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Law Technology News: Courts Still Divided on Cell Phone Searches

Law Technology News, June 22, 2012.

A Colorado court has continued the split among courts about the ability, under the Fourth Amendment, for police to search cell phones. The case is People v. Taylor, Colo. Court of Appeals, 5th Div. No. 09CA2681 (June 7, 2012).

In Taylor, undercover officers suspected that the defendant was dealing drugs. He was arrested. After the defendant was arrested, he was searched and his cell phone was seized. One of the arresting officers reviewed the cell phone's call log -- without a warrant -- and found incriminating evidence.

The defendant argued that the search of his cell phone without a warrant violated his Fourth Amendment rights. The police justified the search under the "search incident to arrest" exception to the warrant requirement. In brief, under this exception to the Fourth Amendment, police may search any objects in the possession or reach of an arrested person.

Whether this search includes cell phones has not been addressed by the U.S. Supreme Court. A number of courts -- including the Fourth and Fifth Circuits, have permitted these searches. Some courts -- including most notably the Ohio Supreme Court -- have suggested the cell phones are different.

The Taylor court allowed the search. Notably, the court seemed to rely upon the fact that the search was limited to the call history. Whether a different result would have been reached had officers searched emails, text messages, or photographs stored on a smartphone is an open question. Regardless, the Taylor case further illustrates why guidance from the Supreme Court on this issue is necessary.

For further background, see also LTN's March 12 analysis of a Seventh Circuit decision, U.S. v. Abel Flores-Lopez; "Courts Struggle With Police Searches of Smartphones," and this law review article, "Doctrinal Collapse: Smart Phones Cause Courts to Reconsider Fourth Amendment Searches of Electronic Devices, University of Memphis Law Review, Vol. 41, p. 233 (2010).

Post Originally appeared on EDD Update.

More on: Audio Recordings

Seventh Circuit Addresses Audio Recordings and the First Amendment

Law Technology News

by Joshua A. Engel | 05/17/2012

Whenever a public figure speaks, smartphones and audio devices are there to record. The Seventh Circuit recently addressed the First Amendment limitations of this action in ACLU of Illinois v. Alvarez.

From EDD Update:

7th Circuit Holds Cell Phone Videos Are Protected

Every time a public figure speaks these days, smartphones are there to record the speech.

A key question: Is this legal?

That was the issue addressed last week by the Seventh Circuit Court of Appeals. The case isAmerican Civil Liberties Union of Illinois v. Alvarez, 7th Cir. No. 11-1286 (May 8, 2012).

The court reviewed a challenge to the Illinois eavesdropping statute, which makes it a felony to audio record "all or any part of any conversation" unless all parties to the conversation give their consent, and includes any oral communication regardless of whether the communication was intended to be private.

In Chicago, citizens had started a "police accountability program," which included plans to openly make audiovisual recordings of police officers performing their duties in public places and –- a fact that makes the statute applicable -- speaking at a volume audible to bystanders. When persons involved in the program feared prosecution, the ACLU challenged the eavesdropping statute on First Amendment grounds on their behalf.

The court held that the statute, in these circumstances, violated the First Amendment.

Read the full article on LTN online.

The image is in the public domain

More Frequent Fliers at the Court. New Supreme Court Decision Continues Trend of Taking Criminal History of Suspects into Account in Miranda Cases.

In 2011, I published an article in the Seton Hall Circuit Review on the Supreme Court’s recent Miranda decisions:  Frequent Fliers at the Court, 7 Seton Hall Circuit Review 303 (2011).

In that article, I reviewed four Supreme Court cases interpreting Miranda that featured suspects with significant prior interaction with law enforcement and the criminal justice system:  Montejo v. Louisiana, Florida v.Powell, Maryland v. Shatzer and Berghuis v. Thompkins.  I observed that “while the original Miranda decision held that the atmosphere of a custodial interrogation generates ―inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely, these later decisions shift the focus from the atmosphere to whether the individual suspects were actually compelled to make incriminating statements.” 

