CELL PHONES, COMPUTERS, EMAIL, GPS, CELL TOWERS The Good, the Bad, the Ugly And ?????

Judith Mizner Federal Defender Office District of Massachusetts

FOURTH AMENDMENT

• The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

CELL PHONES Riley v. California, 134 S.Ct. 2473 (2014)

also United States v. Wurie

9-0 (Alito concurring) Police must generally secure a warrant before conducting search of cell phone seized incident to arrest

IMPACT

• • As of January, 2014 90% U.S. adults own cellphone 42% U.S. adults own tablet computer • FBI arrest statistics for 2012 12,196,959 arrests – excluding citations for traffic violations

• Riley – search of “smart phone” seized incident to arrest officer “went through” phone “looking for evidence” photos, videos obtained

Wurie search of “flip phone”

• Wurie – phone ringing at station “my house” shows up on external screen police open phone press button to access call log press another button to get phone number associated with “my house” trace phone # to apt. building with online phone directory obtain warrant for apt. after securing apt.

REAFFIRM BASIC PRINCIPLES

• • • Fourth Amendment reasonableness generally requires use of warrant Warrant is not merely inconvenience to be weighed against claims of police efficiency In absence of warrant search is reasonable only if falls within specific exception to warrant requirement

SEARCH INCIDENT TO ARREST

• • Recognized exception; debated scope Chimel v. California, 395 U.S. 752 (1969) search of entire house of person arrested inside, including contents of drawers search person and area in immediate control to protect officer safety and preserve evidence

• United States v. Robinson, 414 U.S. 218 (1973) search person and crumpled cigarette pack seized from coat pocket no case by case adjudication required to determine if one of reasons supporting authority to search person incident to arrest is present

• Arizona v. Gant, 556 U.S. 332 (2009) Chimel concerns for officer safety and evidence preservation underlie incident to arrest exception – authorize search of vehicle only when arrestee unsecured and within reaching distance of passenger compartment Add independent exception for search of passenger compartment when reasonable to believe evidence of crime of arrest might be found; circumstances unique to automobile context

APPLICATION TO CELL PHONES

• Modern cell phone “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy”

Creating exception to warrant requirement generally involves: weighing degree to which search intrudes on privacy against degree to which it is needed to promote legitimate governmental interests

DISTINGUISH ROBINSON

• • Robinson’s categorical rule does not translate well from search of physical objects to search of digital data; digital data presents no risk of harm to officers or destruction of evidence Difference in nature of intrusion into privacy

APPLICATION OF CHIMEL

• No risk of harm to officer when search is of digital data rather than physical objects Reject asserted need to search to learn whether confederates might be heading to scene; no evidence to suggest claim based on actual experience Can be addressed through exigent circumstances exception if danger in particular case

• No need for exception to prevent destruction of evidence Once phone secured, def cannot delete Govt argues remote wiping and encryption present danger of destruction of evidence Little reason to believe either prevalent Exigent circumstances if issues present in particular case

Alito’s view

• • • Questioned whether the Chimel rationales for search incident should be the only justifications; include search for evidence Recognized need for new balancing of law enforcement and privacy interests given nature of cell phone Support legislation to draw distinctions based on categories of information or other variables

EXPECTATION OF PRIVACY

• • • Arrest diminishes expectation of privacy but does not eliminate it Cell phone is different from other physical objects To say phone is materially indistinguishable from other physical items “is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”

• • • Cell phones, as category, implicate privacy concerns beyond cigarette pack, wallet, purse Phone is minicomputer; immense storage capacity; can contain vast quantities of personal information; combined data can increase impact of intrusion Element of pervasiveness not present in searching physical records

• Qualitative difference between data on phone and in physical records – Internet search and browsing history disclose private interests and concerns – Reveal historic location information – Apps can form “revealing montage of user’s life” – Cell phone search reveal more than house search

• Added complication data viewed on cell phone may be stored elsewhere and remotely accessed Another reason “privacy interest here dwarf those in Robinson

REJECTION OF FALLBACK POSITIONS

• • • • Court rejects: Importation of Gant standard – permit search where reasonable to believe phone contains evidence of crime of arrest Restricting search to areas of phone where officer reasonably believes find evidence of crime, arrestee’s identity, officer safety Allow search of call log Allow search to extent allow search of pre-digital counterpart

WE HAVE A WARRANT RQUIREMENT NOW WHAT?

