New Law Technology Article: When Can Police Search Cell Phones?

In Law Technology News:  Courts Struggle With Searches of Smartphones.

Apple Denies Tracking Users. Promises Changes.

According to news reports, Apple denies that it is tracking the location of iPhone users. Apple posted a release on the issue.

I am working on a longer piece on the implications of the revelation that iPhones store location information.

It is still hard to tell exactly what is going on, or why this was done.

Apple denies that it was tracking users. OK. Probably true. But this does not change the more important fact that the iPhone was storing the data for a long time, and that the data allowed anyone with access to determine the past location of users.

An Expert on Smell. Really.

Every now and then I am reminded about how much fun being a lawyer can be.


This is a bit off the technology beat, but is worth a mention.  Fourthamendment.com has a link to a case from Alaska where the defense successfully challenged a search warrant.  Read it here.


In this case, the defense called an expert on smell and taste.  The expert wrote a book titled, The Handbook of Olfaction and Gustation.


What a great  answer the attorneys in that case had to the question:  "anything interesting happen at work today?"

Life Is Better With All This Technology.

The Forbes technology blog channels Andy Rooney.  “Life was better before we had all of this technology,” he said every week on 60 Minutes.

In this case, a former paralegal is nostaligic for the days when Supreme Court briefs had to be set at an old-fashioned printer.  He describes it as one of his “great joys.”

Yes, life was better back then.  Except it wasn’t. 

The physical process of having briefs printed no longer involves hours at the printers setting and resetting type and getting covered with ink.  But more importantly, the modern process is both superior in its ability to allow last minute substantive changes and edits, and cheaper.  The costs of lawyers and paralegals spending hours at a printer, not to mention the cost of the type itself, must have been so astronomical that only the most deep pocketed clients could afford the service.

This story illustrates how technology – but reducing costs and enabling lawyers to spend time on substantive work – has improved the world. 

Federal Government Is Using Search Warrants to Obtain Facebook Data -- Why This Is Good News

The federal Government has started to obtain search warrants to access the Facebook accounts of suspected criminals.  According to news reports, the Federal Government has sought a “few dozen search warrants for Facebook accounts nationwide since May 2009.”

One criminal was quoted saying, “To be honest with you, it bothers me.”

The reports include the predictable concerns about constitutional and evidentiary issues.  What is unclear is how often Facebook and other similar sites receive requests for information, and how it responds to those requests that do not rely upon a search warrant.

Nonetheless, this report is good news.  The battle over privacy rights, the Internet, and emerging technology is not so much a battle about information that is obtained, but how the government is able to access that information.  The reports that the government is seeking search warrants rather than obtaining the information without any judicial oversight is evidence that courts and the government are recognizing the significant and reasonable privacy interest in this data.

iPhones Track Location -- What Are The Fourth Amendment Implications?

News reports from England suggest that iPhones and iPads keep track of where users go.  The information is kept on a file that is backed up on the user’s computer.

The file created by the iPhone apparently contains the latitude and longitude of the phone's recorded coordinates along with a timestamp.

Obviously, this is a huge threat to privacy -- anyone who accessed the iPhone or the computer it syncs to, whether through theft, snooping, or otherwise, could discover details about the owner's movements.

So what are the Fourth Amendment implications of this?  A couple come quickly to mind.

First, if law enforcement is able to access an iPhone legally – whether as a result of an arrest of the owner or if the phone is abandoned – then current law in most locations would allow the police to access this data.

Second, law enforcement may argue that it can access this information anytime without a warrant.  This argument is based on the same justification for putting a GPS on a person’s car without a warrant:  a person has no expectation of privacy wherever they can be seen by the public.

I will post more on this later.

Ohio Court Rules That Officer Cannot Answer A Suspect's Cell Phone

An Ohio Court has held that the police may not use a suspect’s cell hone after an arrest.

The case is State v. Todd.

In this case, the defendant was observed by police walking near the report of a possible burglary.  The 911 caller stated that he "just didn't fit the area."

The suspect put his hands into his pockets while talking with the police.  The officers asked if he had any weapons.  The defendant put his hands into his front pocket and pulled out two cell phones, a digital camera, some foreign coins, and jewelry.

When questioned about the phones, the defendant stated that he had purchased one of the cell phones the night before and that he had not had time to delete the stored numbers on the phone.  The officer dialed the last number on one of the phones.  No one answered.  However, a few moments later the phone rang and the officer answered.  The caller indicated that the phone belonged to the defendant. 

The officer placed the defendant under arrest and found a number of stolen credit cards in his pockets.  During an interview, the defendant admitted to committing a burglary and receiving stolen property. 

The defendant’s conviction was reversed.  The court held that a protective patdown for weapons may have been permitted; requiring the defendant to empty his pockets violated the constitution.  However, the search may have been justified because there was probable cause to arrest the defendant for trespassing.  Thus, the officer was permitted to search the defendant incident to an arrest retrieve the cell phone.

But that is not the end of the analysis.  The actions of the officer in searching the phone by dialing the last number and then answering the phone when it rang is not permitted.  This search exceeds what is permissible under a search incident to arrest, according to the Ohio Supreme Court. 