The four decisions all concerned the waiver of Miranda rights.  The article examined the increased consideration of the criminal background of suspects, whether implicit or explicit, by the Supreme Court and lower courts in determining whether a Miranda waiver is made in a knowing, intelligent and voluntary manner. I concluded:  “By implicitly – and, someday, probably, explicitly – taking the criminal experience of the suspect into account along with the totality of the circumstances surrounding the interrogation, the Court may be engaging in a more realistic review into whether a waiver and statement were uncoerced.”

The Supreme Court decided another Miranda case involving a frequent flier recently:  Howes v. Fields  In Howes, the issue was not a waiver of Miranda rights, but whether the suspect was in “custody” and therefore was entitled to receive Miranda warnings prior to an interview.  The suspect in Howes was serving a sentence in jail (for disorderly conduct!) when he was escorted to a conference room and interviewed about an alleged sexual offense.  He was told that he was free to leave; he subsequently confessed to the crime. 

The Supreme Court concluded that, despite the fact that he was incarcerated, the defendant was not in custody for Miranda purposes.  This is because, when examining the totality of the circumstances, the Court believed that incarcerated persons “live” in prison and can return to the daily prison life. 

Later, I will more closely examine the entire opinion.  But what caught my eye initially was the Court’s willingness to take an incarcerated defendant’s familiarity with the criminal justice system into account in the analysis of whether the defendant in in custody ofr Miranda purposes.  The Court noted that “a prisoner, unlike a person who has not been sentenced to a term of incarceration, is unlikely to be lured into speaking by a longing for prompt release.”  The Court also noted that a prisoner “knows that the law enforcement officers who question him probably lack the authority to affect the duration of the sentence.” 

The Howe decision, thus, appears to be consistent with the long-term approach of the Supreme Court in taking the subjective knowledge and experience of suspects into account in deciding Miranda cases.  Key among the subjective knowledge and experience of suspects is a familiarity and experience with the criminal justice system.

Constitution 3.0

From EDD Update.


Jeffrey Rosen is the co-editor (with Benjamin Wittes) of a new book from The Brookings Institute, Constitution 3.0: Freedom and Technological Change. A constitutional law scholar, Rosen addresses the effect of changing technology on constitutional issues, and recently was interviewed on NPR. 

Rosen claims that “lawyers at Facebook and Google and Microsoft have more power over the future of privacy and free expression than any king or president or Supreme Court justice.”

In the book, Rosen suggests that new technologies, such as GPS tracking, are “challenging our Constitutional categories in really dramatic ways . . . And what's so striking is that none of the existing amendments give clear answers to the most basic questions we're having today.” 

Rosen seems to point to two ways in which technology has changed the perception of privacy, at least how the Fourth Amendment is concerned. First, there is the consideration of the amount of privacy people can expect in public places.  Second, there is the difference between short-term and long-term surveillance. 

In the book, leading legal scholars were asked to imagine technologies and hypothetiucal situations that might be developed in the next few decades that would challenge current thinking about constitutional privacy protections. One scenario he describes is particularly interesting:  websites such as Google post video from live surveillance cameras online and archive those videos in a database. Add in facial recognition abilities of Facebook, and it could be possible to search for the location of individual persons at any given time.  The challenge is the police could use this surveillance without any apparent Fourth Amendment limitations because no government action would be involved in obtaining the data.

Listen to the NPR interview.

Personal Experience with Find My Friends

From EDD Update.

TMI or Life Saver?

I learned last week that too much information from tech can be a bad thing.

Apple last month released the “Find My Friends” feature on iPhones.  This featrure allows users to view the current locations of other users — who agree — on a map. While sold as a way to track and meet up with friends, I am guessing that the feature is most popular with families. 

Predictably, last month stories started to appear that one of the great uses for “Find My Friends” is the discovery of cheating spouses. One person posted on a web site that he had used the feature to discover that his wife was with another man when she had claimed that she was at a friend’s house in another part of town. 

One commentator noted:

I am sure at this very moment that John Grisham is calling his agent and musing about a new novel — set somewhere in Mississippi — where the plot will turn on the cheery new functions of an iPhone 4S. The plot will, no doubt, turn on whether planning such a ruse would constitute admissible evidence. . . .