• • • • • • Probable cause Particularity/Overbreadth Staleness Scope of search Plain view Search protocols

PROBABLE CAUSE

What is there to say?? Time to challenge the standard again??

In child porn cases – generality is enough use of internet to distribute child porn storage capacity of computers known characteristics of cp collectors conceal sexually explicit images retain indefinitely

• U.S. v. Krupa, 658 F.3d 1174 (9 th Cir.2011) observe image of “suspected contraband” nude 15-17 year-old girl defer to affiant’s expertise in light of suspicious circumstances Dissent

• U.S. v. Schesso, 730 F.3d 1040 (9 th Cir. 2019) time lapse of 20 months from uploading of child porn video to file sharing network from IP address assigned to def and warrant request known characteristics of cp collectors storage capacity of computers

• • Occasional aberration U.S. v. Pavulak, 700 F.3d 651 (3 rd Cir. 2012) others saw def viewing child porn of females 12 – 18 (no further description of images) def had two prior convictions for child molestation

Def had e-mail account reportedly used for viewing child porn and had gone to Philippines No probable cause but rescued by good faith

STALENESS

• • Does it exist in child porn cases??

U.S v. Seiver, 692 F.3d 774 (7th Cir. 2012)

seven months old information re: uploading child pornography not stale

U.S v. Carroll, 750 F.3d 700 (7th Cir. 2014)

five year old information re: digital images on camera not stale

• • Maybe if you get lucky U.S. v. Prideux-Wentz, 543 F.3d 954 (7 th Cir. 2008) Information about uploaded images which could have been at least four years old was stale, but search rescued by good faith

• • Staleness in drug cases U.S. v. Kennedy, 427 F.3d 1136 (8 th Cir. 2005) disgruntled girlfriend’s report that defendant deals in a lot of meth and keeps it underneath a loose speaker in trunk of car Court found this stale notwithstanding present tense given nature of crime under investigation and evidence sought.

ELEMENTS OF PARTICULARITY

Three components of particularity: 1. Identify specific offense for which probable cause established 2. Describe place to be searched 3. Specify items to be seized by relation to designated crimes

CONCERNS OF PARTICULARITY

1. Including enough information to guide and control searching officer’s selection of items to seize 2. Whether category specified is too broad – including items that should not be seized 3. Assure person of lawful authority, need to search, limits of power to search

U.

S. v. Rosa,626 F.3d 56 (2

nd

Cir.

2010) Investigation of sexual abuse by “J” who also allegedly showed boys photos of nude children Warrant for long list of computer equipment, electronic digital storage media, camera systems,notes/records “which would tend to identify criminal conduct” Warrant defective in failing to link items to be searched and seized to child pornography Good faith

U.S. v. Galpin, 720 F.3d 436 (2

nd Cir, 2013) • • Def was sex offender reportedly with young boys visiting overnight warrant to search for, inter alia, various electronic devices and computer/data processing software or data, for evidence substantiating violations of N.Y. penal law statutes, a particular section of N.Y. corrections law statutes requiring sex offenders to register internet identifiers, or federal statutes violated particularity requirement.

U.S. v. Otero, 563 F.3d 1127 (10

th Cir. 2009)

• • Charges arising from theft of mail by postal carrier warrant authorizing search of any and all information and/or data stored on computer or media capable of being read by computer, and any and all electronic devices capable of dealing with computer impulses/data, lacks particularity where not limited to evidence of specific crimes mentioned in other provisions

SCOPE

Search must be limited in scope to that authorized by warrant.

