suspect in a vehicle burglary flees the scene and is not able to be identified....however, he leaves a cell phone behind in the burglarized vehicle....officers are unsure whether it is his phone or one from another theft, but are relatively sure it belongs to the suspect and want to look at the contents to help ID the defendant. Do we need a warrant to access the data contained in the phone, or is it abandoned property in which no expectation of privacy exists?
It's in your possession, it's not going anywhere. A warrant is fairly easily obtained, and you can always limit it in schope and then work to a larger scope if you develop more PC. The consequences of getting it wrong, and getting the evidence suppressed are high.
I'm emailing you a warrant I've used in a similar situation, where we had possession of the phone and needed a warrant to actually get into it.
You have a good argument for the phone being abandoned property, stolen property or a tool left behind by a thief.
If it was a wallet, no one would question that you could go through it and identify its owner. Same should be true of a cell phone under those circumstances.
HOWEVER, some courts are beginning to notice some distinctions between a cell phone and a wallet. Your wallet generally does not have a password that must be entered to look through it. The cell phone might have one. Does it? If so, you should consider whether that creates an elevated expectation of privacy that overcomes the above exemptions from the warrant requirement.
Another argument in your favor: if you don't do something to look through the phone, the thief may remotely erase the phone, destroying the evidence. Of course, there are ways to protect against that sort of destruction: turn off the phone or put it into a case that shields against wireless access.
Ultimately, case law is probably going to show more protection of such devices simply because they a) contain more detailed private information than your average purse or wallet and b) use technology to establish more of an interest in privacy through passwords and encryption.
That doesn't necessarily mean law enforcement needs a warrant every time. But it does suggest that the cautious officer will likely seek a warrant unless there is some immediate need for the information or has some immediate concern regarding destruction of the information.
For what it's worth, I've had similar questions come up at least a half-dozen times, and I think that ANY time you've got a question about admissibility AND you've got time to get a warrant, just get a warrant. If you don't, it's almost a certainty there's going to be a motion to suppress, and fighting that will take more time than just getting a warrant in the first place to look on the phone.
During its 12/6/13 conference, SCOTUS will consider whether to grant cert. in 2 cases involving police searches of cellphones. Neither case involves an abandoned phone; instead, each involves a search incident to arrest.
The cases are United States v. Wurie, No. 13-212, and Riley v. California, No. 13-132.
I would agree that a warrant is always best. I worked a similar case in which the cell phone was left behind/abandoned. Using the info from the phone, I identified the suspect, and during the interview, he claimed that his phone had been stolen from him. The DA working the case stated that at the point where he claimed it was stolen, he had a reasonable expectation of privacy, and that a warrant was needed to legally obtain the info that I had already obtained. Two years after the phone was recovered, a warrant was obtained.
Looks like the Supreme Court wanted to send a clear message to law enforcement. Eight justices joined in the opinion disallowing searches of cell phones incident to arrest (and one justice wrote a concurring opinion).
Rather than sending out a memo like I did after Granville, I am doing a training for our officers to talk about Granville, Riley and some other important search cases. If anyone who is planning on doing the same would like to share some power point slides your help would be greatly appreciated. ecarcerano (at) co.chambers.tx.us
Posts: 118 | Location: Chambers County Texas | Registered: March 03, 2003