government.  A search can include reaching into your pocket, collecting a blood sample, or opening the trunk of your car.  What is unclear is whether looking through your phone is a “search.”  If it is a search, the police must first obtain a search warrant (which requires showing probable cause to a neutral judicial magistrate).  If not, the police may freely look through your phone. 

 

Whether something is a “search” depends on whether you had a “reasonable expectation of privacy” in the thing “searched.”  As an illustration, if you put something on the dashboard of your car, and park it in a public place, any person walking by can look through your windshield, and see the item.  You have no reasonable expectation of keeping that item “private.”  However, when you put something in your wallet, or in your nightstand, you can reasonably expect that item to remain out of the public view.  Thus, the police must have a search warrant to look in your wallet, but not through the windows of your car. 

When it comes to a cell phone, some courts consider it similar to a “container” which can be opened by the police during an arrest.  Other courts analogize a cell phone to a repository of private conversations, which would require the police to obtain a search warrant to inspect. 

Maryland's appellate courts have not ruled on the issue, but there is precedent suggesting that the contents of a cell phone require a search warrant for police to access.  See, Carpenter v. State, 196 Md.App. 212 (2010) (where police obtained a search warrant to retrieve pictures, text messages, and call logs from defendant’s cell phone).

 

And so, be mindful of your cell phone. It may be smart enough to remember all your esssential information, but too dumb to forget the incriminating stuff.