U.S. v. Burgess, 576 F.3d 1078 (10 th Cir. 2009) U.S. v. Carey, 172 F.3d 1268 (10 th Cir. 1999) U.S. v. CDT, 621 F.3d 1166 (9 th Cir.2010) U.S. v. Reeves, 2012 WL 1806164 (D.N.J. 2012)

BURGESS

Warrant to search for records of conspiracy to sell drugs Previewing photos for “trophy photos”, come across image of sexual exploitation of child Obtain second warrant

CAREY

Warrant to search computers for names, telephone numbers, ledger receipts, addresses, other documentary evidence re: sale and distribution controlled substances Key word search; nothing drug related JPG file –child pornography Continued searching without new warrant Search outside scope

CDT

Warrant to search for drug testing records of 10 players Govt seized and reviewed drug testing records of hundreds of players and others Search exceeded scope

REEVES

• • • • Scope encompasses time constraints Warrant to search for records of oyster sales for 2007 Search of records from 2003-2004 beyond scope Court noted govt had used key word searches and could have done the same to limit dates

PLAIN VIEW

Officer lawfully in position to view object seized in plain view Incriminating nature immediately apparent Lawful right of access to object

Items in closed files not in plain view Carey, Stabile,633 F.3d 219 (3 rd Cir. 2011) Items outside scope of warrant not in plain view

Galpin

Can court issuing warrant for computer require that govt not rely on plain view to justify seizure of items viewed during execution of warrant?

CDT

SEARCH PROTOCOLS

Are they necessary given the potential intrusiveness of computer searches and the likely intermingling of data stored electronically?

U.S. v. Bonner, 2013 WL 3829404

(S.D.Cal. 2013)

SUGGESTED PROTOCOLS

1. Initial review and segregation of data to be conducted by computer personnel rather than investigating agents.

2. Material outside scope to be returned 3. Plain view not apply 4. Key word searches first, but what follows??

DOJ Manual on Computer Searches

http://www.justice.gov/criminal/ cybercrime/docs/ssmanual2009.pdf

EMAIL SEARCHES

Applications for search warrants requiring service providers to disclose copies of contents of all emails, instant messages, and chat logs/sessions, draft and deleted documents, and account related information for listed accounts, including address books, contact lists, calendar data, pictures, files

REASONABLE EXPECTATION OF PRIVACY

• • • • U.S. v. Warshak, 631 F.3d 266 (6 th Cir. 2010) reasonable expectation of privacy in e-mails BUT – what is impact of subscriber agreements Stored Communications Act unconstitutional to extent it purports to permit govt to obtain emails without warrant City of Ontario v. Quon, 130 S.Ct. 2619 (2010)

2013 WL 4647554 (D.Kan. 2013)

Govt alleged listed accounts utilized to facilitate transportation of stolen computer equipment Magistrate denied warrant Reasonable expectation of privacy in email communications stored with providers

Proposed warrants: overbroad not limited to specific crimes being investigated No sorting/filtering mechanism for non relevant or privileged communications

2014 WL 945563 (D.D.C. 2014)

Investigation of kickback and conspiracy involving defense contractor Application – boilerplate from DOJ manual But while asks for Apple to provide extensive non-content records, as well as address books, contact lists, pictures and files, says govt will seize emails as well as relevant records and other information.

Application denied; lack of clarity.

Also discussed: overbreadth and lack of particularity need for prescreening to limit disclosure to case agents to items for which there is probable cause

2014 WL 1377793 (D.D.C. 2014)

Renewed application which did not address concerns in previous denial denied

2013 WL 7856600 (D.D.C.2013)

• • • Warrant seeking 16 categories of information from Facebook – all inclusive Court limited disclosure and seizure Required return of records and content produced but not within scope of investigation

GPS AND CELL TOWER LOCATOR SEARCHES

• U.S. v. Jones, 132 S.Ct. 945 (2012) track vehicle via GPS device for 28 days warrantless Installation and use of GPS to track vehicle is a search – trespass theory Concurrences discuss privacy and mosaic theory Putting together many discrete facts works violation of privacy

• • U.S. v. Davis,754 F.3d 1205 (11 th Cir. 2014) En banc review granted warrant to obtain cell site location data is required notwithstanding SCA reasonable expectation of privacy in where you go (unless making it public)

THIRD PARTY DISCLOSURE

• Smith v. Maryland, 442 U.S. 735 (1975) pen register information no legitimate expectation of privacy in dialed telephone numbers rationale - information is in hands of third party U.S. v. Jones- Sotomayor questioning continued relevance