A Police Officer Just Took My Cellphone: Can He Do That?

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A police officer just took my cellphone:  Can he do that?  The answer is, as it is with all things legal, it depends.

Cell phones seem to be in the news every day now. They have become such a part of the everyday fabric of the lives of the majority of people that we consider them indispensable, as they often contain so much of our personal information and lives.  How could we possibly go for a day without them.  For example, do you know by heart the telephone number of your spouse or partner or child?  If you were arrested and your cellphone taken from you as part of the arrest, would you know by memory the cellphone number of your closest loved one to be able to call that person from the jail to be bailed out?  (That is NOT a hypothetical scenario, Friends!  It happens).  Think also about the hot car death of 22 month old Cooper Harris in Cobb County last year. A search of Dad Justin Ross Harris’s cellphone revealed internet searches for death in a hot car and also revealed Mr. Harris had been texting sexually explicit messages that day to a minor. What appeared to be a tragic honest mistake of forgetting the child was in the car and leaving him in a hot car where he died turned into an arrest for intentional murder of the child, all because of what was found on the dad’s cellphone.

Just last month our very own Eleventh Circuit Court of Appeals ruled that a pair of child pornography defendants abandoned their rights to a phone after they lost it at a store and gave up attempts to retrieve it. United States v. Johnson, No. 14-12143, and United States v. Sparks, No. 14-12075 (11th Cir. Dec. 1, 2015).

The gist of these two companion cases is a woman accidentally leaves her cellphone in a Wal-mart in Florida. When she realizes her mistake, she calls the Wal-mart and  a Wal-mart employee finds the woman’s phone. The employee promises to hold it for her until she can get back to the Wal-mart to pick it up. The customer asks the employee not to turn the phone in to customer service. The employees agree just to hang on to it until it is picked up. For some unknown reason, the customer doesn’t go back to the Wal-mart to retrieve her cellphone for quite a while,  but the customer keeps calling and texting the phone to tell the employee she is coming back to get her phone. In the meantime, the employee looks through the cellphone and discovers hundreds of child pornography photos and calls the police.  The police then, some 23 days later, obtain a warrant to search the phone and arrest the customer and her boyfriend. Both pleaded guilty to production of child pornography under plea agreements that reserved their rights to appeal the denial of the motions to suppress. The woman received a sentence of 30 years in prison, while her boyfriend, who had prior federal child pornography convictions, received a 50-year sentence.  Ouch! I bet they wish they had been a little more careful with their cellphone!

The Eleventh Circuit Court of Appeals held the defendants had “abandoned”their cellphone as of June 7, just 3 days after the phone was seized (even thought the police didn’t get a search warrant for another 20 days).  The majority opinion states it is not suggesting a  “a Fourth Amendment jurisprudence of ‘finders keepers; losers weepers.’  This was a 24 page  2-1 opinion.  Judge Beverly Martin dissented.  “A person may not abandon property for Fourth Amendment purposes by mere loss, carelessness or accident, where he has made reasonable efforts to reclaim the property,” Martin wrote.  Judge Martin concluded that a 23-day delay was too long given that the agent who finally obtained the search warrant justified the delay by noting she had been out of town for training.  Judge Martin thoughtfully wrote:  “I also understand the Majority to equate Mr. Johnson and Ms. Sparks’s purchase of a new phone with abandonment of the old. But we must be mindful of the status cell phones now have as property. They function as “cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Riley v. California, ––– U.S. ––––, ––––, 134 S.Ct. 2473, 2489 (2014). They have “immense storage capacity” and allow people to “collect[ ] in one place many distinct types of information-an address, a note, a prescription, a bank statement, a video.” Id. When Mr. Johnson and Ms. Sparks lost their cell phone, they lost troves of information necessary for navigating modern life. Buying a replacement phone allowed them to begin reaccumulating this information. But getting a new phone does not mean they abandoned their interest in the unique information contained in the lost phone.”  United States v. Sparks, No. 14-12075, 2015 WL 9309809, at *24 (11th Cir. Dec. 1, 2015).

The Eleventh Circuit opinion was a bit surprising given the United States Supreme Court’s decision Riley v. California, 134 S. Ct. 2473 (2014) just a year earlier in which the Supreme Court answered, in the negative, the question: : whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Riley is an extremely interesting read about the 4th Amendment right against unreasonable search and seizure and a citizen’s privacy rights in something as seemingly simple as a cellphone. The decision turns on the readily acceptable reality that a person’s cellphone may actually be a storage device for his or her entire personal life, not just a device to make a call with. Chief Justice Roberts wrote in the majority opinion:  “One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. See Kerr, Foreword: Accounting for Technological Change, 36 Harv. J.L. & Pub. Pol’y 403, 404–405 (2013). Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson.”  Riley v. California, 134 S. Ct. 2473, 2489, 189 L. Ed. 2d 430 (2014).

The Supreme Court studied thoroughly the implications of carrying a cellphone in current day.  “Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. See United States v. Jones, 565 U.S. ––––, ––––, 132 S.Ct. 945, 955, 181 L.Ed.2d 911 (2012) (SOTOMAYOR, J., concurring) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”).

Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life. See Brief for Electronic Privacy Information Center as Amicus Curiae in No. 13–132, p. 9.”  Riley v. California, 134 S. Ct. 2473, 2490, 189 L. Ed. 2d 430 (2014).

In a victory for privacy rights over warrantless searches, the Court held:  “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold *2495 for many Americans “the privacies of life,” Boyd, supra, at 630, 6 S.Ct. 524. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”

So, the Law of the Land as announced by the United States Supreme Court is the police must have a search warrant before searching your cellphone. That is a good thing. It breathes life into the 4th Amendment in this new cellular age.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.