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CELL PHONES, COMPUTERS, EMAIL, GPS, CELL TOWERS. The Good, the Bad, the Ugly And ????? Judith Mizner Federal Defender Office District of Massachusetts. FOURTH AMENDMENT.

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cell phones computers email gps cell towers
CELL PHONES, COMPUTERS, EMAIL, GPS, CELL TOWERS

The Good, the Bad, the Ugly

And

?????

Judith Mizner

Federal Defender Office

District of Massachusetts

fourth amendment
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
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
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
slide5

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

slide7

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
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
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

slide10

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

slide11

Arizona v. Gant, 556 U.S. 332 (2009)

Chimelconcerns 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
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”

slide13

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
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
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

slide16

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
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
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.”
slide19

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
slide20

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
slide21

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
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
WE HAVE A WARRANT RQUIREMENTNOW WHAT?
  • Probable cause
  • Particularity/Overbreadth
  • Staleness
  • Scope of search
  • Plain view
  • Search protocols
probable cause
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

slide25

U.S. v. Krupa, 658 F.3d 1174 (9th Cir.2011)

observe image of “suspected contraband”

nude 15-17 year-old girl

defer to affiant’s expertise in light of suspicious circumstances

Dissent

slide26

U.S. v. Schesso, 730 F.3d 1040 (9th 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

slide27

Occasional aberration

  • U.S. v. Pavulak, 700 F.3d 651 (3rd 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

slide28

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
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
slide30

Maybe if you get lucky

  • U.S. v. Prideux-Wentz,

543 F.3d 954 (7th Cir. 2008)

Information about uploaded images which could have been at least four years old was stale, but search rescued by good faith

slide31

Staleness in drug cases

  • U.S. v. Kennedy, 427 F.3d 1136 (8th 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
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
CONCERNS OF PARTICULARITY

1. Including enough information to guide and control searching officer’s selection of items to seize

  • Whether category specified is too broad – including items that should not be seized
  • 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
U. S. v. Rosa,626 F.3d 56 (2nd 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
U.S. v. Galpin, 720 F.3d 436 (2nd 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
U.S. v. Otero, 563 F.3d 1127 (10th 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
SCOPE

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

U.S. v. Burgess, 576 F.3d 1078

(10th Cir. 2009)

U.S. v. Carey, 172 F.3d 1268 (10th Cir. 1999)

U.S. v. CDT, 621 F.3d 1166 (9th Cir.2010)

U.S. v. Reeves, 2012 WL 1806164 (D.N.J. 2012)

burgess
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
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

slide40
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
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
PLAIN VIEW

Officer lawfully in position to view object seized in plain view

Incriminating nature immediately apparent

Lawful right of access to object

slide43

Items in closed files not in plain view

Carey, Stabile,633 F.3d 219 (3rd 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
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
SUGGESTED PROTOCOLS
  • Initial review and segregation of data to be conducted by computer personnel rather than investigating agents.
  • Material outside scope to be returned
  • Plain view not apply

4. Key word searches first, but what follows??

doj manual on computer searches
DOJ Manual on Computer Searches

http://www.justice.gov/criminal/

cybercrime/docs/ssmanual2009.pdf

email searches
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
REASONABLE EXPECTATION OF PRIVACY
  • U.S. v. Warshak, 631 F.3d 266 (6th 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
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

slide50

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
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.

slide52

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
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
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
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

slide56

U.S. v. Davis,754 F.3d 1205 (11th 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
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

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