Quite soon, I feel sure that happy couples will be making their promises at the front of churches and include this wording: "Till death do us part. Or till I discover that my sleazy little spouse has been secretly following my movements with an adorable little Apple app.

An author in Forbes took a more ominous view of the technology:

Will being given technology tools that make law-enforcement-style surveillance so easy a baby could do it transform us (more than Facebook already has) into a society of spies? Just as we expect everyone to have a Facebook account, perhaps we’ll start expecting everyone to volunteer their whereabouts at all times, as part of the “social OS.” If a friend (or a spouse) chooses NOT to be tracked, will we assume they are up to no good?

My own story is less exciting. We use “Find My Friends” and have found it useful for much more mundane purposes, such as calculating when someone on the road will be home from work. Earlier this week, I was picking up the kids because my wife had an appointment in another city. I called my wife but she did not answer, so I checked where she was on Find My Friends.  To my shock, her location was at the local hospital. I checked again, got the same result, and did a quick U-Turn to head to the hospital.

Then story has a happy ending — she had stopped at a jewelry sale by the hospital auxiliary.  But for about 10 minutes I was panicked and worried.

The moral of the story is obvious.  At the risk of sounding like Andy Rooney, maybe sometimes we really were better off before we had all of this technology.

Lycurgus Group Publishes White Paper on Penn State Investigations

The Lycurgus Group has just published a White Paper on the Penn State Investigations.  The White Paper is available here.

The White Paper continues to look at the Penn State sexual abuse scandal.  The facts and allegations, because so well reported and continuing to develop, will not be repeated here. This may be, as Boston Globe columnist and ESPN contributor Bob Ryan suggests, “the single biggest story in the history of college sports.”  The Lycurgus Group joins the hopes and prayers of others that the victims in this matter can find some sense of justice.

While it is too early in the legal process to draw any definitive conclusions about where the fault should fairly lay, it is not too early for Institutions to begin to answer the question about how similar mistakes can be avoided in the future.  The purpose of this White Paper is to examine the potential conflicts of interest inherent when Institution’s conduct internal investigations sensitive of high profile allegations of wrongdoing and to propose the use of external investigators as a viable solution in extraordinary situations.

In some instances, the reliance on internal staff is appropriate based on the nature of the allegations.  However, two recent incidents at Penn State – allegations of wrongdoing by a climate research scientist and the sexual abuse allegations involving a former football coach who maintained ties to the Institution – illustrate that when the institution faces potentially serious allegations, the better course is not to use of internal staff, whether in the compliance office or otherwise, to conduct the investigation.  The use of internal staff may create the appearance of a conflict of interest because the staff is not independent from the Institution.  In addition, internal staff may not have the resources or experience necessary to conduct a thorough investigation of serious allegations. 

Fellows from the Information Society Project at Yale Law School have just published an article on the upcoming GPS tracking case before the Supreme Court.

Fellows from the Information Society Project at Yale Law School have just published an article on the upcoming GPS tracking case before the Supreme Court.

Priscilla Smith, Nabiha Syed, David Thaw and Albert Wong are the authors of "When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches," 121 Yale. J. Online 177 (2011).  I highly recommend it.

The authors argue that “the use of GPS surveillance for prolonged monitoring without a warrant cannot pass muster under the Fourth Amendment.” They suggest that in evaluating new technologies, “wherever a new technology carries the potential for police abuse, the Court has allowed its use only as guarded by the warrant requirement, placing a check on the unlimited discretion otherwise afforded officers.” 

In particular, the authors suggest that the Supreme Court distinguished between technologies that merely enhance human senses (such as binoculars) and technologies that operate independently of humans (such as heat sensors).

This analysis would seem to suggest that GPS tracking of a vehicle is permissible without a warrant – after all, the GPS tracker merely does what a officer conducting traditional surveillance could do – not the location of a vehicle on public streets.

However, the authors suggest that there “is a vast technical valley between old technologies used by police officers, which merely assist in tailing suspects, and modern GPS surveillance technology, which automates tracking and surveillance.”