Juror Texting During Trial -- Not Enough for a Mistrial!

A Kansas court reviewed the implications of jurors texting during a trial.

The case is State v. Mitchell.

The defendant was on trial for aggravated burglary.

During the trial, the defendant’s attorney observed one of the jurors slumped down in her seat below the rail in front of the jury box.  He could not see her hands, but presumed that she was texting.  The bailiff stated that the juror was texting during jury selection, and that her focus was down towards her lap during the trial.

The court did not grant a mistrial.  Instead, the judge admonished the jurors collectively to make sure their cell phones were turned off, not just set to vibrate.

The question became whether the juror was communicating with someone outside of the court during the trial.  In this case, because the judge did not question the juror about her actions (and the defendant did not request this), there was not enough evidence of improper communications to declare a mistrial.

The Kansas court did suggest that courts should consider prohibiting access to cell phones during all trial proceedings.  

Cell Phone Is Not (Always) A Criminal Tool

An Ohio court has affirmed that a cell phone, by itself, is not considered a criminal tool – even when possessed by a drug dealer.

The case is State v. Brooks.

The defendant was charged with various drug offenses, including trafficking.  During a traffic stop, the police found “a ‘little baggie of marijuana,’ two cell phones, and $24 in [the defendant’s] left coat pocket.”  Inside his car, the police found 12 individual smaller bags containing single pieces of crack cocaine, all packaged in a larger plastic bag.

The court reversed a conviction on the charge that the cell phone was a “criminal tool” used to support drug trafficking.  The court, citing another recent opionion, said:  “The ubiquitousness of cell phones is such that the mere possession of a cell phone is not ipso facto proof that it was used in drug trafficking.”   

In the future, the prosecution will probably have to introduce cell phone records or text messages that appear to support drug transactions using the phone.

Articles Published

A copy of my article on GPS tracking, COURTS RE-EXAMINE THE APPLICATION OF GOLDFINGER-ERA ELECTRONIC TRACKING CASES TO LAW ENFORCEMENT USE OF GPS TRACKING DEVICES, is now available in the Richmond Journal of Law and the Public Interest here.

A copy of a piece I wrote for the Law Technology News, DOES POLICE USE OF GPS DEVICES NEED SUPREME COURT GUIDANCE? is now available online here.

Virginia Judges Question Whether Extensive GPS Surveillance is Permissible

A panel of a Virginia Court of appeals had an opportunity to rule on the warrantless use of GPS devices.  The Court punted, deciding the case on other grounds.  But one of the judges wrote an interesting concurring opinion.

The case is Foltz v. Commonwealth.

In this case, the defendant was convicted of abduction with intent to defile.   The Defendant challenged the use of evidence obtained through the use of a GPS device placed on his work van.

The defendant, a registered sex offender on probation as a result of prior convictions, including rape, was a suspect in a series of sexual assaults in Northern Virginia.  The sexual assaults appeared to be similar to the crimes committed by the defendant.

His employer provided him with a van which he was permitted to drive to his home.   On February 1, 2008, the officers attached a GPS to the defendant’s work van.  On February 5, 2008, the police determined that the defendant’s van had been in the vicinity of a sexual assault.  They then began traditional surveillance.  The officers observed the defendant start to assault a woman and arrested him.  The defendant was convicted of his crime for this assault.

The court did not reach the GPS issue.  Instead, the court concluded that the officers could legitimately have conducted the traditional surveillance and thus, legally, obtained the visual evidence used to obtain the conviction. 

This decisions appears to be correct.  I won’t bog down the blog with a discussion of “fruits of the tree” doctrine.  Instead, lets move to the interesting discussion that occurred within the concurring opinions.

Two of the judges would have addressed the use of the GPS devices “squarely.”   In their opinion, they note that “The government could potentially abuse this technology in an Orwellian manner by truly invading the private lives of individuals without any constitutional justification.”  However, “the particular facts of this specific case simply do not even raise such concerns.” 

The judges would have allowed the warrantless use of GPS devices in this case because the van was not owned by the defendant.  More significantly, the van “was parked on a public street when the police attached the GPS device to the van.”  The judges reasoned that because the van was visible to the public, the “GPS device . . . did not expose anything that was not already visible and freely accessible to the public.” 

Here is what I think is significant.  The judges did not rely completely on the principal that simply because a van is visible to the public, the use of GPS devices without a warrant is always justified.  Instead, the judges distinguished this case from cases where the police track “the defendant's unrestricted driving of his personal vehicle for a number of weeks.” 

Another Judge addressed these arguments in another concurring opinion.  This judge also noted the distinction between the discrete use of GPS to solve a crime, and the tracking of people.  He wrote:

we are not talking about the “public” events of a single evening, but rather the comprehensive observation or electronic tracking that takes place over a period of days, weeks, or months. While it is reasonable to expect that anyone might witness any one of such a series of public activities or events, it does not follow that one cannot reasonably expect that a particular person or group would not be privy to all of them. Similarly, one might reasonably expect something as intensely personal as their genetic profile to remain private even if such a profile could in principle be extrapolated from residual DNA left upon a glass or fork "abandoned" in a public restaurant. Thus,  . . . private (and thus protected) facts may be extrapolated from the aggregation of individual public events or from a technologically assisted analysis of “public” objects or information.

