Search and Seizure with cell phones is usually straightforward. Police cannot inspect the contents of your phone without a warrant, with certain exceptions, like and emergency. Such as: A shoots B. The cops arrive 3 minutes after the shooting and use C’s phone to ID the shooter, who was recorded by C.
The U.S. District Court for the Western District of Washington in Seattle ruled that the FBI conducted an illegal search of a defendant’s phone by powering it on to inspect the lock screen, resulting in suppression of information obtained from the search.
Joseph Sam was arrested pursuant to an indictment on conspiracy to commit robbery, robbery, and assault resulting in serious bodily injury. When Sam was arrested, Tulalip Police seized his phone. He was booked into police custody, and his phone was inventoried, including determining whether the phone was locked and attempting to place the phone in airplane mode to prevent remote wiping.
On February 13, 2020, the FBI temporarily obtained Sam’s phone from police inventory, powered it on, and took a photo of the lock screen, which displayed the user’s name as “<<<Streezy.” Sam’s lawyer filed a motion to suppress this evidence as the result of an illegal search.
The Court briefly discussed the governing law, starting with the Fourth Amendment’s prohibition against unreasonable searches and seizures. The Court explained that the “default rule is that a search is unreasonable unless conducted pursuant to a warrant.” Veronica School District 47J v. Acton, 515 U.S. 646 (1995). The Supreme Court has defined “search” in one of two ways: (1) if it physically intrudes on a constitutionally protected area to obtain information (Florida v. Jardines, 569 U.S. 1 (2013)), or (2) if it intrudes on a person’s reasonable expectation of privacy (Carpenter v. United States, 138 S. Ct. 2206 (2018)).
The Court explained that the FBI physically intruded onto Sam’s personal property by powering on the phone to examine the lock screen, and by doing so, the FBI violated the Fourth Amendment’s prohibition against unreasonable searches. The Government claimed this did not constitute a search because Sam had no reasonable expectation of privacy in preventing the examination of his lock screen — indeed, that is what is meant to be seen by anyone who isn’t you when trying to access your phone.
The Court flatly rejected this argument by pointing out the Supreme Court has consistently instructed that “a person’s Fourth Amendment rights do not rise or fall with the Katz [Katz v. United States, 389 U.S. 437 (1967).] formulation….” Rather, “the Katz reasonable-expectations test” is in addition to, not instead of, the traditional property-based test under the Fourth Amendment. Jardines. The Court explained that when the government physically intrudes on constitutionally protected areas, as it did in this case, it’s unnecessary to perform a reasonable expectation of privacy analysis.
Accordingly, the Court ordered suppression of the contents of the lock screen obtained by the FBI. However, the Court also ordered the parties to brief it on the circumstances under which the Tulalip Police Department may have inspected Sam’s phone pursuant to search exceptions established as constitutionally valid without a warrant if conducted incident to an arrest or proper procedures for inventorying a defendant’s property. See: United States v. Sam, 2020 U.S. Dist. LEXIS 87143 (W.D. Wash. 2020).