They point to two unique aspects of GPS tracking: 

(1) “Once the GPS tracking device is installed, it can operate autonomously over a prolonged period of time without human involvement, independently determining and remotely transmitting positional data twenty-four hours a day.” 

(2) “The electronic storage of gathered location data allows the data to be stored forever and considered at any time in the future alongside data collected from other citizens.”

I generally agree with this argument, and wrote last spring that “people have a reasonable expectation of privacy in the totality of their movements over the course of a period of time. . .  [and Courts]  are likely to conclude that the use of a GPS tracking device on a vehicle constitutes a search within the meaning of the Fourth Amendment.

The authors add a unique perspective on this case, suggesting that while there is no evidence of mass surveillance using GPS tracking yet, “circumstances might trigger” law enforcement to conduct such activities, pointing to a possible “terrorist attack by enemies (either foreign or domestic) whose ethnicity, religious affiliation, political persuasion, or other characteristics catalyze fear of or animus toward a particular minority group.”

Originally posted on EDD Update

New iPhone Leads to Fourth Amendment Violations???

So . . .  Apple released a new iPhone.

The most interesting aspect of the Apple story is the measures it takes to protect its intellectual property. In an effort to protect the new iPhone, Apple may have run up against the Fourth Amendment.

CNET reported  that Apple security personnel enlisted the help of the San Francisco police in locating a lost iPhone prototype. The iPhone was allegedly lost by an Apple employee at a bar in late July. The iPhone was tracked to a home. Apple security personnel and the police officers then went to the home. With the police standing by, the Apple security personnel searched the home, as well as a car and computer. 

The homeowner told reporters that the people who came to his house looking for the phone identified themselves as police (not Apple employees). He claimed that he never would have allowed Apple employees to conduct a searched.

The San Francisco Police are reported to have stated that “four SFPD Officers accompanied Apple employees to the . . . home. The two Apple employees met with the resident and then went into the house to look for the lost item. The Apple employees did not find the lost item and left the house.”

Of course, a lawsuit has now been threatened. Does it have a chance? Assuming that the consent for a search was invalid because of deception (a big assumption, perhaps), then the Fourth Amendment could have been violated. The general rule is that the Fourth Amendment” is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official. United States v. Jacobsen,  466 U.S. 109, 113 (1984).  However, the Court has also held that a person may be deemed a “state actor” when he has acted together with or has obtained significant aid from state officials. Lugar v. Edmondson Oil Co.,  457 U.S. 922, 937 (1982).

In this case, there is certainly a good argument that the Apple employee were acting as state agents in conducting the search. This would make them liable under the civil rights laws for any violations of the Fourth Amendment rights of the homeowner.

Finally: to add intrigue and a whiff of conspiracy to the story:  the video surveillance tape of the bar has been erased.  

This post originally appeared on the EDD Update blog.

Image: Apple

Constitution Day

I will be speaking at Rosemont College for Constitution Day.

The title of the talk is:  We the Ppl of the Internet @ge:  The intersection of the Constitution and Social Media.

Ninth Circuit's take on GPS tracking

A Golden Gate law student posted an article about the Ninth Circuit's take on GPS tracking -- a case that gets lost in the Maynard hype.  She writes:

The Supreme Court has recognized that law enforcement’s utilization of more advanced forms of technology threatens to diminish the privacy guaranteed by the Fourth Amendment. To avoid this, courts should “take the long view, from the original meaning of the Fourth Amendment forward,” so as to protect the rights and privacy
interests of the public.  While courts cannot read the Fourth Amendment as confining law enforcement to the technology and tactics available in the eighteenth century, privacy concerns raised by fantastic technological advances oblige the Supreme Court to watch closely to safeguard fairness in the federal court system.

LTN published a new article:

The Social Media/First Amendment Face Off

Joshua A. Engel All Articles

Law Technology News

June 07, 2011

Image by clipart.com

Social Media sites have become a significant source of evidence for federal and state criminal investigators. News reports, for example, have described the manner in which federal investigators have been seeking warrants for the Facebook accounts of targets. One person who faced criminal charges after the search of his account complained, "To be honest with you, it bothers me . . . Facebook could have let me know what was going on. Instead, I got my door kicked down, and all of a sudden I'm in handcuffs."