Hot Topic: Another Note on GPS Tracking.

Another law student has written a Note about GPS tracking.  This article is from the Fordham Law Review.  It was written by Kaitlyn Kerrane and titled:  Note: Keeping Up With Officer Jones: A Comprehensive Look at the Fourth Amendment and GPS Surveillance.

This Note concludes that “a reasonable expectation of privacy exists in both the installation and monitoring of a GPS unit in light of several considerations: property interests, public exposure, the nature of the police intrusion, and the type and quantity of information obtained.” 

The author notes that in Knotts, the Court did not consider the quantity of information obtained through the use of a tracking device.  In noting that some courts have “disregard[ed] the increased intrusiveness of GPS technology compared to the older beeper technology” the author may be seeking too broad a rule.  It is possible, for example, to use a GPS device to conduct discrete and limited monitoring.  This likely, in my view, does not implicate the Fourth Amendment.  It is only when the law enforcement uses GPS over an extended of time that the privacy interests of the subjects are impacted.  

Police Search of an Abandoned iPhone Ruled Unconstitutional

I have posted warnings about not abandoning your cell phone.  Believe it.

A new example is found in a Colorado opinion, People v. Schutter.  But in this case, the court found that the phone was not abandoned and that a police search was, therefore, unconstitutional.

The defendant in this case was charged with various felony drug offenses.  The evidence was obtained after his home was searched pursuant to a warrant that relied on information discovered during an examination of his iPhone. 

The defendant had accidently locked his iPhone in a convenience store restroom.  When he approached the store clerk and asked for help in retrieving his cell phone, the clerk said that he was too busy at that time and that the defendant would have to come back later.  An hour later, when the defendant had not returned, the clerk turned the phone over to police officer. 

The officer answered incoming calls and reviewed text messages.  When the defendant when to the police station to try to retrieve the phone, the police refused.  The police later obtained a warrant to conduct a more complete search of the phone. 

The court first observed that the police would be justified in conducting at least some limited inspection of lost property to discover the owner's identity.  However, in this case the defendant's iPhone was neither abandoned, lost, nor mislaid such that the police would have had any need to identify the owner.  Rather, the police knew that the owner had inadvertently left the iPhone in a restroom, knew precisely where it was, and sought its return from both the clerk and the police. 

The dissenting judge challenged these facts, writing:  “the defendant left the store without making any arrangements with the clerk for recovering the phone. He did not ask the clerk to retrieve the phone, nor did the clerk make such a promise. He did not inquire into when the clerk would no longer be busy. He did not leave his name or a way in which he could be contacted if the phone were retrieved. Nor did he ever return to the convenience store. In sum, the defendant left the convenience store despite the fact that his phone was in a public space that was only temporarily locked.” 

The take away?  The Defendant in this case was successful in a close case.  If the defendant had a passcode on the iPhone, for example, this would be a much clearer case.  But everyone should be aware that if a phone is left behind, the finder may look through the contents (sometime legitimately).

GPS Decisions Are Consistent With A Traditional Fourth Amendment Approach -- But Some Disagree.

An American University Law Student has published an interesting note on the Maynard decision. 

The Note by Bethany Dickman is titled, Note: Untying Knotts: The Application Of Mosaic Theory To GPS Surveillance in United States v. Maynard,  60 Am. U.L. Rev. 731 (2011).

I want to highlight one aspect of the Note.  Ms. Dickman argues that the Maynard decision is an example of the “mosaic theory” of the Fourth Amendment.  Under this theory – perhaps over-simplifying a bit – a number of otherwise permissible techniques can, in the aggregate, constitute an impermissible search for Fourth Amendment purposes.  Dickman explains:  “privacy may exist in the aggregate of one's movements, despite their inherently public character.” 

This theory is likely a nice description of the state of affairs.  However, I remain unconvinced that the Maynard decision, and other decisions holding that the use of GPS tracking devices, represent a leap towards a new theory or approach to the Fourth Amendment.  From a practical standpoint that is undesirable, as it would upset the expectations of law enforcement, judges, prosecutors, and defense attorneys.

In my view, the decisions invalidating the use of GPS devices, like Maynard , are limited to the precise situation.  The mosaic approach to the Fourth Amendment would be inappropriate in other contexts, such as a review of cell phone call records.  Instead, these decisions are best understood, I believe, as part of the traditional recognition by courts that technological advances in surveillance techniques have made possible intrusive government interference with privacy without a physical invasion.   The protections provided by the Fourth Amendment, as the Supreme Court has often recognized, change to meet new technology.  

It is important to remember that the use of GPS tracking devices for long-term surveillance is not merely an enhancement of the type of surveillance traditionally conducted by police, as no police agency could deploy the skill and resources to, undetected, record the type or amount of information provided by a GPS tracking device.  Under traditional Fourth Amendment approaches, a warrant is required because no reasonable person would expect to be the target of such a massive police surveillance operation.