Read the full article here.

Sorry for Slow Posting

Apologies to followers.  I have been traveling, and then we had a death in the family.  So I have been out of touch.  Regular posting will resume shortly.

Ironic? Federal Government Opposes Effort to Obtain Evidence from Facebook.

One of the endearing qualities of many government lawyers is a total lack of irony.

The Atlanta Journal-Constitution reports that federal prosecutors have opposed the efforts of a criminal defendant in a sexual assault case from obtaining information from the victim’s Facebook page. 

The defendant claims that the woman’s Facebook account contains information that could be helpful to the defense.  The federal prosecutor opposed the subpoena served “calling it a fishing expedition and an invasion of the woman's privacy.”

I have no opinion about this particular issue without knowing whether the information sought is relevant to the case, or a violation crime victim rights and rape shield laws.  However, I have noted elsewhere that the federal government likes to obtain information from Facebook about defendants.  So, perhaps it is strange to see the government arguing the other way in this case.

Limewire Verdict Could Hinder Innovation

The founder of Limewire admitted that his service likely violated copyright law.

Or so say the headlines.  But in reality all he did was say that he took a position in an area of where the law was not completely clear.  He said:  "I didn't think our behavior was inducing [copyright infringement]. I understand that a court has found otherwise."

This came up in a copyright case brought against Lime Wire by the Recording Industry Association of America. 

A large verdict in favor of the RIAA could have some very serious chilling effects on innovation.  The application of law to emerging technology is always unsure.  This doesn’t mean that innovators and entrepreneurs should not be able to take risks.  Rather, people reasonably should continue to push the envelope of legal limits.  If they are wrong, they should stop.  But forcing them to pay large judgments serves no legitimate purpose.

Florida Courts Expresses Skeptcism of Searching Cell Phones Incident to Arrest. But Allows The Search Anyway!

A Florida District Court of Appeals has questioned the existing Supreme Court doctrine which allows searches of cell phones incident to arrest.  This issue has been getting a of of attention recently (especially from me).

The case is Wood v. Florida.

In this case, the police found incriminating evidnce on the defendant’s cell phone after he was arrested  But for the arrest, the police would have had no justification to search the cell phone. 

The court believed that it was bound by the Supreme Court's decision of United States v. Robinson, 414 U.S. 218, 234 (1973), in which the Court held containers – in this case, a coigarette package, found upon a person incident to arrest may be searched: 

We recognize that . . . many of the federal and state courts that have addressed this issue have found whether or not a cell phone may be searched incident to arrest is contingent upon whether or not a cell phone is a "container" as contemplated by Robinson . . .[ W]hether or not a cell phone is properly characterized as a traditional "container" is irrelevant to whether or not it is searchable upon arrest. The Supreme Court has clearly and repeatedly found that anything found on an arrestee or within an arrestee's immediate control may be searched and inspected upon arrest. There is nothing in the language of any of these cases that would permit this court to find an exception for cell phones.

The court clearly was not comfortable with this conclusion:

While we feel we are bound by the Supreme Court precedent, we recognize appellant's concern that cell phones contain a vast amount of personal information. However, courts have found the broad language in Robinson permits searches incident to arrest of wallets, purses, date books, and other similar items that contain the same types of personal information stored on a cell phone. . . .   However, we express great concern in permitting the officer to search appellant's cell phone here where there was no indication the officer had reason to believe the cell phone contained evidence. The bright-line rule established by Robinson may have been prudent at the time, given the finite amount of personal information an arrestee could carry on his or her person or within his or her reach. However, the Robinson court could not have contemplated the nearly infinite wealth of personal information cell phones and other similar electronic devices can hold. Modern cell phones can contain as much memory as a personal computer and could conceivably contain the entirety of one's personal photograph collection, home videos, music library, and reading library, as well as calendars, medical information, banking records, instant messaging, text messages, voicemail, call logs, and GPS history. Cell phones are also capable of accessing the internet and are, therefore, capable of accessing information beyond what is stored on the phone's physical memory. For example, cell phones may also contain web browsing history, emails from work and personal accounts, and applications for accessing Facebook and other social networking sites. Essentially, cell phones can make the entirety of one's personal life available for perusing by an officer every time someone is arrested for any offense. It seems this result could not have been contemplated or intended by the Robinson court.  We would also note that the rationale related to text messages and phone call logs concerning automatic deletion is not applicable here because there was no argument or evidence presented that photographs are subject to automatic deletion.

In light of theses concerns, the court certified the following question to be one of great public importance:

DOES THE HOLDING IN UNITED STATES V. ROBINSON, 414 U.S. 218 (1973), ALLOW A POLICE OFFICER TO SEARCH THROUGH PHOTOGRAPHS CONTAINED WITHIN A CELL PHONE WHICH IS ON AN ARRESTEE'S PERSON AT THE TIME OF A VALID ARREST, NOTWITHSTANDING THAT THERE IS NO REASONABLE BELIEF THAT THE CELL PHONE CONTAINS EVIDENCE OF ANY CRIME?

I am not familiar with Florida appellate practice – can someone with experience explain the practical significance of this question.

Seventh Circuit Rejects Argument That Police Need Warrant For GPS

The Seventh Circuit stated that use of GPS devices by law enforcement is a “Fourth Amendment frontier.”  The court then rejected a claim that a warrant is required before the police may place a GPS device on a car.  The case is U.S. v. Cuevas-Perez.

In this case, federal and state law enforcement officers suspected that the defendant was involved in a drug distribution operation. As part of the investigation, they attached a GPS tracking unit to the defendant’s Jeep. 

The most notable aspect of the decision is the court’s rejection of the argument that GPS devices are “different and more intrusive than those addressed in prior [Supreme Court] cases.”  The court said, “we do not consider this particular advancement to be significant for Fourth Amendment purposes in general: real-time information is exactly the kind of information that drivers make available by traversing public roads. The historical data gathered and stored on comparatively primitive GPS devices is actually less akin to the publicly-exposed information on which the Fourth Amendment permissibility of GPS tracking is based.” 

I have previously argued that the Supreme Court’s cases were inapplicable because they were based on old technology.  The concurring judge was more explicit in rejecting this argument:  “Make no mistake, concerns over privacy in the information era may make it appropriate to reconsider the principles used for determining whether law enforcement activity constitutes a search within the Fourth Amendment's meaning. The dissenting opinion cogently makes the point. For now, however, the path for lower courts is clear: the holding of Knotts [the old Supreme Court decision] governs GPS monitoring. The practice of using these devices to monitor movements on public roads falls squarely within the Court's consistent teaching that people do not have a legitimate expectation of privacy in that which they reveal to third parties or leave open to view by others.” 

Judge Wood, dissenting, argues:  “Prolonged GPS surveillance, like a surreptitious wiretap, intrudes upon an individual's reasonable expectation of privacy by revealing information about her daily trajectory and patterns that would, as a practical matter, remain private without the aid of technology. This sort of constant monitoring at a personal level gives rise to precisely the "dragnet" effect the Supreme Court identified in Knotts . . .” 

An excellently written decision on both sides.  I highly recommend that anyone interested in this issue read the whole thing.

More: If I am arrested and the police can search my phone, do I have to provide the password.

One of the recurring questions I receive involves passwords for cell phones.  The question is:  if I am arrested and the police can search my phone, do I have to provide the password.  I answered the question very briefly on the EDD Blog.


Professor Gershowitz at the University of Houston has written a detailed law review article on this very subject:   “Password Protected? Can a Password Save Your Cell Phone From the Search Incident to Arrest Doctrine? 96 Iowa L. Rev. 1125 (2011).  The online version is here.  In the article he writes that the police "may request or even demand that an arrestee turn over his password without any significant risk of the evidence on the phone being suppressed under the Miranda doctrine or as a Fifth Amendment violation."


Professor Gershowitz is an early expert on the legal implication of smartphones.  His article is worth a read.

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ttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1669403